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BULGAKOVA v. RUSSIA - 69524/01 [2007] ECHR 58 (18 January 2007)
URL: http://www.bailii.org/eu/cases/ECHR/2007/58.html
Cite as:
[2007] ECHR 58
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THIRD
SECTION
CASE OF
BULGAKOVA v. RUSSIA
(Application
no. 69524/01)
JUDGMENT
STRASBOURG
18 January
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 Bulgakova v. Russia,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Mr B.M. Zupančič,
President,
Mr C. Bîrsan,
Mr A. Kovler,
Mr V.
Zagrebelsky,
Mrs A. Gyulumyan,
Mr E. Myjer,
Mr David Thór
Björgvinsson, judges,
and Mr V. Berger, Section
Registrar,
Having
deliberated in private on 12 December 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 69524/01) 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, Ms Mayya Filippovna
Bulgakova (“the applicant”), on 21 April 2001. She was
self-represented.
The
Russian Government (“the Government”) were represented by
Mr P. Laptev, the Representative of the Russian Federation at the
European Court of Human Rights.
The
applicant complained that a judgment in her favour was reviewed
because of a new legislation passed after the judgment had become
final and binding.
By
a decision of 5 April 2005, the Court declared the application partly
admissible.
The
Government, but not the applicant, filed further written observations
(Rule 59 § 1). The Chamber decided, after consulting the
parties, that no hearing on the merits was required (Rule 59 § 3
in fine). The Chamber also decided, after having examined the
request of the Government, that there is no need to relinquish
jurisdiction in favour of the Grand Chamber under Rule 72 of the
Rules of Court.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1933 and lives in
Novosibirsk.
Since
1988, the applicant had been receiving an old-age pension. From
February 1998, her pension was to be calculated under the Law on
Calculating and Upgrading State Pensions. The law introduced a new
method for calculating pensions. This method, “a pensioner's
individual multiplier” was meant to link the pensioner's
pension to his or her previous earnings.
The
authority in charge of the applicant's pension, the Pension Fund
Agency of the Zayeltsovskiy District of Novosibirsk, fixed the
applicant's multiplier at 0.525. The applicant considered that the
agency had misread the law, and that her multiplier should be higher.
On an unspecified date in 1999 she challenged the agency's decision
in a court. Thus, in her view the net underpayments from February
1998 until December 1999 amounted to 1,627.5 Russian Roubles, without
taking into account the raise of the local cost of living index.
The
case came before the Zayeltsovskiy District Court of Novosibirsk. On
21 October 1999 the court held for the applicant. It found that the
agency had misread the law: as from 1 February 1998 the
multiplier should have been 0.7. Consequently, the agency was ordered
to recalculate the applicant's pension accordingly and pay it.
The
agency appealed against the judgment, but on 14 December 1999 the
Novosibirsk Regional Court dismissed the appeal, and the judgment
came into force. On the same day the court issued a writ of execution
where it invited the local branch of the Pension Fund to recalculate
the applicant's old age pension, applying the multiplier 0.7, and pay
it to the applicant. The enforcement proceedings against the Agency
were initiated. The agency recalculated the pension in accordance
with the judgment of 14 December 1999 and requested the federal
Pension Fund to allocate respective amounts.
On
29 December 1999 the Ministry of Labour and Social Development
had passed an Instruction on the Application of Limitations
Established by the Law on Calculating and Upgrading State Pensions
(hereinafter – “Instruction”). The Instruction
clarified how to apply the law.
Some
time thereafter a group of individuals challenged the Instruction
before the Supreme Court. On 10 April 2000 the enforcement of
the judgment in the applicant's favour was suspended in connection
with the proceedings before the Supreme Court. On 24 April 2000 the
Supreme Court dismissed the complaint. It found that contrary to what
the plaintiffs suggested the Ministry of Labour had not trespassed
its authority when it issued the Instruction, and that the Ministry's
interpretation of the Pensions Law had been correct. On 25 May 2000
the Cassation Section of the Supreme Court upheld this judgment on
appeal.
On
21 August 2000, the agency asked the District Court to re-open the
case due to discovery of new circumstances. They argued that the
interpretation of the law on pensions given by the Instruction was
different from that of the Zayeltsovskiy District Court. Further,
they referred to the decision of the Supreme Court of the Russian
Federation which confirmed the lawfulness of the Instruction. The
agency argued that it had not known about those facts until after the
litigation, and that the case should therefore be reconsidered.
On
16 January 2001, the district court granted the agency's request and
reopened the judgment under Article 333 of the Code of Civil
Procedure. Under this Article, a court might reopen a judgment, if a
party discovered significant circumstances that were not and could
not have been known to this party during the litigation.
Having
reconsidered the case, on 12 February 2001 the district court
dismissed the applicant's claims in full. On 22 March 2001, the
regional court upheld the judgment on appeal.
II. RELEVANT DOMESTIC LAW AND PRACTICE
The
Code of Civil Procedure of 1964 (“CCivP”), as in force at
the material time, provided as follows:
Article 333. Grounds for re-consideration
“[Judgments] which have come into force may be
re-considered on the basis of newly-discovered circumstances. The
grounds for re-consideration ... shall be:
1. significant circumstances which were not
and could not have been known to the party who applies for
re-consideration;...
4. cancellation of a court [judgment] or of
another authority's decision which served as legal basis for the
[judgment] in question.”
Article 334. Making of application
“... [An application for re-consideration of a
[judgment] due to newly-discovered circumstances] is to be made
within three months after the discovery of the circumstances.”
Article 337. Ruling on the re-reconsideration of the
case
“... The ruling ordering the re-consideration of
the judgment ... due to newly-discovered circumstances is not subject
to any appeal”.
On
2 February 1996 the Constitutional Court of the Russian Federation
adopted a ruling concerning certain provisions of the Code of
Criminal Procedure (CCrP). In that ruling the Constitutional Court
decided that Article 384 of the CCrP (“Grounds for
re-consideration of a [criminal] case on the basis of newly
discovered circumstances”, which was in many respect similar to
Article 333 of the Code of Civil Procedure) was unconstitutional in
that it limited the grounds for the re-opening of a criminal case by
the situations of “newly discovered circumstances”. In
that ruling the Constitutional Court suggested that this provision of
the CCrP prevented rectification of judicial errors and miscarriages
of justice.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 AND ARTICE 1 OF
PROTOCOL NO. 1
The
applicant complained that the State had reconsidered a final judgment
favourable to her. This complaint falls to be examined under Article
6 § 1 of the Convention and Article 1 of Protocol No. 1
(see in this respect Pravednaya v. Russia (dec.), no.
69529/01, 25 September 2003).
Article
6 § 1 of the Convention, as far as relevant, reads as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing ...
by [a] ... tribunal....”
Article
1 of Protocol No. 1 reads as follows:
“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. The parties' submissions
1. The Government
The
Government submitted that the re-opening of the case did not
constitute a violation of Article 6 § 1 or Article 1 of Protocol
No. 1.
a) Applicability of Article 6 § 1
First,
the Government stressed that the judgment of 21 October 1999 did not
determine any definite amount, but rather established how the pension
should be calculated. In their words, “the subject-matter of
the dispute was not the applicant's claim to award her monetary sums,
but the matter of lawfulness and reasonability of application of the
Instruction”. In this respect they recalled the Court's
findings in Kiryanov v. Russia (dec., no. 42212/02, 9 December
2004), where the Court held that the judgment at issue “required
the competent authority to take a measure of general application,”
without establishing “how and to what extent such a measure
would have affected the applicant's potential individual
entitlement”. In Kiryanov the Court held that the
proceedings did not relate to the “civil rights and
obligations” of the applicant.
Further,
the Government maintained that the dispute at issue concerned the
pension law, which was outside the area of “civil rights and
obligation”. In support of this assertion the Government
referred to Schouten and Meldrum v. the Netherlands, judgment
of 9 December 1994, Series A no. 304). In that case the Court
held that there may be disputes of pecuniary nature which,
nevertheless, “belong exclusively to the realm of public law
and are accordingly not covered by the notion of civil rights and
obligations” (§ 50). Thus, in Finkelberg v. Latvia
(dec., no. 55091/00, 18 October 2001) the Court held that a
taxation dispute did not fall under Article 6 of the Convention. In
Pančenko v. Latvia, (dec., no. 40772/98, 28 October
1999) the Court recalled that the Convention does not guarantee, as
such, socio-economic rights. Referring to this case-law the
Government claimed that “the determination of the order of
calculation of pensions belong to the realm of public law”.
b) Applicability of Article 1 of Protocol
No. 1
The
Government contested that the pension awarded to the applicant by
virtue of the judgment of 21 October 1999 was her “possession”
within the meaning of Article 1 of Protocol No. 1. They noted that in
the case Pravednaya v. Russia (no. 69529/01, 18 November
2004) the Court regarded a judicial award of that type as the
applicant's “possessions”. In that case the Court ordered
restoring the initial judgment in the applicant's favour and paying
pension in the amount defined by that judgment. However, in the
Government's view, such approach creates confusion. If the sum
awarded by the court is the “possession” of the
pensioner, it should not be affected by future raises of the pension
rates. Therefore, in Pravednaya the applicant has to return
the money she has already received from the Pension Fund by virtue of
the recent changes in the legislation on the State pensions. They
conclude that in order to avoid such situations the Court should not
regard the amounts of pension awarded by the domestic courts as the
claimants' “possessions” within the meaning of Article 1
of Protocol No. 1. Consequently, this provision is not applicable in
the present case.
c) As to the merits of the complaint
The
Government also claimed that the District Court reopened the case not
capriciously, but because of the Instruction and the ensuing decision
of the Supreme Court which confirmed its lawfulness, which were both
an important clarification of the law on pensions. Enforcement
of the erroneous decision in the applicant's favour would be unfair
towards other people receiving their pensions from the Pension Fund.
In their request for re-opening the Agency referred to the decision
of the Supreme Court of 24 April 2000, which meant that the
request was lodged within the three-month time-limit, established by
law. This was the major difference with the Pravednaya
case where the request for the re-opening was made without reference
to that decision of the Supreme Court.
Second,
the Instruction was issued after the initial judgment became final,
so the court had good reason to reopen the case. The
Constitutional Court held that nullification of a law because of its
incompatibility with the Constitution could be considered as a newly
discovered circumstance warranting the re-opening of the case. This
was another difference with the Pravednaya case, where the
Instruction was adopted while the proceedings were still pending.
The
Government invited the Court to conclude that the complaint was
incompatible with the Convention ratione materiae, or,
alternatively, that there was no breach of Article 6 § 1 or
Article 1 of Protocol No. 1 on account of the re-opening of the case
concerning the applicant's pension.
2. The applicant
The
applicant insisted on her complaint. First, the Instruction should
not have been considered a newly discovered circumstance because it
arose after the litigation, not before or during it. Second, the
agency missed the time-limit for the reopening: it applied to the
court eight months after it had learned about the instruction,
instead of three months as the civil procedure required. Third, the
Constitutional Court's opinion was irrelevant, because it concerned
only the changes caused by a law's unconstitutionality; the pensions
law was constitutional.
B. The Court's assessment
1. As to the Government's objection on applicability
The
Court will first address the Government's contention that Article 6
§ 1 under its “civil” limb is not applicable to the
present case.
28.
First, the Government claimed that the dispute at issue was not
“civil” because the court did not award the applicant any
money but just indicated how the law should have been applied. The
Court agrees that not every dispute which is “civil” in
domestic terms necessarily determines “civil rights and
obligation” within the meaning of Article 6 of the Convention.
Thus, in Kiryanov v. Russia, referred to by the Government
(see the Government's submissions above), the applicant
obtained an injunction ordering the Government to issue a general
directive on low-interest loans for the veterans. However, the court
was not supposed to establish particular conditions of the
low-interest loans' system – it was the Government's
prerogative. Thus, there was no evidence that the applicant would be
eligible for such a loan or, even more, that he would be interested
in getting it under conditions established by the Government. In
other words, in that case there was only a very tenuous connection
between the applicant's civil rights and the subject-matter of the
litigation.
The
present case, however, should be distinguished from the Kiryanov
v. Russia case. What the applicant sought before the domestic
courts was the raising of her pension. The courts' decisions did not
specify a precise amount to be paid. However, the courts ordered the
application of a certain multiplier to her existing pension;
therefore, the amount due to her could easily have been calculated
and the Pension Fund had no discretion in this respect, unlike the
Government in the Kiryanov case (see also Mihailov v.
Bulgaria, no. 52367/99, § 34, 21 July 2005). The
enforcement proceedings were initiated, and as follows from the writ
of execution of 14 December 1999 the bailiffs invited the
Pension Fund to pay money to the applicant. Therefore, even if the
indication of the precise amount was missing from the judgment, the
proceedings at issue established a particular pecuniary obligation of
the State vis-à-vis the applicant.
Secondly, the Government indicated that the dispute
was about a State pension, and, therefore, was not a “civil”
one within the meaning of Article 6 of the Convention. The Court is
aware that various socio-economic rights, such as the right to a
State pension, have their origin in the public law and as such are
not protected by the Convention. However, the fact that a substantive
right is not protected by the Convention does not exclude a dispute
over such a right from the scope of Article 6. It is beyond doubt
that the pension and the related benefits, which are purely economic
in nature, are “civil” rights within the meaning of
Article 6 § 1 (see Francesco Lombardo, cited above, pp.
26-27, § 17, Schuler-Zgraggen v. Switzerland, judgment of
24 June 1993, Series A no. 263, p. 17, § 46, and Massa v.
Italy, judgment of 24 August 1993, Series A no. 265-B, p. 20,
§ 26; applicability of Article 6 to the pensions disputes
was assumed in many Russian cases – see, for example, Androsov
v. Russia, no. 63973/00, § 48 et seq., 6 October 2005). It
follows that Article 6 § 1 is applicable.
31. The
Government also contests the applicability of Article 1 of Protocol
No. 1. The Court underlines in this respect that Article 1 of
Protocol No. 1 does not include a right to acquire property, in
particular, to receive a social security benefit or pension. It
places no restriction on the Contracting State's freedom to decide
whether or not to have in place any form of social security scheme,
or to choose the type or amount of benefits to provide under any such
scheme (see Stec and Others v. the United Kingdom [GC], no.
65731/01, § 53, 12 April 2006). However, it was a long and
well-established practice of this Court to regard court awards of
pecuniary nature against the State, whatever their origin may be, as
“possessions” within the meaning of Article 1 of Protocol
no. 1 (see, among many other authorities, Brumărescu v.
Romania, judgment of 28 October 1999, Reports of Judgments and
Decisions 1999-VII; see also Ryabykh v. Russia, no.
52854/99, § 52, ECHR 2003–X; see also Androsov
mentioned above, § 55). Whereas a mere expectation to receive a
pension is not protected by the Convention, a “legitimate”
one does attract protection of Article 1 of Protocol no. 1. An
expectation may become “legitimate”, for example, by
virtue of a final court judgment, as in the present case. The Court
reiterates in this respect that the judgment was sufficiently clear
and specific to be enforceable (see paragraphs 28 and 29 above).
Therefore, its annulment constituted an interference with the
applicant's “possessions” within the meaning of Article 1
of Protocol no. 1.
The
Court concludes that the reversal of a final decision in the
applicant's favour constituted an interference with her rights under
both Article 6 and Article 1 of Protocol no. 1 to the Convention. It
remains to be established whether this interference was justified.
2. Alleged violation of Article 6 § 1
(a) General principles
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, cited
above, § 61). This principle insists that no party is
entitled to seek a review of a final and binding judgment merely for
the purpose of a rehearing and a fresh decision of the case.
Indeed,
the Convention in principle tolerates the reopening of final
judgments if new circumstances are discovered. For example, Article 4
of Protocol no. 7 expressly permits the State to correct miscarriages
of criminal justice. A verdict ignoring key evidence may well be such
a miscarriage. However, the power of review should be exercised for
correction of gross judicial mistakes and miscarriages of justice,
and not just as an “appeal in disguise” (see Ryabykh,
cited above, § 52).
The
Court should be especially mindful of the dangers inherent in the use
of retrospective legislation which has the effect of influencing the
judicial determination of a dispute to which the State is a party.
Respect for the rule of law and the notion of a fair trial require
that any reasons adduced to justify such measures be treated with the
greatest possible degree of circumspection (see The National &
Provincial Building Society, the Leeds Permanent Building Society and
the Yorkshire Building Society v. the United Kingdom, judgment of
23 October 1997, Reports 1997-VII, § 112; Zielinski
and Pradal & Gonzalez and Others v. France [GC],
nos. 24846/94 and 34165/96 to 34173/96, § 57, ECHR
1999-VII). Thus, in Smokovitis and Others v. Greece (no.
46356/99, § 23, 11 April 2002) the Court held as follows:
“The Court reaffirms that while in principle the
legislature is not precluded in civil matters from adopting new
retrospective provisions to regulate rights arising under existing
laws, the principle of the rule of law and the notion of fair trial
enshrined in Article 6 preclude any interference by the
legislature – other than on compelling grounds of the general
interest – with the administration of justice designed to
influence the judicial determination of a dispute to which the State
was a party.”
In
another Greek case (Stran Greek Refineries and Stratis Andreadis
v. Greece, judgment of 9 December 1994, Series A no. 301 B,
§ 47) the State, by adopting new legislation, determined the
outcome of a pending dispute to which it was a party. The Government
argued that the new law had been democratically passed and that it
was aimed at the eradication of negative consequences of a unfair
business arrangement made under the military regime. However, in the
Court's view, even such important considerations could not outweigh
the rule of law. Having analysed the “timing and manner”
of the adoption of the law at issue, the Court concluded that the
legislative interference upset the fairness of the proceedings.
The
Court finally recalls its findings in the Pravednaya case,
cited above, where it held (§ 28 et seq.) as follows:
“The procedure for quashing of a final judgment
presupposes that there is evidence not previously available through
the exercise of due diligence that would lead to a different outcome
of the proceedings. The person applying for rescission should show
that there was no opportunity to present the item of evidence at the
final hearing and that the evidence is decisive. Such a procedure is
defined in Article 333 of the CCivP and is common to the legal
systems of many member States.”
However,
this procedure can be misused, as it happened in the Pravednaya
case. In that case the State Pension Agency, referring to the same
Instruction as in the present case, obtained the re-opening of the
case and quashing of the initial judgment with a retroactive effect.
The Court concluded that it constituted a breach of Article 6 §
1 and Article 1 of Protocol No. 1.
(b) Application to the present case
The
Court notes that from 1998 the applicant's pension was to be
calculated under the new law on pensions. The law contained an
equivocal term, and each opposing party – pensioners and
pension agencies – read it in their own favour. Negotiations
exhausted, the applicant brought a civil action against the agency.
The court read the law in the applicant's favour and granted her
claims. The judgment was upheld on appeal and became final in
December 1999. Two weeks later, the Ministry of Labour issued a
detailed instruction on how to apply the law. The instruction
supported the agency's reading of the law, and in August 2000 the
agency asked the court to reconsider the case because the instruction
was a “newly discovered circumstance”. The court agreed,
reconsidered the case, and held against the applicant. In the
applicant's view, that re-opening was arbitrary.
The
first question to answer is whether instruments issued after
litigation may count as a “newly discovered circumstance”,
as it was qualified by the domestic court. In this respect it is
important to tell “newly discovered circumstances” from
“new”. Circumstances which concern the case, exist during
the trial, remain hidden from the judge, and become known only after
the trial, are “newly discovered”. Circumstances which
concern the case but arise only after the trial are “new”.
It appears that in the present case the domestic court has confused
the two.
The
Government may be understood as claiming that even if the Instruction
was a “new” and not “newly discovered”
circumstance, it was nevertheless possible to reopen the case. The
ruling of the Constitutional Court interpreting somewhat similar
provisions of the Code of Criminal Procedure (see paragraph 17 above)
speaks in favour of this position, although indirectly. Therefore,
the second question to answer is whether the adoption of a new
instrument might have justified the annulment of the initial
decision.
It
is conceivable that a judgment looses its legal force when the
legislative framework changes. For instance, the decriminalisation of
certain acts by the legislator may lead to the discontinuation of the
enforcement of a penal sentence, without, however, annulling the
initial conviction. As regards statutory pensions regulations, they
are “liable to change and a judicial decision cannot be relied
on as a guarantee against such changes in the future” (see
Sukhobokov v. Russia, no. 75470/01, § 26, 13 April
2006), even if such changes are to the disadvantage of certain
welfare recipients. Therefore, the Government is wrong when they
assume that, once established by a court judgment, the amount of the
pension may not be increased by virtue of the new legislation (see
the Government's argument in paragraph 22 above).
42. However,
the State cannot interfere with the process of adjudication in an
arbitrary manner. Thus, when the authorities loose the case in a
court but then obtain the reopening of the case by introducing new
legislation with retroactive effect, an issue under Article 6 §
1 may arise. That problem – the retroactive application of the
new legislation - was at the heart of several cases, such as
Pravednaya v. Russia, cited above, and Vasilyev v.
Russia (no. 66543/01, § 41, 13 October 2005).
Turning
to the present case the Court notes that that the annulment of the
judgment of 21 October 2000, as upheld on 14 December 1999,
could not be explained by the “newly discovered”
circumstances. The only reason for the revision of the settled
dispute was the adoption of the Instruction, which gave new
interpretation of the law underlying the judgment in the applicant's
favour. The Court further notes that the interpretation was given by
the same State authority which was a party to the proceedings.
Finally, what is decisive in this case is that the application of
those new rules led to a retrospective recalculation of the amounts
due to the applicant by virtue of the judgment of 21 October 2000.
Therefore, not only had the agency established a new rule applicable
for future cases, it also nullified the final judgment, replacing a
“wrong” judicial interpretation of the law with a
“correct” one, favourable for that agency.
Such
situation, in the opinion of the Court, is incompatible with the
principles of legal certainty and equality of arms, enshrined in
Article 6 § 1 of the Convention. Accordingly, there has been a
violation of this provision.
3. Alleged violation of Article 1 of Protocol No. 1
The
Court reiterates that the judicial award of a pecuniary nature
against the State was the applicant's “possession” within
the meaning of Article 1 of Protocol No. 1 (see paragraphs 31 and 32
above). Annulment of such an award clearly constituted an
interference with the applicant's rights guaranteed by this
provision.
46. To
justify that interference the Government claimed that it had been
lawful and pursued a legitimate aim: to correct a judicial error.
The Court accepts that this measure pursued the public interest;
however, its compliance with the “lawfulness” requirement
of Article 1 of Protocol No. 1 is questionable. Thus, the case was
re-opened because the domestic court viewed the Instruction as a
“newly discovered circumstance”. However, this reading of
Article 333 of CCivP is more than liberal (see paragraph 39 above).
Even assuming that the court's reading of the domestic law was not
absolutely arbitrary (see in this respect paragraph 17 above), it
still remains to be established whether the interference was
proportionate to the legitimate aim pursued.
47. In
this respect the Court recalls that it has already examined a similar
argument in the Pravednaya case, where it held that “the
State's possible interest in ensuring a uniform application of the
Pensions Law should not have brought about the retrospective
recalculation of the judicial award already made” (§ 41).
The recalculation of a pension and its subsequent reduction does not,
as such, violate Article 1 of Protocol No. 1
(Skorkiewicz v Poland (dec.), no. 39860/98, 1 June 1998).
However, backdating the recalculation with the effect that the sums
due were reduced involved an individual and excessive burden for the
applicant and was incompatible with Article 1 of the Protocol no 1.
The
Court does not see any reason to depart from this position in the
circumstances of the present case. It concludes that the quashing of
the judgment of 21 October 1998 constituted a violation of Article 1
of Protocol No. 1.
II. 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”.
51. In
the instant case, the Court notes that in her initial application to
the Court the applicant specified her preliminary claims for just
satisfaction under Article 41. Furthermore, following the
admissibility decision of 5 April 2005, the Court invited the
applicant to submit her final claims for just satisfaction before 7
June 2005. However, the applicant submitted her claims only in
September 2005, that was outside the specified time limit. The
reasons why the applicant failed to produce her claims under Article
41 in a timely manner are unclear to the Court. The Court pays
special attention to the fact that the applicant is 73 years old,
that she was self-represented and that apparently she does not speak
either English or French. In such circumstances the Court
considers it appropriate to reserve the determination of her claims
for just satisfaction, due regard being had to the possibility that
on this point also a friendly settlement may be reached between the
respondent State and the applicant (Rule 75 § 1 of the Rules of
Court).
FOR THESE REASONS, THE COURT UNANIMOUSLY
Holds that there has been a violation of
Article 6 § 1 of the Convention and Article 1 of Protocol
No. 1;
Holds that the question of the application of
Article 41 is not ready for decision;
accordingly:
(a) reserves
the said question;
(b) invites
the Government and the applicants to submit, within two months from
the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, their written observations on
the matter and, in particular, to notify the Court of any agreement
that they may reach;
(c) reserves
the further procedure and delegates to the President of the
Chamber the power to fix the same if need be.
Done in English, and notified in writing on 18 January 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Vincent Berger Boštjan M. Zupančič
Registrar President
