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KHRYKIN v. RUSSIA - 33186/08 [2011] ECHR 692 (19 April 2011)
URL: http://www.bailii.org/eu/cases/ECHR/2011/692.html
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[2011] ECHR 692
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FIRST
SECTION
CASE OF KHRYKIN v. RUSSIA
(Application
no. 33186/08)
JUDGMENT
STRASBOURG
19 April
2011
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 Khrykin v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina Vajić,
President,
Anatoly Kovler,
Elisabeth
Steiner,
Khanlar Hajiyev,
George
Nicolaou,
Mirjana Lazarova Trajkovska,
Julia
Laffranque, judges,
and André Wampach,
Deputy Section Registrar,
Having
deliberated in private on 29 March 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 33186/08) 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 Ivan
Stepanovich Khrykin (“the applicant”) on 2 April
2008.
The
applicant was represented by Mr I.L. Fedotov, a lawyer
practising in Moscow. The Russian Government (“the Government”)
were represented by Mr G. Matyushkin, Representative of the
Russian Federation at the European Court of Human Rights.
The
applicant complained, in particular, that the first-instance court
had lacked independence and had failed to observe the principles of
the rule of law and legal certainty having quashed a final and
binding decision in his favour.
On
18 December 2008 the President of the First Section decided to
give notice of the application to the Government. It was also decided
to rule on the admissibility and merits of the application at the
same time (Article 29 § 1). The Government
objected to the joint examination of the admissibility and merits of
the application. Having examined the Government’s objection,
the Court dismissed it.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1934 and lives in Elektrostal, the Moscow
Region.
He
had been receiving a retirement pension since 1984. In November
2005 he asked a pension authority to up-rate his pension on the basis
of the fact that he had worked in hazardous industries. The latter
disagreed and the applicant appealed to the Elektrostal Town Court
(“Town Court”).
By judgment of 20 July 2006 the Town Court chaired
by Judge T. ordered the pension authority to up-rate the
applicant’s pension starting from 1 December 2005. The
court based its findings on the Law on Labour Pensions of 2001
(“Pension Law”). The judgment was not appealed against
and on 5 August 2006 became final.
On 4 June 2007 the Chief Department of the
Pension Fund no. 19 of Moscow and Moscow Region (“Pension
Fund”) lodged with the Moscow Regional Court (“Regional
Court”) an application for supervisory review of the judgment
of 20 July 2006. This application was never examined. However,
on 14 August 2007 the President of the Regional Court wrote a
letter to the first-instance court which stated as follows:
“The Moscow Regional Court sends a statement of
complaint by the GU UPF RF no. 19 of Moscow
and Moscow Region against the judgment of the Elektrostal Town Court
of 20 July 2006 in the case of Khrykin I.S. v. GU GUPF RF
no. 19 of Moscow and Moscow Region...
[The Town] Court examined the scope of the pension
rights of the plaintiff...
[The principles] of the examination of the scope of the
pension rights ... have been set out in the Ruling of the Plenum of
the Supreme Court of the Russian Federation no. 25 of 20 December
2005 ... and the Judgment of the Supreme Court of the Russian
Federation of 2 March 2007 in the case of Nitsievskaya v. State
Agency - Chief Department of the Pension Fund no. 5 of
Moscow and the Moscow Region.
Delivering a judgment ... at variance with the Ruling of
the Plenum of the Supreme Court of the Russian Federation no. 25
of 20 December 2005 and the Judgment of the Supreme Court of the
Russian Federation of 2 March 2007 discloses a judicial error, such
judgment cannot be regarded lawful. With the purpose of securing
consistency in the case-law ... the statement of complaint by the
GU UPF RF no. 19 of Moscow and Moscow
Region ... against the above said judgment in the case of Khrykin
I.S. v. GU GUPF RF no. 19 of Moscow and
Moscow Region is being sent for reconsideration on the ground of
newly discovered circumstances.”
On
27 September 2007 the Pension Fund lodged with the Town Court
an application for quashing of the judgment of 20 July 2006 and
re-opening of the applicant’s case on the ground of newly
discovered circumstances. It stated that the Supreme Court’s
judgment of 2 March 2007 in the Nitsievskaya case, which
gave a different interpretation of the Pension Law, had been a
circumstance warranting the re-opening of the Khrykin case.
The applicant argued that the application had been introduced outside
the three-month time-limit.
By decision (определение)
of 23 October 2007, the Town Court presided over by the same
judge who examined the applicant’s case in 2006 granted the
application. It held as follows:
“[T]he method of the assessment of pension rights
... has been set out in paragraph 13 of the Ruling of the Plenum
of the Supreme Court of the Russian Federation no. 25 of
20 December 2005... and in the Judgment of the Supreme Court of
the Russian Federation of 2 March 2007 in the case of
Nitsievskaya v. State Agency - Chief Department of the Pension
Fund no. 5 of Moscow and the Moscow Region...
...
[T]he court finds that reconsideration of such a
judgment [as in the applicant’s case] can be done by way of
additional proceedings on the ground of newly discovered
circumstances... which allow to remedy a judicial error...that
resulted in a violation of the rights of the defendant [the Pension
Fund]...
[T]he arguments by the applicant and his representative
that the reconsideration ... of the judgment of 20 July
2006 is impossible and that the time-limit for lodging such a request
was missed are to be dismissed on the ground that the Judgment of the
Supreme Court ..., which entails legal consequences, was rendered on
2 March 2007 and became known [to the Pension Fund] in April
2007. The defendant had applied, to the competent judicial
authorities, for reconsideration of the judgment [of 20 June
2006] on 4 June 2007, that is to say before the three-month
time-limit ... expired.
In the light of the foregoing ... the court
DECIDED:
The judgment of 20 July 2006 ... is to be quashed.
The re-examination of the merits of the dispute is to be
scheduled on 23 October 2007 at 12.30 p.m.”
By judgment (решение)
of the same day, the Town Court held that the applicant’s claim
for a higher pension was to be dismissed in full. Its findings
were based on the Law on Labour Pensions and the Ruling of the Plenum
of the Supreme Court no. 25 of 20 December 2005.
On 6 December 2007, the Moscow Regional Court upheld the
first-instance court’s judgment on appeal.
II. RELEVANT DOMESTIC LAW
A. Law on provisions guarantying independence of judges
The
Constitution of the Russian Federation provides:
Article 120
“1. In the administration of justice,
judges shall be independent and subject only to the Constitution of
the Russian Federation and the federal law...”
Article 121
“...2. A judge cannot be transferred,
suspended or removed from office unless it is provided for by the
federal law.”
The
Code of Civil Procedure provides:
Article 8. Independence of judges
“...2. Judges shall examine civil
disputes in the conditions that exclude outside influence. Any
interference with the exercise of their judicial powers shall be
forbidden and shall be punishable under the law...”
Law
of 26 June 1992 “On the Status of Judges in the Russian
Federation” provides that the independence of a judge is to be
secured, in particular by the prohibition of interference with the
administration of justice, the manner of their appointment and
termination of their office, judges’ inviolability and by the
system of judicial self-government (Section 9). A judge is not
obliged to give any comments on a decided, or a pending, case
(Section 10).
B. Regulations on judicial ethics and disciplinary
offences
Law “On the Status of Judges in the Russian
Federation” provides:
Section 12.1 Judges’ liability for
disciplinary offences
“1. A judge who has committed a
disciplinary offence (a breach of this Law and of the Code of
Judicial Ethics to be adopted by the All-Russian Judicial Congress)
may, with the exception of the judges of the Constitutional Court of
the Russian Federation, receive a disciplinary penalty in the form
of:
– a warning; [or]
– early termination of judicial office.
The decision to impose a disciplinary penalty must be
taken by the judicial qualification board that has competence to
examine the question of termination of office of a particular judge
at the time of that decision...”
Law of 4 July 2003 “On Bodies of the Judicial
Society” provides that a body which is empowered to impose a
disciplinary penalty on judges (including presidents of district
courts) are, in particular, regional judicial qualification boards
(Section 19 § 2 (7)). An application for holding
a judge liable for having committed a disciplinary offence can
be lodged by the president of the relevant court or the president of
a higher court (Section 22 § 1).
The
Constitutional Court of the Russian Federation in its Ruling No.3-П
of 28 February 2008 held that the power of the presidents of the
relevant, or higher, courts to apply for holding a judge liable, as
well as the powers of the presidents to examine complaints against
judges and to participate in hearings of judicial qualification
boards and to make their submissions, were not incompatible with the
Constitution of the Russian Federation.
C. Law on provisions governing the supervisory review
proceedings
The Code of Civil Procedure provides:
Article 376. Right to apply to a
court exercising supervisory review
“1. Judicial decisions that have become
legally binding, with the exception for judicial decisions by the
Presidium of the Supreme Court of the Russian Federation, may be
appealed against... to a court exercising supervisory review, by
parties to the case and by other persons whose rights or legal
interests have been adversely affected by these judicial decisions.
2. Judicial decisions may be appealed against
to a court exercising supervisory review within one year after they
became legally binding...”
Article 380-1. Actions of the supervisory review
court after an application for supervisory review is submitted
“An application for supervisory review proceedings
shall be examined:
(1) by the President of the Court, or
[his/her] Deputy, or, at their request, by a judge of this
court...”
Article 381. Examination of an application for
supervisory review
“2. Having examined an application for supervisory
review, the judge issues a decision on –
(1) refusal to remit the application for
examination on merits by a supervisory court in a court hearing if
the grounds for [quashing or altering judicial decisions] do not
exist...
(2). remitting the application for
examination on merits by a supervisory court in a court hearing...”
Article 387. Grounds for quashing or altering
judicial decisions 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 a 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 a
fresh examination, if substantive legal provisions have been
erroneously applied or interpreted.”
D. Law on provisions governing the reconsideration of
final judgments on the ground of newly discovered circumstances
The Code of Civil Procedure provides:
Article 392. Reconsideration of judgments on the
grounds of newly discovered circumstances
“1. [Judgments] which have become final
may be re-considered on the basis of newly discovered circumstances.
2. The grounds for reconsideration ... shall
be:
1) significant circumstances which were not
and could not have been known to the party who applies for
reconsideration; ...”
Article 394. Lodging of an application
“... [An application for reconsideration of a
[judgment] due to the discovery of new circumstances] shall be lodged
within three months after the discovery of the circumstances.”
Article 395. Calculation of the time-limit for
lodging an application
“The time-limit for lodging an application for
reconsideration of a [judgment] due to the discovery of new
circumstances shall be calculated from the day of the discovery of
such circumstances ...”
Article 397. Decision on reconsideration of the case
on the grounds of newly discovered circumstances
“1. Following the examination of an
application for reconsideration of a [judgment] due to the discovery
of new circumstances, the court may either grant the application and
quash the [judgment], or dismiss the application.
2. The court decision by which an application
for reconsideration of a [judgment] due to the discovery of new
circumstances is granted shall not be subject to appeal.
3. Provided that a [judgment] is quashed, the
case shall be examined in accordance with the rules of this Code.”
E. Case law of the Supreme Court of the Russian
Federation
By a judgment of 8 February 2006, the Supreme Court
upheld the decision of the judicial qualification board of the
Sverdlovsk Region to terminate office of judge V. for a breach of the
procedural law. She argued that her actions had not constituted a
disciplinary offence but to no avail.
Ms V.
had been a president of a district court.
By
a judgment of 14 May 2008, the Supreme Court upheld the decision of
the judicial qualification board of the Rostov Region to terminate
office of judge S. for a “blatantly erroneous breach of the
procedural law”. The Judge S.’s arguments that it
had been an erroneous interpretation of the legislation rather than
“an intentional breach of law” were dismissed.
Ms S.
had been Justice of the Peace of a Court Circuit. The proceedings
before the judicial qualification board had been brought by the
president of the town court.
By a judgment of 3 June 2009, the Supreme Court upheld
the decision of a regional judicial qualification board to terminate
office of judge Z. for “blatant and repeated breaches of the
procedural law”. Judge S. ’unsuccessfully
argued that she had misinterpreted the law and that she could not be
held liable given that her judicial decisions had not been quashed by
a higher court and had become final.
Ms Z. had
been a judge of a district court. The proceedings before the judicial
qualification board had been brought by the president of the town
court.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF
THE CONVENTION ON ACCOUNT OF A LACK OF INDEPENDENCE OF THE
FIRST-INSTANCE COURT
The
applicant complained under Article 6 §1 of the Convention
that the first-instance court lacked independence because of the
pressure put by the President of the Regional Court that resulted in
the re-opening of his case and quashing of the final judgment in his
favour. The relevant part of Article 6 § 1 provides:
“In the determination of his civil rights and
obligations ... everyone is entitled to a fair and public hearing
within a reasonable time by an independent and impartial tribunal
established by law.”
A. Parties’ submissions
In
a general statement the respondent Government submitted that there
had been no violation of Article 6 § 1 of the
Convention as the instruction of the President of the Moscow Regional
Court to quash the judicial decision at issue had not been set forth
in a mandatory manner. They submitted no other comments as regards
the issue.
The
applicant maintained his complaint. In particular, he submitted that
Judge T. who had decided the dispute between him and the pension
authority in 2006 and 2007 had been in fact the President of the Town
Court and had therefore been a subordinate of the President of the
Regional Court. The Russian law had not provided sufficient
safeguards securing the individual independence of presidents of
first-instance courts against the pressure from presidents of
regional courts. Therefore, Judge T. had had to follow the
instructions of her judicial superior. He continued that it could be
seen from the fact that in its decision of 23 October 2007 as
regards the need to re-open the case the first-instance court had
actually repeated the reasons for the quashing indicated by the
President of the Regional Court in her letter. Another telltale sign
had been that in the process of the examination of the case, the
first-instance court committed a number of serious procedural
violations. In particular, it had accepted the pension authority’s
application for the revision proceedings outside the established
time-limit.
B. The Court’s assessment
1. Admissibility
The
Court 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.
2. Merits
The
Court reiterates that it is of fundamental importance in a democratic
society that the courts inspire confidence in the public (see the
Padovani v. Italy judgment of 26 February 1993,
Series A no. 257-B, p. 20, § 27). To that end,
Article 6 requires a tribunal falling within its scope to be
independent.
Independence
of the judiciary refers to the necessary individual and institutional
independence that are required for impartial decision making. It thus
characterises both a state of mind and a set of institutional and
operational arrangements. The former is concerned with the judge’s
impartiality and the latter with defining relations with other
bodies, in particular other state powers (see, for example,
Findlay v. the United Kingdom, 25 February 1997, § 73,
Reports of Judgments and Decisions 1997-I), and are,
sometimes, indivisible (see, for example, Bochan v. Ukraine,
no. 7577/02, § 68, 3 May 2007 and Salov
v. Ukraine, no. 65518/01, § 82, ECHR
2005 VIII (extracts)).
The
Court notes that judicial independence also demands that individual
judges be free not only from undue influences outside the judiciary,
but also from within. This internal judicial independence
requires that they be free from instructions or pressures from
the fellow judges and vis-à-vis their judicial
superiors (see, Parlov-Tkalčić
v. Croatia, no. 24810/06, § 86, 22 December
2009).
In
order to establish whether a tribunal can be considered “independent”
for the purposes of Article 6 § 1, regard must be had,
inter alia, to the manner of appointment of its members and
their term of office, the existence of safeguards against outside
pressures and the question whether it presents an appearance of
independence (see, among many other authorities, Findlay, cited
above, § 73) and the objective realities of the situation
(see Parlov-Tkalčić, cited above, § 83).
The
applicant argued that the decision of Judge T. to re-open the final
judgment in his case and that the adjudication and the outcome of the
new proceedings had been influenced by the President of the higher
court. Therefore, the question for the Court to examine in the
present case is whether there was an unlawful incursion into the
administration of justice.
The
Court notes by way of preliminary observation that, according to
Article 381 of the Russian Code of Civil Procedure, a judge of a
supervisory court, after having examined an application for
supervisory review proceedings, may decide either to remit the
application for the examination by the Chamber on the merits or to
refuse to do so (see paragraph 18 above). However, in the
present case the President of the Regional Court, instead of
making any lawful decision, in accordance with the Code of Civil
Procedure, wrote a letter to the first-instance court in which she
explicitly instructed the lower court to re-examine the final binding
decision in the applicant’s case on the ground of newly
discovered circumstances (see paragraph 8 above).
On
23 October 2007 the Town Court, having reiterated the grounds
set forth in the letter of the President of the supervisory court of
14 August 2007, dismissed the applicant’s objections and
granted the pension authority’s application for the re-opening
of the case and the quashing of the judgment of 20 July 2006.
Leaving
that aside, the Court notes that by the judgment of 20 July 2006
the Town Court decided the dispute between the applicant and
the pension authority in favour of the former whilst in its new
judgment of 23 October 2007 the court, having examined the same
set of facts, came to a different conclusion.
The
Government argued that the letter of the President of the
Regional Court had not been written in a mandatory manner. They did
not, however, elaborate this statement or submit any explanation or
comments regarding the reasons for this inordinate decision. The
Court observes that the view of the President of the higher court as
regards the judgment of 20 July 2006 was articulated in
such expressions as “a judicial error” and “cannot
be regarded lawful” which implies that the first-instance
court was criticised for its findings in the applicant’s case
and was called to reconsider its assessment (see paragraph 8 above).
It
further notes that according to the domestic law, the president of
a higher court is empowered to bring disciplinary proceedings
against a judge for having committed a disciplinary offence (see
paragraphs 16 and 18 above). The possible penalty is an early
termination of office (see paragraph 15 above). The practise of the
Supreme Court of Russia indicates that an erroneous application of
the law can constitute a disciplinary offence (see paragraphs 20
to 22 above).
The
circumstances of the case point to the fact that the first-instance
court, after having been criticised by the higher judicial authority,
followed the latter’s instruction and re-examined the case and
rendered a new judicial decision in favour of the pension
authority and against the applicant. The Town Court’s
finding corresponded entirely the reasons stipulated by the President
of the Regional Court in her letter of 14 August 2007.
Having
regard to the foregoing considerations, it can be concluded that the
applicant’s doubts as to the independence of the Town Court may
be said to have been objectively justified.
There
has accordingly been a violation of Article 6 § 1 of
the Convention as regards the requirement for an independent
tribunal.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF
THE CONVENTION ON ACCOUNT OF THE QUASHING OF THE FINAL JUDGMENT
The
applicant further complained under Article 6 of the Convention that
the quashing of the binding judgments was unjustified. Insofar 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 ...”
A. Parties’ submissions
The
Government argued that the complaint was inadmissible. The Supreme
Court’s interpretations of the Law on Labour Pensions revealed
a fundamental error in the town court’s reasoning as regards
the method of calculating the applicant’s pension and hence
this judgment had had to be quashed. The quashing had been
legitimate, lawful and compliant with the principle of legal
certainty.
The
applicant maintained his complaint. The quashing had been unjustified
because the Town Court based its decision on the relevant law, and
because the interpretation of the law by the Supreme Court in 2007
had been given after the judgment.
B. The Court’s assessment
1. Admissibility
The
Court notes that the application 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.
2. 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 defects
(see Ryabykh v. Russia, no. 52854/99, §§
51–52, ECHR 2003-IX). Quashing of judgments because of
newly-discovered circumstances is not by itself incompatible with
this requirement, but the manner of its application may be
(see Pravednaya v. Russia, no. 69529/01, §§
27–34, 18 November 2004).
The
Court has already examined a series of Russian cases where the
domestic courts justified the quashing of the final judgment on the
basis of the Supreme Court’s two interpretations of the Law on
Labour Pensions of 2005 and 2007 (see, for example Goncharova and
Others and 68 other “Privileged Pensioners” cases
v. Russia, nos. 23113/08 etc., 15 October 2009; Ryabov
and 151 other “Privileged pensioners” cases v. Russia,
nos. 4563/07 etc., 17 December 2009; Koloskova
v. Russia, 53051/08, 21 October 2010).
As
to the interpretation of 2005, the Court has held that differing
judicial interpretations of the relevant law may be regarded as a
ground for an ordinary appeal rather than a discovery warranting the
quashing of a binding judgment (see Yerogova v. Russia,
no. 77478/01, § 34, 19 June 2008). As to the
interpretation of 2007, newly-discovered circumstances are
circumstances that exist during the trial, remain hidden from the
court, and become known after trial. Since the interpretation of 2007
post-dated the town court’s judgment, it did not justify the
quashing either (see Yerogova, cited above, § 33).
Having
regard to the facts of the present case, the Court sees no reason to
distinguish this from the previous cases in which it has found a
violation on account of unjustified quashing of a final judgment.
It
follows that by granting the pension authority’s request to set
aside the final judgment of 20 July 2006 the Town Court infringed the
principle of legal certainty.
Accordingly,
there has been a violation of Article 6 § 1 of the
Convention as regards the applicant’s “right to a court”.
III. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1
The
applicant further complained under Article 1 of Protocol No. 1
that the quashing of the binding judgments was unjustified. Insofar
as relevant, this Article reads as follows:
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.
The preceding provisions shall not, however, in any way
impair the right of a State to enforce such laws as it deems
necessary to control the use of property in accordance with the
general interest or to secure the payment of taxes or other
contributions or penalties.”
A. The parties’ submissions
The
Government denied that the pension awarded to the applicant by virtue
of the judgment of 20 July 2006 constituted his “possession”
because it had been bigger than that to which he had been entitled.
Accordingly, he could not have “legitimate expectations”
to receive it.
The
applicant maintained his complaint.
B. The Court’s assessment
1. Admissibility
The
Court notes that the application 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.
2. Merits
The Court reiterates that the existence of a debt
confirmed by a binding and enforceable judgment furnishes the
judgment beneficiary with a 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, Brumărescu,
cited above, § 74, and Androsov v. Russia, no. 63973/00,
§ 69, 6 October 2005).
The
Government denied that there had been a violation of the applicant’s
property rights since the domestic law did not give the applicant a
“legitimate expectation” to receive an increased pension.
The Court observes that by virtue of the judgment of
20 July 2006 the applicant’s pension was up-rated. The
quashing of the enforceable judgment frustrated his reliance on a
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 judgment
of 20 July 2006 on the ground of newly discovered circumstances
placed an excessive burden on the applicant and was therefore
incompatible with Article 1 of Protocol No. 1. Accordingly,
there has 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. Pecuniary Damage
The
applicant claimed in respect of pecuniary damage 55,225.77 roubles
(RUB), submitting that it was a sum that would represent the
difference between the pension he had been receiving after the
quashing and the pension he would have received if there had been no
quashing plus inflation.
The
Government considered the applicant’s claims excessive and
unreasonable. They further challenged the applicant’s method of
calculation noting that it had no basis in law.
The Court does not discern any causal link between the
violation found and the pecuniary damage alleged. The applicant did
not claim that the judgment in his favour was not being enforced
until its quashing. As to the claim for restoration of the payments,
no pecuniary awards can be made for the periods after the final
judgment has been quashed (see Tarnopolskaya and Others v. Russia,
nos. 11093/07 et seq., § 51, 7 July 2009).
B. Non-pecuniary damage
The
applicant also claimed 10,000 euros (EUR) in respect of non-pecuniary
damage.
The
Government argued that this claim was excessive and unreasonable.
The
Court considers that the applicant has suffered non-pecuniary damage
as a result of the violations found. The damage cannot be
sufficiently compensated by a finding of a violation. Making its
assessment on an equitable basis, the Court awards the applicant
EUR 7,000, plus any tax that may be chargeable on that amount.
C. Costs and expenses
The
applicant also claimed RUB 307.5 for postal expenses together
with RUB 130 that he had paid to obtain the information on rates
of inflation for the preparation of his claim in respect of pecuniary
damage. He submitted three receipts.
The
Government doubted the relevance of one of the receipts.
According
to the Court’s case-law, an applicant is entitled to the
reimbursement of 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 documents in its possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 10 in respect of
costs and expenses, plus any tax that may be chargeable to the
applicant on that amount.
D. 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 § 1 of the Convention on account of the lack of independence
of the Town Court;
Holds that there has been a violation of Article
6 § 1 of the Convention on account of the quashing of the final
judgment in the applicant’s favour on the ground of newly
discovered circumstances;
Holds that there has been a violation of 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 following
amounts, to be converted into Russian roubles at the rate applicable
at the date of settlement:
EUR 7,000 (seven
thousand euros), plus any tax that may be chargeable, in respect of
non-pecuniary damage;
EUR 10 (ten euros),
plus any tax that may be chargeable, in respect of costs and
expenses;
(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;
Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 19 April 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Nina Vajić Deputy Registrar President
