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FIRST SECTION

CASE OF ZVEZDIN v. RUSSIA

(Application no. 25448/06)

JUDGMENT

STRASBOURG

14 June 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 Zvezdin v. Russia,

The European Court of Human Rights (First Section), sitting as a Chamber composed of:

Mr C.L. Rozakis, President,
Mr A. Kovler,
Mrs E. Steiner,
Mr K. Hajiyev,
Mr D. Spielmann,
Mr S.E. Jebens,
Mr G. Malinverni, judges,
and Mr S. Nielsen, Section Registrar,

Having deliberated in private on 24 May 2007,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

The case originated in an application (no. 25448/06) 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 a Russian national, Mr Viktor Petrovich Zvezdin (“the applicant”), on 25 May 2006.

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 about the continued non-enforcement of the judgment in his favour and its subsequent quashing by way of supervisory review.

On 4 September 2006 the Court decided to give notice of the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1937 and lives in Novocherkassk, a town in the Rostov Region. He is a retired military officer.

In August 2004 the applicant brought proceedings against the Military Service Commission of Novocherkassk (Военный комиссариат г. Новочеркасска – “the Commission”) seeking to recover his pension arrears from January 1995 to March 1998 to take account of the increase of the minimum monthly wage.

On 15 September 2004 the Novocherkassk Town Court of the Rostov Region granted the applicant's claim and awarded him 252,510.91 roubles (RUR) in arrears. The court held that the judgment should be enforced immediately. The Commission missed the statutory time-limit for lodging an ordinary appeal against the judgment, and it became final on 25 September 2004.

The Novocherkassk Town Court of the Rostov Region issued the applicant with a warrant of execution which the applicant submitted to the Commission on 11 October 2004. The Commission, however, did not comply with the judgment of 15 September 2004 and instead filed an application for review of the judgment due to what it considered to be newly discovered circumstances.

On 10 February 2005 the Novocherkassk Town Court of the Rostov Region dismissed the Commission's request.

In July 2005 the applicant brought proceedings against the Commission in the Oktyabrskiy District Court of Rostov-on-Don seeking to recover his pension arrears from January 1995 to March 1998 relating to a long-service bonus and inflation.

On 18 July 2005 the Oktyabrskiy District Court of Rostov-on-Don granted the applicant's claim and obliged the Commission to recalculate the applicant's pension from January 1995 to March 1998 in view of the 25% increase of the salary and the variation of the consumer price index in the Rostov Region between 1 February 1995 and 31 December 2004.

On 24 October 2005 the amount of RUR 14,038.44 was paid into the applicant's bank account following the judgment of 18 July 2005.

On 19 September 2005 the Commission filed an application for supervisory review of the judgment of Novocherkassk Town Court of 15 September 2004, referring to the lack of grounds in domestic law for increasing the applicant's pension, and asked for the stay of enforcement.

On 5 October 2005 the Rostov Regional Court examined the above application and decided to obtain the case file. The enforcement proceedings were suspended. The Rostov Regional Court remitted the supervisory review application for examination on its merits by the Presidium.

On 12 January 2006 the Presidium of the Rostov Regional Court held a supervisory review hearing. It concluded that the first-instance court had erroneously applied the substantive law and that the matter should have been examined by a district court rather than a town court. On these grounds it quashed the judgment of 15 September 2004 and remitted the matter to the Oktyabrskiy District Court of Rostov-on-Don for a fresh examination.

On 15 February 2006 the Oktyabrskiy District Court of Rostov-on-Don discontinued the proceedings having considered the dispute at issue to be the same as the one examined by it on 18 July 2005.

II. RELEVANT DOMESTIC LAW

A. The Code of Civil Procedure of the Russian Federation

The Code of Civil Procedure of the Russian Federation (“the new Code”) was enacted on 14 November 2002 and replaced the RSFSR Code of Civil Procedure (“the old Code”) from 1 February 2003. It provides as follows:

Article 209. Entry into force of judicial decisions

“1. A judicial decision becomes legally binding upon expiry of the time-limit for lodging an appeal against it if no such appeal had been lodged.”

Article 210. Enforcement of judicial decisions

“A judicial decision is to be enforced after it becomes legally binding, unless it provides for immediate enforcement...”

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 376. Right to apply to a court exercising supervisory review

“1. Judicial decisions that have become legally binding, with the exception for judicial decisions by the Presidium of the Supreme Court of the Russian Federation, may be appealed against ... to a court exercising supervisory review, by parties to the case and by other persons whose rights or legal interests have 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 387. Grounds for quashing or altering judicial decisions
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.”

B. Enforcement Proceedings Act (Law of 21 July 1997)

Once instituted, enforcement proceedings must be completed within two months upon receipt of the execution warrant by the bailiff (Section 13).

C. The 2004 Federal Budget Act and the 2005 Federal Budget Act

19. Collection of funds from the recipients of the federal budget is carried out through the local branches of the Federal Treasury upon submission of warrants of execution and court orders (Section 133 and Section 109 respectively).

D. The Federal Law of 12 February 1993 4468-1 on provision of pensions for the retired military servicemen

Pensions to the retired military servicemen are paid by the specialized territorial services of the Ministry of Defence (Section 56).

E. The Agreement between the Ministry of Finance and the Savings Bank of the Russian Federation № 01 01-06/03-1710 of 31 December 2002

21. The local branches of the Savings Bank (the Sberbank) distribute the funds allocated by the federal budget for payment of pensions to the retired military servicemen to the specialized territorial services of the Ministry of Defence (Section 2.2.2).

THE LAW

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

The applicant complained that the quashing of the judgment of 15 September 2004 by way of supervisory review proceedings had violated his “right to a court” under Article 6 § 1 of the Convention and his right to the peaceful enjoyment of possessions under Article 1 of Protocol No. 1. The relevant parts of these provisions read as follows:

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...”

A. Admissibility

The Court considers that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. Alleged violation of Article 6 of the Convention

The Government submitted that the quashing of the judgment of 15 September 2004 by way of supervisory review fully complied with Articles 376 § 1, 387 and 390 of the Russian Code of Civil Procedure. The supervisory review procedure was set in motion with the view of correcting a “judicial error” committed by the first-instance court in determining the amount of arrears to be awarded to the applicant. There had therefore been no violation of the principle of legal certainty.

The applicant averred that the quashing of the final judgment in his case had irremediably impaired the principle of legal certainty.

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, judgment of 28 October 1999, Reports of Judgments and Decisions 1999-VII, § 61).

This principle insists that no party is entitled to seek re-opening of the proceedings merely for the purpose of a rehearing and a fresh decision of the case. Higher courts' power to quash or alter binding and enforceable judicial decisions should be exercised for correction of fundamental defects. The mere possibility of two views on the subject is not a ground for re-examination. Departures from that principle are justified only when made necessary by circumstances of a substantial and compelling character (see Kot v. Russia, no. 20887/03, § 24, 18 January 2007).

28. The Court reiterates that Article 6 § 1 secures to everyone the right to have any claim relating to his civil rights and obligations brought before a court or tribunal. In this way it embodies the “right to a court”, of which the right of access, that is the right to institute proceedings before courts in civil matters, constitutes one aspect. However, that right would be illusory if a Contracting State's domestic legal system allowed a final and enforceable judicial decision to be quashed by a higher court merely on the ground of disagreement with the assessment made by lower courts with the view of carrying out a fresh examination (see Kot, cited above, §§ 27-30).

In the present case the judgment of 15 September 2004 in the applicant's favour was set aside by the way of a supervisory review on the ground that the Town Court had incorrectly applied the substantive law and the rules of territorial jurisdiction. The Court has to assess whether the power to conduct a supervisory review was exercised by the authorities so as to strike, to the maximum extent possible, a fair balance between the interests of the individual and the need to ensure the proper administration of justice (see, mutatis mutandis, Nikitin v. Russia, no. 50178/99, §§ 57 and 59, ECHR 2004-VIII).

The Court stresses that a binding and enforceable judgment should only be quashed in exceptional circumstances rather than for the sole purpose of obtaining a different decision in the case (see the case-law cited in paragraph 27 above). In the Russian legal system, the grounds for quashing or altering judgments by appeal courts largely overlap with those for quashing or altering judgments by way of supervisory review (compare Article 362 § 1 (4) and Article 387 of the Code of Civil Procedure). The judgment of 15 September 2004 was quashed by way of supervisory review because of incorrect application of the substantive law and the rules of territorial jurisdiction. These defects could have been cured in the appeal proceedings. Thus, a situation where the final judgment in the applicant's favour was called into question could have been avoided, had the Military Commission lodged an ordinary appeal within the statutory ten-day time-limit (see Borshchevskiy v. Russia, no. 14853/03, § 48, 21 September 2006, and Nelyubin v. Russia, no. 14502/04, § 27, 2 November 2006).

The Court further notes that the Russian Code of Civil Procedure permits a party to apply for supervisory review even if it had not previously exhausted an ordinary appeal. In the present case the Military Commission failed to exercise its right to lodge an ordinary appeal and permitted the statutory ten-day time-limit to expire without challenging the judgment of 15 September 2004. Instead, it first attempted to have the judgment reviewed due to allegedly newly discovered circumstances, and later, when those attempts proved futile, applied for supervisory review just a few days before the expiration of the statutory time-limit for lodging such an application. The Government did not point to any exceptional circumstances that would have prevented the Military Commission from exposing its arguments to the Town Court or making use of an ordinary appeal in good time (see Nelyubin, cited above, § 28).

Having regard to these considerations, the Court finds that, by granting the Military Commission's request to set aside the judgment of 15 September 2004, the Presidium of the Rostov Regional Court infringed the principle of legal certainty and the applicant's “right to a court” under Article 6 § 1 of the Convention. There has accordingly been a violation of that Article.

2. Alleged violation of Article 1 of Protocol No. 1

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; Androsov v. Russia, no. 63973/00, § 69, 6 October 2005; and Borshchevskiy v. Russia, cited above, § 51).

The Government submitted that, in view of the fact that on 18 July 2005 the Oktyabrskiy District Court of Rostov-on-Don had examined the claims identical to those dealt with by the Novocherkassk Town Court of the Rostov Region on 15 September 2004 and found for the applicant, as well as the fact that on 24 October 2005 the former judgment had been enforced, the quashing of the judgment of 15 September 2004 and subsequent discontinuation of these proceedings did not amount to an interference with the applicant's property rights.

The Court is not convinced that the applicant's claims as examined by the Oktyabrskiy District Court of Rostov-on-Don on 18 July 2005 were indeed the same as those examined by the Novocherkassk Town Court of the Rostov Region on 15 September 2004. However, assuming that it is so, the Court observes that the quashing of the judgment of 15 September 2004 by way of supervisory review led to a situation where the amount awarded to the applicant went from RUR 252,510.91 to RUR 14,038.44. In these circumstances, the Court considers that the quashing of the enforceable judgment of 15 September 2004 by way of supervisory review frustrated the applicant's reliance on a binding judicial decision and deprived him of an opportunity to receive the money he had legitimately expected to receive. Furthermore, the quashing of the judgment of 15 September 2004 by way of supervisory review placed an excessive burden on the applicant and was therefore incompatible with Article 1 of Protocol No. 1. There has therefore been a violation of that Article.

II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1 ON ACCOUNT OF LENGTHY NON-ENFORCEMENT OF THE JUDICIAL DECISION

The applicant further complained about the non-enforcement of the judgment of 15 September 2004. He relied on Article 6 of the Convention and Article 1 of Protocol No. 1, cited above.

A. Admissibility

The Court notes that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

The Government submitted that contrary to the requirements of the domestic law (Section 133 of the 2004 Federal Budget Act and Section 109 of the 2005 Federal Budget Act) the applicant submitted the warrant of execution directly to the debtor, whereas he was supposed to submit it with the competent department of the Federal Treasury. Therefore, the applicant was responsible for the non-enforcement of the judgment up until 5 October 2005 when the enforcement proceedings were stayed pending the outcome of the supervisory review proceedings.

The applicant responded that he had submitted the warrant of execution to the Commission in accordance with Section 56 of the Federal Law of 12 February 1993 4468-1 on provision of pensions for the retired military servicemen and Section 2.2.2 of the Agreement between the Ministry of Finance and the Savings Bank of the Russian Federation № 01 01-06/03-1710 of 31 December 2002, in force at the material time. In support of his argument the applicant submitted the replies of the local branch of the Federal Treasury to other retired servicemen who initially submitted the warrants of execution with the Treasury. In those replies the abovementioned persons were referred directly to the Military Service Commission responsible for assignment and payment of pension benefits to the retired military servicemen.

Furthermore, the Government advanced the argument that as the judgment of 15 September 2004 had been passed in breach of the substantive domestic law, on which ground it had been quashed by way of supervisory review, the delay in its enforcement was justified.

The applicant asserted on this point that the judgment of 15 September 2004 provided for its immediate enforcement, and, therefore, the Government's argument was unconvincing.

Turning to the facts of the present case, the Court observes that on 15 September 2004 the applicant obtained a judgment by which the Military Service Commission was to pay him a certain sum of money. The judgment provided for its immediate enforcement. From that moment on, it was incumbent on the debtor, a State agency, to comply with it. On 25 September 2004 the judgment became legally binding since no appeal was lodged against it. The Town Court issued the applicant with a warrant of execution, and it was submitted to the debtor on 11 October 2004. However, no attempts were made to execute the judgment. The Rostov Regional Court's decision of 5 October 2005 had the effect of staying the enforcement proceedings but did not affect the validity of the underlying judgment which remained unenforced on that date (see paragraph 14 above). The launching of the supervisory review procedure could not, in itself, extinguish the debtor's obligation to comply with an enforceable judgment which obligation existed until its quashing by the Presidium of the Rostov Regional Court in supervisory review procedure on 12 January 2006.

It follows that at least between 15 September 2004 and 12 January 2006 the judgment in the applicant's favour was “enforceable” and it was incumbent on the State agency to abide by its terms. In any event, the Court reiterates that the quashing of a judgment in a manner which has been found to have been incompatible with the principle of legal certainty and the applicant's “right to a court” cannot be accepted as a justification for the failure to enforce that judgment (see Sukhobokov v. Russia, no. 75470/01, § 26, 13 April 2006).

As to the Government's argument concerning the failure of the applicant to comply with the requirements of the domestic law when submitting the warrant of execution, the Court recalls that a person who has obtained an enforceable judgment against the State as a result of successful litigation cannot be required to resort to enforcement proceedings in order to have it executed (see Metaxas v. Greece, no. 8415/02, § 19, 27 May 2004; Gorokhov and Rusyayev, no. 38305/02, § 33, 17 March 2005; Koltsov v. Russia, no. 41304/02, § 16, 24 February 2005; and Petrushko v. Russia, no. 36494/02, § 18, 24 February 2005).

The Court has frequently found violations of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 in cases raising issues similar to the ones in the present case (see, for example, Burdov v. Russia, no. 59498/00, ECHR 2002-III; and, more recently, Poznakhirina v. Russia, no. 25964/02, 24 February 2005, Wasserman v. Russia (no. 1), no. 15021/02, 18 November 2004, and Sukhobokov, cited above).

Having examined the material submitted to it, the Court notes that the Government did not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. They did not advance any plausible justification for the delay in enforcement. Having regard to its case-law on the subject, the Court finds that by failing to comply with the judgment in the applicant's favour the domestic authorities violated his “right to a court” and prevented him from receiving the money which he was entitled to receive.

The Court finds accordingly that there was a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 as regards non-enforcement of the judgment in the applicant's favour.

III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

Lastly, the applicant complained that the non-enforcement of the judgment of 15 September 2004 and its subsequent quashing by way of supervisory review violated his rights enshrined in Article 13 of the Convention.

In so far as the applicant may be understood to complain about the lack of an effective domestic remedy against the continued non-enforcement of the judgment in his favour, the Court considers that, having regard to the above findings (see paragraph 47 above), it is not necessary to examine whether, in this case, there has been a violation of Article 13 (see Tolokonnikova v. Russia, no. 24651/03, § 27, 17 November 2005, and Gerasimenko v. Russia, no. 24657/03, § 29, 17 November 2005).

Thus, the Court rejects this complaint under Article 35 § 4 of the Convention.

In so far as the applicant may be understood to complain about the lack of an effective domestic remedy against the quashing by way of supervisory review of a judgment in his favour, the Court notes that Article 13 of the Convention does not, as such, guarantee the right to appellate remedies in respect of a decision taken by way of supervisory review, and the mere fact that the judgment of the highest judicial body is not subject to further judicial review does not infringe in itself the said provision (see Tregubenko v. Ukraine (dec.), no. 61333/00, 21 October 2003, and Sitkov v. Russia (dec.), no. 55531/00, 9 November 2004).

52. It follows that this part of the applicant's complaint under Article 13 of the Convention is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4 thereof.

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.”

A. Damage

The applicant claimed that the Government should pay him 252,510.91 Russian roubles (RUR) lost as a result of the non-enforcement of the judgment of 15 September 2004 and its subsequent quashing by way of supervisory review. He also claimed 5,000 euros (EUR) in respect of non-pecuniary damage.

The Government did not comment on the applicant's claims for pecuniary damage. As regards the non-pecuniary damage, the Government considered that the applicant's claim was excessive and unreasonable.

The Court recalls that in the instant case it found a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1, in that the judgment in the applicant's favour remained unenforced for a long period of time and was subsequently quashed. The applicant was thereby prevented from receiving the money he had legitimately expected to receive. There is, therefore, a causal link between the violations found and the applicant's claim for the pecuniary damage. At the same time the Court bears in mind the fact that the domestic court considered the applicant's claims as examined by the Oktyabrskiy District Court of Rostov-on-Don on 18 July 2005 to be the same as those examined by the Novocherkassk Town Court of the Rostov Region on 15 September 2004. It further recalls that following the judgment of 18 July 2005 the applicant received RUR 14,038.44. Therefore, the Court considers it appropriate to award the applicant RUR 238,472.47, which represents the difference between the sum claimed and the sum received by the applicant under the judgment of 18 July 2005.

The Court further considers that the applicant suffered distress because of the State authorities' failure to enforce the judgment in his favour and its subsequent decision to quash it. The Court takes into account the amount and nature of the award in the instant case and the period of the authorities' inactivity. Making its assessment on an equitable basis, it awards the applicant the amount of EUR 4,300, plus any tax that may be chargeable on it.

B. Costs and expenses

The applicant did not claim costs or expenses and there is accordingly no call to make an award under this head.

C. Default interest

The Court considers it appropriate that the default interest 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

Declares the complaints concerning the continued non-enforcement of the judgment of 15 September 2004 in the applicant's favour and its subsequent quashing by way of supervisory review admissible and the remaining complaints inadmissible;

Holds that there has been a violation of Article 6 of the Convention and Article 1 of Protocol No. 1 on account of the quashing of the judgment of 15 September 2004 by way of supervisory review;

Holds that there has been a violation of Article 6 of the Convention and Article 1 of Protocol No. 1 on account of the non-enforcement of the judgment of 15 September 2004;

Holds

(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, the following amounts:

(i) RUR 238,472.47 (two hundred thirty-eight thousand four hundred and seventy-two Russian roubles forty-seven kopecks) in respect of pecuniary damage;

(ii) EUR 4,300 (four thousand three hundred euros) in respect of non-pecuniary damage, to be converted into Russian roubles at the rate applicable at the date of settlement;

(iii) any tax that may be chargeable on the above amounts;

(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 14 June 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Søren Nielsen Christos Rozakis
Registrar President