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TKACHEV v. RUSSIA - 22551/06 [2008] ECHR 1672 (11 December 2008)
URL: http://www.bailii.org/eu/cases/ECHR/2008/1672.html
Cite as:
[2008] ECHR 1672
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FIRST
SECTION
CASE OF TKACHEV v. RUSSIA
(Application
no. 22551/06)
JUDGMENT
STRASBOURG
11
December 2008
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 Tkachev v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis, President,
Nina
Vajić,
Anatoly Kovler,
Khanlar
Hajiyev,
Dean Spielmann,
Sverre Erik
Jebens,
Giorgio Malinverni, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 20 November 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 22551/06) 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 Valeriy Pavlovich
Tkachev (“the applicant”), on 17 April 2006.
The
Russian Government (“the Government”) were represented by
Mr P. Laptev and Ms V. Milinchuk, former Representatives of
the Russian Federation at the European Court of Human Rights.
On
29 August 2006 the President of the First Section decided to
communicate the complaint concerning supervisory review to the
Government. It was also decided to examine the merits of the
application at the same time as its admissibility (Article 29 §
3). The Government objected to the joint examination of the
admissibility and merits, but the Court rejected this objection.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1955 and lives in Yoshkar-Ola, a town in Mari
El.
The
applicant is a retired police officer who was injured during his
service in Grozny. He sued
a local
special-purpose
police squad
(Федеральное
государственное
учреждение
Отряд милиции
особого назначения
при Министерстве
Внутренних
Дел Республики
Марий Эл)
over his
injury. On
5 November 2004 the Yoshkar-Ola Town Court awarded the applicant a
lump sum of 202,187.97 Russian roubles (RUB) in damages and costs,
and a monthly compensation of RUB 6,201.73 to be paid from 1 November
2004 to 17 September 2005 with an adjustment for the cost of
living. On 9 December 2004 the judgment was upheld on appeal and
became binding.
On
the defendant’s initiative on 16 December 2005 the Presidium of
the Supreme Court of Mari El quashed the judgment and rejected the
applicant’s claims. The Presidium found that the courts below
had misinterpreted material law, and, in particular, that the
Ministry of the Interior had not been responsible for the applicant’s
injuries.
II. RELEVANT DOMESTIC LAW
Domestic
law concerning supervisory review is cited in detail in earlier cases
(see, for example, Kot v. Russia, no. 20887/03, § 17,
18 January 2007).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
The
applicant complained under Article 6 of the Convention about the
supervisory review of the binding judgment. The Court will examine
this complaint under Article 6 § 1 of the Convention and Article
1 of Protocol No. 1. Insofar as relevant, these Articles
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.
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. Admissibility
The
Government argued that this complaint was inadmissible. The
supervisory review had been justified because it had been meant to
correct a misapplication of material law. The domestic procedure had
been thoroughly respected. The review had been initiated by a party
to the proceedings. Review of binding judgments had been acceptable
in a democratic society and known to such countries as Germany and
Austria. Besides, the Committee of Ministers of the Council of Europe
had been satisfied that Russia’s supervisory-review procedure
had been improved (ResDH(2006)1, 8 February 2006; CM/Inf/DH(2005)20,
23 March 2005). The applicant’s property rights had not been
breached, because as the Presidium had found, he had had no
legitimate expectation to receive the damages.
The
applicant maintained his complaint.
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
The
Court reiterates that Article 6 of the Convention includes the “right
to a court” (see Golder v. the United Kingdom, judgment
of 21 February 1975, Series A no. 18, § 36). To
honour this right, the State must avoid quashing a binding judgment,
save in circumstances where the principle of legal certainty would
not be breached (see Protsenko v. Russia, no.
13151/04, §§ 25–34, 31 July 2008).
Besides, an enforceable judgment constitutes a “possession”
within the meaning of Article 1 of Protocol No. 1.
In
the present case, the judgment was quashed because it had been based
on a misinterpretation of material law. However, this ground does not
justify supervisory review (see Kot v. Russia, no.
20887/03, § 29, 18 January 2007).
There
has, accordingly, been a violation of Article 6 § 1 of the
Convention and Article 1 of Protocol No. 1.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The
applicant also complained under Article 6 of the Convention about the
outcome of the proceedings and under Article 14 about inequality in
relation to other servicemen whose similar actions had been granted.
However,
in the light of all the material in its possession, and in so far as
the matters complained of are within its competence, the Court finds
that they do not disclose any appearance of a violation of the rights
and freedoms set out in the Convention or its Protocols.
It
follows that this part of the application is manifestly ill-founded
and must be rejected in accordance with Article 35 §§ 3 and
4 of the Convention.
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
The
applicant claimed RUB 204.284,99 in respect of pecuniary damage. This
sum included monthly payments that he should have allegedly received
from October 2005 to April 2007 adjusted for the cost of living.
The
Government argued that this claim had had no basis in domestic law,
that the applicant had received compensation due until the quashing,
and that his calculation of cost-of-living adjustment had been
arbitrary.
The
Court notes that the quashed judgment awarded monthly payments only
for the period from November 2004 to September 2005. Discerning no
causal link between the violation found and the pecuniary damage
alleged, the Court rejects this claim.
The
applicant also claimed 200,000 euros (EUR) in respect of
non-pecuniary damage. The Government argued that this claim was
excessive and unreasonable.
The
Court accepts that the applicant must have been distressed by the
quashing of the binding judgment. Making its assessment on an
equitable basis, the Court awards EUR 3,000 under this head.
B. Costs and expenses
The
applicant made no claim for the costs and expenses. Accordingly, the
Court makes no 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 complaint concerning supervisory
review admissible and the remainder of the application inadmissible;
Holds that there has been a violation of Article
6 § 1 of the Convention and Article 1 of Protocol No. 1;
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, EUR 3,000
(three thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage, to be converted into Russian roubles
at the rate applicable at the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 11 December 2008,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
