THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 67099/01 by Viktor Vitalyevich SOLODYUK

and Yelizaveta Nikolayevna SOLODYUK

against Russia

The European Court of Human Rights ( Third Section) , sitting on 3 June 2004 as a Chamber composed of:

Mr G. Ress , President , Mr I. Cabral Barreto , Mr L. Caflisch , Mr R. Türmen , Mr K. Traja , Mr A. Kovler , Mrs A. Gyulumyan, judges ,

and Mr M . Villiger , Deputy Section Registrar ,

Having regard to the above application lodged on 22 February 2001,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

The applicants, Mr Viktor Vitalyevich Solodyuk and his wife Mrs Yelizaveta Nikolayevna Solodyuk, are Russian nationals, who were born in 1936 and 1937 respectively and live in Donetsk in the Rostov Region. The respondent Government were represented by Mr P. A. Laptev, the representative of the Russian Federation at the European Court of Human Rights.

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

The applicants receive old-age pensions. By Article 120 of the State Pensions Act 1990, pensions are payable in the month for which they are due. From June to December 1998 and from January to April 1999 the applicants received their pensions, totalling approximately 439 and 355 Russian Roubles (RUR) per month, several months in arrears. Namely, the pensions due for June 1998 were paid on 14 August 1998; for July 1998 on 6 November 1998; for August 1998 on 14 December 1998; for September 1998 on 15 January 1999; for October 1998 on 9 February 1999; for November 1998 on 1 March 1999; for December 1998 on 25 March 1999; for January 1999 on 16 April 1999; for February 1999 on 18 June 1999; for March 1999 on 26 July 1999 and for April 1999 on 27 August 1999. According to the applicants, inflation and a devaluation of the Russian Rouble during this period meant that pensions paid several months in arrears had lost a significant part of their value by the time they were paid. According to the information of the Donetsk Town Department of the State Statistics obtained by the applicants, inflation as compared with the previous month ran at 2.7% in August 1998, 37.3% in September 1998, 4.4% in October 1998, 4.8% in November 1998, 10.2% in December 1998, 8.8% in January 1999, 5.9% in February 1999, 3.4% in March 1999 and 3.8% in April 1999. According to the information of the Central Bank of the Russian Federation, the official exchange rate of the Russian Rouble to the US Dollar was approximately 6.2 in June - August 1998, 9.3 in September 1998, 15.8 in October and November 1998, 17.9 in December 1998, 20.7 in January 1998, 22.8 in February 1999, 22.9 in March 1999 and 24.2 in April 1999.

In December 1999 the applicants lodged an action for damages in respect of the delays in payment of their pensions with the Donetsk Town Court. In particular, they claimed index ‑ linking of their pensions in line with inflation. The action was lodged against the Pension Fund which was in charge of the financing of pension payments. On 26 January 2000 the court refused to entertain the action on the ground that it had been lodged against the wrong respondent.

In February 2000 the applicants lodged an analogous action against the Social Security Authority, which was responsible for the calculation of pensions. During the proceedings, the Social Security Authority claimed that the proper respondent in the case was the Pension Fund and not the Authority. The court rejected this claim.

On 18 July 2000 the court dismissed the applicants' action against the Social Security Authority. The court confirmed that the delays in payment of the pensions had taken place but established no fault by the Social Security Authority which had calculated the pensions in time. The court found that the pensions had been paid late because the Pension Fund had failed to finance the payments. The court considered that the applicants had failed to substantiate their claims in respect of damage allegedly sustained as a result of the delays.

The applicants appealed.

On 13 September 2000 the Rostov Regional Court rejected the applicants' appeal. The appeal court stated that the delays were not the fault of the Social Security Authority because it only made payments upon receipt of funds from the Pension Fund, which delayed the transfer of appropriate funds to the respondent.

Subsequently, the applicants unsuccessfully tried to have the above proceedings re ‑ examined by way of supervisory review. On 13 April 2001 the Rostov Regional Court refused to reopen the proceedings.

B. Relevant domestic law

1. Pension payments

Old-age pensioners are paid their pensions on the basis of the State Pensions Act of 1990.

Pursuant to the Act, the State Pension Fund is responsible for the financing of the payment of pensions. It derives resources from contributions of employers, citizens, and from State budgetary assignations. Pensions are granted and calculated by the Social Security Authority. Pensions are payable in the month for which they are due.

According to Article 123 of the Act, where pension debts form as a result of the State's failure to pay pensions, they remain due irrespective of their age.

Pensions are increased four times a year in line with the increase of average salary determined by the Government based on the state statistics data.

2. Supervisory review as a transitional remedy

On 1 February 2003 the new Code of Civil Procedure of the Russian Federation entered into force. Chapter 41 established a new procedure for the supervisory review of courts' decisions that have already entered into legal force.

According to a general rule in Article 376 § 2 of the Code, an application for supervisory review can be filed with a competent court within one year after the contested decision entered into legal force.

The Decree of the Plenum of the Supreme Court of 20 January 2003 on certain issues concerning the introduction of the Code on Civil Procedure provided that, in respect of courts' decisions made before 1 February 2003, the period for filing an application for supervisory review of such decisions is calculated from 1 February 2003.

COMPLAINTS

The applicants complained under Article 1 of Protocol No. 1 that the State failed to pay their pensions in time, that no damages could be obtained in this connection in court and that the domestic law did not provide for compensation for the delay in pension payments. In respect of the impossibility to claim damages they also relied on Article 6 of the Convention.

THE LAW

1. The applicants complained about delays in the payment of their pensions and the impossibility to claim damages in this connection. They relied on Article 1 of Protocol No. 1 which reads as follows:

“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.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

The Government submitted first that the delays in payment of pensions to the applicants cannot be considered as a violation of the applicants' property rights because Article 123 of the State Pensions Act of 1990 provides that overdue pensions can be paid at any time. Secondly, as to the applicants' claim that delayed pensions should have been increased to take account of inflation, the Government noted that state pensions were increased four times a year in line with the increase of average salary determined by the Government based on the state statistics data. No other index ‑ linking of state pensions, including by a court decision, is possible.

The applicants argued that the delays in payment of their pensions took place during a time of rapid inflation and devaluation of the Russian Rouble, which significantly reduced the purchasing power of the pension. They contended that Article 123 of the State Pensions Act did not legalize the delay in pension payments but merely provided for the payment of pensions in arrears regardless of the period in arrears.

The Court considers, in the light of the parties' submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

2. The applicants further complained under Article 6 of the Convention about the impossibility to claim damages for the delays in payment of their pensions. Article 6, in so far as relevant, provides as follows:

“1. In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal ... . ...”

The Government pointed out that the applicants did not avail themselves of the right to lodge an application for supervisory review of the case according to Article 376 of the Code on Civil Procedure of 2002, as well as of the right of petition to the prosecutor's office, which supervised the enforcement of law. The delayed pensions were eventually paid to the applicants. At present pensions are paid in time. Based on the above considerations, the Government concluded that the complaint should be rejected as manifestly ill-founded.

The applicants submitted that the fact that they did not apply to supervisory review courts and the prosecutor's office was not relevant to the issue of admissibility of their complaint.

In so far as the Government's submission can be understood as implying the applicants' failure to exhaust domestic remedies, the Court notes that at the time the judgment in the applicants' case was upheld on appeal there were no effective remedies against it (see Tumilovich v. Russia (dec.), no. 47033/99, 22 June 1999). It was only by virtue of the introduction of a new transitional remedy provided for by the decree of the plenum of the Supreme Court of Russia concerning introduction of the Code on Civil Procedure of 2002 that the applicants were able to challenge, by way of supervisory review under the said new Code, the decisions taken in their case. Such a new avenue of appeal cannot be considered as an effective remedy within the meaning of Article 35 § 1 of the Convention (see AO “Uralmash” v. Russia (dec.), no. 13338/03, 4 September 2003). The Court therefore rejects this argument.

As regards the Government's argument that the applicants could have complained to the prosecutor's office, the Court, similarly, is not persuaded that such an appeal could have constituted an effective remedy for the applicants' complaint about the impossibility to claim damages for the delays in payment of their pensions, given the discretionary nature of the prosecutors' powers . In any event, an applicant is not required to try more than one avenue of redress when there are several available (see, for example, Airey v. Ireland , judgment of 9 October 1979, Series A no. 32, p. 12, § 23). The Court rejects this argument too. As to the Government's arguments that the delayed pensions were eventually paid and that there are no delays at present, the Court considers that they are irrelevant to the complaint at issue.

The Court considers, in the light of the parties' submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

For these reasons, the Court unanimously

Declares the application admissible, without prejudging the merits of the case.

Mark Villiger Georg Ress              Deputy Registrar President