FIRST SECTION

CASE OF MALIKOV AND OSHCHEPKOV v. RUSSIA

(Application no. 42981/06)

JUDGMENT

STRASBOURG

12 November 2015

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

In the case of Malikov and Oshchepkov v. Russia,
The European Court of Human Rights (First Section), sitting as a Committee composed of:
	Khanlar Hajiyev, President,
	Julia Laffranque,
	Dmitry Dedov, judges,
and André Wampach, Deputy Section Registrar,
Having deliberated in private on 20 October 2015,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 42981/06) 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 four Russian nationals, I. I. Malikov, A. A. Oshchepkov, S. F. Seregin and A. P. Romanenko. Their application was lodged with the Court on 28 August 2006.
2.  The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.
3.  On 26 May 2010 the application was communicated to the Government.
4.  On 22 September 2010 the Government submitted a unilateral declaration in which they acknowledged a violation of the applicants’ rights on account of the quashing of a final judgment in their favour by way of supervisory review. The declaration further indicated that the domestic court’s judgment “had been executed” prior to its quashing by a supervisory-review court.
5.  On 18 September 2012 the Court decided to join the present application to other similar applications in which the Government also submitted unilateral declarations and to strike them out of its list of cases in accordance with Article 37 § 1 (c) of the Convention (Alov and 10 Others v. Russia (dec.), no. 27127/05, 18 September 2012).
6.  On 17 June 2013 the Representative of the Russian Federation at the Court filed a request with the Court asking to restore the above application in part concerning the claims of I.I. Malikov and A.A. Oshchepkov (“the applicants”) to the Court’s list of cases. This request was based on the fact that the Russian authorities had submitted to the Court erroneous information concerning the execution of the judgment delivered by the Akhtubinsk Town Court on 26 July 2002 in respect of these two applicants.
7.  On 24 July 2013 I.I. Malikov and A.A. Oshchepkov submitted a similar request to the Court.
8.  On 17 September 2013 the Court decided, under Article 37 § 2 of the Convention, to restore the application to its list in part concerning the claims of applicants I.I. Malikov and A.A. Oshchepkov.
THE FACTS
I.  THE CIRCUMSTANCES OF THE CASE
9.  The facts, as submitted by the parties, may be summarized as follows.
A.  Domestic proceedings
10.  Both applicants are pensioners. In 2002 they sued the regional department of the Pension Fund (hereinafter “Pension Fund”) for miscalculating their pensions. They argued that the Pension Fund omitted to take into consideration the entire record of their service.
11.  On 26 July 2002 the Akhtubinsk Town Court of the Astrakhan Region granted the applicants’ claims.
12.  On 3 September 2002 the Astrakhan Regional Court confirmed this judgment on appeal.
13.  On 27 January 2003 the Akhtubinsk Town Court delivered a new judgment clarifying that the applicants’ pensions should be recalculated as from 19 December 2001.
14.  On 26 January 2005 the Presidium of the Astrakhan Regional Court rejected the supervisory-review application lodged by the Pension Fund against the judgment of 26 July 2002.
15.  On 3 March 2006 the Supreme Court of Russia quashed the judgments of 26 July 2002, of 3 September 2002 and of 26 January 2005 on account of incorrect application of substantive legislation and rejected all the applicants’ claims.
B.  Other developments at domestic level
16.  After the decision of the Court to strike the applicants’ case out of its list of cases in accordance with Article 37 § 1 (c) of the Convention (see paragraph 5 above) the applicants brought further proceedings before the Russian courts.
1.  The applicants’ request for reopening of proceedings following the decision of the Court to strike their applications out of its list of cases
17.  On unspecified date the applicants applied for reopening of proceedings concluded by the judgment of 3 March 2006 delivered by the Supreme Court of the Russian Federation, on the basis of newly discovered circumstances. There is no indication that the applicants claimed the pecuniary damage sustained as a result of the quashing of the domestic judgments in their favour.
18.  They argued that the decision of the Court to strike the application out of its list of cases taken on 18 September 2012 following the acknowledgment of a violation of their rights by the Government constituted a newly discovered circumstance entailing the reopening of proceedings in their case.
19.  On 15 March 2013 the Supreme Court observed that it resulted from the decision by which the Court decided to strike the application out of its list of cases following the acknowledgment of a violation of the applicants’ rights by the Government that, on the one hand, all sums due under the quashed judgment had been paid to the applicants and, on the other hand, the Court did not find that the judgment of the supervisory-review court was as such contrary to the Convention. The Supreme Court thus concluded that no reopening was required in the applicants’ case.
20.  On 8 July 2013 the applicants’ supervisory-review application lodged against this decision with the Presidium of the Supreme Court was dismissed by a judge of this court.
21.  On 18 September 2013 the Deputy President of the Supreme Court refused the applicants’ request to bring a supervisory review application on their behalf under Article 391.11 of the Code of Civil Procedure.
2.  Other proceedings brought by the applicants
22.  On unspecified date the applicants complained under Chapter 25 of the Code of Civil Procedure about the Pension Fund’s failure to enforce the judgment of 26 July 2002 prior to its quashing on 3 March 2006. They sought pension arrears under the judgment of 26 July 2002 delivered by the Akhtubinsk Town Court for the period between 19 December 2001 and 3 March 2006 with their subsequent indexation.
23.  On 7 November 2013 the Taganskiy District Court of Moscow left their complaint without consideration, indicating that since there was a dispute about the applicants’ rights it should be examined in contentious proceedings and not in accordance with Chapter 25 of the Code of Civil Procedure.
24.  On 26 December 2013 the Moscow City Court confirmed this judgment on appeal.
II.  RELEVANT DOMESTIC LAW AND PRACTICE
25.  The relevant domestic law governing the supervisory review procedure at the material time is summed up in the Court’s judgment in the case of Kot v. Russia, no. 20887/03, § 17, 18 January 2007.
26.  The relevant domestic law governing the supervisory review procedure after 1 January 2012 is summed up in the decision Abramyan and Others v. Russia, nos. 38951/13 and 59611/13, §§ 42-45, 12 May 2015.
27.  The relevant domestic law and practice regarding the reopening of proceedings following a judgment of the Court are summed up in the Court’s judgment in the case of Davydov v. Russia, no. 18967/07, §§ 11-15, 30 October 2014.
28.  Chapter 25 of the Code of Civil Procedure sets out the procedure for challenging State authorities’ acts or inaction in courts. If a court finds that such a complaint is well-founded, it orders the State authority concerned to remedy the breach found (Article 258).
THE LAW
I.  ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AND OF ARTICLE 1 OF PROTOCOL No. 1 ON ACCOUNT OF SUPERVISORY REVIEW
29.  The applicants complained, under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1, that the final judgment of 26 July 2002 had been quashed by way of supervisory review. In so far as relevant, those Articles read as follows:
Article 6 § 1
“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
“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...”
A.  Admissibility
30.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B.  Merits
31.  The Court has earlier found violations of Article 6 § 1 where, like in the present cases, supervisory review was used to quash a binding judgment on the ground of an alleged misinterpretation of material law (see, for example, Kot, cited above). Given the reasons relied on by the Supreme Court to justify the quashing of the domestic judgments delivered in the applicants’ favour (see paragraph 15 above), the Court finds no reasons to depart from its previous case-law.
32.  There has accordingly been a violation of Article 6.
33.  The Court further notes that the final judgment, though it did not indicate specific sums, unconditionally ordered the State to recalculate the pension payments which had been made earlier to the applicants. The judgment thus created an asset within the meaning of Article 1 of Protocol No. 1 (see Vasilopoulou v. Greece, no. 47541/99, § 22, 21 March 2002, and Malinovskiy v. Russia, no. 41302/02, § 43, ECHR 2005‑VII (extracts)). The quashing of the judgment in breach of the principle of legal certainty frustrated the applicants’ reliance on the binding judicial decision and deprived them of an opportunity to receive the judicial awards they had legitimately expected to receive (see Dovguchits v. Russia, no. 2999/03, § 35, 7 June 2007).
34.  There has, accordingly, been a violation of Article 1 of Protocol No. 1.
II.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
35.  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
36.  The Court reiterates that in general the most appropriate form of redress in respect of violations found is to put applicants, as far as possible, in the position they would have been in if the Convention requirements had not been disregarded (see Piersack v. Belgium (Article 50), 26 October 1984, § 12, Series A no. 85; mutatis mutandis, Gençel v. Turkey, no. 53431/99, § 27, 23 October 2003; and Dovguchits, cited above, § 48).
37.  In the instant case, the Court has found a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 on account of the quashing of a final judgment delivered in the applicants’ favour by way of supervisory review. It is a common ground between the parties that the judgment of 26 July 2002 delivered by the Akhtubinsk Town Court, as upheld on 3 September 2002 by the Astrakhan Regional Court and clarified on 27 January 2003, remained unexecuted. The applicants were thus prevented from receiving the sums they would have received if the aforementioned judgment were complied with by the authorities prior to its quashing.
38.  In the meantime, the Court notes that the judgment of 26 July 2002 did not award the applicants any specific sum nor in the subsequent proceedings the applicants referred to any particular amount. In these circumstances, the Court cannot assume the role of the national authorities in calculating the sums due as a result of the judgment (see Lenchenkov and Others v. Russia, nos. 16076/06, 42096/06, 44466/06 and 25182/07, § 37, 21 October 2010). The latter are better placed and equipped to carry out such determination and to examine the applicants’ indexation claim. The Court does not disregard that the applicants’ attempts to initiate domestic proceedings following the first decision delivered by the Court failed. It however notes as regards the first set of proceedings that there is no indication that the applicants specifically sought compensation of pecuniary damage sustained as a result of quashing of a domestic judgment in their favour (see paragraph 17 above). As regards the second set of proceedings, it results from the domestic judgments that their claims, this time expressly limited to the compensation of pecuniary damage representing the difference between the pension they actually received from 19 December 2001 to 3 March 2006 and the pension they should have received if the judgment of 26 July 2002 were complied with by the authorities prior to its quashing with the subsequent indexation, were dismissed only because they failed to use an appropriate procedure (see paragraph 23 above).
39.  The Court further notes that the finding of a violation of the Convention by the Court in the present judgment open a possibility for the applicants to apply for reopening of proceedings under Article 392 of the Code of Civil Procedure. The Court thus considers that a re-reopening of the civil proceedings and review of the matter in the light of the principles established in its case-law as regards similar cases (see, among many others, Khanustaranov v. Russia [Committee], no. 2173/04, §§ 57-59, 28 May 2014) would be the most appropriate means of affording reparation to the injured party.
40.  On the other hand, the Court finds that the applicants have suffered non‑pecuniary damage as a result of the violations found which cannot be compensated by the mere finding of a violation. Having regard to the circumstances of the case and making its assessment on an equitable basis, the Court awards to each applicant the sum of 2,000 euros (EUR) in respect of non‑pecuniary damage, plus any tax that may be chargeable on that amount.
B.  Default interest
41.  The Court considers it appropriate that the default interest rate 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.  Declares the application admissible;

2.  Holds that there has been a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1;

3.  Holds
(a)  that the respondent State is to pay each applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 2,000 (two thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;
(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.
Done in English, and notified in writing on 12 November 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	André Wampach	Khanlar Hajiyev
	Deputy Registrar	President