(Application no. 19136/04)
12 March 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 Kalinichenko v. Russia,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
Christos Rozakis, President,
Sverre Erik Jebens, judges,
and Søren Nielsen, Section Registrar,
Having deliberated in private on 17 February 2009,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
II. RELEVANT DOMESTIC LAW
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.”
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
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
B. The Court's assessment
1. Article 6 § 1 of the Convention
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.
“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)
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).
2. Article 1 of Protocol No. 1
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“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.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
(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 401,164 (four hundred and one thousand one hundred and sixty-four 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 7,750 (seven thousand seven hundred and fifty 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;
Done in English, and notified in writing on 12 March 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis