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BOLYUKH v. RUSSIA - 19134/05 [2007] ECHR 692 (31 July 2007)
URL: http://www.bailii.org/eu/cases/ECHR/2007/692.html
Cite as:
[2007] ECHR 692
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FIRST
SECTION
CASE OF BOLYUKH v. RUSSIA
(Application
no. 19134/05)
JUDGMENT
STRASBOURG
31 July 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 Bolyukh v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Mr C.L. Rozakis, President,
Mr L.
Loucaides,
Mrs N. Vajić,
Mr A.
Kovler,
Mrs E. Steiner,
Mr K. Hajiyev,
Mr D.
Spielmann, judges,
and Mr S. Nielsen, Section Registrar,
Having
deliberated in private on 10 July 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 19134/05) 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, Mrs Rosa Ivanovna Bolyukh
(“the applicant”), on 29 April 2005.
The
Russian Government (“the Government”) were represented by
Mr P. Laptev, Representative of the Russian Federation at the
European Court of Human Rights.
On
15 September 2005 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
THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1933 and lives in Lensk, a town in the Sakha
(Yakutiya) Republic of the Russian Federation.
The
applicant brought a civil action against the Ministry of Finance of
the Russian Federation, seeking to recover the monetary value of
state promissory notes for purchase of a Russian-made car.
On
3 April 2003 the Lenskiy District Court of the Republic of Sakha
(Yakutiya) found for the applicant and awarded her 91,500 Russian
roubles.
By
a decision of 5 May 2003 the Supreme Court of the Republic of Sakha
(Yakutiya) rejected an appeal by the Ministry of Finance and upheld
the judgment. On the same date the judgment of 3 April 2003 acquired
legal force but it has never been enforced.
On
1 September 2004 the President of the Supreme Court of the Republic
of Sakha (Yakutiya) referred the case to the Presidium of the Supreme
Court, upon the defendant's application for supervisory review.
On
23 September 2004 the Presidium quashed the judgment of 3 April
2003, as upheld by the decision of 5 May 2003, and dismissed the
applicant's claim in full. In so deciding, the Presidium noted that
the courts had failed to take into account the provisions of the
Federal Law on State Promissory notes of 1 June 1995, as amended on 2
June 2000, which extended the period of redemption of the state
promissory notes until 31 December 2004. In the Presidium's
assessment, that failure amounted to a substantial violation of the
material law warranting a re-examination of the case.
The
applicant submitted that she had not been properly notified of the
session of the Presidium of the Supreme Court of the Republic of
Sakha (Yakutiya) of 23 September 2004 and therefore she could not
attend it. The defendant's representative had attended the hearing
and presented his arguments. According to the Government, the
applicant had been informed of the date and the time of the hearing
by a letter of 13 September 2004. The applicant submitted that she
had become aware of the decision of 23 September 2004 on 8
November 2004 when she had received it by post. She provided the
Court with an envelope sent by the Supreme Court of the Republic of
Sakha (Yakutiya) postmarked on 8 November 2004.
THE LAW
I. 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 APPLICANT'S FAVOUR
The
applicant complained that the judgment of 3 April 2003 was quashed
following the supervisory review and that she was deprived of her
right to effectively participate at the supervisory review hearing.
She referred to Article 6 of the Convention and 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 ... 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 notes 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. Article 6 § 1 of the Convention
(a) Supervisory review procedure: legal
certainty
The Government submitted that on 23 September 2004 the
Presidium of the Supreme Court of the Republic of Sakha (Yakutiya)
acted in accordance with domestic law and procedure. It quashed the
judgment of 3 April 2003, as upheld by the decision of 5 May 2003,
because the lower courts had made an error in the application of
substantive law. In particular, they had failed to take into account
the provisions of the Federal Law on State Promissory notes of 1 June
1995 which extended the period of redemption of the state promissory
notes until 31 December 2004. They concluded that there had been no
violation of the principle of legal certainty.
The
applicant maintained her complaint.
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 underlines that no party is entitled to seek a review of a
final and binding judgment merely for the purpose of obtaining a
rehearing and a fresh determination of the case. Higher courts' power
of review should be exercised to correct judicial errors and
miscarriages of justice, but not to carry out a fresh examination.
The review should not be treated as an appeal in disguise, and the
mere possibility of there being two views on the subject is not a
ground for re-examination. A departure from that principle is
justified only when made necessary by circumstances of a substantial
and compelling character (see, mutatis mutandis, Ryabykh v.
Russia, no. 52854/99, § 52, ECHR 2003-X; and Pravednaya
v. Russia, no. 69529/01, § 25, 18 November 2004).
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 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 is
not subject to any time-limit, with the result that the judgments
were liable to challenge indefinitely (see Ryabykh, cited above, §§
51-56).
The
Court observes that on 3 April 2003 the Lenskiy District Court of the
Republic of Sakha (Yakutiya) granted the applicant's action against
the Ministry of Finance and awarded her a sum of money. The judgment
was upheld on appeal on 5 May 2003 and acquired legal force on the
same date. On 23 September 2004 the judgment was quashed by way of
supervisory review on the ground that the lower courts had
erroneously applied substantive law.
The
Court reiterates that it has found a violation of an applicant's
“right to a court” guaranteed by Article 6 § 1 of
the Convention in many Russian cases in which a judicial decision
that had become final and binding, was subsequently quashed by a
higher court on an application by a State official or a party to the
proceedings, especially when a particularly long period of time, as
in the present case, lapsed from the date the judgment in the
applicant's favour had become binding to the date the
supervisory-review proceedings were instituted (see Ryabykh,
cited above, §§ 51-58;
Volkova v. Russia, no. 48758/99, §§ 34-37, 5 April
2005; Roseltrans v. Russia, no. 60974/00, §§ 27-28,
21 July 2005; Borshchevskiy v. Russia, no. 14853/03, §§
46-50, 21 September 2006; and Nelyubin v. Russia, no.
14502/04, §§ 28-30, 2 November 2006). Furthermore, in the
case of Kot v. Russia (no. 20887/03, § 29, 18 January
2007) the Court found as follows:
“It is unavoidable that in civil proceedings the
parties would have conflicting views on application of the
substantive law. The courts are called upon to examine their
arguments in a fair and adversarial manner and make their assessment
of the claim. The Court observes that before an application for
supervisory review was lodged, the merits of the applicant's claim
had been examined ... by the first-instance and appeal courts. It has
not been claimed that the courts acted outside their competences or
that there was a fundamental defect in the proceedings before them.
The fact that the Presidium disagreed with the assessment made by the
first-instance and appeal courts was not, in itself, an exceptional
circumstance warranting the quashing of a binding and enforceable
judgment and re-opening of the proceedings on the applicant's claim.”
Having examined the materials submitted to it, the
Court observes that the Government have not put forward any fact or
argument capable of persuading it to reach a different conclusion in
the present case. Accordingly, the Court finds that by quashing the
judgment of 3 April 2003, by way of supervisory review, the Presidium
of the Supreme Court of the Republic of Sakha (Yakutiya) 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.
(b) Supervisory review procedure:
procedural issues
With
regard to the complaint about the procedural defects of the hearing
before the Presidium of the Supreme Court of the Republic of Sakha
(Yakutiya), the Court finds that, having concluded that there had
been an infringement of the applicant's “right to a court”
by the very use of the supervisory review procedure, it is not
necessary to consider whether the procedural guarantees of Article 6
of the Convention were available in those proceedings (cf. Ryabykh,
cited above, § 59, and Volkova, cited above,§
39).
2. Article 1 of Protocol No. 1
The
Government submitted that the quashing of the judgment of 3 April
2003 had not amounted to an interference with the applicant's rights
under Article 1 of Protocol No. 1.
The
applicant maintained her complaint.
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, and Androsov v. Russia, no. 63973/00,
§ 69, 6 October 2005).
The
Court observes that the applicant obtained a binding and enforceable
judgment in her favour, by the terms of which the Ministry of Finance
was to pay her a substantial amount of money. She was prevented from
receiving the award through no fault of her own. The quashing of the
enforceable judgment frustrated the applicant's reliance on a binding
judicial decision and deprived her of an opportunity to receive the
money she had legitimately expected to receive. In these
circumstances, even assuming that the interference was lawful and
pursued a legitimate aim, the Court considers that the quashing of
the enforceable judgment in the applicant's favour by way of
supervisory review placed an excessive burden on the applicant and
was incompatible with Article 1 of the Protocol No. 1. There has
therefore been a violation of that Article.
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AND
ARTICLE 1 OF PROTOCOL No. 1 ON ACCOUNT OF THE NON-ENFORCEMENT OF THE
JUDGMENT OF 3 APRIL 2003
The
applicant complained about the non-enforcement of the judgment of 3
April 2003, as upheld on 5 May 2003. She relied on Article 6 of the
Convention and Article 1 of Protocol No. 1. The relevant parts of
these provisions are 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 the judgment of 3 April 2003 had not been
enforced because it had been quashed by the Presidium of the Supreme
Court of the Republic of Sakha (Yakutiya) on 23 September 2004. The
Presidium issued a new decision in the applicant's case by which
rejected her claims in full.
The
applicant maintained her complaint.
The
Court observes that on 3 April 2003 the applicant obtained a judgment
by which the Ministry of Finance was to pay her a substantial amount
of money. On 5 May 2003 the judgment was upheld on appeal and became
legally binding and enforceable. From that moment, it was incumbent
on the debtor, a state body, to comply with it. On 23 September 2004
the Presidium of the Supreme Court of the Republic of Sakha
(Yakutiya) quashed the judgment of 3 April 2003.
It
follows that at least from 5 May 2003 to 23 September 2004 the
judgment of 3 April 2003 was enforceable and it was incumbent on the
State to abide by its terms (cf. Velskaya v. Russia, no.
21769/03, § 18, 5 October 2006).
The
Government cited the initiation of the supervisory review proceedings
in respect of the judgment of 3 April 2003 as the sole reason for its
non-enforcement. In this respect, the Court reiterates that it has
recently addressed and dismissed the same argument by the Government
in the case of Sukhobokov v. Russia (no. 75470/01, 13 April
2006). In particular, the Court held that “the quashing of the
judgment, which did not respect the principle of legal certainty and
the applicant's “right to a court”, cannot be accepted as
a reason to justify the non-enforcement of the judgment” (see
Sukhobokov, cited above, § 26, and Velskaya v. Russia,
cited above, § 19).
Having
examined the material submitted to it and taking into account its
findings in paragraphs 20 and 25 above, the Court notes that the
Government did not put forward any fact or argument capable of
persuading the Court to reach a different conclusion in the present
case. Nor did they advance any other justification for the failure to
enforce the judgment of 3 April 2003. Having regard to its
case-law on the subject (see Burdov v. Russia, no. 59498/00,
ECHR 2002-III; and, more recently, Reynbakh v. Russia, no.
23405/03, 29 September 2005, and Denisov v. Russia,
no. 21823/03, 25 January 2007), the Court finds that by failing
for a substantial period to comply with the judgment in the
applicant's favour, the domestic authorities violated her right to a
court and prevented her from receiving the money she 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 on account of the
non-enforcement of the judgment of 3 April 2003.
III. 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
In
respect of pecuniary damage, the applicant claimed 5,200 United
States dollars (USD) representing the market value of a Russian made
car. She further claimed 15,000 euros (EUR) in respect of
non-pecuniary damage.
The
Government submitted that, in case of finding of a violation, the
applicant's claim in respect of pecuniary damage should be dismissed
as there was no casual link between the alleged violation and the
pecuniary damage claimed. They referred in this respect to the
Court's judgment in the case of Volkova v. Russia (no.
48758/99, 5 April 2005). They further submitted that the applicant's
claim for non-pecuniary damage was excessive and ill-founded. They
considered that in case of finding of a violation of the applicant's
rights, the amount of compensation should be determined with account
taken of the particular circumstances of the case.
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 had remained
unenforced for a long period of time and had been subsequently
quashed. The applicant was thereby prevented from receiving the money
she had legitimately expected to receive. There has been therefore a
causal link between the violations found and the applicant's claim
for the pecuniary damage in so far as it covered the original award.
The
Court further notes that the most appropriate form of redress in
respect of a violation of Article 6 is to ensure that the applicant
as far as possible is put in the position he would have been had the
requirements of Article 6 not been disregarded (see Piersack
v. Belgium (Article 50), judgment of 26 October 1984, Series A
no. 85, p. 16, § 12, and, mutatis mutandis, Gençel
v. Turkey, no. 53431/99, § 27, 23 October 2003). The Court
finds that in the present case this principle applies as well, having
regard to the violations found (cf. Poznakhirina v. Russia,
no. 25964/02, § 33, 24 February 2005, and Sukhobokov,
cited above, § 34). The applicant was prevented from
receiving the money she had legitimately expected to receive under
the judgment of 3 April 2003. Having regard to the nature of the
violation found, the Court considers it appropriate to award the
applicant the equivalent in euros of the sum which she would have
received had the judgment of 3 April 2003 not been quashed,
i.e. EUR 2,700 in respect of pecuniary damage, plus any tax
that may be chargeable on that amount, and dismisses the remainder of
her claim for pecuniary damage.
The
Court further considers that the applicant suffered distress and
frustration because of the State authorities' failure to enforce the
judgment in her favour and their subsequent decision to quash it.
Nevertheless, the amount claimed appears excessive. Making its
assessment on an equitable basis, it awards the applicant EUR 2,900
in respect of non-pecuniary damage, plus any tax that may be
chargeable on that amount.
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 application admissible;
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 3 April 2003;
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 3 April 2003;
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) EUR
2,700 (two thousand seven hundred euros) in respect of pecuniary
damage;
(ii) EUR
2,900 (two thousand nine hundred euros) in respect of non-pecuniary
damage;
(iii) any
tax that may be chargeable on the above amounts;
(b) that
the above amounts shall be converted into Russian roubles at the rate
applicable at the date of settlement;
(c) 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;
Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 31 July 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
