THIRD SECTION

CASE OF KULYUK AND OTHERS v. RUSSIA

(Applications nos. 47032/06, 6415/07, 39249/08 and 39251/08)

JUDGMENT

STRASBOURG

8 December 2015

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

In the case of Kulyuk and Others v. Russia,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
	Helena Jäderblom, President,
	Dmitry Dedov,
	Branko Lubarda, judges,
and Marialena Tsirli, Deputy Section Registrar,
Having deliberated in private on 17 November 2015,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in four applications (nos. 47032/06, 6415/07, 39249/08 and 39251/08) 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 (“the applicants”). The applicants’ names and the dates of their applications to the Court appear in the Appendix.
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.  The applicants complained inter alia of the quashing of binding and enforceable judgments by way of supervisory review in 2003-2008.
4.  On various dates these complaints were communicated to the respondent Government.
THE FACTS
I.  THE CIRCUMSTANCES OF THE CASE
5.  The applicants are pensioners. On various dates they successfully sued the authorities for miscalculating and adjustment of their pensions. The judgments became final.
6.  On various dates the Presidia of Regional Courts or the Supreme Court of Russian Federation allowed the defendant authorities’ applications for supervisory review and quashed the judgments delivered in the applicants’ favour, considering that the lower courts misapplied the material law.
7.  Some of the judgments remained unenforced or partially enforced until the date of their quashing or were enforced with delay.
II.  RELEVANT DOMESTIC LAW
8.  The relevant domestic law governing the supervisory review procedure from 2003 is summed up in the Court’s judgment in the case of Kot v. Russia (no. 20887/03, § 17, 18 January 2007).
THE LAW
I.  JOINDER OF THE APPLICATIONS
9.  Given that these four applications concern similar facts and complaints and raise almost identical issues under the Convention, the Court decides to consider them in a single judgment (see Kazakevich and 9 other “Army Pensioners” cases v. Russia, nos. 14290/03 et al., § 15, 14 January 2010).
II.  ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION ON ACCOUNT OF THE QUASHING OF THE JUDGMENTS IN THE APPLICANTS’ FAVOUR
10.  All applicants complained of a violation of Article 6 of the Convention on account of the quashing of the binding and enforceable judgments in their favour by way of supervisory review. The applicants further complained of a violation of Article 1 of Protocol No. 1 to the Convention in relation to the same facts. The Court will consider all cases in the light of both provisions, which insofar as relevant, read as follows:
Article 6 § 1 of the Convention
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing within a reasonable time by [a] ... tribunal ...”
Article 1 of Protocol No. 1 to the Convention
“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
11.  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
12.  The Government argued that the supervisory review proceedings resulting in the quashing of the judgments delivered in the applicants’ favour were lawful: they were initiated by the defendant authorities within the time-limits provided for by domestic law. The supervisory review courts quashed lower courts’ judgments based on the wrong application of substantive law, thus correcting flagrant injustice and erasing dangerous precedents.
13.  The applicants reiterated their complaints.
14.  The Court recalls that it has already found numerous violations of the Convention on account of the quashing of binding and enforceable judgments by way of supervisory review under the Code of Civil Procedure as in force at the material time (see Kot, cited above, § 29). Some of these violations were found in similar and, on certain occasions, virtually identical circumstances concerning quashing of final domestic judgments awarding pension arrears and/or adjustment of the pension (see Khotuleva v. Russia, no. 27114/04, 30 July 2009, and Senchenko and Others and 35 other “Yakut pensioners” cases v. Russia, nos. 32865/06 et al., 28 May 2009).
15.  Turning to the present cases, the Court observes that the domestic judgments were set aside by way of a supervisory review solely on the ground that the lower courts had incorrectly applied the substantive law. The Court reiterates its constant approach that in the absence of a fundamental defect in the previous proceedings a party’s disagreement with the assessment made by the first-instance and appeal courts is not a circumstance of a substantial and compelling character warranting the quashing of a binding and enforceable judgment and re-opening of the proceedings on the applicants’ claim (see Dovguchits v. Russia, no. 2999/03, § 30, 7 June 2007, and Kot, cited above, § 29). The Government did not put forward any argument which would enable the Court to reach a different conclusion in the present cases.
16.  The Court accordingly concludes that the quashing of the binding and enforceable judgments in the applicants’ favour by way of supervisory review amounts to a breach of the principle of legal certainty in violation of Article 6 of the Convention and of Article 1 of Protocol No. 1 to the Convention.
III.  ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION ON ACCOUNT OF NON‑ENFORCEMENT OR DELAYED ENFORCEMENT
17.  Relying on Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention, both cited above, the applicants further complained about non‑enforcement or delayed enforcement of the same judgments prior to their quashing. In the case of Dronov the applicant complained about non‑enforcement of other judgments delivered in the applicant’s favour (see the details in the Appendix).
A.  Admissibility
18.  In the Dronov case the Government submitted that the delay in execution of the judgments of 8 December 2000 (final on 19 December 2000) and 12 April 2006 (final on 24 April 2006) was less than one year, such delay was found by the Court to be consistent with the reasonable-time requirement (see Grishchenko v. Russia (dec.), no. 75907/01, 8 July 2004, and Inozemtsev v. Russia (dec.), no. 874/03, 31 August 2006). In certain other cases the Government argued that the relevant judgments could not be executed on account of their quashing by way of supervisory review procedure.
19.  The applicants maintained their claims. They pointed out that the judgments should have been executed immediately and that they had not been at fault as regards the delayed execution of the court awards.
20.  As regards delays in execution, the Court observes that in the Dronov case the judgment of 8 July 2003, became binding on 21 July 2003, remained unexecuted for almost five months. Having regard to its case-law, the Court agrees with the Government that this delay does not appear to be unreasonable (see Zasurtsev v. Russia, no. 67051/01, § 59, 27 April 2006, with further references). Consequently, this complaint should be declared inadmissible.
21.  As regards the other cases and the three other judgments in the Dronov case, the Court observes that the domestic judgments delivered in the applicants’ favour remained unexecuted for more than one year (see Kozodoyev and Others v. Russia, nos. 2701/04 et al., § 11, 15 January 2009). The Court considers that these complaints are not manifestly ill‑founded within the meaning of Article 35 § 3 of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.
B.  Merits
22.  In the cases of Shapiyev and Samedov the Government accepted that there was violation of Article 6 of the Convention in respect of non‑enforcement of final and binding judgments in the applicants’ favour prior to the quashing of those judgments by way of supervisory review.
23.  The applicants maintained their claims.
24.  The Court reiterates that an unreasonably long delay in the enforcement of a final and binding judgment may breach the Convention (see Burdov v. Russia, no. 59498/00, ECHR 2002-III).
25.  Turning to the present cases, the Court observes that in the cases of Shapiyev and Samedov the domestic judgments in the applicants’ favour had never been enforced. In other cases, the domestic judgments were enforced within the periods longer than one year (see for more details the Appendix). Having regard to its case-law, the Court finds that such delays were incompatible with the reasonable time requirement (see, among others, Kozodoyev and Others, cited above, § 11).
26.  As regards the Government’s arguments referred to above, the Court reiterates its established case-law that the subsequent quashing of final and enforceable domestic judgments does not constitute a valid reason for the prolonged non-enforcement of these judgments (see Velskaya v. Russia, no. 21769/03, § 18, 5 October 2006). It sees no reasons to hold otherwise in the present cases.
27.  There has, accordingly, been a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention in the present four cases.
IV.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION
28.  Lastly, in the cases of Kulyuk and Dronov the applicants in addition complained under Articles 6, 13 and 14 of the Convention, Article 1 of Protocol No. 1 to the Convention, Protocols Nos. 4, 6 and 7 to the Convention about other different violations, such as lack of fair hearing, lack of an effective domestic remedy against non-enforcement and/or quashing.
29.  In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that these complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that they are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
V.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
30.  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
31.  The Court notes at the outset that in the case of Dronov the applicant submitted no claims for just satisfaction. Consequently, the Court makes no award in this case.
32.  Other applicants submitted, as far as their admissible complaints are concerned, claims in respect of pecuniary and/or non‑pecuniary damage ranging from 2,000 euros (EUR) to EUR 30,200 together with their calculations based on various adjustment rates.
33.  The Government disputed the applicants’ methods of calculation as regards pecuniary damage, without however suggesting any alternative. They considered that the sums claimed in respect of non-pecuniary damage were excessive and unreasonable.
34.  The Court notes that the present cases are similar to numerous other Russian cases that concern the same issues it has already addressed in numerous other judgments finding violations of the Convention on account of the quashing of final judgments by way of the supervisory review procedure and non-enforcement of domestic judicial decisions. In cases involving many similarly situated victims a unified approach may be called for. This approach will ensure that the applicants remain aggregated and that no disparity in the level of the awards will have a divisive effect on them (see, for instance, Moskalenko and Others v. Ukraine [Committee], nos. 1270/12 et al., § 23, 18 July 2013, and Goncharova and Others and 68 other “Privileged Pensioners” cases v. Russia, nos. 23113/08 et al., §§ 22‑24, 15 October 2009).
35.  In addition, if one or more heads of damage cannot be calculated precisely or if the distinction between pecuniary and non-pecuniary damage proves difficult, the Court may decide to make a global assessment (see Comingersoll S.A. v. Portugal [GC], no. 35382/97, § 29, ECHR 2000‑IV).
36.  In these circumstances and having regard to the principles developed in its case-law on determination of compensation in similar cases, the Court considers it reasonable and equitable to award Mrs Kulyuk, Mr  Shapiyev and Mr Samedov a total of EUR 5,000 to cover all heads of damage.
B.  Costs and expenses
37.  The applicant in the case of Kulyuk also claimed 2,067.35 Russian roubles (RUB) for the costs and expenses.
38.  The Government did not contest these claims.
39.  Having regard to the materials in its possession, the Court decides to grant the applicant’s claim.
C.  Default interest
40.  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.  Decides to join the applications;

2.  Declares, in respect of all applications, the complaints under Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention concerning quashing by way of supervisory review and non-enforcement of domestic final judgments in the applicants’ favour, except in the Dronov case (the judgment of 8 July 2003, final on 21 July 2003), admissible and the remainder of the applications inadmissible;

3.  Holds in respect of all applicants, that there has been a violation of Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention in respect of the quashing of the judgments in the applicants’ favour by way of supervisory review proceedings;

4.  Holds in respect of all applicants, that there has been a violation of Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention on account of the non-execution or delayed execution of the judgments in the applicants’ favour;

5.  Holds
(a)  that the respondent State is to pay the applicants, within three months, the following amounts:
(i)  EUR 5,000 (five thousand euros) each to Kulyuk Nadezhda Georgiyevna, Shapiyev Abdula Shapiyevich, Samedov Magomedsultan Magomedmirzayevich to be converted into the currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable, in respect of both pecuniary and non-pecuniary damage;
(ii)  RUB 2,067 (two thousand and sixty-seven Russian roubles) to Kulyuk Nadezhda Georgiyevna in respect of costs and expenses;
(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;

6.  Dismisses the remainder of the applicants’ claim for just satisfaction.
Done in English, and notified in writing on 8 December 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Marialena Tsirli	Helena Jäderblom
	Deputy Registrar	President

APPENDIX

No	Application
no. and date of introduction	Applicant name
Date of birth
Place of residence
Nationality
Represented by	Final domestic judgment	Award(s)	Enforcement status (prior to the quashing)	Quashing	Length of non-enforcement prior to the quashing (separate complaint)	
1.		47032/06
14/09/2006
	Nadezhda Georgiyevna KULYUK
25/04/1934
Novouralsk
Russian
Sergey Ivanovich BELYAYEV	Novouralsk City Court of 
Sverdlovsk District
26/10/2004
25/01/2005
 	Recalculation of
 pension 	Partially enforced in May 2005	Presidium of Sverdlovskiy 
District Court
22/03/2006 	13 months 27 days	
2.		6415/07
23/11/2006
	Aleksandr Anatolyevich DRONOV
10/03/1960
Sosny
Russian
	1) Belokalitvinskiy Town Court
25/10/1999
08/11/1999
The Agency of Social Security of Population of Belaya Kalitva

2) Belokalitvinskiy Town Court
08/12/2000
19/12/2000
The Agency of Social Security of 
Population of Belaya Kalitva

3) Belokalitvinskiy Town Court
08/07/2003
21/07/2003
The Agency of Social Security of Population of Belaya Kalitva

4) Belokalitvinskiy Town Court
12/04/2006
24/04/2006
The Agency of Social Security of Population of Belaya Kalitva	1) RUB 11,077.29 (lump sum) + RUB 2,693.63 (monthly payment of pension) from 01/10/1999 to 01/07/2000 

2) RUB 4,258.62 (monthly payment of pension with further indexation) 
since 01/07/2000

3) RUB 10,752.3 (lump sum) + RUB 5,082.47 (monthly payment of pension with further indexation) since 01/07/2003

4) RUB 303,408.08 (lump sum for arrears) + 12,966.23 (monthly payment of pension with further indexation) since 01/01/2006 	1) Lump sum was paid on 
02/04/2002;
monthly payments were made from 01/01/2000 to 31/05/2001

2) Lump sum for arrears was paid on 28/06/2002; pension was paid from 01/07/2002 to 31/03/2003 (without indexation)

3) Lump sum was paid on 15/12/2003; pension has been paid since 01/01/2004 (without indexation)

4) The judgment remained unenforced in part of lump sum	

2) Presidium of the Rostov Regional Court
16/01/2003 	1) 28 months 24 days (lump sum)

2) 24 months

3) 4 months 24 days (lump sum);
5 months 10 days (pension);
up to now (indexation)

4) up to now	
3.		39249/08
15/03/2008
	Abdula Shapiyevich SHAPIYEV
22/12/1939
Makhachkala
Russian
	Sovetskiy District Court of Makhachkala
27/02/2006
09/03/2006
The Ministry of Labour and Social Development 
	RUB 23,775.5 
(monthly payment of pension)	Remained unenforced	Supreme Court of Russian Federation
08/02/2008	22 months 29 days	
4.		39251/08
13/03/2008
	Magomedsultan Magomedmirzayevich SAMEDOV
01/05/1938
Makhachkala
Russian
	Sovetskiy District Court of Makhachkala
02/03/2006
12/03/2006
The Ministry of Labour and Social Development 
	RUB 23,775.5 
(monthly payment of pension)	Remained unenforced	Supreme Court of Russian Federation
08/02/2008	22 months 26 days