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BEZRUKOVY v. RUSSIA - 34616/02 [2012] ECHR 825 (10 May 2012)
URL: http://www.bailii.org/eu/cases/ECHR/2012/825.html
Cite as:
[2012] ECHR 825
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FIRST
SECTION
CASE OF
BEZRUKOVY v. RUSSIA
(Application
no. 34616/02)
JUDGMENT
STRASBOURG
10
May 2012
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 Bezrukovy v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina
Vajić, President,
Anatoly Kovler,
Elisabeth
Steiner,
Mirjana Lazarova Trajkovska,
Julia
Laffranque,
Linos-Alexandre Sicilianos,
Erik
Møse, judges,
and André Wampach, Deputy
Section Registrar,
Having
deliberated in private on 17 April 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 34616/02) 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 two Russian nationals, Ms Lyudmila Vitalyevna
Bezrukova (“the first applicant”) and Ms Irina Sergeyevna
Bezrukova (“the second applicant”), on 9 September 2002.
The first and second applicants are together referred to as “the
applicants”.
The
Russian Government (“the Government”) were represented by
Mr P. Laptev and Mr G. Matyushkin, the successive Representatives of
the Russian Federation at the European Court of Human Rights.
The
applicants alleged, in particular, that the final and enforceable
domestic judgment in their favour had not been enforced in a timely
manner and that the time-limit for appealing against that judgment
had been extended, thus allowing its subsequent quashing.
On
15 September 2005 the application was communicated to the Government.
It was also decided to consider the admissibility and merits of the
case together.
On
24 November 2009, in view of the developments in the case, the
Government was invited to submit additional observations pursuant to
Rule 54 § 2 (c) of the Rules of Court. The applicants
submitted their observations in reply.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The first applicant was born in 1950. The second
applicant is the first applicant’s daughter, born in 1976. They
live in Voronezh.
A. The applicants’ lawsuit against the SBS-AGRO
Bank
In July and August 1998 the applicants made various monetary deposits
with the Voronezh branch of the SBS-Agro Bank (“СБС-Агро”).
In September 1998, during a financial crisis in Russia and rapid
currency devaluation, they requested the bank to refund the capital
with interest, but the bank refused. On 4 August 1999 the
Zheleznodorozhniy District Court of Voronezh (“the District
Court”) allowed the applicants’ claim against the bank.
The first and second applicant were awarded 24,490 and 32,931 United
States dollars (USD) respectively.
The
bailiffs started enforcement proceedings on 22 August 2000.
Meanwhile, the bank became insolvent. On 10 July 2001 the enforcement
proceedings were discontinued. The judgment of 4 August 1999
remained unenforced.
B. The applicants’ lawsuit against the ARKO and
the Central Bank
On
16 August and 15 September 1999 the Central Bank of Russia (“the
Central Bank”) declared a moratorium until 17 November 1999 on
the execution of all creditors’ demands against the SBS-Agro
Bank (“the bank”). The moratorium was later prolonged. On
16 November 1999 the management of the bank was taken over
temporarily by the “Agency on Restructuring of Lending
Agencies” (“ARKO”), set up by the State in
accordance with the Law on Restructuring of Lending Agencies.
On
9 November 2001 the applicants sued the Central Bank and the ARKO for
damages on the ground that the bank remained under the ARKO’s
effective control since 16 November 1999. The District
Court held a hearing in the applicants’ case on 5 December
2001. The ARKO filed written observations but was not represented at
the hearing. The Central Bank did not file observations, nor was it
represented at the hearing. In its judgment delivered on the same
date the District Court noted that the bank was being managed by the
ARKO at the material time and found the latter responsible for the
bank’s obligations, including its debt owed to the applicants.
It held that the ARKO was to pay the first and second applicants
USD 24,490 and USD 32,931 respectively.
The
Voronezh Regional Court (“the Regional Court”) allowed
the ARKO’s appeal on 12 March 2002 and set aside the District
Court’s judgment of 5 December 2001.
Following
another remittal, on 20 December 2004 the District Court again found
for the applicants, in terms similar to those of its judgment of
5 December 2001. The applicants were awarded the same amounts,
payable by the ARKO. The judgment also held that the ARKO had to pay
an amount of USD 20,841.68 to another plaintiff, Mr Kravchenko.
The judgment specified that it was subject to appeal before the
Voronezh Regional Court within ten days.
The
ARKO lodged an appeal against the judgment of 20 December 2004.
The Central Bank joined the appellate proceedings. On 25 February
2005 the ARKO was closed.
On
19 July 2005 the Regional Court heard the ARKO’s appeal against
the District Court’s judgment of 20 December 2004. The
representative of the Central Bank took part in the hearing as a
co defendant. The Regional Court observed that the ARKO had been
closed and discontinued the appellate proceedings. The District
Court’s judgment of 20 December 2004 in the applicants’
favour accordingly became binding and enforceable.
On
2 August 2005 the District Court issued a writ of execution in
respect of its judgment of 20 December 2004, which had acquired legal
force on 19 July 2005.
On
6 December 2005 the Central Bank lodged an appeal with the Regional
Court against the judgment of 20 December 2004. They also requested
that the ten-day time-limit for appeal be extended on the ground that
they had been deprived of the opportunity to have the lawfulness of
the judgment of 20 December 2004 reviewed by the Regional Court.
On
2 March 2006 the Regional Court extended the time-limit for appeal as
requested by the Central Bank. It noted that the Central Bank “had
joined” the ARKO’s appeal against the judgment of 20
December 2004 which had been dismissed without being considered on
its merits. The Regional Court concluded that the Central Bank had
been deprived of its statutory right to appeal against the judgment
of 20 December 2004.
On
9 March 2006 the Regional Court considered the Central Bank’s
appeal against the District Court’s judgment of 20 December
2004. It heard the same representative of the Central Bank who took
part in the hearing held by the same court on 19 July 2005 to
consider the ARKO’s appeal which was then joined by the Central
Bank. The court observed that both the ARKO and the Central Bank were
co-defendants in the case and that the ARKO had been closed. The
Regional Court concluded that its earlier decision of 19 July 2005
was based on an incorrect application of the relevant legal
provisions, set aside the judgment of 20 December 2004 in the
applicants’ favour and discontinued the proceedings.
C. The Court’s judgment in the case of Kravchenko
and subsequent developments
On
2 April 2009 the European Court of Human Rights delivered a judgment
in respect of Mr Kravchenko (Kravchenko v. Russia,
no. 34615/02, 2 April 2009), who was at a certain stage the
applicants’ co plaintiff in the domestic proceedings (see
paragraph 12 above). In February 2002 he had obtained a separate
judgment awarding him an amount of 30,919.40 Russian roubles (RUB),
payable by the ARKO (see Kravchenko, cited above, §§
44-49). The Court found a violation of Article 6 of the
Convention and Article 1 of Protocol No. 1 in that the Regional Court
had quashed in May 2002 the binding and enforceable judgment in Mr
Kravchenko’s favour by way of supervisory review.
Following
the Court’s judgment of 2 April 2009, the applicants lodged an
application for review of the Regional Court’s judgment of
9 March 2006, relying on Articles 392-394 of the Code of
Civil Procedure. On 15 June 2011 the Presidium of the Voronezh
Regional Court dismissed their application.
II. RELEVANT DOMESTIC LAW
Under
the Russian Code of Civil Procedure (“the CCP”), a
competent court may extend an expired time-limit for procedural
actions, such as lodging an appeal, if the court finds that a party
has a valid excuse for failure to comply with that time-limit
(Article 112).
An
appellate court shall set aside the judgments and discontinue the
proceedings if a legal entity which is a party to the proceedings has
been liquidated (Article 365 in conjunction with Article 220 of the
CCP).
A
final judgement in a case may be reviewed, inter alia, on the
ground that the European Court of Human Rights found a violation of
the Convention on account of the domestic judicial proceedings or
decisions taken in that case (Article 392 of the CCP). Articles
393-394 set out a procedure for reopening of domestic judicial
proceedings in any such case.
The
ARKO was a State corporation (Article 28 of the Law No. 144 FZ
of 8 July 1999 on Restructuring of Lending Agencies), that is, a
non-commercial organisation established by the Russian State in order
to exercise certain social, administrative or other socially
beneficial functions (Article 7.1 of the Law No. 7-FZ of 12
January 1996 on Non Commercial Organisations, as amended by the
Law No. 144-FZ of 8 July 1999).
THE LAW
I. ALLEGED VIOLATION OF THE CONVENTION ON ACCOUNT OF
THE NON-ENFORCEMENT AND QUASHING OF THE JUDGMENT OF 20 DECEMBER 2004
The
applicants complained under Article 6 § 1 of the Convention and
Article 1 of Protocol No. 1 of the unjustified extension of the
time limit for appeal which led to the quashing of the binding
and enforceable judgment of 20 December 2004 in their
favour. They also complained under the same provisions of the
authorities’ failure to enforce that judgment in a timely
manner. The respective provisions, in so far as relevant, read as
follows:
“In the determination of his civil rights and
obligations ... everyone is entitled to a fair ... hearing ... by [a]
... tribunal ...
Every natural or legal person is entitled to the
peaceful enjoyment of his possessions”
A. The parties’ submissions
The
Government contended that the relevant procedure had fully complied
with the requirements of both Article 6 § 1 of the Convention
and Article 1 of Protocol No. 1. They emphasised that the Central
Bank had duly joined the appeal initially lodged by the ARKO. The
closing of the ARKO, in the Government’s submission, should
have, under the applicable procedural rules, led to the setting aside
of the District Court’s judgment and the discontinuation of the
proceedings as a whole and not simply the discontinuation of the
appellate proceedings effectively leading to the District Court’s
judgment against a now non-existent ARKO acquiring binding force.
In
their additional observations, the Government extensively relied on
the Court’s decision in the Shestakov case (Shestakov
v. Russia (dec.), no. 48757/99, 18 June 2002), arguing that
the applicants’ situation as creditors of the SBS-Agro Bank was
very similar and their complaints should likewise be declared
ill-founded. They insisted inter alia that the State
was unable to pay the SBS-Agro bank’s debts to its creditors in
the context of the acute financial crisis starting from August 1998.
The Government concluded that the District Court’s judgment of
20 December 2004 in the applicants’ favour had been flawed and
rightly quashed on appeal. The applicants’ complaints under the
Convention should, therefore, be rejected as should have been those
brought by other applicants in two previous cases (Kravchenko,
cited above, and Margushin v. Russia, no. 11989/03, 1 April
2010). They emphasised, finally, that the domestic judgment at issue
in the present case was quashed by way of ordinary appeal and not
through supervisory review as in Kravchenko and Margushin.
The
applicants disagreed with the Government’s interpretation of
the Court’s decision in Shestakov. They argued that the
situation of the latter applicant was quite different and so was the
domestic judgment delivered in his favour. They insisted that the
Court’s position in Kravchenko should be followed in the
present case and regretted that the Voronezh Regional Court had
failed to grant their application for review following the Kravchenko
judgment.
B. The Court’s assessment
1. Admissibility
The
Court considers that the complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 (a) of the Convention. Nor
is it inadmissible on any other grounds. It must therefore be
declared admissible.
2. Merits
At
the outset, the Court will distinguish the Convention issue at stake
in the present case from that raised in the Shestakov case
relied upon by the Government. While the original facts relating to
the SBS-Agro Bank’s failure to pay back the applicants’
deposits during the financial crisis of 1998 were similar, the issue
brought by the applicants before the Court in the present case is
different. In Shestakov the central issue was the State’s
failure to discharge its positive obligations to assist in
enforcement of a domestic judgment in the applicant’s favour
against a private debtor. In the present case the applicants
complained of a breach of the legal certainty requirement on account
of the quashing of the final judgment in their favour a long time
after the expiry of the statutory time-limit for appeal.
The
Court reiterates that the principles insisting that a final judicial
decision must not be called into question and should be enforced
represent two aspects of the same general concept, namely the right
to a court (see Kondrashov and Others v. Russia, nos. 2068/03
et al., § 27, 8 January 2009). This does not mean, however,
that those respective issues are identical or necessarily
overlapping. Indeed, the Court’s finding that the State has
done what it could and should to assist in enforcement of a final
judgment in favour of one creditor as in Shestakov (cited
above), did not lead it to conclude that the quashing of another
final judgment in favour of another creditor by way of supervisory
review complied with the legal certainty requirement (see Kravchenko,
cited above). The Court observes that the issue raised by the present
case is similar to the latter as the applicants’ reliance on a
final judgment was allegedly frustrated by its quashing, which they
found to be abusive. This issue must be considered by the Court on
its merits and cannot be discarded on account of the findings made in
the context of the enforcement proceedings in the Shestakov
case.
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, among other things, 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, inter alia, that
where the courts have finally determined an issue, their ruling
should not be called into question (see Brumărescu v. Romania
[GC], no. 28342/95, § 61, ECHR 1999 VII). A departure
from that principle is justified only when made necessary by
circumstances of a substantial and compelling character, such as
correction of fundamental defects or miscarriage of justice (see,
among numerous authorities, Ryabykh v. Russia,
no. 52854/99, § 52, ECHR 2003-IX, and Margushin,
cited above, § 31).
In
previous cases against Russia the Court has upheld the principle of
legal certainty in so far as legal procedures of supervisory review
(see Ryabykh, cited above) and reconsideration owing to
newly discovered circumstances (see Pravednaya v. Russia,
no. 69529/01, 18 November 2004) were concerned.
Furthermore, the Court has considered it appropriate to follow the
same logic when this fundamental principle was undermined through
other procedural mechanisms, such as the extension of the time-limit
for an appeal. Thus, the Court found a violation of Article 6 in
a case against Ukraine as the time-limit for an appeal was extended
after a considerable lapse of time without any need for correction of
serious judicial errors, but merely for the purpose of a rehearing
and a fresh decision of the case (see Ponomaryov v. Ukraine,
no. 3236/03, §§ 41 42, 3 April 2008).
The
Court has no doubt that it is reasonable to provide for a possibility
of extending procedural time-limits, including the time-limits for
lodging an appeal, and notes that the legal systems of the States
parties contain special provisions to that effect. While the
extension of the time limit for an appeal remains primarily
within the domestic courts’ discretion, they should, in the
Court’s view, verify whether the reasons for any such extension
justify the interference with the principle of res judicata,
especially when the domestic legislation does not limit the courts’
discretion either on the length or the grounds for the renewal of the
time-limits (ibid., § 41).
The
Court notes that Russian law does not contain any prohibitive limit
in this respect (see paragraph 18 above). In these circumstances, an
allegation of abusive extension of the time-limit for an appeal
against a final judgment calls for close supervision by the Court.
Its task is thus to assess the particular circumstances of the case
at hand and the manner in which the pertinent domestic regulations
were actually applied (see Ashingdane v. the United
Kingdom, 28 May 1985, § 57, Series A no. 93).
Furthermore,
the Court considers that, as in the case of quashing by way of
supervisory review, a successful litigant’s legitimate reliance
on res judicata may be frustrated in a very similar manner by
waiving the time limits for appeal (see, mutatis mutandis,
Kulkov and Others v. Russia, nos. 25114/03 et
al., § 27, 8 January 2009). Such departures from the
principle of legal certainty are justified only when made necessary
by circumstances of a substantial and compelling character (see Salov
v. Ukraine, no. 65518/01, § 93, ECHR 2005-VIII;
Protsenko v. Russia, no. 13151/04, § 26,
31 July 2008; and Kravchenko v. Russia, cited above,
§ 45). In particular, legal certainty can be set aside not
for the sake of legal purism but in order to rectify “an error
of fundamental importance to the judicial system” (Sutyazhnik
v. Russia, no. 8269/02, § 38, 23 July 2009).
Turning
to the circumstances of the present case, the Court observes at the
outset that the District Court’s judgment of 20 December 2004
in the applicants’ favour became final on 19 July 2005
following the Voronezh Regional Court’s decision to discontinue
the appeal proceedings (see paragraph 14 above). However, on
2 March 2006 the Regional Court granted the Central Bank’s
application for extension of the statutory time limit for appeal
and on 9 March 2006 quashed the judgment (see paragraphs 17
and 18 above).
The
Court observes that the Central Bank had previously “joined”
the appeal lodged by the defendant ARKO against the District Court’s
judgment of 20 December 2004 in the applicants’ favour and
that the representative of the Central Bank had attended the
appellate hearing of 19 July 2005. However, there is no
indication that the Central Bank’s representative raised at
that time any objection against the Regional Court’s decision
to discontinue the appellate proceedings on the ground that the ARKO
had been closed. It was only four months later that the Central Bank
came back to the same court and challenged the final judgment of
20 December 2004. The Court finds no explanation for this
behaviour, noting especially that the Central Bank was constantly
involved in the proceedings as a co-defendant (see, mutatis
mutandis, Margushin, cited above, § 34).
Moreover,
the Court notes that the Regional Court granted the request for
extension of the time-limit by reference to the Central Bank’s
initial intention to “join” the appeal lodged by the ARKO
and the ensuing failure to lodge its own appeal against the judgment
within the statutory time limit. The Government on their part
argued that the Regional Court’s decision to discontinue the
appeal proceedings should never have led to the upholding of the
judgment of 20 December 2004 in the applicants’ favour as the
respondent agency had been closed by the time of the appeal hearing
(see paragraph 26 above). However, even assuming that the Regional
Court’s judgment contained an error, the Court does not discern
in the above explanations any circumstance of substantial and
compelling character which would justify the Regional Court’s
extension of the time limit for appeal and the subsequent
quashing of the final judgment in the applicants’ favour.
First,
the Court does not find that the procedural reasons referred to by
the Regional Court and by the Government were of a fundamental
nature. It considers it unfair that possible procedural errors by the
Central Bank or the Regional Court itself were corrected solely to
the applicants’ detriment a long time after the judgment in
their favour became final.
Second,
the mere fact that the judicial award was payable by the ARKO which
was later closed, does not necessarily relieve the State of its
responsibility to enforce that judgment, given both the ARKO’s
status as a State corporation (see paragraph 24 above) and the role
of co-defendant played by the Central Bank in the proceedings at
issue. The Court notes in this connection that the applicants
consistently directed their action against both the ARKO and the
Central Bank in view of the latter’s implication in the matters
concerned and that the Regional Court consistently associated the
Central Bank to the proceedings as a co-defendant. At the same time,
the domestic courts have never clarified the Central Bank’s
responsibility, either direct or subsidiary, in respect of the
applicants’ grievances. This issue became crucial after the
closing of the ARKO on 25 February 2005 but still remained unresolved
by the Regional Court.
In
this context the Court considers that the applicants could reasonably
rely on the final judgment in their favour and expect that the
judgment debt would be honoured even after the closing of the ARKO.
This attitude is also in line with the Court’s constant view
that the closure of a respondent State organ does not, in principle,
absolve the State of the obligation to pay its debts under a binding
and enforceable judgment, especially taking into account that
changing needs force the State to make frequent changes in its
organisational structure, including by forming new organs and closing
old ones (mutatis mutandis, Nikitina
v. Russia, no. 47486/07, § 19, 15 July 2010).
The Court cannot, therefore, accept the argument that the closure of
the ARKO constituted in itself a
circumstance justifying the departure from the principle of legal
certainty in the applicants’ case.
Finally,
as regards the Government’s argument concerning the objective
obstacles to payment of the Bank’s debts in the context of a
large scale financial crisis, the Court does not put it into
question that a comprehensive solution for repayment of debts to the
creditors was needed. However, this could not prevent the applicants
from bringing their claims to domestic courts and it was open to the
authorities including the Central Bank to defend their position in
court proceedings before the judgment became final and enforceable.
As to the need to correct judicial errors and to ensure a uniform
application of the domestic law, the Court considers that these must
not be achieved at any cost and notably with disregard for the
applicants’ legitimate reliance on res judicata. The
authorities must strike a fair balance between the interests of the
applicants and the need to ensure the proper administration of
justice (see Nikitin v. Russia, no. 50178/99, § 59,
ECHR 2004 VIII, and Kulkov and Others, cited above,
§ 27).
In
view of the foregoing, the Court concludes that by extending the
time-limit for the Central Bank’s appeal against the District
Court’s judgment of 20 December 2004 the Regional Court
infringed the principle of legal certainty and the applicants’
right to court under Article 6 § 1 of the Convention.
Turning
to Article 1 of Protocol No. 1, the Court reiterates that a judgment
debt may be regarded as a “possession” for the purposes
of that provision and that setting such a judgment aside in violation
of Article 6 may also constitute an interference with the
judgment beneficiary’s right to the peaceful enjoyment of his
possession (see Ryabykh, cited above, § 61). As the Court
has already found that the applicants were arbitrarily deprived of
their right to court (see paragraph 44 above), it follows that there
has also been a violation of Article 1 of Protocol No. 1 in that
respect (see Margushin, cited above, § 40).
To
sum up, the Court concludes that the extension of the time-limit for
an appeal against the final judgment in the applicants’ favour
and the subsequent quashing of that judgment by the Regional Court
violated Article 6 § 1 of the Convention and Article 1 of
Protocol No. 1.
Having regard to that finding, the Court does not find
it necessary to examine separately the issue of non-enforcement of
the judgment of 20 December 2004 by the authorities (see Boris
Vasilyev v. Russia, no. 30671/03, §§ 41-42,
15 February 2007; Sobelin and Others v. Russia, nos.
30672/03 et al., §§ 67-68, 3 May 2007; Kulkov and
Others, cited above, § 35; and Kazakevich and 9 other
“Army Pensioners” cases v. Russia, nos. 14290/03
et al., § 32, 14 January 2010).
II. ALLEGED VIOLATION OF THE CONVENTION ON ACCOUNT OF THE
NON-ENFORCEMENT OF THE JUDGMENT OF 4 AUGUST 1999
The
applicants complained under Article 6 § 1 of the Convention and
Article 1 of Protocol No. 1 that there had been no full and timely
enforcement of the District Court’s judgment of 4 August 1999.
The
Court observes that the judgment in issue was rendered in the
applicants’ favour against a commercial bank which was declared
insolvent and that the enforcement proceedings were discontinued on
10 July 2001. The application was lodged with the Court on
9 September 2002, that is more than six months after those
events. The complaint is therefore inadmissible pursuant to
Article 35 § 4 of the Convention.
III. 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
applicants claimed repayment of the judgment debts they had
legitimately expected to receive before the judgment in their favour
was quashed, i.e. the amounts of 24,490 United States dollars (USD)
and USD 32,931 respectively. They further claimed 583,548.24
Russian roubles (RUB) and RUB 784,680.56 respectively representing
interest on the judgment debts (lucrum cessans) for the period
from 5 December 2001 to 29 July 2011. They also claimed 5,000 euros
(EUR) each for non pecuniary damage.
The
Government submitted that the applicants’ claims were excessive
and ill-founded. They contested the method of calculation of interest
on the judgment debts, including the rate applied by the applicants
and the period of time for which interest was due. As regards
non-pecuniary damage, the Government argued that in any event the
Court should not grant more than EUR 2,000, an amount awarded in the
Kravchenko case.
The
Court notes 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 applicants’ favour had been
quashed in breach of the legal certainty requirement and that the
applicants had not been able to receive the judicial awards as a
result of the quashing of that judgment. 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 (see Kravchenko,
cited above, § 56). The Court therefore considers it
appropriate to award the applicants the amounts which they would have
received, had the final judgment of 20 December 2004 not been
quashed, i.e. USD 24,490 and USD 32,931 respectively.
As
to the claim concerning interest on the judgment debts, the Court,
like the Government, has doubts as to the method of calculation used
by the applicants. They did not provide sufficient factual elements
to substantiate their approach. The Court further notes that the
depreciation of the judgment debt over the relevant period was
limited since the awards were made in the US currency which was not
affected by inflation at the same rate as the Russian national
currency. In these circumstances the Court dismisses the applicants’
claim for interest.
The
Court further considers that the applicants must have suffered
distress and frustration resulting from the quashing of the final
judgment in breach of the legal certainty requirement. Making its
assessment on an equitable basis, as required by Article 41 of the
Convention, the Court awards EUR 2,000 to each applicant in respect
of non-pecuniary damage, plus any tax that may be chargeable on those
amounts.
B. Costs and expenses
The
applicants claimed RUB 35,000 for legal costs and attached the
lawyer’s bill in support of their claims. The Government did
not dispute the amount paid to the lawyer and considered that it
could be granted, should the Court find a violation of the
Convention. The Court therefore awards the applicants EUR 880 for
costs and expenses.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the complaints concerning the quashing
of the judgment of 20 December 2004 in the applicants’
favour after the extension of the time-limit for appeal and the
non enforcement of that judgment 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 on account of the
quashing of the judgment in the applicants’ favour;
Holds that it is not necessary to examine
separately the issue of non enforcement of that judgment;
Holds that the respondent State is to pay the
applicants, within three months from the date on which the judgment
becomes final in accordance with Article 44 § 2
of the Convention:
(a) the
awards made by the domestic court in the applicants’ favour,
that is USD 24,490 (twenty-four thousand four hundred and ninety
United States dollars) to the first applicant and USD 32,931
(thirty-two thousand nine hundred and thirty-one United States
dollars) to the second applicant in respect of pecuniary damage;
(b) EUR
2,000 (two thousand euros) to each applicant 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 to the applicants on that amount;
(c) EUR
880 (eight hundred and eighty euros) jointly to both applicants in
respect of costs and expenses, 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;
(d) 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 applicants’
claim for just satisfaction.
Done in English, and notified in writing on 10 May 2012, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Nina Vajić
Deputy Registrar President
