FIRST SECTION

CASE OF NIKOLAY ZHUKOV v. RUSSIA

( Application no. 560/02 )

JUDGMENT

STRASBOURG

5 July 2007

FINAL

31/03/2008

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to edito rial revision.

In the case of Nikolay Zhukov v. Russia ,

The European Court of Human Rights (First Section) , sitting as a Chamber composed of:

Mr C.L. Rozakis , President, Mr L. Loucaides , Mrs N. Vajić , Mr A. Kovler , Mr K. Hajiyev , Mr D. Spielmann , Mr S.E. Jebens , judges, and Mr S. Nielsen , Section Registrar ,

Having deliberated in private on 14 June 2007 ,

Delivers the following judgment, which was adopted on th at date:

PROCEDURE

1 . The case originated in an application (no. 560/02) 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 a Russian national, Mr Nikolay Vasilyevich Zhukov (“the applicant”), on 28 November 2001 .

2 . The applicant was represented by Mr I. V. Novikov , a lawyer practising in Novosibirsk . The Russian Government (“the Government”) were represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights.

3 . The applicant alleged , in particular, that the domestic judicial authorities had reconsidered a judgment given in h is favour having improperly used the procedure for reconsidering judgments on the basis of newly discovered circumstances .

4 . By a decision of 17 November 2005 the Court declared the application admissible.

5 . The Government, but not the applicant, filed further written observations (Rule 59 § 1). The Chamber having decided, after consulting the parties, that no hearing on the merits was required (Rule 59 § 3 in fine ), the applicant replied in writing to the Government ' s observations.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

6 . The applicant was born in 1928 and lives in Novosibirsk .

7 . The applicant receives an old-age pension. The Law of 21 July 1997 on the Calcula t ion and Upgrading of State Pensions (“the Pensions Act ”) introduced, from 1 February 1998 onwards , a new method for calculating pensions. Th e idea behind th is method, based on what is known as an “ individual pensioner c oefficient ” , was to link the pension to the pensioner ' s previous ear n ings.

8 . The authority in charge of the applicant ' s pension, the Pension Fund Agency of the Sovetskiy District of Novosibirsk (“the Agency”) , fi xed the applicant ' s coefficient at 0.525. The applicant challenged the A gency ' s decision in the Sovetskiy District Court of Novosibirsk. He argued that his coefficient should be 0.7.

9 . On 26 August 1999 the District Court found for the applicant , considering that the A gency had mi s interpreted the Pensions Act . In particular , it held as follows:

“ ... the vague wording of the Article [ Article 4 of the 1997 Pensions Act ] permits the law to be interpreted in two ways, and this has resulted in the un found ed reduction of calculated pensions and in pensioners ' complaints.”

The District Court decided that the Agency was to recalculate the applicant ' s pension using a coefficient of 0.7 from 1 February 1998.

10 . The A gency appealed against the judgment. On 11 November 1999 the Novosibirsk Regional Court upheld the judgment, which became en force able on the same day. The judgment was never executed.

11 . On 29 December 1999 the Ministry of Labour and Social Development (“the Ministry”) issued an Instruction on the “ Application of Limitations ” e stablished by the Pensions Act (“ the Instruction”) . The I nstruction clarified how to apply the Pensions Act .

12 . On 24 January 2000 t he A gency lodged an application with the District Court for the re consideration of the appl i cant ' s case owing to newly discovered circumstances . They asked the court to take account of the Instruction , which supported their arguments that had been rejected by the court during the initial examination of the case. They pointed out that the Ministry was empowered to give an official interpretation of laws.

13 . Some time thereafter a group of individuals challenged the Instruction before the Supreme Court of the Russian Federation . On 24 April 2000 the Supreme Court dismissed the complaint. It found that , contrary to what the complainants had suggested , the Ministry of Labour had not acted ultra vires in issu ing the Instruction, and that the Ministry ' s interpretation of the Pensions Act had been correct. On 25 May 2000 the Cassation Division of the Supreme Court upheld this judgment on appeal.

14 . From 1 August 2000 , following changes to the pension regulations , the applicant ' s pension was calculated based on a coefficient of 0.7125. After 1 May 2001 the coefficient was fixed at 0.9.

15 . On 6 June 2001 the District Court examined the A gency ' s request. The A gency submitted at the hearing that the Instruction had been upheld by the Supreme Court. The applicant argued that the Instruction was subordinate to the Pensions Act , that it was not a newly discovered circumstance and that the A gency had missed the statutory time - limit for requesting the re consideration .

16 . The District Court noted that the Instruction had been issued after the judgment in the case had become en force able , that the Pensions Act itself had not changed and that the Instruction had been required because of the “different interpretation of the [Pensions] Act ' s provisions by claimants , official s and the RF Pension Fund” . The court further noted that the Instruction had been upheld by the Supreme Court. It held as follows:

“When delivering its judgment on 26 August 1999 the court interpreted the provisions of the [Pensions] Act on its own. The newly discovered circumstances in this case are the official interpretation of the [Pensions] Act in the Instruction of the RF Ministry of Labour and the case-law of the RF Supreme Court”.

The court noted that the A gency ' s application had reached the court on 24 January 2000 and that , therefore, it was not time barred.

17 . In a decision of 6 June 2001 the District Court granted the A gency ' s application , under Article 337 of th e Code of Civil Procedure, quashed the judgment of 26 August 1999, as upheld on 11 November 1999, and ordered a fresh examination of the case. It stated that its decision was final and not subject to appeal.

18 . A s a result of the fresh examination of the case the District Court delivered a judgment of 21 June 2001 in which it relied on the Instruction and rejected the applicant ' s claims in full . The applicant appealed on the grounds , inter alia , that the court had unlawfully reopened the case and quashed the judgment of 26 August 1999. On 11 September 2001 the Novosibirsk R e gional Court dismissed the applicant ' s appeal and upheld the judgment of 21 June 2001.

II. RELE VANT DOMESTIC LAW AND PRACTICE

19 . The Code of Civil Procedure of 1964 (“ CCivP ”) , in force at the material time , provided as follows :

Article 333. Grounds for reconsider ation

“[Judgments] which have come into force may be reconsider ed on the basis of newly discovered circumstances. The grounds for reconsider ation ... shall be as follows :

1. significant circumstances which were not and could not have been known to the party who applies for reconsider ation; ...

4. cancellation of a court [judgment] or of another authority ' s decision which served as legal basis for the [judgment] in question.”

Article 334. Lodging of application

“ ... [An application for reconsider ation of a [judgment] owing to newly discovered circumstances ] shall be lodged within three months after the discovery of the circumstances.”

Article 33 7 . Court decision on reconsider ation of a case

“After examination of an application for reconsider ation of a [judgment] owing to newly discovered circumstances , the court may either grant the application and quash the [judgment], or dismiss the application.

The court decision by which an application for reconsider ation of a [judgment] owing to newly discovered circumstances is granted shall not be subject to appeal. ...”

20 . On 2 February 1996 the Constitutional Court of the Russian Federation adopted a ruling concerning certain provisions of the Code of Criminal Procedure ( “ CCrP ” ). In that ruling the Constitutional Court decided that Article 384 of the CCrP (“Grounds for reconsider ation of a [criminal] case on the basis of newly discovered circumstances”, which was in many respect s similar to Article 333 of the CCivP ) was unconstitutional in that it limited the grounds for the reopen ing of a criminal case to situations of “newly discovered circumstances”. In that ruling the Constitutional Court suggested that this provision of the CCrP prevented rectification of judicial errors and miscarriages of justice. In its ruling of 3 February 1998 the Constitutional Court came to the conclusion that Article 192 § 2 of the Code of Commercial Procedure was unconstitutional in so far as it had served as a basis for the dismissal of applications for reconsider ation of judgments of the Presidium of the Supreme Commercial Court , where the judgment had been delivered as a result of a judicial error which had not been and could not have been established earlier.

21 . The Instruction of the Ministry of Labour and Social Development of 29 December 1999 on the “ Application of Limitations ” e stablished by the Pensions Act was registered by the Ministry of Justice on 31 December 1999 and became binding in February 2000, ten days after its official publication.

THE LAW

I . ALLEGED VIOLATION OF ARTICLE 6 § 1 AND ARTIC L E 1 OF PROTOCOL No . 1

22 . The applicant complained that the State had reconsider ed a fin al judgment in his favour . Th e Court will examine this complaint under Article 6 § 1 of the Convention and Article 1 of Prot o col No. 1.

Article 6 § 1 of the Convention , as far as relevant, reads as follows:

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

Article 1 of Protocol No. 1 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.”

A. The parties ' submissions

1. The Government

23 . The Government submitted that the complaint was incompatible with the Convention ratione materiae , as it did not concern “civil rights and obligations” or “property” or, alternatively, that there had been no breach of Article 6 § 1 or Article 1 of Protocol No. 1 on account of the reconsider ation of the case concerning the applicant ' s pension.

( a) Applicability of Article 6 § 1

24 . T he Government stressed that the judgment of 2 6 August 1999 had not determine d any definite amount due to the applicant , but had rather established how the pension should be calculated . In their words, “ the subject-matter of the dispute was not the applicant ' s claim to award [him] monetary sums , but the matter of lawfulness ... of application of the Instruction” . According to the Government , the dispute at issue was not a civil one because “the determination of the order of calculation of pensions belongs to the realm of public law”. They referred to Schouten and Meldrum v. the Netherlands ( judgment of 9 December 1994, Series A no. 304 , § 50 ) , Pan č enko v. Latvia , ( ( dec. ) , no. 40772/98, 28 October 1999) , and Kiryanov v. Russia ( ( dec. ) , no. 42212/02, 9 December 2004) .

( b) Applicability of Article 1 of Protocol No. 1

25 . The Government contested that the pension awarded to the applicant by virtue of the judgment of 26 August 1999 constituted her “possession” . The y noted that in the case of Pravednaya v. Russia ( no. 69529/01, 1 8 November 2004 ) the Court had regarded a judicial awar d of that type as the applicant ' s “possession”. In that case the Court had ordered the restoration of the in itial judgment in the applicant ' s favour and the payment of the pension in the amount established by that judgment. However, in the Government ' s view, such an approach created confusion. If the sum awarded by a court was a pensioner ' s “possession”, it should not be affected by any subsequent increas e in pension rates. Therefore, in Pravednaya the applicant would have had to return the money “ excessively ” paid to her by virtue of the later changes in the legislation on State pensions. They conclude d that in order to avoid such situations the Court should not regard the pension amounts awarded by the d omestic courts as the claimants ' “possessions” within the meaning of Article 1 of Protocol No. 1.

( c) M erits of the complaint

26 . The Government submitted that both the Instruction and the ensuing decision of the Supreme Court, which had confirmed its lawfulness, constituted newly discovered circumstances which had warranted the reopen ing of the case within the meaning of Article 333 of the CCivP . This was a major difference with the Pravednaya case (cited above) . The Government explained that to consider the Supreme Court ' s decision as a newly discovered circumstance was in line with the position of the Constitutional Court set out in its decisions of 2 February 1996 and 3 February 1998. In another decision of 14 January 1999 the Constitutional Court had held that court judgments might be reconsider ed if relevant provisions of law had been found unconstitutional.

27 . The Government further submitted that the I nstruction had been issued after the initial judgment had become final , so the Agency could not have relied on it in the appeal proceedings. This was another difference with the Pravednaya case, where the Instruction had been adopted while the proceedings were still pending. Therefore, the Agency ' s request to reopen the case had not been an “appeal in disguise” but a conscientious effort to make good a miscarriage of justice.

28 . The Government observed that the reopen ing of the case had been lawful and complied with the procedure prescribed by law , the request having been lodged within the statutory three-month time-limit .

29 . T he Government concluded that the reopen ing of the case had not infringed the principle of legal certainty as guaranteed by Article 6 § 1 n or had it interfered with the applicant ' s property rights as guaranteed by Article 1 of Protocol No. 1 .

2. The applicant

30 . The applicant disagreed with the Government ' s arguments. He pointed out that t he Instruction had not exist ed at the time when his case had been examined in court and when the judgment of 26 August 1999 had been delivered. Therefore , neither the Instruction nor the subsequent Supreme Court decision, which addressed the lawfulness of the Instruction, c ould be considered a newly discovered circumstance within the meaning of Article 333 of the CCivP . The Instruction had had no retrospective effect and could not have appl ied to situations which had arisen before its adoption. Furthermore, t he A gency had missed the time-limit for reopen ing a case : it had applied to the court sixteen months after the I n struction had been issued , instead of three months a s required by the civil procedure. Therefore, the applicant ' s case had been reopened in breach of the domestic law. The Government ' s reference to the Constitutional Court ' s decision of 14 January 1999 was irrelevant because the Pensions Act had never been declared unconstitutional.

31 . The applicant further noted that it was clearly established by the European Court that Article 6 applie d to court proceedings concerning the right to a State pension. He referred to a number of judgments and decisions including Francesco Lombardo v. Italy ( judgment of 26 November 1992, Series A no. 249 ‑ B), Androsov v. Russia (no. 63973/00, 6 October 2005 ), Vasilyev v. Russia ( dec. ) , no. 66543/01, 1 April 200 4 ) , and Pravednaya v. Russia (dec. ) , no. 69529/01 , 25 September 2003 ) . He pointed out that i n Pravednaya the dispute had concerned the application of a specific pension law to the applicant ' s case, and not the general system of pension calculation.

B . The Court ' s assessment

1. Applicability of Article 6 § 1 of the Convention and Article 1 of Prot o col No. 1

32 . The Court notes that the dispute as to the increase of the applicant ' s old-age pension entitlement was one of a pecuniary nature and undeniably concern ed a civil right within the meaning of Article 6 § 1 of the Convention (see Schuler-Zgraggen v. Switzerland , judgment of 24 June 1993, Series A no. 263, p. 17, § 46; Massa v. Italy , judgment of 24 August 1993, Series A no. 2 65- B, p. 20, § 26; Süßmann v . Germany , judgment of 16 September 1996, Rep orts of Judgments and Decisions 1996-IV, p. 1170, § 42 ; and, as a recent authority, Tričković v. Slovenia , no. 39914/98, § 40, 12 June 2001).

33 . It reiterates that Article 1 of Protocol No. 1 does not guarantee, as such, the right to an old-age pension or to any social benefit in a particular amount (see, for example, Aunola v. Finland (dec.), no. 30517/96, 15 March 2001). However a “ claim ” – even concerning a pension – can constitute a “ possession ” within the meaning of Article 1 of Protocol No. 1 if it is sufficiently established to be enforceable (see Stran Greek Refineries v. Greece , judgment of 9 December 1994, Series A no. 301, § 59). The judgment of the Sovetskiy District Court of 26 August 1999, which became final after it had been upheld on appeal by the Novosibirsk Regional Court on 11 November 1999, provided the applicant with an enforceable claim to receive an increased pension based on a coefficient of 0.7.

34 . The Court notes that the objections and arguments put forward by the Government were rejected in the earlier similar case of Bulgakova v. Russia ( no. 69524/01, §§ 27-32, 18 January 2007 ) and sees no reason to reach a different conclusion in the present case.

35 . Accordingly, the Court considers that in the present case the applicant ' s dispute concerned a civil right within the meaning of Article 6, and that t he applicant had a “possession” within the meaning of Article 1 of Protocol No. 1 .

2. Alleged violation of Article 6 § 1

36 . The Court reiterates that t he right to a fair hearing before a tribunal as guaranteed by Article 6 § 1 of the Convention must be interpreted in the light of the Preamble to the Convention, which, in its relevant part, declares the rule of law to be part of the common heritage of the Contracting States. One of the fundamental aspects of the rule of law is the principle of legal certainty, which requires, among other things, that where the courts have finally determined an issue, their ruling should not be called into question (see Brumărescu v. Romania , judgment of 28 October 1999, Reports 1999 ‑ VII, § 61). This principle underlines that no party is entitled to seek a review of a final and binding judgment merely for the purpose of obtaining a rehearing and a fresh determination of the case. R eview by h igher courts should not be treated as an appeal in disguise, and the mere possibility of there being two views on the subject is not a ground for re-examination. A departure from that principle is justified only when made necessary by circumstances of a substantial and compelling character (see Ryabykh v. Russia , no. 52854/99, § 52, ECHR 2003 - I X).

37 . The Court examined the quashing of a final judgment on the ground of newly discovered circumstances in Pravednaya ( cited above ) , a case with a similar set of facts, where it held:

“ 27 . The procedure for quashing of a final judgment presupposes that there is evidence not previously available through the exercise of due diligence that would lead to a different outcome of the proceedings. The person applying for rescission should show that there was no opportunity to present the item of evidence at the final hearing and that the evidence is decisive. Such a procedure is defined in Article 333 of the CCivP and is common to the legal systems of many member States.

28 . This procedure does not by itself contradict the principle of legal certainty in so far as it is used to correct miscarriages of justice. ... ”

38 . In the case of Pravednaya the I nstruction of the Ministry of Labour had been issued between the first-instance and appeal judgments. The relevant pension agency had not relied on the I nstruction in the appeal proceedings but had only done so later , in their request for the judgment, then final, to be set aside owing to “ newly discovered circumstances”. The Court considered that the agency ' s request had been an “appeal in disguise” and found that by granting it the c ourt had infringed the principle of legal certainty and the applicant ' s “right to a court” under Article 6 § 1 of the Convention (see Pravednaya , cited above, § § 29-34 ) .

39 . The present case differs from Pravednaya in that the I nstruction of the Ministry of Labour was issued after the first - instance judgment had been upheld on appeal. The Court ' s task is to determine whether , on the facts of the present case , the quashing of the judgment was exercised in a manner compatible with Article 6. To do so it will examine the reasons adduced by the Sovetskiy District Court for the quashing of the judgment (see paragraph 1 6 above) .

40 . The Sovetskiy District Court noted that the Pensions Act was interpreted differently by claimants , “official s ” and the Federal Pension Fund, and that this situation had called for the Instruction to be issued. It further stated that it was its own interpretation of the Pensions Act which had led to the findings in its judgment of 26 August 1999. It held that the “official” interpretation of the Pensions Act , in the Ministry of Labour ' s Instruction and the Supreme Court ' s decision which upheld it, were “ newly discovered circumstances” as had been suggested in the Agency ' s request for reopen ing. Therefore, the District Court decided that the request should be granted and the judgment be quashed.

41 . The Court first notes that the Instruction and the Supreme Court ' s decision uph olding it did not exist during the examination of the applicant ' s case. They were adopted after the judgment had been upheld on appeal. In the Court ' s view, the above -mentioned Instruction and decision were new legal acts and did not constitute newly discovered circumstances as considered by the District Court (see A rticle 333 of CCivP , paragraph 19 above).

42 . Further, the judgment of 26 August 1999 was a result of the District Court ' s interpretation and application of the Pensions Act to the applicant ' s case . As the decision of 6 June 2001 suggests , t he fact that the “official” interpretation of that Act in an Instruction, a subordinate legal instrument , differed from the court ' s findings, with the effect that it would have led to a different outcome of the proceedings , was considered by the District Court a sufficient reason to quash the judgment and reconsider the case. T he Court finds that this reason as such could not justify the reopen ing of the case after a final and binding judgment.

43 . The Court notes the Government ' s argument that the reopen ing was necessary to make good a miscarriage of justice. However, o ther than referring to the “official” interpretation of the law as a reason for the reopen ing , the District Court said nothing in its decision to explain why its original findings were to be considered a “miscarriage of justice” such as to justify the reopen ing.

44 . The Court finds that by granting the A gency ' s request to reconsider the applicant ' s case and setting aside the final judgment of 26 August 1999, as upheld on 11 November 1999, the domestic authorities infringed the principle of legal certainty and the applicant ' s “right to a court” under Article 6 § 1 of the Convention.

45 . There has accordingly been a violation of that Article.

3 . Alleged violation of Article 1 of Protocol No. 1

46 . The Court notes that the “possession” in this case was the applicant ' s claim to a pension based on a coefficient of 0.7 from 1 February 1998, in accordance with the judgment of the Sovetskiy District Court of 26 August 1999, upheld on 11 November 1999 .

47 . The District Court did not determine the date until which this method of calculation should have been maintained . When delivering its judgment it applied the statutory pension regulations which were in force at the time. T hose regulations , however, “are liable to change and a judicial decision cannot be relied on as a guarantee against such changes in the future” (see Sukhobokov v. Russia , no. 75470/01, § 26, 13 April 2006 ). Thus the Court observes that , as a result of such changes , the coefficient for the calculation of the applicant ' s pension changed to 0.7125 from 1 August 2000 and again to 0.9 from 1 May 2001.

48 . The Court notes that the applicant ' s concern under Article 1 of Protocol No. 1 was the loss of his entitlement to a pension based on a coefficient of 0.7 for the perio d between 1 February 1998 and 1 August 2000, as opposed to the pension calculated and actually paid. However, the Court further notes that before that period ended on 1 August 2000, the Instruction had removed the ambiguity of the Pensions Act with the effect that the applicant ' s dispute over the coefficient had been resolved, at the level of the statutory regulations, in favour of the Agency. The Court considers that it was until the moment when the Instruction became binding in February 2000 , and apparently changed the legislative framework relevant to the applicant ' s disp u te, that the applicant ' s claim – and “possession” un der Art icle 1 of Protocol No. 1 – had been secured by the judgment.

49 . T he effect produced by the decision of the Sovetskiy District Court of 6 June 2001, by which the application for reconsider ation was granted, was that the applicant became deprived , retrospectively in respect of the above-mentioned period from February 1998 to February 2000, of the right to receive the pension in the amount initially determined by the court or, in other words, deprived of his possession w ithin the meaning of the second sentence of the first paragraph of Article 1 of Protocol No. 1 . The taking of property , in the light of this rule, can only be justified if it is shown, inter alia , to be “in the public interest” and “subject to the conditions provided for by law” (see Pravednaya , cited above, §§ 39-40).

50 . While assuming that it was in the public interest to ensure a uniform application of the Pensions Act , the compliance of the reconsider ation of the applicant ' s case with the “lawfulness” requirement is questionable (see paragraph 4 1 above). Even assuming that the court ' s interpretation of the domestic procedural law was not arbitrary (see the Government ' s argument concerning the Constitutional Court ' s decisions and the r elevant domestic law in paragraph s 26 and 20 above), it still remains to be established whether the interference was proportionate to the legitimate aim pursued.

51 . In this connection the Court reiterates its finding in Pravednaya that “the State ' s possible interest in ensuring a uniform application of the Pensions Law should not have brought about the retrospective recalculation of the judicial award already made” ( Pravednaya , cited above, § 41) . Having regard to the fact that t he reconsider ation of the case resulted in the full dismissal of the applicant ' s claim that had been granted in the initial judgment, the Court finds no reason to depart from that conclusion in the present case.

52 . Based on the above considerations , the Court finds that by depriving the applicant of the right to benefit from the pension in the amount secured in a final judgment, the State upset the fair balance between the interests at stake .

53 . There has, accordingly, been a violati on of Article 1 of Protocol No. 1.

II . APPLICATION OF ARTICLE 41 OF THE CONVENTION

54 . 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

1. Pecuniary damage

55 . T he applicant claimed 440.60 euros (EUR) in respect of pecuniary damage. This amount represented the underpayment of his pension between 1 February 1998 and 1 August 2000 and the relevant inflation -related losses . The difference in pension was based on an “ individual pensioner coefficient ” of 0.7 and a coefficient linked to the region of the applicant ' s residence.

56 . The Government submitted that no just satisfaction should be awarded to the applicant because there had been no violation of his rights under the Convention. Alternatively, the finding of a violation in itself would constitute sufficient just satisfaction. As regards the claim in respect of pecuniary damage, it should be rejected because it was open to the applicant to request a re-trial , which would be the most appropriate form of redress in this case. The Government further asserted that, as regards the period from February 1998 to December 2001, the difference between the pension calculated with a coefficient of 0.7 and the pension actually paid would be negative and the applicant would owe the State 34.5 0 roubles .

57 . The Court considers it appropriate to award the applicant, in respect of the violation of Article 1 of Protocol No. 1, the sum he would have received had the reduction of the pension as a result of the reconsider ation of the case not been backdated (see , mutatis mutandis , Vasilyev v. Russia , no. 66543/01, § 47 , 13 October 2005 ). The Court notes that the sum calculated by the applicant was based on official certificates which confirm the amounts of the pension actually paid and the rates of inflation. However, th e sum to be awarded by the Court should not take account of the coefficient linked to the region of the applicant ' s residence , as that claim was not secured by the judgment of 26 August 1999, upheld on 11 November 1999 , having been rejected by the first - instance court (see the facts in the Zhukov v. Russia admissibility decision of 17 November 2005). Nor should it cover the whole period between 1 February 1 998 and 1 August 2000 . The period relevant to the violation of Article 1 of Protocol No. 1 is indicated in paragraph 4 8 above. T h ose adjustments being made , the Court awards the applicant EUR 7 7 in respect of pecuniary damage.

2. Non-pecuniary damage

58 . The applicant further claimed EUR 5,000 in respect of non-pecuniary damage. He submitted that the pension was his only means of subsistence. B ecause of the underpayment of his pension he could not afford to buy basic foodstuff s or medication , and this had caused him psychological suffering. He further submitted that d uring the court proceedings the facts had been misinterpreted, his right to a fair hearing had been infringed and he had been subjected to humiliation.

59 . The Government submitted that the claim was “wholly ill-founded, unsubstantiated and unreasonable”.

60 . The Court considers that the applicant has sustained non-pecuniary damage as a result of the violations found and that this c annot be made good merely by the Court ' s finding of a violation. Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards the applicant EUR 2 , 0 00 .

B. Costs and expenses

61 . The applicant claimed EUR 19.80 for postal expenses incurred in connection with his application to the Court , together with E UR 9.60 that he had paid to obtain official information on rates of inflation for the preparation of his claim in respect of pecuniary damage .

62 . The Government agreed with the claim.

63 . According to the Court ' s case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. Having regard to the information in its possession, the Court awards the applicant EUR 29.40 i n respect of costs and expenses .

C. Default interest

64 . The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1 . Holds that there has been a violation of Article 6 § 1 of the Convention;

2 . Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention ;

3 . Holds

(a) that the respondent State is to pay the applicant , within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention , the following amounts , to be converted into Russian roubles at the rate applicable at the date of settlement:

( i ) EUR 7 7 ( seventy -seven euros) in respect of pecuniary damage;

(ii) EUR 2 , 0 00 ( t wo thousand euros) in respect of non-pecuniary damage;

(iii) EUR 29.40 ( twenty - nine euros forty cents ) in respect of costs and expenses;

(iv) any tax that may be chargeable on the above amounts;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4 . Dismisses the remainder of the applicant ' s claim for just satisfaction.

Done in English, and notified in writing on 5 July 2007 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Søren Nielsen Christos Rozakis Registrar President