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VOTINTSEVA v. RUSSIA - 44381/04 [2010] ECHR 157 (11 February 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/157.html
Cite as:
[2010] ECHR 157
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FIRST
SECTION
CASE OF VOTINTSEVA v. RUSSIA
(Application
no. 44381/04)
JUDGMENT
STRASBOURG
11
February 2010
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 Votintseva v.
Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis,
President,
Anatoly Kovler,
Khanlar Hajiyev,
Dean
Spielmann,
Sverre Erik Jebens,
Giorgio
Malinverni,
George Nicolaou, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 21 January 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 44381/04) 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 Olga Aleksandrovna
Votintseva (“the applicant”), on 23 November 2004.
The
applicant was represented by Mr O. Prokhorov, a lawyer practising in
Nizhniy Novgorod. The Russian Government (“the Government”)
were represented by Mr P. Laptev and Ms V. Milinchuk,
former Representatives of the Russian Federation at the European
Court of Human Rights
On
9 November 2006 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
A. Initial proceedings and supervisory review
In
2001 the applicant purchased a flat from a private company P.
In
September 2002 another company, N., lodged a civil action against the
company P., the applicant and several other persons claiming title to
the flat.
On
25 July 2003 the Nizhegorodskiy District Court of Nizhniy Novgorod
rejected the claim.
On
19 December 2003 the Nizhniy Novgorod Regional Court upheld the
judgment on appeal and it became final and binding.
The
courts found, inter alia, that when the company N. claimed
title to the flat the latter had been already in the applicant’s
possession, and therefore, under the relevant law, could not be given
to the claimant.
On
unspecified date the company N. applied for supervisory review of the
judgments of 25 July 2003 and 19 December 2003.
On
9 March 2004 a judge of the Nizhniy Novgorod Regional Court refused
to refer the case to the Presidium for consideration by way of
supervisory review.
On
28 April 2004 the acting President of the Regional Court disagreed
and requested the case from the District Court. On 25 May 2004 he
referred the case to the Presidium of the Nizhniy Novgorod Regional
Court.
On
17 June 2004 the Presidium of the Nizhniy Novgorod Regional Court
quashed the judgment of 25 July 2003 and the appeal judgment of
19 December 2003 for incorrect interpretation of the domestic
law, and remitted the case for a fresh examination. It found, inter
alia, that the inferior courts did not take into account that the
flat was given to the applicant under a void agreement, and therefore
the applicant’s possession of the flat did not preclude the
company N. from claiming a title to it.
B. Subsequent proceedings
On
5 April 2005 the Nizhegorodskiy District Court of Nizhniy Novgorod
found against the applicant. On 6 September 2005 the Nizhniy Novgorod
Regional Court upheld the judgment on appeal.
On
30 March 2006, under the applicant’s initiative, the Presidium
of the Nizhniy Novgorod Regional Court quashed these judgments by way
of supervisory review and remitted the case for fresh consideration.
On
2 February 2007 the Nizhegorodskiy District Court of Nizhniy Novgorod
held against the applicant. It deprived the applicant of the title to
the disputed flat on the grounds that the sales agreement had been
null and void. The court also ordered that company P. pay the
applicant compensation for the flat and that the applicant and her
daughter be evicted from the flat.
On
24 April 2007 the Nizhniy Novgorod Regional Court upheld the judgment
on appeal.
II. RELEVANT DOMESTIC LAW
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 Sobelin
and Others (see Sobelin
and Others v. Russia, nos. 30672/03,
et seq., §§ 33-42, 3 May 2007).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
The
applicant complained under Article 6 of the Convention that the final
judgment in her favour had been quashed by way of supervisory review.
In so far as relevant, this Article reads as follows:
Article 6 § 1
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing ...
by [a] ... tribunal...”
The
Government contested that argument. They argued, inter alia,
that the supervisory review had been compatible with the Convention
as the application for supervisory review had
been lodged by a party to the proceedings. They also referred
to that the applicant herself had subsequently successfully applied
for supervisory review.
A. Admissibility
The Court notes that the 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
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. The
mere possibility of there being two views on the subject is not a
ground for re examination (see Ryabykh
v. Russia,
no.
52854/99, §§ 51-52, ECHR 2003 IX).
The Court reiterates 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 Code of Civil Procedure in force since 2003 (see,
among other authorities, Sobelin and
Others, cited above, §§ 57 58,
and Bodrov v. Russia,
no. 17472/04, § 31, 12 February 2009).
In the present case the
judgments were quashed because the Presidium disagreed with
the assessment made by the inferior courts (see paragraph 12 above),
which is not in itself an exceptional circumstance warranting the
quashing (see Kot v. Russia,
no. 20887/03, § 29, 18 January 2007).
The
fact that the decision of the Presidium was subsequently quashed on a
further application for supervisory review could not be said to
improve legal certainty in the applicant’s case (see Volkova
v. Russia, no. 48758/99, § 33, 5 April 2005).
Accordingly, there has been a
violation of Article 6 § 1 of the Convention.
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. Damage
The
applicant claimed 3,000 euros (EUR) in respect of non pecuniary
damage.
The
Government contested this claim.
As
to pecuniary damage, the Court makes no award as there was no
relevant claim made by the applicant.
As
to non-pecuniary damage, the Court considers that the applicant must
have suffered distress and frustration resulting from the quashing of
the final and binding judgments in her favour. Making its assessment
on an equitable basis, the Court grants the applicant’s claim
and awards her EUR 3,000 in respect of
non-pecuniary damage, plus any tax that may be chargeable.
B. Costs and expenses
The applicant made no claims
under this head. Accordingly, the Court will make no award under this
head.
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 in
respect of the quashing by way of supervisory review of the final
judgments in the applicant’s favour;
3 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;
4 Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 11 February 2010,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
