(Application no. 14502/04)
2 November 2006
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 Nelyubin 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 F. Tulkens,
Mrs N. Vajić,
Mr A. Kovler,
Mrs E. Steiner,
Mr K. Hajiyev, judges,
and Mr S. Nielsen, Section Registrar,
Having deliberated in private on 12 October 2006,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
II. RELEVANT DOMESTIC LAW
Article 362. Grounds for quashing or altering judicial decisions by appeal courts
“1. The grounds for quashing or altering judicial decisions by appeal courts are:
(4) a violation or incorrect application of substantive or procedural law.”
Article 387. Grounds for quashing or altering
by way of supervisory review
“Judicial decisions of lower courts may be quashed or altered by way of supervisory review on the grounds of substantial violations of substantive or procedural legal provisions.”
Article 390. Competence of the supervisory-review court
“1. Having examined the case by way of supervisory review, the court may...
(2) quash the judicial decision issued by a court of first, second or supervisory-review instance in whole or in part and remit the matter for a fresh examination...
(5) quash or alter the judicial decision issued by a court of first, second or supervisory-review instance and issue a new judicial decision, without remitting the matter for a fresh examination, if the substantive law has been erroneously applied or interpreted.”
III. RELEVANT COUNCIL OF EUROPE DOCUMENTS
“The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention...
Welcoming the reforms of the supervisory review (“nadzor”) procedure introduced by the new Code of Civil Procedure entered into force on 1 February 2003;
Noting with satisfaction, in particular, that some of the problems at the basis of the violations found in these cases have thus been remedied...
Expressing, however, particular concern at the fact that at the regional level it is often the same court which acts consecutively as a cassation and “nadzor” instance in the same case and stressing that the court should be enabled to rectify all shortcomings of lower courts’ judgments in a single set of proceedings so that subsequent recourse to “nadzor” becomes truly exceptional, if necessary at all;
Stressing that a binding and enforceable judgment should be only altered in exceptional circumstances, while under the current “nadzor” procedure such a judgment may be quashed for any material or procedural violation;
Emphasising that in an efficient judicial system, errors and shortcomings in court decisions should primarily be addressed through ordinary appeal and/or cassation proceedings before the judgment becomes binding and enforceable, thus avoiding the subsequent risk of frustrating parties’ right to rely on binding judicial decisions;
Considering therefore that restricting the supervisory review of binding and enforceable judgments to exceptional circumstances must go hand-in-hand with improvement of the court structure and of the quality of justice, so as to limit the need for correcting judicial errors currently achieved through the “nadzor” procedure...
CALLS UPON the Russian authorities to give priority to the reform of civil procedure with a view to ensuring full respect for the principle of legal certainty established in the Convention, as interpreted by the Court’s judgments;
ENCOURAGES the authorities to ensure through this reform that judicial errors are corrected in the course of the ordinary appeal and/or cassation proceedings before judgments become final...
ENCOURAGES the authorities, pending the adoption of this comprehensive reform, to consider adoption of interim measures limiting as far as possible the risk of new violations of the Convention of the same kind, and in particular:
- continue to restrict progressively the use of the “nadzor” procedure, in particular through stricter time-limits for nadzor applications and limitation of permissible grounds for this procedure so as to encompass only the most serious violations of the law...
- to limit as much as possible the number of successive applications for supervisory review that may be lodged in the same case;
- to discourage frivolous and abusive applications for supervisory review which amount to a further disguised appeal motivated by a disagreement with the assessment made by the lower courts within their competences and in accordance with the law;
- to adopt measures inducing the parties adequately to use, as much as possible, the presently available cassation appeal to ensure rectification of judicial errors before judgments become final and enforceable...”
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL NO. 1 ON ACCOUNT OF THE QUASHING OF THE JUDGMENT IN THE APPLICANT’S FAVOUR
Article 6 § 1
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing within a reasonable time... 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...”
1. Alleged violation of Article 6 of the Convention
2. Alleged violation of Article 1 of Protocol No. 1
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“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.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
(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, 145,836 (one hundred and forty-five thousand eight hundred and thirty-six) Russian roubles in respect of the pecuniary damage, plus any tax that may be chargeable;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount 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 2 November 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos