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SOBELIN AND OTHERS v. RUSSIA - 30672/03 [2007] ECHR 364 (3 May 2007)
URL: http://www.bailii.org/eu/cases/ECHR/2007/364.html
Cite as:
[2007] ECHR 364
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FIRST
SECTION
CASE OF
SOBELIN AND OTHERS v. RUSSIA
(Applications
nos. 30672/03, 30673/03, 30678/03, 30682/03,
30692/03, 30707/03,
30713/03, 30734/03, 30736/03, 30779/03,
32080/03 and 34952/03)
JUDGMENT
STRASBOURG
3 May 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 Sobelin and Others v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Mr C.L. Rozakis, President,
Mr L.
Loucaides,
Mr A. Kovler,
Mrs E. Steiner,
Mr K.
Hajiyev,
Mr D. Spielmann,
Mr G. Malinverni,
judges,
and Mr S. Nielsen, Section Registrar
Having
deliberated in private on 5 April 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in twelve applications (nos. 30672/03, 30673/03,
30678/03, 30682/03, 30692/03, 30707/03, 30713/03, 30734/03, 30736/03,
30779/03, 32080/03 and 34952/03) 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 group of Russian nationals listed in the
attached table (“the applicants”).
The
applicants were represented by Mrs O. Suprunova, a lawyer practising
in Bataysk. The Russian Government (“the Government”)
were represented by Mr P. Laptev, Representative of the Russian
Federation at the European Court of Human Rights.
The
applicants alleged, in particular, that the quashing of the final
judgments of 21 and 22 January 2003 in their favour violated Article
6 of the Convention and Article 1 of Protocol No. 1 to the
Convention. They also complained about the non-enforcement of those
judgments.
On
19 May 2005 Mr Stepanenko, one of the applicants (application no.
34952/03), died.
On
11 April 2006 the Court, acting pursuant to Article 29 § 3 of
the Convention, taken in conjunction with Article 54A § 3 of the
Rules of Court, decided that the merits of the applications should be
considered at the same time as their admissibility.
On
27 May 2006 Ms Stepanenko informed the Court about the death of her
husband, Mr Stepanenko. She expressed the wish to pursue the
application in the capacity of the applicant's heir.
On
5 April 2007 the Chamber decided to join the proceedings in the above
twelve applications (Rule 42 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. Background
The
applicants live in the town of Bataysk of the Rostov Region.
In
1986 the applicants took part in the emergency operation at the
Chernobyl nuclear plant. As a result they suffered from extensive
exposure to radioactive emissions. The applicants underwent medical
examinations which established the link between their poor health and
their involvement in the Chernobyl events. Each applicant was
consequently granted status of a disabled person and awarded a
monthly pension and a special “food allowance” from the
State, to be adjusted once a year in line with the minimum
subsistence amount (величина
прожиточного
минимума).
At
a certain moment in 2001 the social security authorities ceased to
increase regularly the amounts of the pensions and “food
allowances” due to the applicants in connection with their
disabilities. Instead, they started to receive their pensions in a
fixed amount (2,800 Russian roubles (RUR) per person), which was less
than they expected. Presuming that that practice was illegal, the
applicants brought proceedings against the regional social security
office (“the defendant”) claiming the increase of the
pensions and the “food allowances” in line with the
increase of the minimum subsistence amount during the relevant
period.
B. First set of court proceedings
On
21 January 2003 the Bataysk Town Court of the Rostov Region (“the
Town Court”) rendered a judgment ordering the increase of the
pension and the “food allowance” due to Mr Vasilenko, one
of the applicants. In re-calculating the amounts to be paid the court
applied the multiplier of 1.92 reflecting the increase of the minimal
subsistence amount in the Rostov Region and based on the data
provided by the regional committee on statistics. As a result, the
amounts to be received by Mr Vasilenko on the monthly basis from
the social security office increased to RUR 5,376: RUR 4,800 on
account of the disability pension plus RUR 576 on account of the
“food allowance”. The court ordered the defendant to pay
the applicant the recalculated amounts as from 1 January 2002, less
the sums already paid.
On
22 January 2003 the Town Court rendered a similar judgment ordering
the increase of the pensions and “food allowances” in
respect of other applicants.
The
defendant appealed against the judgments of 21 and 22 January 2003
challenging, among other things, the multiplier of 1.92 applied by
the first-instance court. They also claimed that the law only
provided for the increase of the disability pension in line with the
cost of living, but not the “food allowance”.
On
16 April 2003 the Rostov Regional Court (“the Regional Court”)
upheld the judgments of 21 and 22 January 2003 in full, dismissing
the arguments of the defendant. The enforcement proceedings were
opened.
On
23 April 2003 the President of the Bataysk Town Court wrote a letter
to the Ministry of Labour and Social Development of the Rostov Region
requesting statistical information about the cost of living index in
the Rostov Region at the relevant period of time.
On
21 July 2003, upon the request of the defendant, the Bataysk Town
Court rectified its own judgment of 22 January 2003 as regards
Mr Velichko, one of the applicants. The court held that since Mr
Velichko belonged to the “third category of disability”
(the mildest form of disability, according to the Russian
classification), the amount of his monthly pensions for 2002 should
be RUR 2,112. The court held that in 2003 the applicant's
pension should amount to RUR 2,661.12 per month.
C. First supervisory review complaint
On 13 May 2003 the defendant appealed to the Regional
Court by way of supervisory review seeking to quash the judgments of
21 and 22 January 2003, as upheld on 16 Aril 2003.
On
14 May 2003 the Ministry of Labour and Social Development of the
Rostov Region replied to the letter of the President of the Bataysk
Town Court of 23 April 2003. According to the Ministry, the cost of
living index in the Rostov Region was 1.25 for 2002 and 1.26 for
2003.
On 30 June 2003 the judge rapporteur refused to
initiate the supervisory review proceedings and to remit the case for
examination on the merits to the Presidium of the Rostov Regional
Court (“the Presidium”).
D. Second supervisory review complaint
On
14 July 2003 the defendant complained to the President of the
Regional Court about the judgments of 21 and 22 January 2003, as
upheld on appeal, and the judge rapporteur's decision of 30 June 2003
rejecting their previous application for supervisory review. They
also requested that the enforcement proceedings be suspended pending
the examination of the new supervisory review appeal.
The
defendant argued, in particular, that the multiplier 1.92 applied by
the courts at two instances was inappropriate, since it only
reflected the growth of the cost of living in one of the towns of the
Rostov Region. The defendant insisted that the right multiplier,
reflecting situation in the whole Rostov Region, was 1.25.
Furthermore, the statistical information referred to by the courts
had not been properly examined at the hearing. They also indicated
that the law did not provide for a recalculation of the amount of the
“food allowance”.
On
6 August 2003 the judge rapporteur of the Regional Court requested
two case files (concerning the judgments of 21 and 22 January 2003)
from the Bataysk Town Court.
On
19 September 2003 Judge Tkachev, the President of the Regional Court,
initiated the review of the judgment of 22 January 2003, as upheld on
16 April 2003. The President's decision of 19 September 2003 referred
to the arguments adduced by the defendant but offered no explanation
as to the grounds for overruling the judge rapporteur's decision of
30 June 2003. The President only indicated that the multiplier 1.92
applied by the courts at two instances had not been supported by
references to the appropriate legislation. As a result, the case was
transferred to the Presidium for an examination on the merits.
On
24 October 2003 the judge of the Regional Court initiated the review
of the judgment of 21 January 2003, as upheld on 16 April 2003.
The decision of the judge was almost identical to the decision of the
President of the Regional Court of 19 September 2003.
E. The reopening of the case
On
4 November 2003 the applicants were informed about the date and venue
of the hearing of their cases by the Presidium.
On
13 November 2003 the Presidium quashed the judgment of 22 January
2003, as upheld on appeal, stating that the first and second instance
courts' calculation of the minimum subsistence amount based on the
multiplier 1.92 had been insufficiently supported by evidence. The
Presidium noted that in support of its findings the lower courts
referred to a letter of the Deputy Minister of Labour; however, the
original of that letter was missing and the court had only a
photocopy of it. The Presidium further noted that the lower courts
had not verified the authenticity of that letter, and, therefore,
their findings had been based on inadmissible evidence. The Presidium
also held that the law entitled Chernobyl pensioners to the increase
of their pensions, but not the “food allowance”. The case
was remitted to the first instance court for a fresh examination.
On
4 December 2003 the Presidium, headed by the Judge Tkachev, quashed
the judgment of 21 January 2003, as upheld on appeal, remitting
the case to the first instance court for a fresh examination. The
grounds for quashing were the same as in the decision of 13 November
2003.
F. Second round of court proceedings
On
25 December 2003 the Bataysk Town Court examined the cases of all the
applicants, except for Mr Nuzhdov. In the course of the proceedings
the court established that the disability pension should have been
multiplied by 1.25 in 2002 and by 1.26 for 2003. The applicants
maintained that they had to accept that multiplier.
As
a result, the court held that the amount due to the applicants for
2002 was RUR 3,125 per month and per person. Starting from March
2003 the pension should have amounted to RUR 3,937.50 per month,
except for Mr Velichko, whose pension was RUR 1,732.50. The court
ordered the social security authorities to compensate the applicants
for previous underpayments and, starting from 2004, pay them
RUR 3,937.50 (RUR 1,732.50 as regards Mr Velichko)
monthly, with subsequent indexation.
On
14 January 2004 the Bataysk Town Court examined the case of Mr
Nuzhdov. The judgment in his case was identical to the judgment in
the case of other applicants of 25 December 2003. On the same day the
Bataysk Regional Court rectified its judgment on 25 December 2003
correcting an arithmetic error in the calculation of the outstanding
amounts awarded to the applicants.
The
judgments of 25 December 2003 and 14 February 2004 were not appealed
against and became final. On 28 January 2004 the social security
authorities transferred to the applicants' accounts the amounts
awarded by the town court for previous underpayments.
It
appears that in the following years some of the applicants were
involved in other civil proceedings concerning the recalculation of
their pensions and benefits in line with the cost of living.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Domestic law as it stood at the material time
On
1 February 2003 the Code of Civil Procedure of the Russian Federation
(“the CCivP”) entered into force introducing, in
particular, an amended system of supervisory review.
CCivP,
in the relevant parts, provides as follows:
Article 362. Grounds for quashing or
modifying the judgment
by the court of appeal
1. The judgment can be quashed by the court
of appeal (v kassatsionnom poryadke) on the following grounds:
1) Incorrect establishment of facts relevant
for the case;
2) Lack of evidentiary support for the facts,
established by the first instance court and relevant for the case;
3) Inconsistency between the facts, relied by
the court, and its conclusions;
4) Breach or incorrect application of the
material or procedural law. ...
Article 363. Breach or incorrect
application of material law
The material law was breached if:
The court did not apply the law which had to be applied;
The court applied the law which had not to be applied;
The court misinterpreted the law.
Article 364. Breach or incorrect
application of procedural law
1. Breach or incorrect application of
procedural law may lead to the quashing of the judgment if that
breach or misapplication led or could have led to incorrect
determination of the case.
2. The judgment should be quashed
irrespectively of the arguments [of the appellant] in the following
instances:
1) Unlawful composition of the court which
determined the case;
2) The case was examined in absence of a
party to the proceedings, which had not been informed about the venue
and the time of the hearing;
3) The rules concerning the language of the
proceedings were breached;
4) The court determined rights and
obligations of persons which had not been invited to take part in the
proceedings;
5) The judgment was not signed by the judge
...
6) The judgment was rendered by judges other
than those who had heard the case;
7) The hearing record was missing;
8) The secrecy of judge's deliberations was
breached.
Article 376. Right to apply to a court
exercising supervisory review
“1. Judicial decisions that have become
legally binding ... may be appealed against... to a court exercising
supervisory review by parties to the case and by other persons whose
rights and legal interests had been adversely affected by these
judicial decisions.
2. Judicial decisions may be appealed against
to a court exercising supervisory review within one year after they
became legally binding...”
Article 379. Proceedings in a supervisory
review court after an application
for supervisory review was
lodged
“A President or Deputy President of the respective
court transfers the application for supervisory review ... to a judge
of this court for examination.”
Article 381. Examination of an application
for supervisory review
“2. Having examined an application for
supervisory review, the judge issues an interim decision on –
(1) obtaining the case file if there exist
doubts as to the lawfulness of the judicial decision;
(2) refusing to obtain the case file if the
arguments in the application for supervisory review may not, in
accordance with the federal law, result in quashing of the judicial
decision.
...
6. The President of the...regional...court...
may disagree with the judge's decision refusing to obtain the case
file. In such case the President issues his own decision on obtaining
the case file.”
Article 382. Examination of case files
obtained by the supervisory review court
“2. Having examined the case file
obtained by the supervisory review court, the judge issues an interim
decision on –
– refusing to remit the case for
examination on the merits by the supervisory review court;
– remitting the case for examination of
the application for supervisory review on the merits by the
supervisory review court.”
Article 383. Interim decision refusing to
remit the case for examination
on the merits by the supervisory
review court
“2. The President of the ... regional
... court ... may disagree with the judge's decision refusing to
remit the case for examination on the merits by the
supervisory-review court. In such case the President issues his own
decision on remitting the case for examination on the merits by the
supervisory review court.”
Article 387. Grounds for quashing or
varying judicial decisions
by way of supervisory review
“The grounds for quashing or varying the judicial
decisions of the lower courts by way of supervisory review are
serious violations of the substantive and procedural laws.”
B. Recent developments in the domestic law and practice
On
5 February 2007 the Constitutional Court of the Russian Federation
adopted Ruling no. 2-П, giving
constitutional interpretation of the relevant provisions of the
CCivP. The position of the Constitutional Court, in so far as
relevant in the context of the facts of the present case, may be
summarised as follows.
Supervisory
review of a judicial decision which entered in force is permitted
only “in exceptional circumstances, when, as a result of a
judicial error, committed at an earlier stage of the proceedings,
which was decisive for the outcome of the case, the rights and
judicially protected lawful interests of the participants of the
proceedings were significantly affected, and they cannot be restored
without quashing the judicial decision”.
It
is primarily for the courts of appeal to oversee the lawfulness and
reasonableness of the lower courts' decisions. The supervisory review
may be used only if all “normal” legal avenues have been
exhausted by the initiator of the review. The Constitutional Court
referred in this respect to the case of Nelyubin v. Russia,
decided by this Court (no. 14502/04, 2 November 2006).
Under
Article 387 of the CCivP supervisory review is possible when there
are “serious violations of the substantive and procedural laws”
by the lower courts. The wording used by the CCivP is not very
precise, but the notion of “serious violation” is not
susceptible to any clear definition and cannot be reduced to a
limited number of instances where the review is possible. The courts
should have a certain margin of appreciation in interpreting that
provision, to the extent that their case-law is uniform.
Articles
363 and 364 of the CCivP (see above) give certain guidelines for
defining what kind of judicial errors may trigger the supervisory
review. However, given the role of the supervisory review instance,
it should not substitute the review by the court of appeal. Referring
to the case-law of the European Court, the Constitutional Court noted
that the supervisory review should not be an appeal in disguise and
that the mere existence of two opposite views on the subject of a
civil dispute was not a good reason for reviewing the final judgment.
The
power of the judge to initiate the review without hearing the parties
is not contrary to the Constitution. However, the decision not to
proceed with the case may be challenged in an appeal to the President
of the court, who can reverse it. The Constitutional Court held that
such a complaint may be lodged with the President only within the
one-year time-limits provided by Article 376 of the CCivP.
In
addition, the supervisory review complaint can be brought before a
higher instance. In paragraph 9.1 of the Ruling the Constitutional
Court noted that the existing provisions of the CCivP allowed
bringing three consecutive supervisory review complaints.
Furthermore, the time spent by the supervisory review instances on
examining these complaints is not included in the one-year time-limit
provided by Article 376. As a result, the overall duration of the
proceedings may be indefinitely long, up to several years.
The
Constitutional Court recognised that in certain circumstances the
current system of supervisory review could be in breach of the legal
certainty principle. However, the Constitutional Court explicitly
refrained from declaring the provisions of the CCivP
unconstitutional. Instead, the Constitutional Court recommended the
legislator to amend the relevant provision so to exclude possible
breaches of the legal certainty principle.
THE LAW
I. LOCUS STANDI (APPLICATION No. 34952/03)
The
Court notes firstly the fact of the death of Mr Stepanenko, one of
the applicants, and the wish of Ms Stepanenko, his widow, to pursue
the proceedings he initiated.
The
Court reiterates that where an applicant dies during the examination
of a case his or her heirs of next kin may in principle pursue the
application on his or her behalf (see Ječius v. Lithuania,
no. 34578/97, § 41, ECHR 2000-IX). Furthermore, in two
Russian cases concerning non enforcement of court judgments in
the applicant's favour, the Court recognised the right of the
relatives of the deceased applicant to pursue the application (see
Shiryayeva v. Russia, no. 21417/04, § 8, 13 July
2006; see also Shvedov v. Russia, no. 69306/01, 20
October 2005, where the Court implicitly recognised locus standi
of the applicant's son).
The
Court notes that the rights at stake in the present case are very
similar to those at the heart of the cases referred to above. Nothing
suggests that the rights the applicant sought to protect through the
Convention mechanism were eminently personal and non-transferable
(see, as regards Article 6, Malhous v. the Czech Republic
[GC], no. 33071/96, § 1, 12 July 2001). The Government did
not contend that Ms Stepanenko had no standing to pursue the
case. Thus, the Court considers that the applicant's widow has a
legitimate interest in pursuing the application.
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AND
ARTICLE 1 OF PROTOCOL No. 1 ON ACCOUNT OF THE QUASHING OF THE
JUDGMENT IN THE APPLICANTS' FAVOUR
The
applicants complained that the quashing of the judgments of 21 and
22 January 2003 in their favour, as upheld on appeal, violated their
rights under Article 6 § 1 of the Convention and Article 1 of
Protocol No. 1, which, in so far as relevant, provide as follows:
Article 6 § 1
“In the determination of his civil rights and
obligations ..., everyone is entitled to a ... 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.
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. Arguments of the parties
The
Government argued that the new system of supervisory review,
introduced by the CCivP of 2003, differed from the old one. In
particular, CCivP introduced a one-year time-limit to complain to a
supervisory review instance; it was a judge who decided whether to
obtain the case file following a supervisory review complaint and to
remit the case to the supervisory review court. The time-limit for
examination of applications for supervisory review represented an
additional safeguard of the applicant's rights.
The
Government further submitted that supervisory review of the judgments
in the applicants' favour had been initiated and carried out in full
compliance with the applicable procedure. The applicants were
perfectly aware that the judgments in their favour were subject to a
supervisory review appeal within a one-year time-limit.
The
Government emphasised that the Presidium had reversed the judgments
of 21 and 22 January 2003 because of serious violations of
substantive and procedural laws. In particular, the case files
contained no evidence to support the first instance court findings
about the multiplier 1.92 which was, moreover, never provided for by
either local or regional legislation. The multiplier referred to by
the courts in the judgments of 22 and 21 January 2003 was
overestimated and did not correspond to the actual cost of living.
According to the Government, the Town Court in its judgment of 25
December 2003 referred to correct multipliers of 1.25 and 1.26 for
the years 2001 and 2002 respectively, and reached lawful, just and
reasoned conclusions. Accordingly, the Government submitted that a
balance between the State interests and the legal requirements, on
the one hand, and the applicants' interests, on the other, had been
preserved.
The
Government finally argued that the applicants' failure to appeal
against the Town Court judgment of 25 December 2003 and 14 January
2004 showed that they themselves considered the initial multiplier
incorrect.
The
applicants maintained their complaints. They also argued that the
Town Court in its judgments of 25 December 2003 and 14 January 2004
had applied understated multipliers which they had to accept in order
to obtain at least some increase in their pensions.
B. Admissibility
The
Court considers, in the light of the parties' submissions, that the
complaint raises serious issues of fact and law under the Convention,
the determination of which requires an examination of the merits. The
Court concludes therefore that the applicants' complaints about the
quashing of the judgments of 21 and 22 January 2003 are not
manifestly ill-founded within the meaning of Article 35 § 3 of
the Convention. No other ground for declaring it inadmissible has
been established.
C. Merits
1. Alleged violation of Article 6 § 1 of the
Convention
(a) Supervisory review under the “old”
CCivP
The
Court reiterates that the 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
declares, in its relevant part, 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 [GC], no. 28342/95, § 61,
ECHR 1999 VII).
In
a number of previous cases the Court examined the Russian system of
supervisory review under the “old” CCivP. That system
allowed a final and binding judicial decision to be quashed by a
higher court on an application made by a State official whose power
to lodge such an application was not subject to any time-limit, with
the result that the judgments were liable to challenge indefinitely
(see, among other authorities, Ryabykh v. Russia, no.
52854/99, § 52, §§ 54 56, ECHR 2003 X;
see also Roseltrans v. Russia, no. 60974/00, §§ 27-28,
21 July 2005, and Volkova v. Russia, no. 48758/99,
§§ 34-36, 5 April 2005). In the opinion of the Court,
such system was incompatible with the “legal certainty”
principle and the applicant's “right to a court”
enshrined in Article 6 § 1.
The
Court also stressed in the above cases that the “old”
supervisory review mechanism was used for the purpose of obtaining a
rehearing of a settled judicial dispute (see
Ryabykh, cited above; see also, mutatis mutandis,
Pravednaya v. Russia, no. 69529/01,
§ 25, 18 November 2004). However, the mere
possibility of two views on the subject is not a ground for
re-examination. Higher courts' power to quash or alter binding and
enforceable judicial decisions should be exercised only for
correction of fundamental defects.
(b) Supervisory review under the “new”
CCivP
In
2003 the “old” system of supervisory review was replaced
with the “new” one (see the “Relevant domestic law”
part above). In the opinion of the Government, the new system
guarantees better stability of court judgments. The Court observes
that supervisory review of the judgment in the applicant's favour was
made under the new rules, so the Court has now to determine on the
facts of the case whether or not the review was compatible with
Article 6 § 1.
The
Court does not find sustainable the Government's argument that the
applicants' rights had been adequately secured by the time-limits set
in the new CCivP. It is true that the new CCivP established a
one-year time limit for introducing a supervisory review
appeal. However, under the new CCivP the President's power to
overrule decisions of other judges refusing to initiate
supervisory-review proceedings is not subject to any time-limits (see
Denisov v. Russia (dec.), no. 33408/03, 6 May 2004). The Court
notes that the Constitutional Court, in its Ruling 2-П
of 5 February 2007 held that the President's power to overrule
the decision of the judge not to proceed with the case should be also
limited in time (see the “Relevant domestic law” part
above). However, it appears that at the relevant time the judicial
practice regarded the powers of the President, conferred with him by
virtue of Articles 381-6 and 383 of CCivP, as unlimited in time (see
Prisyazhnikova and Dolgopolov v. Russia, no. 24247/04, §§
7-11, 28 December 2006), which created uncertainty for the party
who won the case.
Furthermore,
it is unclear on what grounds the President may decide to overrule
the decision of the judge rapporteur (see the “Relevant
domestic law” part above). In Prisyazhnikova and Dolgopolov,
cited above, the Court already noted, in the context of the
new CCivP, that “the President's power to overrule decisions of
other judges is not circumscribed in any way. The President has an
unfettered discretion to initiate supervisory-review proceedings, a
mere 'disagreement' with the ordinary judge's decision being a
sufficient ground for doing so” (§ 27). Again, Ruling 2-П
addressed that issue, stressing that the supervisory review
proceedings should not be “an appeal in disguise”.
However, the Ruling was adopted only in February 2007, that is almost
four years after the judgments of 21 and 22 January 2003 had been
quashed.
(c) Supervisory review proceedings in the
present case
Turning
to the present case, the Court notes that on 30 June 2003 the judge
rapporteur of the Regional Court examined the defendant's first
application for supervisory review of the final judgment in the
applicants' favour and refused to initiate the supervisory-review
proceedings. Dissatisfied with the refusal, the defendant lodged a
repeated supervisory review complaint, now with the President of the
Regional Court, challenging the judgments of 21 and 22 January
2003, as upheld on appeal, and the judge rapporteur's decision of 30
June 2003. That second supervisory review appeal was successful: on
19 September the President of the Regional Court overruled the
decision of 30 June 2003 and the judgment of 22 January 2003
remitting the case to the Presidium for examination on the merits.
The President, having disagreed with the judge rapporteur's previous
decision of 30 June 2003, did not give any reasons for his
disagreement. Several weeks later, a judge of the Regional Court,
apparently acting within the President's powers provided by Article
383 of the CCivP, initiated the review of the judgment of 21 January
2003. As a result, both judgments in the applicants' favour were
quashed.
The
Court further notes that the judgments of 21 and 22 January 2003 in
the applicants' favour, as upheld on 16 April 2003, were challenged
and set aside because the President, and then the Presidium of the
Regional Court disagreed with the way in which the lower courts had
assessed the evidence before them and had applied the domestic law.
In particular, the central argument for quashing was the fact that
the lower courts, while re-calculating the amount of the applicants'
pensions, applied an incorrect multiplier. Examining the Government's
argument that the mentioned shortcomings constituted serious
violations of substantive and procedural laws, the Court is not
satisfied that those violations amounted to “fundamental
defects or circumstances of a substantial and compelling character”
(see, mutatis mutandis, Ryabykh and Pravednaya,
both cited above). The Court notes in this respect that on 30 June
2003 the judge rapporteur of the Regional Court had not detected any
such fundamental defects or special circumstances.
Thus,
the Court considers that the quashing of the judgments of 21 and
22 January 2003 in the applicants' favour, as upheld on appeal
on 16 April 2003, by way of supervisory review proceedings
infringed the principle of legal certainty and the applicants' “right
to a court”. There has been, accordingly, a violation of
Article 6 § 1 of the Convention.
2. Alleged violation of Article 1 of Protocol No. 1 to
the Convention
The
Court reiterates that the existence of a debt confirmed by a binding
and enforceable judgment furnishes the judgment beneficiary with a
“legitimate expectation” that the debt would be paid and
constitutes the beneficiary's “possessions” within the
meaning of Article 1 of Protocol No. 1. Quashing of such a
judgment amounts to an interference with his or her right to peaceful
enjoyment of possessions (see, among other authorities, Brumărescu,
cited above, § 74).
In
so far as the Government submitted that the applicants had failed to
appeal against the Town Court judgment of 25 December 2003 and
14 January 2004, the Court observes that the core issue before
it is the quashing of the final and binding judgments given in the
applicants' favour. Such a quashing is regarded in the case-law as an
instantaneous act (see Sitokhova v. Russia (dec.), no.
55609/00, 2 September 2004). Thus, the eventual outcome of the
post-quashing proceedings is not directly relevant for the Court's
analysis of the complaint about the annulment of the judgment in the
applicant's favour (see Ivanova v. Ukraine, no. 74104/01,
§§ 35-38, 13 September 2005), unless, as a result of
the subsequent proceedings, the applicant obtained more than he had
had before the supervisory review which is clearly not the case.
Having
regard to its case-law (see Brumărescu, cited above,
§§ 78 80) and the conclusions under Article 6
above, the Court considers that the quashing of the judgments by way
of supervisory review imposed an excessive and disproportionate
burden on the applicants and was therefore incompatible with Article
1 of Protocol No. 1 to the Convention.
There
has accordingly been a violation of that Article.
III. ALLEGED VIOLATION OF ARTICLE 6 § 1 AND ARTICLE 1
OF PROTOCOL No. 1 ON ACCOUNT OF THE NON-ENFORCEMENT
The
applicants also complained about the non-enforcement of the judgments
of 22 and 21 January 2003, as upheld on 16 April 2003. They relied on
Article 6 § 1 of the Convention and Article 1 of Protocol No. 1,
both cited above.
The
Court observes that the principles insisting that a final judicial
decision must not be called into question and should be enforced
represent two aspects of the same general concept, namely the “right
to a court” (see Ryabykh, cited above, §§
55-57, and Burdov v. Russia, no. 59498/00, § 34,
ECHR 2002 III).
In
the present case the non-enforcement was due, to a large extent, to
the fact that the judgments to be enforced were twice challenged by
the defendant by way of supervisory review and then quashed by the
Presidium in the course of the supervisory review proceedings. Having
regard to this consideration and the findings above concerning the
violation of the applicants' rights on account of the quashing of the
judgments in their favour, the Court does not consider it necessary,
in the circumstances, to examine the applicants' complaints
concerning the non-enforcement of those judgment separately and
therefore rejects this part of their applications under Article 35
§ 4 of the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
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.”
The
Court points out that under Rule 60 of the Rules of Court any claim
for just satisfaction must be itemised and submitted in writing
together with the relevant supporting documents or vouchers “failing
which the Chamber may reject the claim in whole or in part”.
In
the instant case, on 11 April 2006 the Court, acting pursuant to
Article 29 § 3 of the Convention, taken in conjunction with
Article 54A § 3 of the Rules of Court, decided that the merits
of the applications should be considered at the same time as their
admissibility. In the letter of 13 April 2006 the Court informed the
applicants about the decision taken and invited them to submit their
claims for just satisfaction, together with any additional
observations on the merits.
However,
the applicants failed to submit any such claims within the required
time-limit, individually or through their representative. In these
circumstances, the Court makes no award under Article 41 of the
Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Holds that Ms Stepanenko has a standing to
continue the proceedings in application no. 34952/03 in Mr
Stepanenko's stead;
Declares the complaint concerning the quashing
of the judgments of 21 and 22 January 2003, as upheld on appeal
on 16 April 2003, by way of supervisory review, admissible, and the
remainder of the application inadmissible;
3. Holds that there has been a violation of Article
6 § 1 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;
Decides to make no award under Article 41.
Done in English, and notified in writing on 3 May 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren
Nielsen Christos Rozakis
Registrar President
Joint applications
|
NO
|
NAME
|
APPL. NO.
|
DATE OF
INTRODUCTION
|
BIRTHDATE
|
|
1.
|
Sobelin
|
30672/03
|
2 September 2003
|
1961
|
|
2.
|
Mokrenko
|
30673/03
|
2 September 2003
|
1943
|
|
3.
|
Antonyan
|
30678/03
|
27 August 2003
|
1938
|
|
4.
|
Nuzhdov
|
30682/03
|
27 August 2003
|
1951
|
|
5.
|
Voronov
|
30692/03
|
27 August 2003
|
1947
|
|
6.
|
Chusov
|
30707/03
|
27 August 2003
|
1952
|
|
7.
|
Klimenko
|
30713/03
|
27 August 2003
|
1945
|
|
8.
|
Vasilenko
|
30734/03
|
26 August 2003
|
1950
|
|
9.
|
Velichko
|
30736/03
|
27 August 2003
|
1951
|
|
10.
|
Toropov
|
30779/03
|
27 August 2003
|
1953
|
|
11.
|
Gorbatko
|
32080/03
|
3 September 2003
|
1946
|
|
12.
|
Stepanenko
|
34952/03
|
9 September 2003
|
1951
|
