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KUZMINA v. RUSSIA - 15242/04 [2009] ECHR 1832 (02 July 2009)
URL: http://www.bailii.org/eu/cases/ECHR/2009/1832.html
Cite as:
[2009] ECHR 1832
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FIRST
SECTION
CASE OF KUZMINA v. RUSSIA
(Application
no. 15242/04)
JUDGMENT
STRASBOURG
2 April
2009
FINAL
02/07/2009
This
judgment may be subject to editorial revision.
In the case of Kuzmina 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,
Giorgio
Malinverni,
George Nicolaou, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 12 March 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 15242/04) 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 Zinaida Mikhaylovna
Kuzmina (“the applicant”), on 29 March 2004.
The
applicant was represented by Mr V. Gandzyuk, a lawyer practising in
Ryazan. The Russian Government (“the Government”) were
represented by Ms V. Milinchuk, former Representative of the Russian
Federation at the European Court of Human Rights.
On
13 November 2007 the President of the First Section decided to give
notice of the application 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 FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1957 and lives in Ryazan.
She
is a military servicewoman. From January 2000 to February 2001 she
served in the Russian contingent of the UN Peacekeeping Mission in
Bosnia and Herzegovina.
Upon
her return, the applicant brought proceedings against the head of her
military unit to secure payment of her daily allowance for her
service abroad.
On
25 July 2003 the Military Court of the Ryazan Garrison partly granted
the applicant’s claim and ordered the military unit to pay the
applicant 346,050.70 Russian roubles (RUB) in remuneration and
RUB 1,000 in expenses for legal advice.
The
military unit did not lodge an ordinary appeal, and on 22 August 2003
the judgment became binding and enforceable.
However,
following the respondent’s request, on 19 November 2003 the
Presidium of the Military Court of the Moscow Command quashed the
judgment of 25 July 2003 by way of supervisory review and dismissed
the applicant’s claims in full. The reason given for the
quashing of the judgment was the “wrongful application of
substantive law by the first-instance court”.
II. RELEVANT DOMESTIC LAW
The
Code of Civil Procedure of the Russian Federation provides as
follows:
Article 362. Grounds on which appeal courts may quash
or alter judicial decisions
“1. The grounds on which appeal courts
may quash or alter judicial decisions are:
...
(4) a violation or incorrect application of
substantive or procedural law.”
Article 387. Grounds on which judicial decisions may
be quashed or altered
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 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 fresh
examination, if the substantive law has been erroneously applied or
interpreted.”
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 25 July
2003 by way of supervisory-review proceedings had violated her “right
to a court” under Article 6 § 1 of the Convention and her
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. Submissions by the parties
The
Government, relying on the Court’s judgments in the cases of
Pellegrin v. France ([GC], no. 28541/95, ECHR 1999 VIII)
and Kanayev v. Russia (no. 43726/02, 27 July 2006), argued
that the applicant’s complaint under Article 6 of the
Convention was incompatible ratione
materiae because the applicant was a military officer and
the judgment award had concerned allowances for her military service.
They further argued that Article 1 of Protocol No. 1 was also
inapplicable because the applicant had not had a “possession”
within the meaning of that Convention provision as she had had no
right to receive “payments in the amount claimed”. She
had neither an “existing possession” nor a “legitimate
expectation”. As to the merits of the complaint, the Government
noted that the judgment of 25 July 2003 had been quashed because the
Military Court of the Ryazan Garrison had incorrectly interpreted and
applied substantive law.
The
applicant averred that the quashing of the final judgment of 25 July
2003 had irremediably impaired the principle of legal certainty and
deprived her of the right to receive money she was entitled to
receive.
B. The Court’s assessment
1. Article 6 § 1 of the Convention
(a) Admissibility
The Government contested the applicability of Article
6 to the dispute raised by the applicant. Relying on Pellegrin
(cited above), they argued that Article 6 was not applicable since
complaints raised by servants of the State such as military officers
over their conditions of service were excluded from its ambit.
15. The Court accepts
that in the Pellegrin
judgment it attempted
to establish an autonomous interpretation of the term “civil
service”. To that end the Court introduced a functional
criterion based on the nature of the employee’s duties and
responsibilities.
However, in its judgment in
the case of Vilho
Eskelinen and Others v. Finland ([GC],
no. 63235/00, 19 April 2007), the Court found that the functional
criterion adopted in the
Pellegrin judgment
did not simplify the analysis of the applicability of Article 6 in
proceedings to which a civil servant was a party or bring about a
greater degree of certainty in this area as intended (§ 55). For
these reasons the Court decided to further develop the functional
criterion set out in Pellegrin
and adopted the
following approach:
“To recapitulate, in order for the respondent
State to be able to rely before the Court on the applicant’s
status as a civil servant in excluding the protection embodied in
Article 6, two conditions must be fulfilled. Firstly, the State in
its national law must have expressly excluded access to a court for
the post or category of staff in question. Secondly, the exclusion
must be justified on objective grounds in the State’s interest.
The mere fact that the applicant is in a sector or department which
participates in the exercise of power conferred by public law is not
in itself decisive. In order for the exclusion to be justified, it is
not enough for the State to establish that the civil servant in
question participates in the exercise of public power or that there
exists, to use the words of the Court in the Pellegrin
judgment, a ‘special bond of trust and loyalty’ between
the civil servant and the State, as employer. It is also for the
State to show that the subject matter of the dispute in issue is
related to the exercise of State power or that it has called into
question the special bond. Thus, there can in principle be no
justification for the exclusion from the guarantees of Article 6 of
ordinary labour disputes, such as those relating to salaries,
allowances or similar entitlements, on the basis of the special
nature of relationship between the particular civil servant and the
State in question. There will, in effect, be a presumption that
Article 6 applies. It will be for the respondent Government to
demonstrate, first, that a civil-servant applicant does not have a
right of access to a court under national law and, second, that the
exclusion of the rights under Article 6 for the civil servant is
justified.” (see Vilho
Eskelinen and Others v. Finland [GC], no. 63235/00, 19
April 2007, § 62)
Turning
to the facts of the present case, the Court notes that the applicant
had access to a court under national law. She made use of her right
and introduced an action against her employer. The Military Court of
the Ryazan Garrison examined the applicant’s claims and
accepted them, awarding the applicant a daily allowance for her
service abroad and compensation for legal costs. After the final
judgment of 25 July 2003 had been quashed by way of supervisory
review, the applicant’s claims were once again re-examined and
dismissed. Neither the domestic courts nor the Government indicated
that the domestic system barred the applicant’s access to a
court. Accordingly, Article 6 is applicable (see Vilho
Eskelinen, cited above,
§ 63, and, for a similar context in a Russian case, Dovguchits
v. Russia, no. 2999/03, § 33, 7 June 2007).
The Court further notes that this complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 of
the Convention and is not inadmissible on any other grounds. It must
therefore be declared admissible.
(b) Merits
The
Government pointed out that the aim of the application of the
supervisory review procedure in the present case was to correct
judicial errors. The applicant’s case clearly did not call for
any payment of a daily allowance and the supervisory review court had
to give a proper explanation and an appropriate legal interpretation
of the matter in dispute for the purpose of delivering a fair and
lawful judgment and for the purpose of securing the correct
application of the relevant domestic law in future similar cases.
There had therefore been no violation of the principle of legal
certainty.
The
Court observes 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, 28 October 1999, § 61,
Reports of Judgments and Decisions 1999-VII).
This principle states that no party is entitled to
seek the re-opening of proceedings merely for the purpose of a
rehearing and a fresh decision of the case. The power of the higher
courts to quash or alter binding and enforceable judicial decisions
should be exercised only for the correction of fundamental defects.
The mere possibility of two views on the subject does not constitute
grounds for re-examination. Departures from that principle are
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).
22. The Court observes 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 a view to carrying out a
fresh examination (see Kot v. Russia, no. 20887/03, §§
27-30, 18 January 2007, and Zvezdin v. Russia, no. 25448/06, §
28, 14 June 2007).
In
the present case the judgment of 25 July 2003 in the applicant’s
favour was set aside on 19 November 2003 by way of a supervisory
review on the grounds that the Military Court of the Ryazan Garrison
had incorrectly applied the substantive law. The Court has to assess
whether the power to conduct a supervisory review was exercised by
the authorities so as to correct a fundamental error.
The
Court reiterates that a binding and enforceable judgment should be
quashed only in exceptional circumstances rather than for the sole
purpose of obtaining a different decision in the case. In the Russian
legal system, the grounds for quashing or altering judgments through
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
25 July 2003 was quashed by way of supervisory review because of the
incorrect application of the substantive law. That defect could have
been rectified in appeal proceedings. Thus, a situation where a final
judgment in the applicant’s favour was called into question
could have been avoided, had the military unit lodged an ordinary
appeal within the statutory ten-day time-limit.
The
Court notes that the military unit 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 25 July
2003. Instead, it applied for supervisory review after the judgment
in the applicant’s favour had become binding and enforceable.
Having
regard to these considerations, the Court finds that, by granting the
respondent’s request to set aside the judgment of 25 July 2003,
the Presidium of the Military Court of the Moscow Command 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. Article 1 of Protocol No. 1
(a) Admissibility
The
Court observes that the Government contested the applicability of
Article 1 of Protocol No. 1 on the grounds that the applicant did not
have a “possession” within the meaning of that Convention
provision. In this connection, the Court notes that it has already on
a number of occasions found that the existence of a debt confirmed by
a binding and enforceable judgment constitutes the judgment
beneficiary’s “possession” within the meaning of
Article 1 of Protocol No. 1 (see, for example, Bulgakova v.
Russia, no. 69524/01, § 31, 18 January 2007, and Pravednaya,
cited above, § 38). The Court
sees no reason to depart from those findings in the present case and
dismisses the Government’s objection that the applicant’s
complaint is incompatible ratione
materiae with Article 1
of Protocol No. 1.
The
Court further observes that the complaint under Article 1 of Protocol
No. 1 is not manifestly ill-founded within the meaning of Article 35
§ 3 of the Convention and is not inadmissible on any other
grounds. It must therefore be declared admissible.
(b) Merits
The
Government claimed that there was no violation of the applicant’s
property rights because she had not had any “possessions”.
Nor could she have had any “legal expectations” to
benefit from the judgment, since it had been delivered as a result of
an evident judicial error.
The
Court observes that the existence of a debt confirmed by a binding
and enforceable judgment furnishes the judgment beneficiary with a
“legitimate expectation” that the debt will be paid and
constitutes a beneficiary’s “possessions” within
the meaning of Article 1 of Protocol No. 1. The quashing of such
a judgment amounts to an interference with his or her right to the
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 proceedings concerned compensation for a
daily allowance in respect of the applicant’s military service
abroad and compensation for legal costs. A substantial amount was
found by a domestic court to be payable by the military unit. The
quashing of that 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, the Court considers that the
quashing of the judgment of 25 July 2003 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. 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. Damages
The
applicant claimed 347,050.70 Russian roubles (RUB) in respect of
pecuniary damage, referring to the unpaid judgment debt, and
RUB 244,046.05, relating to inflation losses accrued during the
period of the non-enforcement of the judgment of 25 July 2003. The
applicant further claimed 7,000 euros (EUR) in respect of
non-pecuniary damage.
The
Government submitted firstly that no award should be made as the
judgment of 25 July 2003 was lawfully quashed. They further noted
that the applicant did not apply to a national court with a claim for
recalculation of the sum due to inflation. They maintained that in
her calculation the applicant did not refer to any official sources
in respect of rates of inflation from 2003-2007. This part of her
claim should thus be dismissed. As regards the claim in respect of
non-pecuniary damages, the Government considered that the applicant’s
claim was wholly excessive and unreasonable.
The
Court observes that in the present case it has found a violation of
Article 6 § 1 of the Convention and Article 1 of Protocol No. 1
in that the award in the applicant’s favour was not paid to her
as a result of the quashing of the final judgment by way of
supervisory review. The Court 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 in had the requirements of Article 6 not been disregarded (see
Piersack v. Belgium (Article 50), 26 October 1984, § 12,
Series A no. 85, and, mutatis mutandis, Gençel v.
Turkey, no. 53431/99, § 27, 23 October 2003). The Court
finds that this principle also applies in the present case, having
regard to the violations found. The applicant was prevented from
receiving money she had legitimately expected to receive under the
judgment of 25 July 2003. The Court considers that the Government
should pay the judgment award made under the judgment of 25 July
2003.
The
Court further recalls that the adequacy of the compensation would be
diminished if it were to be paid without reference to various
circumstances liable to reduce its value, such as an extended delay
in enforcement (see Gizzatova v. Russia,
no. 5124/03, § 28, 13 January 2005, and Metaxas v.
Greece, no. 8415/02, § 36, 27 May 2004). Having regard to
the materials in its possession and the fact that the Government did
not furnish any objection to the applicant’s method of
calculation of compensation or submit any other official sources for
inflation rates in the relevant period, the Court also awards the
applicant EUR 5,890 in respect of pecuniary damage, plus any tax that
may be chargeable.
The
Court further considers that the applicant suffered distress and
frustration resulting from the quashing of the final judgment of 25
July 2003. Making its assessment on an equitable basis, the Court
awards the applicant EUR 2,000 in respect of non-pecuniary damage,
plus any tax that may be chargeable on that amount.
B. Costs and expenses
The
applicant also claimed RUB 10,000 for costs and expenses incurred
before the Court.
The
Government considered this sum to be reasonable should the Court find
any violations of the applicant’s rights as safeguarded under
the Convention.
According
to the Court’s case-law, an applicant is entitled to
reimbursement of his costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum. In the present case, regard being had to
the information in its possession and the above criteria, the Court
considers it reasonable to award EUR 240, plus any tax that may be
chargeable to the applicant on that amount.
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 25 July 2003;
3. Holds
(a) that the respondent State, within three months from
the date on which the judgment becomes final according to Article 44
§ 2 of the Convention, shall pay the award made in the
applicant’s favour under the judgment of 25 July 2003, that is,
RUB 347,050 (three hundred forty-seven thousand and fifty Russian
roubles);
(b) 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, to
be converted into Russian roubles at the rate applicable at the date
of the settlement:
(i) EUR
5,890 (five thousand eight hundred and ninety euros) in respect of
pecuniary damage;
(ii) EUR
2,000 (two thousand euros) in respect of non-pecuniary damage;
(iii) EUR
240 (two hundred and forty euros) in respect of costs and expenses;
(iv) any
tax that may be chargeable to the applicant on the above amounts;
(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 2 April 2009, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
