[New search]
[Contents list]
[Printable RTF version]
[Help]
FIRST
SECTION
CASE OF GAVRIKOVA v. RUSSIA
(Application
no. 42180/02)
JUDGMENT
STRASBOURG
15 March
2007
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Gavrikova 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,
Mrs E.
Steiner,
Mr S.E. Jebens,
Mr G. Malinverni, judges,
and
Mr S. Nielsen, Section Registrar,
Having
deliberated in private on 20 February 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 42180/02) 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, Ms Rozaliya
Shafigulovna Gavrikova (“the applicant”), on 14
November 2002.
- The
applicant was represented before the Court by Mr A. Sapegin. The
Russian Government (“the Government”) were represented by
Mr P. Laptev, Representative of the Russian Federation at the
European Court of Human Rights.
- The
applicant complained, in particular, about the domestic courts'
denial of compensation for non-pecuniary damage in connection with
the death of her non-marital partner.
- By
decision of 30 June 2005, the Court declared the application partly
admissible.
- The
Government, but not the applicant, filed observations on the merits
(Rule 59 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1962 and lives in the town of
Zarechniy of the Sverdlovsk Region. In 1984 she married Mr
Igor Gavrikov and a year later gave birth to their first son.
- On
25 May 1995 the applicant formally divorced Mr Gavrikov. She
explained that the divorce had been motivated by the desire to
improve their housing conditions. As a divorced person she had become
eligible for a separate flat which she received. But shortly
thereafter they had exchanged the two flats for a larger one and
moved in together. In 1996 their second son was born.
- In
the night from 3 to 4 July 2001 Mr Gavrikov died in an aeroplane
crash. The plane was owned and operated by the public company
“VladivostokAvia” (“the air carrier”).
- The
air carrier offered to pay compensation. However, the applicant was
not satisfied with the amount and sued the air carrier in tort,
seeking compensation for pecuniary and non-pecuniary damage and
payment of the insurance cover. She lodged the action on behalf of
herself and her two sons.
- On
13 March 2002 the Beloyarskiy District Court of the Sverdlovsk Region
granted the claims in part. It held that the claim for pecuniary
damage was covered through the plaintiffs' entitlement to a lump-sum
compensation and monthly payments from the local social security
office. As to the applicant's claim for non-pecuniary damage, the
District Court ruled as follows:
“The plaintiff's claims for compensation for
non-pecuniary damage are substantiated by virtue of Article 151 of
the Civil Code of the Russian Federation. Through the air carrier's
fault the plaintiff lost her beloved person with whom she had been
living for a long time and to whom she gave two children. It is
natural that the news of a sudden death of their husband and father
came as a strong nervous shock to her and her children. The plaintiff
also suffered mental anguish during identification of her husband.
The depressed mental state of the plaintiff following [her partner's]
death is confirmed by medical certificates. At present she is still
in a state of moral anguish because she has two underage children who
need upbringing and education. It would have been easier for her to
[bring them up] together with her husband. The defendant violated the
plaintiff's right to have a full family with her husband and the
children's right to have the father...”
- The
court ordered the air carrier to pay 20,000 Russian roubles (“RUR”)
to the applicant and RUR 200,000 to her sons in compensation for
non-pecuniary damage.
- On
14 June 2002 the Sverdlovsk Regional Court quashed the judgment of 13
March 2002 in the part concerning the applicant's claim for
non-pecuniary damage:
“As it has been established by the
[first-instance] court and supported by the materials in the
case-file, in 1995 the plaintiff divorced Mr Igor Gavrikov. By law
she has not been a relative of Mr Gavrikov who died in the crash.
Therefore, the provisions on compensation for non-pecuniary damage in
connection with the loss of a relative may not be applied to [the
applicant] and her mental trauma sustained as a result of her former
husband's death is of no legal significance. On this ground [the
court]... makes a new decision, according to which [the applicant's]
claim for non-pecuniary damage must be dismissed”.
- On
5 August 2005 the Supreme Court of the Russian Federation examined an
application for supervisory review lodged by the applicant and
referred it for examination on the merits to the Presidium of the
Sverdlovsk Regional Court.
- On
5 October 2005 the Presidium of the Sverdlovsk Regional Court found
the application meritorious. It pointed out that the law does not
make the right to receive compensation for non-pecuniary damage
conditional on the existence of a marital relationship. Family ties
may arise not only from marriage or cognation, and the death of a
breadwinner may cause damage not only to the spouse or blood
relatives, but also to other family members. The Presidium further
acknowledged that the District Court's findings that the applicant
and her late partner had lived together and that his death had caused
her moral anxiety and neurosis, had not been called into question. In
these circumstances, the Regional Court's decision refusing
compensation to the applicant, was not lawful. On that ground the
Presidium quashed the Regional Court's judgment in the part
concerning compensation in respect of non-pecuniary damage sustained
by the first applicant and remitted this part of the claim for a new
examination.
- On
6 December 2005 the Zarechnyi District Court found that the applicant
had incurred non-pecuniary damage because of the death of her
partner. It determined that her non-pecuniary rights to a functional
family and parental care for the children had been violated and she
had suffered a mental trauma and depression. The District Court
stressed that the law does not confine the possibility of receiving
compensation for non-pecuniary damage to the persons in a registered
marriage. Assessing the intensity of the applicant's suffering, the
extent of the perpetrator's fault, and applying the principles of
reasonableness and fairness, the District Court awarded her RUR
200,000 in respect of compensation for non-pecuniary damage incurred
through the death of her partner.
- On
14 March 2006 the Sverdlovsk Regional Court upheld the District
Court's judgment on appeal.
II. RELEVANT DOMESTIC LAW
17. Article
151 of the Russian Civil Code provides that a court may award
compensation for non-pecuniary damage (that is, for mental anguish or
physical suffering) to a person who sustained such damage as a result
of a violation of his or her personal non-pecuniary rights. In order
to determine the amount of compensation for non-pecuniary damage the
court must have regard to the extent of fault on the part of the
perpetrator and intensity of mental anguish or physical suffering,
bearing in mind individual characteristics of the victim.
18. Section
2 of Practice Directions of the Plenary Supreme Court of the Russian
Federation no. 10 of 20 December 1994 “Certain issues arising
out of application of provisions on compensation for non-pecuniary
damage” provides as follows:
“The notion of non-pecuniary
damage shall be understood as mental anguish or physical suffering
caused by the acts (failures to act) encroaching on non-material
assets that belong to an individual by virtue of his/her birth or by
operation of law (life, health, dignity of a person, professional
reputation, inviolability of private life, personal and family
secret, etc.)...
Non-pecuniary damage may, in
particular, include emotional anxiety in
connection with the loss of relatives...”
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 8 AND 14 OF THE
CONVENTION AND ARTICLE 1 OF PROTOCOL NO. 1
- The
applicant complained that, by refusing her compensation for
non-pecuniary damage in connection with the death of her partner, the
domestic authorities showed lack of respect for her private and
family life. The Court decided also to examine that complaint from
the standpoint of Article 1 of Protocol No. 1, read alone or in
conjunction with Article 14 of the Convention. The above provisions
read as follows:
Article 8
“1. Everyone has the right to respect
for his private and family life...
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
Article 14
“The enjoyment of the rights and freedoms set
forth in [the] Convention shall be secured without discrimination on
any ground such as sex, race, colour, language, religion, political
or other opinion, national or social origin, association with a
national minority, property, birth or other status.”
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.
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 that the applicant was no longer a “victim”
of the alleged violations after the Presidium of the Sverdlovsk
Regional Court had recognised unfairness of the previous judgments
and remitted her claim for a new examination. In the new proceedings
the District Court granted her claim.
- The
Court will first examine the issue whether or not the applicant can
claim to be a “victim” of the alleged violation of her
rights under the Convention and its Protocols. It recalls that for an
applicant to be able to claim to be the “victim” of a
violation, within the meaning of Article 34 of the Convention, not
only must he have the status of victim at the time the application is
introduced, but such status must continue to obtain at all stages of
the proceedings. It reiterates that a decision or measure favourable
to an applicant is not in principle sufficient to deprive him of his
status as a “victim” unless the national authorities have
acknowledged, either expressly or in substance, and then afforded
redress for, the breach of the Convention (see Amuur v. France,
judgment of 25 June 1996, Reports of Judgments and Decisions
1996 III, § 36).
- In
the present case the alleged violation stemmed from the Regional
Court's judgment of 14 June 2002 whereby the applicant's claim for
non-pecuniary damage resulting from the death of her partner was
denied on the ground that they had not been bound by marital ties. On
5 October 2005 the Presidium of the Regional Court quashed that part
of the judgment as unlawful, finding that entitlement to compensation
for non-pecuniary damage was not conditional on the existence of an
official marriage. The claim was remitted for a new examination which
ended in an award in the applicant's favour.
- The
Court observes that, in quashing the Regional Court's judgment of 14
June 2002, the Presidium acknowledged that there was no legal basis
for a difference in treatment between married and non-married
partners in relation to compensation for non-pecuniary damage. Since
the applicant and her late partner had lived and raised children
together, she had a legitimate expectation of receiving compensation
for non-pecuniary damage sustained as a result of his death. In the
Court's view, that finding amounted to acknowledgement of the breach
of the applicant's Convention rights she complained about. It remains
to be seen whether the applicant has been afforded redress for that
breach. The Court notes that in the ensuing proceedings the District
and Regional Court granted the applicant the amount of RUR 200,000 in
respect of compensation for non-pecuniary damage, which amount was
ten times greater than the original award made by the District Court
on 13 March 2002.
- In
these circumstances the Court finds that the Presidium's decision of
5 October 2005, taken together with the subsequent proceedings,
constituted acknowledgement and sufficient redress for the alleged
violations of the applicant's rights. The applicant thus ceased to be
a “victim” within the meaning of Article 34 of the
Convention.
- Accordingly,
there has been no violation of Articles 8 or 14 of the Convention or
Article 1 of Protocol No. 1.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Holds that there
has been no violation of Articles 8 and 14 of the Convention and
Article 1 of Protocol No. 1.
Done in English, and notified in writing on 15 March 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
