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FIRST
SECTION
CASE OF
NEKHOROSHEV v. RUSSIA
(Application
no. 45017/04)
JUDGMENT
STRASBOURG
10 April
2008
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 Nekhoroshev v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis, President,
Nina
Vajić,
Anatoly Kovler,
Elisabeth
Steiner,
Khanlar Hajiyev,
Dean
Spielmann,
Giorgio Malinverni, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 20 March 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 45017/04) 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, Mr Yuriy Sergeyevich
Nekhoroshev (“the applicant”), on 19 November 2004.
- The
Russian Government (“the Government”) were initially
represented by Mr P. Laptev, the former Representative of the Russian
Federation at the European Court of Human Rights, and subsequently by
their Representative, Mrs V. Milinchuk.
- On
12 October 2006 the Court decided to give notice of the application
to the Government. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the application at
the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1931 and lives in Moscow.
- In
November 2001 the applicant, a retired military officer, brought
proceedings against the Military Service Commission of Moscow
(Военный
комиссариат
г. Москвы
– “the Commission”) for recalculation of his
pension as from 1993 to take account of the fact that he served in
the extreme north of Russia which made him eligible for a higher
pension.
- On
3 December 2002 the Tverskoy District Court of Moscow granted the
applicant's claim, adjusted his pension by a coefficient 1.4 and
awarded him 221,913.54 Russian roubles (RUB) in arrears.
- The
Commission did not lodge an ordinary appeal against the judgment and
it became binding and enforceable on 16 December 2002.
- On
26 December 2002 the defendant enforced the judgment in a part
concerning the lump sum of RUB 221,913.54. The monthly pension
payments were calculated based on a coefficient of 1.4 in accordance
with the judgment of 3 December 2002 during the period from December
2002 until August 2004.
- On
3 December 2003 the Commission filed an application for supervisory
review, claiming that the civil-law provisions on which the court
based its judgment were not relevant to the applicant.
- On
18 May 2004 the applicant was informed about the initiation of the
supervisory-review procedure.
- On
20 May 2004 the Presidium of the Moscow City Court held a
supervisory-review hearing. It held that the first-instance court had
erroneously applied the substantive law. On that ground it quashed
the judgment of 3 December 2002 and remitted the matter for a fresh
examination. Before the announcement of the judgment the applicant
was asked to wait outside the courtroom. At the same time the
respondent remained there. The decision of the court was announced to
the applicant by the bailiff. The applicant received a copy of the
final decision on 6 August 2004.
- On
28 February 2005 the Tverskoy District Court of Moscow dismissed the
applicant's claim for recalculation of his pension. At the same time,
the court rejected the Commission's claim for recovery of the sum
already paid to the applicant in arrears pursuant to the judgment of
3 December 2002, since such recovery was not possible under the
domestic law. On 10 June 2005 the Moscow City Court upheld the
judgment on appeal.
II. RELEVANT DOMESTIC LAW
A. Code of Civil Procedure of the Russian Federation
- The
Code of Civil Procedure of the Russian Federation (“the new
Code”) was enacted on 14 November 2002 and replaced the RSFSR
Code of Civil Procedure (“the old Code”) from 1 February
2003. It provides as follows:
Article 362. Grounds for quashing or altering
judicial decisions by appeal courts
“1. The grounds for quashing or
altering judicial decisions by appeal courts are:
...
(4) violation or incorrect application of
substantive or procedural legal provisions.”
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 381. Examination of an application for
supervisory review
“2. Having examined an application for supervisory
review, the judge issues a decision on –
(1) obtaining the case file if there exist
doubts as to the lawfulness of the judicial decision...
4. If a decision to obtain the file has been
made, the judge may suspend enforcement of the judicial decision
until the supervisory-review proceedings have been completed...”
Article 384. Decision on remitting the case for
examination on the merits
by a supervisory-review court
“1. A judicial decision on remitting
the case for examination on the merits by a supervisory-review court
must contain:
(7) a reasoned description of the grounds for
remitting the case for examination on the merits...”
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.”
B. Resolution of the Plenary Supreme Court of the
Russian Federation
- Resolution no. 2 of the Plenary Supreme Court of the
Russian Federation of 20 January 2003, “On certain issues
arising in connection with adoption and coming into force of the Code
of Civil Procedure of the Russian Federation”, provided that
“22. ... The [one-year] time-limit for
lodging an application for supervisory review of judicial decisions
that became legally binding before 1 February 2003, shall run from
1 February 2003.”
THE LAW
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
- The
applicant complained that the act of quashing had violated his “right
to a court” under Article 6 § 1 of the Convention and his
right to the peaceful enjoyment of possessions under Article 1 of
Protocol No. 1. The relevant parts of these provisions read as
follows:
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. Admissibility
- The Court considers that this 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
1. Alleged violation of Article 6 of the Convention
- The
Government submitted that the supervisory-review proceedings in the
applicant's case fully complied with the domestic law: the
application for supervisory review was lodged within the prescribed
time-limit by a party to the proceedings with a view to correcting
the judicial error committed by the District Court by wrongful
application of the substantive provisions of the domestic law. There
had therefore been no violation of the principle of legal certainty.
- The
applicant maintained his claims.
- The
Court reiterates that 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, in its relevant part, 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, among other things, that where the courts have finally
determined an issue, their ruling should not be called into question
(see Brumărescu v. Romania, judgment of 28 October 1999,
Reports of Judgments and Decisions 1999-VII, § 61).
- This principle insists that no party is entitled to
seek re-opening of the proceedings merely for the purpose of a
rehearing and a fresh decision of the case. Higher courts' power to
quash or alter binding and enforceable judicial decisions should be
exercised for correction of fundamental defects. The mere possibility
of two views on the subject is not a ground for re-examination.
Departures from that principle are justified only when made necessary
by circumstances of a substantial and compelling character (see,
mutatis mutandis, Ryabykh v. Russia, no. 52854/99, §
52, ECHR 2003-X, and Pravednaya v. Russia,
no. 69529/01, § 25, 18 November 2004).
21. 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).
- The Court reiterates that it has found a violation of
an applicant's “right to a court” guaranteed by Article 6
§ 1 of the Convention in many Russian cases in which a judicial
decision that had become final and binding was subsequently quashed
by a higher court on an application by a State official or a party to
the proceedings, especially when a rather long period of time lapsed
from the date the judgment in the applicant's favour had become
binding to the date the supervisory-review proceedings were
instituted (see Roseltrans v. Russia, no. 60974/00, §§
24-28, 21 July 2005; Volkova v. Russia,
no. 48758/99, §§ 32-37, 5 April 2005; Ryabykh,
cited above, §§ 51-58; Borshchevskiy v. Russia,
no. 14853/03, §§ 41-50, 21 September 2006; Nelyubin
v. Russia, no. 14502/04, §§ 22-30, 2 November
2006; Sergey Petrov v. Russia, no. 1861/05, §§
21-29, 10 May 2007; and Zvezdin v. Russia, no. 25448/06,
§§ 26-32, 14 June 2007).
- The
Court observes that on 3 December 2002 the applicant obtained a
judgment in his favour. No appeal was lodged against the judgment,
and it became binding and enforceable. However, on 20 May 2004 that
judgment was quashed within the supervisory-review procedure on the
ground that the District Court had incorrectly applied the
substantive law.
- The
Court stresses that a binding and enforceable judgment should only be
quashed in exceptional circumstances rather than for the sole purpose
of obtaining a different decision in the case (see the case-law cited
in paragraphs 20 and 22 above). The fact that in the present case the
Presidium disagreed with the assessment made by the District Court
was not, in itself, an exceptional circumstance warranting the
quashing of a binding and enforceable judgment and re-opening of the
proceedings on the applicant's claim (see Kot v. Russia, no.
20887/03, § 29, 18 January 2007).
- The
Court further observes that in the Russian legal system the grounds
for quashing or altering judgments by appeal courts largely overlap
with those for quashing or altering judgments by way of supervisory
review (compare Article 362 § 1 (4) and Article 387 of the Code
of Civil Procedure). Thus, the situation calling into question the
binding judgment in the applicant's favour could have been avoided,
had the Commission lodged an ordinary appeal. It is noteworthy,
however, that the Russian Codes of Civil Procedure, both that of
RSFSR and that of the Russian Federation, permitted a party to apply
for supervisory review even if it had not previously exhausted an
ordinary appeal. In the present case the Commission failed to
exercise its right to lodge an ordinary appeal and permitted the
statutory ten-day time-limit to expire without challenging the
judgment of 3 December 2002. The Government did not point to any
exceptional circumstances that would have prevented the Commission
from exposing its arguments to the District Court or making use of an
ordinary appeal in good time (see Nelyubin, cited
above, §§ 27-28; Sergey Petrov, cited above, §
29; and Zvezdin, cited above, §§ 30-31).
- Having
regard to the above considerations, the Court finds that, by granting
the Commission's request to set aside the judgment of 3 December
2002, the Presidium of the Moscow City Court infringed the principle
of legal certainty and the applicant's “right to a court”
under Article 6 § 1 of the Convention. There has accordingly
been a violation of that Article.
2. Alleged violation of Article 1 of Protocol No.
1
- The
Government denied that there had been a violation of the applicant's
property rights because after the quashing of the judgment of
3 December 2002 by way of supervisory review there had been no
legal grounds for an increase of the applicant's pension.
- The
Court reiterates that the existence of a debt confirmed by a binding
and enforceable judgment furnishes the judgment beneficiary with a
“legitimate expectation” that the debt would be paid and
constitutes the beneficiary's “possessions” 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
Court observes that by virtue of the judgment of 3 December 2002
the applicant's pension was considerably increased. The quashing of
the enforceable judgment frustrated the applicant's 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 3 December 2002 by way of supervisory review placed an excessive
burden on the applicant and was therefore incompatible with Article 1
of Protocol No. 1. There has therefore been a violation of that
Article.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant complained under Article 6 § 1 of the Convention about
various procedural defects of the hearing before the Presidium of the
Moscow City Court.
- The
Court finds that, having concluded that there has been an
infringement of the applicant's “right to a court” by the
very use of the supervisory review procedure, it is not necessary to
consider whether the procedural guarantees of Article 6 of the
Convention were available in those proceedings (see Ryabykh,
cited above, § 59). It therefore rejects this part of the
application 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
applicant claimed 115,200 Russian roubles in respect of pecuniary
damage. This sum represents the 40% increase to the applicant's
current pension underpaid to him during three years after the
quashing of the judgment of 3 December 2002 by way of supervisory
review. The applicant did not make a claim for non-pecuniary damage.
- The
Government claimed that no award should be made because the
applicant's claim had been rejected by the domestic courts.
- The
Court recalls that in the instant case it found a violation of
Article 6 § 1 of the Convention and Article 1 of Protocol
No. 1, in that the final judgment in the applicant's favour had been
quashed in supervisory-review procedure. The Court notes that the
most appropriate form of redress in respect of a violation of
Article 6 is to ensure that the applicant as far as possible is
put 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
violations found (see Dovguchits v. Russia, no. 2999/03, § 48,
7 June 2007). In the present case the Court recalls that the
applicant received the arrears of his pension on 26 December 2002 and
also, until August 2004, an increase based on a coefficient of 1.4.
It was not, however, until 10 June 2005 that the Moscow City Court
finally dismissed the applicant's claim for an increase to his
pension which means that the quashing of the previous judgment
deprived the applicant of the 1.4 coefficient increase from
August 2004 until 10 June 2005. Having regard to this the Court
awards the applicant 950 euros in respect of pecuniary damage.
B. Costs and expenses
- The
applicant did not make any claims for the costs and expenses incurred
before the domestic courts and the Court.
- Accordingly,
the Court does not award anything 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 applicant's complaint concerning
the act of quashing of the final judgment in his favour 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 of 3 December 2002 by way of supervisory
review;
- Holds
(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, is to pay the applicant EUR 950 (nine hundred fifty
euros) in respect of 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 applicant;
(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.
Done in English, and notified in writing on 10 April 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
