[New search]
[Contents list]
[Printable RTF version]
[Help]
FIRST
SECTION
CASE OF GULYAYEV v. RUSSIA
(Application
no. 20023/07)
JUDGMENT
STRASBOURG
12 May
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 Gulyayev 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 22 April 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 20023/07) 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 Vasiliy Fedorovich
Gulyayev (“the applicant”), on 5 March 2007.
- The
applicant was represented by Mr A.N. Golovachev, a lawyer practising
in Kursk. The Russian Government (“the Government”) were
represented by Mr G. Matyushkin, representative of the Russian
Federation before the European Court of Human Rights.
- On
17 November 2008 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
- The
applicant was born in 1928 and lives in Kursk.
- On
4 November 1992 the Presidium of the Kursk Regional Council of
People's Deputies issued the applicant with a certificate showing
that he had participated in mine cleaning in the Kursk Region in
1943-1948.
- On
8 December 2000 the Kursk Social Security Office upon applicant's
request exchanged the above certificate for a certificate of a war
veteran. The new document made the applicant eligible for an
increased pension.
- In
March 2005 the Kursk Social Security Office asked the Kursk Military
Commission to remove the applicant's status as a war veteran on the
ground that the police had established forgery of the war-time
document, in which the applicant's name was mentioned. In May 2005
the Social Security Office stopped paying the increased pension to
the applicant and decided to withhold the amount which it had
overpaid in the preceding period.
- The
applicant challenged the discontinuation of payments as unlawful. The
Social Security Office counterclaimed, seeking a court order for
annulment of the veteran certificate. The Military Commission joined
the proceedings as a co-defendant.
- On
20 April 2006 the Leninskiy District Court of Kursk found for the
applicant. It determined that the allegedly forged document had not
been the basis for granting the applicant the veteran status and
could not be invoked as a ground for annulment of the certificate.
The discontinuation of payments had been therefore unlawful.
- Neither
the Social Security Office nor the Military Commission filed an
ordinary appeal and the judgment became final and enforceable.
- In
September 2006 the Military Commission lodged an application for
supervisory review of the judgment of 20 April 2006.
- On
15 November 2006 the Presidium of the Kursk Regional Court granted
the application, quashed the contested judgment and remitted the
matter for a new examination by the District Court. In so doing, it
held that the District Court had gone beyond the scope of the claims
since it had found that the veteran certificate had been lawfully
issued to the applicant, whereas the Social Security Office had not
raised that issue. It also found that the District Court had not
examined the administrative decision to suspend the monthly payments
to the applicant and had not indicated the statute regulating seizure
of certificates in court proceedings.
- On
29 December 2006 the Leninskiy District Court issued a new judgment.
On the applicant's claim, it held that the discontinuation of
payments had been lawful, but awarded the applicant the amount
outstanding and interest on it. The District Court also granted the
Social Security Office's counterclaim and annulled the veteran
certificate on the ground that he had failed to produce any documents
showing that he had taken part in mine cleaning prior to 9 May 1945
(the official date of the end of the war).
II. RELEVANT DOMESTIC LAW
- The
relevant domestic law governing the supervisory review procedure at
the material time is summed up in the Court's judgment in the case of
Sobelin and Others v. Russia (nos. 30672/03, et seq.,
§§ 33-42, 3 May 2007).
THE LAW
I. THE GOVERNMENT'S OBJECTION AS TO ABUSE OF PETITION
- The
Government submitted that the applicant had provided the Court with
false information as to the lawfulness and good faith of the manner
in which he had obtained the certificate of a war veteran. Such
failure amounted to an abuse of the right of application within the
meaning of Article 35 § 3 of the Convention which, insofar as
relevant, reads as follows:
“The Court shall declare inadmissible any
individual application submitted under Article 34 which it
considers incompatible with the provisions of the Convention or the
Protocols thereto, manifestly ill-founded, or an abuse of the right
of application.”
- The
Court reiterates that, except in extraordinary cases, an application
may only be rejected as abusive if it was knowingly based on untrue
facts (see Akdivar and Others v. Turkey, 16 September 1996,
Reports of Judgments and Decisions 1996-IV, §§
53-54; I.S. v. Bulgaria (dec.), no. 32438/96, 6 April
2000; Varbanov v. Bulgaria, no. 31365/96, § 36, ECHR
2000-X).
- In
the circumstances of the present case, the Court considers that the
manner in which the applicant obtained the document does not have any
bearing on the issue being examined. The Court therefore rejects the
Government's objection.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON
ACCOUNT OF SUPERVISORY REVIEW
- The
applicant complained that the quashing of the judgment of 20 April
2006 by way of supervisory review had impaired the requirement of
legal certainty as provided in Article 6 of the Convention, which
reads as follows:
“In the determination of his civil rights and
obligations ... everyone is entitled to a fair ... hearing ... by [a]
... tribunal ...”
A. 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.
B. Merits
- The
Government argued that the supervisory review had been justified as
it had intended to correct a “fundamental defect” in the
judgment of the lower court. It further maintained that the Military
Commission had failed to lodge an ordinary appeal for lack of
financial means needed to pay a court fee. It also held that in any
event the applicant's rights had not been violated as the judgment of
20 April 2006 had been fully enforced prior to the quashing.
- The
applicant maintained his claims.
- The
Court reiterates that legal certainty, which is one of the
fundamental aspects of the rule of law, presupposes respect for the
principle of res judicata, the principle of the finality of
judgments. 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 many other authorities, Brumărescu v.
Romania [GC], no. 28342/95, § 61, ECHR 1999-VII; Ryabykh
v. Russia, no. 52854/99, §§ 51-52, 24 July 2003).
- The
Court found on numerous occasions that the quashing of final and
binding judgments by way of supervisory review under the Code of
Civil Procedure as in force at the material time infringed the
principle of legal certainty and was only justified in exceptional
circumstances (see Protsenko v. Russia, no. 13151/04, §§
29-34, 31 July 2008; Tishkevich v. Russia,
no. 2202/05, §§ 24-27, 4 December 2008)
- Turning
to the present case, the Court observes that the judgment of 20 April
2006 was set aside by way of supervisory review on the ground that
the lower court considered of its own motion the question of
lawfulness of the applicant's veteran certificate (see paragraph 12
above). The arguments put forward by the authorities do not warrant
the conclusion that this discloses a fundamental defect warranting
the departure from the principle of legal certainty.
- Furthermore,
in the Russian legal system such defects could have been cured in the
appeal proceedings. Thus, a situation where the final judgment in the
applicant's favour was called into question could have been avoided,
had the Military Commission lodged an ordinary appeal within the
statutory ten-day time-limit (see Zvezdin v. Russia, no.
25448/06, § 30, 14 June 2007). The Government's argument
concerning a lack of financial means necessary to lodge an appeal is
unsupported by any evidence. The Court notes that even if this fact
had proved true, the appellant was free to request a deferment or
payment by instalments of the court fee, in accordance with Section
333.41 of the Tax Code of Russia of 5 August 2000.
- As
for the Government's contention that the judgment had been fully
enforced prior to the quashing, the Court considers that this fact
did not by itself efface the effects of legal uncertainty the
applicant had to endure after the judgment of 20 April 2006 had been
quashed. Nor did so the fact that the applicant's claim was granted
as a result of the proceedings following the quashing (see Zasurtsev
v. Russia, no. 67051/01, § 51, 27 April 2006).
-
There has accordingly been a violation of Article 6 § 1 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 10,000 euros (EUR) in respect of non-pecuniary
damage.
- The
Government noted that the applicant had failed to substantiate his
allegedly excessive and unreasonable claims.
- The
Court finds that the applicant has suffered non-pecuniary damage as a
result of the violation found which cannot be compensated by the mere
finding of a violation. Having regard to the circumstances of the
case and making its assessment on an equitable basis, the Court
considers it reasonable to award the applicant EUR 3,000 in respect
of non-pecuniary damage, plus any tax that may be chargeable on that
amount.
B. Costs and expenses
- The
applicant also claimed 13,000 Russian roubles (RUB) (EUR 312)
for the costs and expenses incurred before the domestic courts and
RUB 13,700 (EUR 329) for those incurred before the Court.
- The
Government asserted that the claimed costs were unreasonable.
- As
regards the costs and expenses incurred before the domestic courts,
in support of his claim the applicant submitted an agreement for
provision of legal assistance in the proceedings before the Presidium
of the Kursk Regional Court and subsequent round of proceedings for
RUB 10,000, the lawyer's bill for RUB 13,000, and two receipts
for the amounts of RUB 10,000 and RUB 3,000. The Court observes that
the lawyer's bill was not itemised and thus finds it impossible to
determine whether the amount of RUB 3,000 was incurred necessarily.
- As
regards the costs and expenses incurred before the Court, in support
of his claim the applicant submitted the lawyer's bill for RUB 10,000
and corresponding receipts, as well as two powers of attorney with
notary fees charged in the amount of RUB 300 and 400, respectively.
The Court notes that the applicant failed to submit any supporting
documents to account for the remaining amount of RUB 3,000.
- 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 500 covering costs
under all heads.
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
- Dismisses the Government's objection as to abuse
of petition;
2. Declares the application admissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- 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:
(i)
EUR 3,000 (three thousand euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage;
(ii)
EUR 500 (five hundred euros), plus any tax that may be chargeable to
the applicant, 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 12 May 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
