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KRAVCHENKO v. RUSSIA - 34615/02 [2009] ECHR 1834 (02 July 2009)
URL: http://www.bailii.org/eu/cases/ECHR/2009/1834.html
Cite as:
[2009] ECHR 1834
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FIRST
SECTION
CASE OF KRAVCHENKO v. RUSSIA
(Application
no. 34615/02)
JUDGMENT
STRASBOURG
2
April 2009
FINAL
02/07/2009
This
judgment may be subject to editorial revision.
In the case of Kravchenko 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. 34615/02) 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 Vladimir Vladimirovich
Kravchenko (“the applicant”), on 9 September 2002.
The
applicant was represented by Mr S. Ronshin and Mr V. Shakhlarov,
lawyers practising in the Voronezh Region. The Russian Government
(“the Government”) were represented by Mr P. Laptev,
former Representative of the Russian Federation at the European Court
of Human Rights.
The
applicant alleged, in particular, that the quashing of a final
judgment in his favour had violated his “right to a court”
and his right to peaceful enjoyment of possessions.
On
29 April 2005 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 1960 and lives in Voronezh.
A. Proceedings against the SBS-AGRO Bank
In
August 1998 the applicant deposited 40,000 US dollars (USD) for three
months with a private bank “SBS-AGRO” (hereafter –
“the Bank”). Following the Bank’s refusal to return
the deposit, the applicant sued the Bank for the deposit, interest
and compensation for non-pecuniary damage. According to the
Government, the Bank’s refusal to return the deposit was caused
by a major financial crisis which had occurred in the Russian
Federation in the summer of 1998 and which had led to the Bank’s
inability to return money to its more than 1.2 million creditors.
In
September 1998 the Central Bank of Russia adopted a programme aimed
at the protection of deposits made by private individuals with
private banks. In line with measures adopted, the Bank signed an
agreement with the Russian Savings Bank. Under the terms of the
agreement, the Bank transferred its liabilities to the Russian
Savings Bank which, in its turn, undertook to repay deposits made in
US dollars at the exchange rate of 9.33 Russian roubles for 1 US
dollar. On 28 December 1998 the Bank, through a division of the
Russian Savings Bank, paid the applicant 373,204 Russian roubles
(RUB).
On
10 March 1999 the Zheleznodorozhniy District Court of Voronezh found
that the applicant had not consented to the liability transfer.
However, taking into account that he had already been repaid a part
of the deposit, the District Court ordered that the Bank should repay
the applicant USD 30,919.40 and that it should also pay him annual
interest starting from the date of the pronouncement of the judgment.
The District Court dismissed the claim for compensation for
non-pecuniary damage. The judgment was not appealed against and
became final on 22 March 1999. A month later the Moscow
bailiffs’ office instituted enforcement proceedings.
On
an unspecified date the Presidium of the Voronezh Regional Court,
acting on an application for a supervisory review, quashed the
judgment of 10 March 1999 and sent the case for a fresh examination.
On
29 February 2000, following the re-examination of the applicant’s
action, the Zheleznodorozhniy District Court awarded him USD
20,841.68 in main debt, interest thereon and USD 2,853.73 in
compensation for damage. That judgment was not appealed against and
became final.
B. General developments in the course of the
enforcement proceedings instituted against the SBS-AGRO Bank
By
the end of March 1999 over 2,000 enforcement claims were pending
against the Bank, with an additional 70-80 claims added every week.
On
16 August and 15 September 1999 the Central Bank of Russia declared a
moratorium until 17 November 1999 on the execution of all creditors’
demands against the Bank. On 16 November 1999 the management of the
Bank was taken over temporarily by the “Agency on Restructuring
of Lending Agencies” (hereafter – “the ARKO”),
set up by the State in accordance with the Law on Restructuring of
Lending Agencies (hereafter - “the Law”). On 16 November
1999, in accordance with the Law, a moratorium was set for
enforcement of all creditors’ demands against the Bank for a
year. This period was prolonged by the ARKO on 17 November
2000 for another six months, until 17 May 2001.
On
8 May 2001 the Moscow Commercial Court had approved the text of
a tripartite friendly settlement involving the Association of the
Bank’s Creditors, the Bank and the ARKO. The text of the
friendly settlement was adopted at the general meeting of the
Association of Creditors on 9 February 2001 by a majority of
votes. The friendly settlement substantially limited the Bank’s
liability to its creditors.
On
3 July 2001 the Constitutional Court found unconstitutional the
legislative provision that allowed the ARKO unilaterally to extend
the moratorium for another six months, and ruled that such decisions
should be subject to judicial control.
Seven
days later the Basmanniy District Court of Moscow ordered that the
bailiffs should discontinue the consolidated enforcement proceedings
against the Bank in respect of liabilities which had arisen before
16 November 1999.
On
23 July 2001 the Moscow bailiffs’ office discontinued the
consolidated enforcement proceeding against the Bank and returned
writs of execution to the courts which had issued them. On 29
September 2001 the bailiffs informed the applicant that the
enforcement proceedings against the Bank had been discontinued.
C. Proceedings against the ARKO
The
applicant asked the ARKO to confirm that he had been recognised as a
creditor of the Bank and to inform him about future meetings of the
Bank’s creditors. On 11 September 2001 the ARKO notified
the applicant that he had not been registered as a creditor of the
Bank. The ARKO requested the applicant to send the documents showing
the Bank’s liability to him. The applicant fulfilled the ARKO’s
request.
On an unspecified date the applicant sued the ARKO and
the Central Bank of Russia for damages. He claimed that the ARKO had
not recognised him as a creditor of the Bank, that he had not
participated in the friendly-settlement negotiations and that he had
not been able to recover his money from the Bank. The applicant
insisted that the respondents should repay him the Bank’s debt.
On
17 December 2001 the Zheleznodorozhniy District Court held that the
Central Bank and ARKO were responsible for the applicant’s
inability to obtain payment of the judgment debt and that the refusal
to recognise the applicant as a Bank’s creditor was unlawful.
The District Court ordered that the ARKO should repay the applicant
USD 30,919.40 of the Bank’s debt.
On
9 January 2002 the ARKO informed the applicant that he had been
registered as the creditor of the Bank and the terms of the friendly
settlement of 8 May 2001 were applicable to him although he had not
been able to negotiate them. The applicant was also informed that
according to the terms of the friendly settlement he would not be
paid the judgment debt.
On
19 February 2002 the Voronezh Regional Court upheld the judgment of
17 December 2001. The Regional Court again confirmed that the terms
of the friendly settlement could not be applied to the applicant and
the fact that the draft of the settlement had been published in the
press did not imply that the applicant had agreed to the terms of
that document.
According to the Government, the applicant applied for
a supervisory review of the judgments of 17 December 2001 and 19
February 2002. It appears from the case file that the Voronezh
Regional Prosecutor lodged an application for a supervisory review,
arguing that the judgment of 17 December 2001, upheld on appeal on 19
February 2002, was erroneous in that the applicant’s claims had
been accepted. The prosecutor submitted that the terms of the
friendly settlement should have been applied to the applicant’s
claims against the Bank and thus his action against the ARKO should
have been dismissed.
On
15 May 2002 the Presidium of the Voronezh Regional Court, by way of
supervisory-review proceedings, quashed the judgments of 17 December
2001 and 19 February 2002 and remitted the case for a fresh
examination. The Presidium noted that the District and Regional
courts erred in assessing the facts of the case and that the terms of
the friendly settlement should be applicable to the applicant because
the information about the general assembly of the Bank’s
creditors and the draft of the friendly settlement had been published
in the press.
On
2 July 2003 the Zheleznodorozhniy District Court made a new judgment
in the applicant’s favour and awarded him USD 30,919.40,
relying on the same line of arguments as in its previous judgment of
17 December 2001 and citing the case-law of the European Court
of Human Rights. That judgment was also quashed on appeal by the
Voronezh Regional Court. The case was again sent for re-examination
on 13 November 2003.
On
20 December 2004 the Zheleznodorozhniy District Court of Voronezh
again issued the judgment in the applicant’s favour, although
reducing the amount of the award to USD 20.841,68. The
judgment was quashed by the Voronezh Regional Court and the
proceedings were discontinued because the ARKO had ceased to exist as
a legal entity.
THE LAW
I. PRELIMINARY CONSIDERATIONS
The
Court observes at the outset that in his application lodged with the
Court on 9 September 2002 the applicant complained about the
authorities’ failure to enforce the judgment of 10 March 1999
and about the quashing, by way of a supervisory review, of the
judgment of 17 December 2001, as upheld on appeal on 19 February
2002. In his observations, lodged with the Court in March 2006, the
applicant informed the Court that the judgment of 10 March 1999 had
been quashed on a supervisory review, following which a new judgment
in the case was adopted on 29 February 2000. He put forward an
additional complaint arguing that the authorities had failed to
enforce the new judgment issued in his favour on 29 February 2000.
In
this connection the Court reiterates that it has jurisdiction to
review, in the light of the entirety of the Convention’s
requirements, the circumstances complained of by an applicant. In the
performance of its task, the Court is free to attribute to the facts
of the case, as established on the evidence before them, a
characterisation in law different from that given by the applicant
or, if need be, to view the facts in a different manner. Furthermore,
they have to take into account not only the original application but
also the additional documents intended to complete the latter by
eliminating initial omissions or obscurities (see Ringeisen
v. Austria, judgment of 16 July 1971, Series A no. 13, pp.
40-41, § 98, as compared with p. 34, § 79, and pp.
39-40, §§ 96-97).
Turning
to the present case, the Court observes that the new complaint
pertaining to the non-enforcement of the judgment of 29 February 2000
was submitted after the notice of the initial application had been
given to the Government on 29 April 2005. In the Court’s
view, the new non-enforcement complaint is not an elaboration of his
original complaints lodged to the Court more than three years
earlier, on which the parties have already commented. The Court
therefore decides not to examine the new complaint within the
framework of the present proceedings (see Nuray Şen v. Turkey
(no. 2) judgment of 30 March 2004, no. 25354/94, § 200,
and Melnik v. Ukraine, no. 72286/01, §§ 61-63,
28 March 2006).
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 10 MARCH 1999
The
applicant complained that the judgment of 10 March 1999 had not been
enforced. The Court considers that this complaint falls to be
examined under Article 6 § 1 of the Convention and Article 1 of
Protocol No. 1 (see Burdov v. Russia,
no. 59498/00, § 26, ECHR 2002 III). 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. Submissions by the parties
The
Government submitted that the applicant had failed to challenge the
application of the moratorium on the execution of the Bank’s
creditors’ demands. In particular, he could
have lodged a complaint before the Constitutional Court of the
Russian Federation or the Moscow City Commercial Court, but he failed
to make use of either of the avenues. In the Government’s
view the complaint should therefore be dismissed for a failure to
exhuast domestic remedies. In the alternative,
relying on the case of Shestakov
v. Russia ((dec.),
no. 48757/99, 18 June 2002), they argued that the State could not
guarantee the repayment of the financial liabilities of a private
bank, particularly in a situation of major financial crisis. The
enforcement proceedings against the private bank SBS-AGRO were
discontinued in July 2001 due to the Bank’s insolvency and the
applicant was notified of the discontinuation in September 2001. The
State’s responsibility for the enforcement of a judgment
against a private entity ended on the date the enforcement
proceedings were discontinued.
31. The
applicant averred that the judgment of 10 March 1999 had been
unlawfully quashed by way of a supervisory review and that it had not
been enforced.
B. The Court’s assessment
32. The
Court reiterates that on 10 March 1999 the applicant obtained a
judgment against the Bank by which he was to be paid a certain sum of
money. The judgment was not appealed against and became binding and
enforceable. On an
unspecified date the Presidium of the Voronezh Regional Court quashed
the judgment by way of a supevisory review and sent the case for
fresh examination, as a result of which, on 29 February 2000, the
District Court issued a new judgment in the applicant’s favour.
33. The
Court reiterates that, in accordance with Article 35 § 1 of the
Convention, it may only examine complaints in respect of which
domestic remedies have been exhausted and which have been submitted
within six months from the date of the “final” domestic
decision. If there is no adequate remedy against a particular act,
which is alleged to be in breach of the Convention, the date when
that act takes place is taken to be “final” for the
purposes of the six-month rule (see, e.g., Valašinas v.
Lithuania (dec.), no. 44558/98, 14 March 2000).
34. It
was uncontested by the parties that at the material time the Russian
law of civil procedure did not provide for any ordinary appeal
against a decision in which the final judgement had been quashed by
way of a supervisory review. In the absence of an effective remedy
the Court concludes that it was the very act of quashing the final
judgment of 10 March 1999 that triggered the start of the
six-month time-limit for lodging this part of the application to the
Court (see, mutatis mutandis, Sardin v. Russia (dec.),
no. 69582/01, ECHR 2004 II). The Court further notes that the
quashing of a final judgment is an instantaneous act, which does not
create a continuing situation, even if it entails a re-opening of the
proceedings as in the instant case (see Sitokhova v. Russia
(dec.), no. 55609/00, 2 September 2004). In the present
case the final judgment of 10 March 1999 was quashed by the
Presidium of the Voronezh Regional Court sometime
before 29 February 2000. The Court therefore finds it established
that on that date the judgment of 10 March 1999 ceased to be binding
and enforceable. There
is no indication in the file that the applicant was not promptly
notified of the Presidium’s decision to quash the judgment of
10 March 1999. However,
it was not until 9 September 2002, more than six months after the
decision had been quashed, that the applicant complained to the Court
that the authorities had failed to enforce the judgment of 10 March
1999.
It
follows that this part of the application has been introduced out of
time and must be rejected in accordance with Article 35 §§ 1
and 4 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AND
ARTICLE 1 OF PROTOCOL No. 1 ON ACCOUNT OF THE QUASHING OF THE
JUDGMENT OF 17 DECEMBER 2001, AS UPHELD ON APPEAL ON 19 FEBRUARY 2002
The
applicant complained that the quashing of the final judgment of 17
December 2001, as upheld on appeal on 19 February 2002, made in his
favour violated his “right to a court” and his right to
peaceful enjoyment of possessions. The Court considers that this
complaint falls to be examined under Article 6 § 1 of the
Convention and Article 1 of Protocol No. 1. The
relevant parts of these provisions are cited above.
A. Submissions by the parties
The
Government argued that Article 6 of the Convention was inapplicable
to the proceedings against the Central Bank and the ARKO as the
proceedings did not concern the applicant’s civil rights or
obligations. In the Government’s view, the proceedings merely
pertained to the enforcement of the judgment issued in the
applicant’s favour. They insisted that the complaint should be
dismissed as incompatible ratione
materiae. In alternative, the Government argued that the
Presidium of the Voronezh Regional Court had quashed the judgments in
the applicant’s favour with a view to correcting the judicial
error committed by the lower courts.
The
applicant averred that the quashing of the final judgments had
irremediably impaired the principle of legal certainty and had
deprived him of the right to receive money he had been entitled to
receive.
B. The Court’s assessment
1. Article 6 § 1 of the Convention
(a) Admissibility
As
to the Government’s objection to the applicability of Article
6, the Court reiterates that under its case-law, for Article 6 §
1 in its “civil” limb to be applicable, there must be a
dispute (“contestation” in the French text) over a
“right” which can be said, at least on arguable grounds,
to be recognised under domestic law. The dispute must be genuine and
serious; it may relate not only to the actual existence of a right
but also to its scope and the manner of its exercise. The outcome of
the proceedings must be directly decisive for the right in question.
As the Court has consistently held, mere tenuous connections or
remote consequences are not sufficient to bring Article 6 §
1 into play (see Le Compte, Van Leuven and De Meyere
v. Belgium, 23 June 1981, § 47, Series A no. 43;
Fayed v. the United Kingdom, 21 September 1994, § 56,
Series A no. 294 B; and Masson and Van Zon v. the
Netherlands, 28 September 1995, § 44, Series A
no. 327 A). Furthermore, Article 6 § 1 of the
Convention is applicable where an action is “pecuniary”
in nature and is founded on an alleged infringement of rights which
are likewise pecuniary rights, notwithstanding the origin of the
dispute (see, for example, Beaumartin v. France, judgment of
24 November 1994, Series A no. 296 B, p. 60-61, § 28).
Turning
to the facts of the present case, the Court observes that as a
consequence of making a deposit with the Bank the applicant received
certain depository rights during the Bank’s existence and on
winding up of the Bank’s business. Furthermore, the applicant’s
right to obtain repayment of the deposit, certain interest and
compensation was confirmed by the final judgment. Decisions affecting
the Bank’s fate, such as a decision to rehabilitate the Bank
and relieve it from payment of liabilities to its creditors in full,
without any doubt, affected the applicant’s rights as a
creditor of the Bank, including his right to demand repayment of the
judgment debt in full.
On 8 March 2001, under the terms of the friendly
settlement agreement involving, inter
alia, the Central Bank and the ARKO, the Bank was
discharged from the obligation to repay its debts in full to its
creditors, including those which were owed to the applicant. The
Court notes in the first place that in his action against the Central
Bank and the ARKO the applicant opposed the application of the terms
of the friendly-settlement agreement to the Bank’s liabilities
as set before him, maintaining that he had not taken part in the
friendly-settlement negotiations and that the agreement therefore
violated his right to recover the judgment debt. He further claimed
to have suffered economic loss as a result of the respondents’
actions, for which he intended to seek compensation (see paragraph 18
above). In the opinion of the Court this clearly defined the
proceedings, having regard to the context in which they were
instituted and to the pecuniary nature of the applicant’s
claims, as a dispute over a “civil right” within the
meaning of Article 6 § 1 of the Convention (see Tinnelly
& Sons Ltd and Others and McElduff and Others v. the United
Kingdom, 10 July 1998, § 61, Reports of Judgments
and Decisions 1998 IV).
Furthermore, the Court observes that the Government’s
objection to the applicability of Article 6 concerned a more peculiar
aspect. They insisted that the proceedings at issue constituted a
part of the enforcement proceedings pertaining to the judgment debt
awarded to the applicant against the Bank and, thus, in the
Government’s opinion, Article 6 was inapplicable. Bearing in
mind the finding in the previous paragraph and without accepting the
Government’s argument as to the essence of the proceedings at
issue, the Court considers it worth reiterating its case-law to the
effect that Article
6
applies
to enforcement
proceedings because, in the absence of the necessary measures to
comply with a final, enforceable judicial decision, Article 6
§ 1 can be deprived of all useful effect (see Hornsby v.
Greece, judgment of 19 March 1997, Reports of Judgments and
Decisions 1997-II, §§ 41, 45; Silva Pontes v.
Portugal, 23 March 1994, § 36, Series A no. 286 A
and Lopatyuk and Others v. Ukraine, no. 903/05, § 14,
17 January 2008). The Court therefore dismisses the Government’s
objection as to the applicability of Article 6 of the Convention to
the proceedings under consideration.
The Court further notes that the present 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
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 insists that no party is entitled to seek re-opening of the
proceedings merely for the purpose of a rehearing and a fresh
decision of the case. Higher courts’ power to quash or alter
binding and enforceable judicial decisions should be exercised for
correction of fundamental defects. The mere possibility of two views
on the subject is not a ground 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).
46. 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, §§ 54-56).
The
Court observes that on 17 December 2001 the Zheleznodorozniy District
Court granted the applicant’s application and awarded him USD
30,919.40 representing the judgment debt owed to him by the Bank. The
judgment became binding and enforceable on 19 February 2002, when the
Voronezh Regional Court upheld it on appeal. On 15 May 2002 that
judgment was quashed by way of supervisory review initiated by the
Voronezh Regional Prosecutor who was a State official but not a party
to the proceedings (see paragraph 22 above).
The
Court has found a violation of an applicant’s “right to a
court” guaranteed by Article 6 § 1 of the Convention in
many 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 whose power to intervene was not subject to any
time-limit (see Roseltrans v. Russia, no. 60974/00,
§§ 27-28, 21 July 2005; Volkova v. Russia,
no. 48758/99, §§ 34-36, 5 April 2005; and
Ryabykh, cited above, §§ 51-56).
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 there has been a
violation of Article 6 § 1 of the Convention on account of the
quashing of the judgment given in the applicant’s case by way
of supervisory-review proceedings.
2. Article 1 of Protocol No. 1
(a) Admissibility
The Court observes that the applicant’s
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
Court reiterates 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. Quashing of such a judgment amounts to an interference
with his or her right to peaceful enjoyment of possessions (see,
among other authorities, Androsov v. Russia, no. 63973/00,
§ 69, 6 October 2005).
The
Court observes that the final and enforceable judgment by which the
applicant had been awarded a sum of money was quashed by way of a
supervisory review on 15 May 2002. The applicant’s claim was
sent for re-consideration, following which the Voronezh Regional
Court, in the final instance, discontinued the proceedings because
the ARKO had ceased to exist. Thus, the applicant was prevented from
receiving the initial award through no fault of his own. The quashing
of the enforceable judgment frustrated the applicant’s reliance
on the binding judicial decision and deprived him of an opportunity
to receive the money he had legitimately expected to receive. In
these circumstances, the Court considers that the quashing of the
enforceable judgment of 17 December 2001, as upheld on appeal on 19
February 2002, by way of supervisory review placed an excessive
burden on the applicant and was incompatible with Article 1 of
Protocol No. 1. There has therefore been a violation of that
Article.
IV. 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 the repayment of the judgment debt owed to him by
the ARKO. He further claimed 348,665.19 Russian roubles (RUB)
representing interest on the judgment debt and 10,000 US dollars
(USD) in respect of non-pecuniary damage.
The
Government submitted that the judgment debt was to be paid by a
private bank and not by State bodies. They further submitted that the
applicant did not claim any compensation for alleged violations of
his rights pertaining to the quashing of the judgment of 17 December
2001. As to the applicant’s claims in respect of non-pecuniary
damage, in the Government’s opinion they were excessive and
manifestly ill-founded.
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 final judgment in the applicant’s favour had been
quashed by way of a supervisory review and that the applicant had not
been able to receive the judgment award as a result of the quashing
of a decision in his favour. The Court notes that the most
appropriate form of redress in respect of a violation of Article 6
is to ensure that the applicant is put, as far as possible, 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 nature of the violations found (cf. Stetsenko
v. Russia, no. 878/03, § 69, 5 October 2006
and Stanislav Volkov v. Russia, no. 8564/02, § 40,
15 March 2007). The Court therefore considers it appropriate to
award the applicant the sum which he would have received had the
judgment of 17 December 2001, as upheld on appeal on 19 February
2002, not been quashed.
As
to the claim in respect of interest on the judgment debt, the Court
notes that the applicant has not submitted any document to
substantiate his method of calculation of the sum of the interest.
The Court therefore dismisses the claim.
The
Court further considers that the applicant must have suffered
distress and frustration resulting from the quashing of the final
judicial decision by way of the supervisory review proceedings.
Making its assessment on an equitable basis, as required by Article
41 of the Convention, the Court awards the applicant EUR 2,000 in
respect of non-pecuniary damage, plus any tax chargeable on the above
amount.
B. Costs and expenses
The
applicant did not seek reimbursement of costs and expenses relating
to the proceedings before the domestic courts or the Court and this
is not a matter which the Court has to examine on its own motion (see
Motière v. France, no. 39615/98, § 26, 5
December 2000).
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 the quashing
of the final judgment of 17 December 2001, as upheld on appeal on 19
February 2002, admissible and the remainder of the application
inadmissible;
Holds that there has been a violation of Article
6 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, the award made
by the domestic courts in the applicant’s favour under the
judgment of 17 December 2001, as upheld on appeal on 19 February
2002;
(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, EUR 2,000 (two thousand
euros), in respect of non-pecuniary damage, to be converted into
Russian roubles at the rate applicable at the date of the settlement,
plus any tax that may be chargeable on that amount;
(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
