FIRST SECTION

CASE OF KHOTULEVA v. RUSSIA

(Application no. 27114/04)

JUDGMENT

STRASBOURG

30 July 2009

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 ,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
	Nina Vajić, President,
	Anatoly Kovler,
	Elisabeth Steiner,
	Dean Spielmann,
	Sverre Erik Jebens,
	Giorgio Malinverni,
	George Nicolaou, judges,
and SørenNielsenSection Registrar,
Having deliberated in private on 7 July 2009,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 27114/04) 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 Nina Dmitriyevna Khotuleva (“the applicant”), on 14 September 2001.
2.  The Russian Government (“the Government”) were represented by their Agent, Ms V. Milinchuk, former Representative of the Russian Federation at the European Court of Human Rights.
3.  The applicant alleged, in particular, that the final judgment in her favour of 4 April 2000, as upheld on 30 May 2000, was not enforced and was subsequently quashed by way of supervisory review on 25 January 2001.
4.  On 8 December 2006 the President of the First Section decided to communicate these complaints to the respondent Government. It was also decided to examine the merits of the applications at the same time as their admissibility (Article 29 § 3).
THE FACTS
I.  THE CIRCUMSTANCES OF THE CASE
5.  The applicant was born in 1937 and lives in Safonovo, Smolensk Region.
6.  In January 2000 the applicant applied to the Safonovskiy Town Court of the Smolensk Region for recalculation of her pension.
7.  On 4 April 2000 the Safonovskiy Town Court found in her favour and ordered the social welfare authority to recalculate her pension in accordance with the relevant provisions of the domestic law and to apply an individual pension rate of 0.7 for its recalculation. On 30 May 2000 the Smolensk Regional Court upheld this judgment on appeal.
8.  On 25 January 2001 the Presidium of the Smolensk Regional Court on the initiative of the President of the Smolensk Regional Court quashed the judgment and the decision and dismissed the applicant’s claim in full. The applicant was informed about it in April 2001. The Presidium based its decision on that the lower courts had misinterpreted the relevant substantive law provisions.
II.  RELEVANT DOMESTIC LAW
9.  The relevant domestic law governing the supervisory review procedure in the material time is summed up in the Court’s judgment in the case of Ryabykh (see Ryabykh v. Russia, . 52854/99, §§ 31-42, ECHR 2003‑IX).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AND OF ARTICLE 1 OF PROTOCOL No. 1 ON ACCOUNT OF SUPERVISORY REVIEW
10.  The applicant complained under Article 6 of the Convention that the judgment of 4 April 2000, as upheld on 30 May 2000, had been quashed on a supervisory review on 25 January 2001. 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.[...]”
11.  The Government contested that argument. They argued that the supervisory review had been compatible with the Convention as the lower courts had erroneously interpreted and applied the substantive law provisions.
A.  Admissibility
12.  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
13.  The Court reiterates that for the sake of legal certainty implicitly required by Article 6, final judgments should generally be left intact. They may be disturbed only to correct fundamental errors (see Ryabykh v. Russia, . 52854/99, §§ 51-52, ECHR 2003‑IX). To answer this complaint the Court will hence have to determine if the grounds for the quashing of the applicant’s judgment fell within this exception (see Protsenko v. Russia, no. 13151/04, § 29, 31 July 2008).
14.  In the present case the final judgment was quashed solely on the grounds of the alleged misinterpretation of the substantive law.
15.  The Court recalls that it has frequently found violations of the principle of legal certainty and of the right to a court in the supervisory-review proceedings governed by the former Code of Civil Procedure as it allowed final judgments in the applicants’ favour to be set aside by higher courts following applications by state officials, whose power to make such applications was not subject to any time-limit (see, among other authorities, Ryabykh, cited above, §§ 51-56; Volkova v. Russia, no. 48758/99, §§ 34-36, 5 April 2005; Roseltrans v. Russia, no. 60974/00, §§ 27-28, 21 July 2005) .
16.  According to the Court’s constant case-law, the fact that the Presidium disagreed with the interpretation of substantive law made by the lower courts was not, in itself, an exceptional circumstance warranting the quashing of a binding and enforceable judgment (see Kot v. Russia, . 20887/03, § 29, 18 January 2007).
17.  The foregoing considerations are sufficient to enable the Court to conclude that in the present cases there were no circumstances justifying departure from the principle of legal certainty.
18.  There has accordingly been a violation of Article 6.
19.  The Court further notes that the final judgment, though it did not indicate specific sums, unconditionally ordered the State to recalculate the pension payments which had been made earlier. The judgments thus created an asset within the meaning of Article 1 of Protocol No. 1 (see Vasilopoulou v. Greece, no. 47541/99, § 22, 21 March 2002, and Malinovskiy v. Russia, no. 41302/02, § 43, 2005‑VII (extracts)). quashing of the judgment in breach of the principle of legal certainty frustrated the applicant’s reliance on the binding judicial decision and deprived her of an opportunity to receive the judicial awards she had legitimately expected to receive (see Dovguchitsv. Russia, no. 2999/03, § 35, 7 June 2007).
20.  There has accordingly been a violation of Article 1 of Protocol No. 1.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF NON-ENFORCEMENT
21.  The applicant complained under Article 6 (cited above) of the Convention that the judgment in her favour of 4 April 2000, as upheld on 30 May 2000, was not enforced.
22.  The Government contested that argument.
23. As to non-enforcement of the judgment of 4 April 2000 before it was quashed by way of supervisory review on 25 January 2001, it does not raise an issue under Article 6, as the judgment in the applicant’s favour was quashed within a relatively short time after it became binding and enforceable (in about ten months). Therefore there was no violation of the Convention in that respect.
24.  As to non-enforcement after the quashing, the Court reiterates that the principles insisting that a final judicial decision must not be called into question and should be enforced represent two aspects of the same general concept, namely the right to a court (see , no. 30671/03, §§ 41-42, 15 February 2007; and , cited above, §§ 67-68). Therefore it considers that there is no separate issue on the matter, having regard to its finding of a violation of Article 6 on account of the quashing of the judgment in supervisory-review proceedings (see Kulkov and Others v. Russia, nos. 25114/03, 11512/03, 9794/05, 37403/05, 13110/06, 19469/06, 42608/06, 44928/06, 44972/06 and 45022/06, § 35, 8 January 2009).
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
25. Insofar as the applicant invokes Article 1 of the Convention alleging the State’s failure to secure her rights, the Court recalls that this provision, even where invoked in conjunction with other Articles, cannot be the subject of a separate violation. No separate issue therefore arises (see, mutatis mutandis, Danini v. Italy, 22998/93, Commission decision of 14 October 1996, Decisions and Reports (DR) 87, p. 24).
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
26.  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
27.  The applicant claimed 100,000 euros (EUR) in respect of damage, not specifying its nature.
28.  The Government considered the sum was wholly excessive and fully ungrounded. They submitted that finding of a violation would constitute adequate just satisfaction in the present case.
29. Insofar as the applicant may be understood to claim pecuniary damages, the Court recalls that the most appropriate form of redress in respect of the violations found would be to put the applicant as far as possible in the position she would have been if the Convention requirements had not been disregarded (see, among many authorities, Piersack v. Belgium (Article 50), 26 October 1984, § 12, Series A no. 85; Kondrashov and Others v. Russia, nos. 2068/03, 2076/03, 5224/03, 5385/03, 5414/03 and 5656/03, § 41, 8 January 2009). The applicant was prevented from receiving the amounts she had legitimately expected to receive under the binding judgment of 4 April 2000, as upheld on 30 May 2000, at least until the subsequent dismissal of her claims by the domestic courts following the supervisory review. However, the judgment did not indicate the specific sums when ordering the authorities to recalculate pension payments, and the applicant did not submit to the Court any calculation of the sums she would have received under that judgment. Her claim for pecuniary damages must therefore be rejected as unsubstantiated.
30.  Insofar as the applicant may be understood to claim non-pecuniary damage, the Court takes the view that the applicant must have suffered such damage as a result of the violation found which cannot be made good by the mere ﬁnding of a violation. The particular amount claimed is, however, excessive. Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards the applicant the sum of EUR 3,000 in respect of non-pecuniary damage.
B.  Costs and expenses
31.  The applicant made no claims under this head. Accordingly, the Court will make no award under this head.
C.  Default interest
32.  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
1.  Declares the complaints concerning the supervisory review proceedings and non-enforcement admissible and the remainder of the application inadmissible;

2.  Holds that there has been a violation of Article 6 of the Convention and of Article 1 of Protocol No. 1 in respect of the quashing by way of supervisory review of the final judgment in the applicant’s favour;

3.  Holds that there has been no violation of Article 6 of the Convention in respect of non-enforcement of the judgment of 4 April 2000 before it was quashed by way of supervisory review on 25 January 2001 and that there is no need to examine the complaint concerning non-enforcement of that judgment after the date of the quashing;

4.  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 amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

5.  Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 30 July 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Søren Nielsen	
	Registrar	President