THIRD SECTION

CASE OF KABARDOKOV AND OTHERS v. RUSSIA

(Applications nos. 11421/13 and 22 others - see appended list)

JUDGMENT

STRASBOURG

7 November 2017

This judgment is final but it may be subject to editorial revision.

In the case of Kabardokov and Others v. Russia,

The European Court of Human Rights (Third Section), sitting as a Committee composed of:

 Luis López Guerra, President,
 Dmitry Dedov,
 Jolien Schukking, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having deliberated in private on 10 October 2017,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1.  The case originated in 23 applications (nos. 11421/13, 15459/13, 15625/13, 15651/13, 18295/13, 19142/13, 19156/13, 19161/13, 19398/13, 19408/13, 19549/13, 19687/13, 19697/13, 19722/13, 22925/13, 22935/13, 22953/13, 23006/13, 23109/13, 23135/13, 23145/13, 26466/13 and 58066/13) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by one hundred sixty-three Russian nationals. The applicants’ details appear in the Appendix.

2.  The Russian Government (“the Government”) were represented initially by Mr G. Matyushkin, the Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.

3.  On 27 August and 28 August 2014 the applications were communicated to the Government.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

4.  Between 1986 and 1987 the applicants took part in the clean-up operation at the Chernobyl nuclear disaster site. They were subsequently registered disabled and became entitled to various social benefits and compensation paid on a regular basis.

5.  Considering these benefits insufficient, the applicants together with other 482 people, sued the Russian Ministry of Finance for additional compensation corresponding to non-pecuniary damage suffered as a result of their participation in the operation.

6.  On different dates in January and April 2011 the Nalchik Town Court of Kabardino-Balkaria (“the Town Court”) allowed their claims in part and awarded each claimant, including the applicants, compensation ranging between 1,100,000 Russian roubles (RUB) and RUB 1,800,000 for non‑pecuniary damage.

7.  No appeals were lodged against these judgments within the statutory ten-day time-limit. The judgments became final. Some judgments in respect of several applicants remained unenforced (see “Enforcement status” in the Appendix).

8.  On different dates in 2012 and 2013 the domestic courts granted the defendant authority’s request to extend the time-limit for appeal essentially on the ground that the defendant authority had not been served with the impugned judgments. Subsequently the regional Supreme Court quashed the judgments delivered in the applicants’ favour on the grounds that they had been based on retrospective application of the law. The applicants were ordered to repay the sums received under the judgments.

9.  The applicants lodged a supervisory review application. There is no indication that they requested the enforcement proceedings to be suspended pending the examination of their supervisory review application.

10.  Between June and August 2013 the Presidium of the regional Supreme Court partially quashed the appeal judgments as regards the applicants’ obligation to reimburse the sums paid.             

II.  RELEVANT DOMESTIC LAW

11.  The relevant domestic law and practice governing the restoration of the time-limits for appeal is summed up in the Court’s judgment in the case of Magomedov and Others v. Russia (nos. 33636/09 and 9 others, §§ 35-43, 28 March 2017).

THE LAW

I.  JOINDER OF THE APPLICATIONS

12.  In accordance with Rule 42 § 1 of the Rules of the Court, the Court decides to consider the applications in a single judgment, given their similar factual and legal background (see Kazakevich and 9 other “Army Pensioners” cases v. Russia, nos. 14290/03 and 9 others, § 15, 14 January 2010).

II.  STRIKING PARTS OF THE APPLICATIONS OUT OF THE LIST OF CASES

13.  The Court notes that in their submissions of various dates in 2015 some of the applicants’ representatives informed the Court that the applicants either did not intend to pursue their applications before the Court, or that they failed to maintain contact with the representatives concerning the proceedings before the Court.

14.  Article 37 § 1 of the Convention, in its relevant part, reads:

“1.  The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that

(a)  the applicant does not intend to pursue his application; or ...

...

(c)  ... it is no longer justified to continue the examination of the application ...”

15.  On different dates indicated in the appendix (see ”Strike out warnings” in the Appendix) the applicants were notified that the period allowed for submission of their comments and just satisfaction claims had expired and that no extension of time had been requested. The applicants’ attention was drawn to Article 37 § 1 (a) of the Convention, which provides that the Court may strike a case out of its list of cases where the circumstances lead to the conclusion that the applicant does not intend to pursue the application.

16.  No response has been received from the applicants, who have not contacted the Court ever since.

17.  The Court considers that, in these circumstances, the applicants may be regarded as no longer wishing to pursue their applications, within the meaning of Article 37 § 1 (a) of the Convention. Furthermore, in accordance with Article 37 § 1 in fine, the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the continued examination of the applications.

18.  In view of the above, it is appropriate to strike the applications in respect of the applicants indicated in the appendix (see “Strike out” in the Appendix) out of the list.

III.  LOCUS STANDI AS REGARDS THE APPLICATIONS Nos. 15651/13, 19156/13, 19408/13, 19687/13, 19722/13 AND 23006/13

19.  The Court notes that Ms M. Arkhipova, Ms O. Lopatina, Ms M. Kazbekova, Ms Z. Nastuyeva, Ms L. Neyevina, Ms L. Finogenova, Ms R. Shiklyasheva, and Ms M. Yermolova expressed a wish to continue proceedings in respect of their deceased relatives.

A.  The parties’ submissions

20.  With reference to the case of Belskiy v. Russia ((dec.), no. 23593/03, 26 November 2009) the Government submitted that the relatives of the deceased applicants had neither been involved in the domestic proceedings either before or after the applicants’ death nor applied for legal succession in those proceedings. The award in the applicants’ favour was made by the domestic courts in respect of compensation for health damage which under the domestic law was of personal non-transferrable nature and did not provide for legal succession of the right to compensation. Therefore, the applicants’ relatives did not inherit the right to claim the judgment debt. Furthermore, in respect of some of the applicants the judgments had been annulled and thus no compensation debt existed at the moment of the applicants’ death. Therefore, the relevant applications should be struck out of the Court’s list of cases pursuant to Article 37 § 1 (c) of the Convention.

21.  The applicants did not comment on the Government’s submission.

B.  The Court’s assessment

22.  As to Article 1 of Protocol No. 1 to the Convention, the Court notes that it has previously recognised the right of the relatives of the deceased applicants to pursue the application concerning social payments due to their close relatives but not received in their lifetimes (see Streltsov and other “Novocherkassk military pensioners” cases v. Russia, nos. 8549/06 and 86 others, § 37, 29 July 2010, and Nosov and Others v. Russia, nos. 9117/04 and 10441/04, §§ 29-30, 20 February 2014). However, unlike the Streltsov and other “Novocherkassk military pensioners” cases (cited above), the present applications concern non-pecuniary compensations for health damage, which was a sole instantaneous act closely linked to the victims. Moreover the relatives of the late applicants failed to submit any evidence in respect of the acceptance of the late applicants’ inheritance. Having regard to the above mentioned circumstances, the Court considers that there is nothing in the cases at hand to conclude that the late applicants’ relatives have standing to continue proceedings.

23.  As regards the applicants’ complaint under Article 6 of the Convention, the Court notes, that in the applications at hand the restoration of time-limit for appeal was closely related to the principle of legal certainty and of the “right to a court” (see, for instance, Sobelin and Others v. Russia, nos. 30672/03 and 11 others, § 67, 3 May 2007). However, since the restoration of the time-limit under Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention are closely interrelated, and considering that it has already rejected the relatives’ standing as regards the complaint under the latter provision of the Convention (see the paragraph above), the Court does not consider it necessary to draw a distinction between two aspects of the restoration of time-limit procedure for the purposes of determination of the standing issue.

24.  Accordingly, the Court finds that Ms M. Arkhipova, Ms M. Kazbekova, Ms Z. Nastuyeva, Ms O. Lopatina, Ms L. Finogenova, Ms R. Shiklyasheva, Ms L. Neyevina and Ms M. Yermolova do not have a legitimate interest in pursuing the proceedings before the Court in the late applicants’ stead.

25.  The Court does not consider that “respect for human rights, as defined in the Convention and the Protocols” requires the examination of these applications, despite the applicants’ death.

26.  In these circumstances the Court considers that it is no longer justified to continue the examination of the applications in part of the above mentioned applicants and concludes, under Article 37 § 1 (c) of the Convention, that they should be struck out of its list of cases.

IV.  ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

27.  The applicants complained that the unlawful extension of the time‑limit for appeal granted by the domestic courts following the defendant authority’s request had resulted in the judgments in their favour being quashed, which consequently constituted a violation of their right to a court. They relied on Article 6 § 1 of the Convention which, in so far as relevant, read as follows:

Article 6 § 1

“1.  In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”

A.  Admissibility

28.  The Government submitted from the outset that the domestic judgments in respect of some applicants had been executed in full prior to being quashed and they were not required to reimburse them afterwards (see “Enforcement status” in the Appendix). Consequently, the Government considered that the applicants had not suffered any significant disadvantage as a result of the domestic judgments in their favour being quashed.

29.  The applicants maintained their claims.

30.  Article 35 of the Convention provides as follows:

“3.  The Court shall declare inadmissible any individual application submitted under Article 34 if it considers that:

...

(b)  the applicant has not suffered a significant disadvantage, unless respect for human rights as defined in the Convention and the Protocols thereto requires an examination of the application on the merits and provided that no case may be rejected on this ground which has not been duly considered by a domestic tribunal.”

31.  The Court notes at the outset that it has already addressed similar issue in the identical case Samoylenko and Others v. Russia (dec.) (nos. 58068/13 and 3 others, 7 March 2017). It thus does not see any ground to depart from the findings in that case.

32.  The Court notes that the main aspect of this criterion is whether the applicant has suffered any significant disadvantage. The absence of any such disadvantage can be based on criteria such as the financial impact of the matter in dispute or the importance of the case for the applicant (see Adrian Mihai Ionescu v. Romania (dec.), no. 36659/04, § 33, 1 June 2010, with further references).

33.  In the present case, the applicants do not dispute that the payments due under the initial judgments were made to them in full. Although these judgments were subsequently quashed, the domestic courts ruled that the applicants could not be required to repay the sums paid (see paragraph 10 above). Consequently, the financial implications of the proceedings could not present any particular hardship for the applicants.

34.  As regards their claim that they had suffered distress on account of the enforcement proceedings, the Court observes that the judgments in their favour were quashed by the regional Supreme Court, which also ordered the reversal of the awards paid. The applicants then lodged a supervisory review application with the Presidium of the same court. It was open to them and their lawyers to request while lodging their supervisory review application that the enforcement proceedings be stayed (see paragraph 9 above). They could thus have avoided exposing themselves to the risk of having bailiffs attempt to seize their property pending the examination of their supervisory review application. They however failed to do so.

35.  In these circumstances, the Court finds that the applicants did not suffer any “significant disadvantage”.

36.  As to the question whether respect for human rights as defined in the Convention and the Protocols thereto requires an examination of the application on the merits, the Court points out that it has already held that respect for human rights does not require it to continue the examination of an application when, for example, the relevant law has changed and similar issues have been resolved in other cases before it (see Léger v. France (striking out) [GC], no. 19324/02, § 51, 30 March 2009).

37.  The present case raises a problem of an unjustified extension of the time-limits for appeal resulting in a final judgment in the applicants’ favour being quashed, an issue which has already been addressed by the Court on several occasions, including in a case against Russia (see Magomedov and Others, cited above, §§ 98-101). The examination of these applications on the merits would not bring any new elements to the Court’s existing case-law (see Burov v. Moldova (dec.), no. 38875/03, § 33, 14 June 2011, and, by contrast, Mikhaylova v. Russia, no. 46998/08, § 49, 19 November 2015).

38.  The Court therefore concludes that respect for human rights as defined in the Convention and its Protocols does not require an examination of the applications on the merits.

39.  Lastly, as regards the third condition of this inadmissibility criterion, namely that the case must have been “duly considered” by a domestic tribunal, the Court notes that the applicants’ case was subject to several rounds of domestic proceedings. The applicants were present at each hearing and were therefore able to submit their arguments in adversarial proceedings.

40.  The three conditions of the inadmissibility criterion having therefore been satisfied, the Court finds that the applications must be declared inadmissible under Article 35 §§ 3 (b) and 4 of the Convention.

41.  As regards the applications where the judgements in the applicants’ favour remained unenforced or the enforcement had been reversed and the paid amounts had been restored (see “Enforcement status” in the Appendix), the Court notes that the applicants’ complaints are not manifestly ill‑founded within the meaning of Article 35 § 3 of the Convention. It also notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.

B.  Merits

42.  The Government considered that the present cases were similar to those previously examined by the Court and in which it did not find a violation of Article 6 (see, for instance, Tolstobrov v. Russia, no. 11612/05, 4 March 2010, and Protsenko v. Russia, no. 13151/04, 31 July 2008). They referred to the reasons stated by the Ministry of finance in its request for the reinstatement of the time-limit for appeal, namely that it had never been notified about the proceedings and the judgments delivered against it and was thus deprived of the possibility to lodge an appeal in due time. It is established and not disputed by the parties that a copy of the judgments had never been notified to the Ministry of finance or given to its representatives.

43.  The applicants maintained their claims.

44.  The Court reiterates that the existence of reasons capable of justifying a departure from the principle of legal certainty, even where they are established, is not in itself sufficient to conclude to the absence of a violation of Article 6 of the Convention. Another important factor should be taken into account, that is the time elapsed from the moment when the person requesting the extension of the time-limits became aware that a judgment was delivered against him. Since the extension of the time-limits for appeal constitutes an interference with the principle of res judicata, a person requesting such an extension should act with sufficient diligence, that is without delay from the moment when he became aware, or ought to have become aware, of the judgment subject to appeal (Magomedov and Others, cited above, § 89, with further references).

45.  Turning to the circumstances of the present case, the Court recalls that it had already had an opportunity to examine the domestic proceedings complained of in the present case in its Magomedov and Others judgment (cited above), where it found a violation of Article 6 of the Convention on account of the domestic courts’ failure to examine when the Ministry became aware or “ought to have become aware” of the adoption of the judgments against it, in particular in view of a significant lapse of time between the delivery of those judgments and the introduction by the Ministry of its out-of-time appeals (Magomedov and Others, cited above, §§ 98-101). The Court does not see any reason to reach a different conclusion in the present case.

46.  There has accordingly been a violation of Article 6 of the Convention.

V.  ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION

47.  Invoking Article 1 of Protocol No. 1 to the Convention, cited above, the applicants further complained about violation of their right to the peaceful enjoyment of their possessions relying on the same facts. The relevant part of the aforementioned Article read as follows:

Article 1 of Protocol No. 1

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.”

48.  Having regard to its conclusion under Article 6 § 1 of the Convention, the Court considers that there is no need to consider either the admissibility or the merits of the complaint submitted by the applicants under Article 1 of Protocol No. 1 to the Convention (see Magomedov and Others, cited above, § 103, with numerous further references).

VI.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

49.  Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A.  Damage

50.  The applicants claimed full amounts awarded by the domestic courts.

51.  The Government argued that no award should be made to the applicants, since they either lost their victim status or their Convention rights had not been violated.

52.  The Court reiterates its finding that there had been a violation of Article 6 § 1 of the Convention on account of the interference with the principle of legal certainty. As regards the applicants’ claim for pecuniary damage, the Court does not see a causal link between the violation found and the alleged pecuniary damage and rejects those claims. Moreover, it considers that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage which may have been suffered by the applicants.

B.  Costs and expenses

53.  Some of the applicants also claimed various amounts in respect of the costs and expenses.

54.  The Government contested that amount, stating in particular that no evidence was provided by the applicants in support of their claim.

55.  According to the case-law of the Court, an applicant can only be reimbursed for his costs and expenses in so far as their reality, necessity and reasonableness are established. In the present case, having regard to the documents before it and having regard to the findings of violations to which it has been subjected, the Court dismisses the claim for costs and expenses.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.  Decides to join the applications;

2.  Decides to strike the applications in part of the applicants indicated in the Appendix out of its list of cases;

3.  Declares the applications in part of the applicants who did not receive the domestic courts’ awards admissible and the remainder of the applications inadmissible;

4.  Holds that there has been a violation of Article 6 of the Convention;

5.  Holds that it is not necessary to consider separately the admissibility and the merits of the complaints under Article 1 of Protocol No. 1 to the Convention;

6.  Holds that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicants;

7.  Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 7 November 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Fatoş Aracı Luis López Guerra
Deputy Registrar President

APPENDIX