(Application no. 34615/02)
2 April 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 Kravchenko v. Russia,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
Christos Rozakis, President,
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:
I. THE CIRCUMSTANCES OF THE CASE
A. Proceedings against the SBS-AGRO Bank
B. General developments in the course of the enforcement proceedings instituted against the SBS-AGRO Bank
C. Proceedings against the ARKO
I. PRELIMINARY CONSIDERATIONS
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
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
30. 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.
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
A. Submissions by the parties
B. The Court's assessment
1. Article 6 § 1 of the Convention
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).
2. Article 1 of Protocol No. 1
IV. 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 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;
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