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FIRST
SECTION
CASE OF KOZEYEV v. RUSSIA
(Application
no. 934/03)
JUDGMENT
STRASBOURG
31
July 2007
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 Kozeyev v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Mr C.L. Rozakis, President,
Mr A.
Kovler,
Mrs E. Steiner,
Mr K. Hajiyev,
Mr D.
Spielmann,
Mr S.E. Jebens,
Mr G. Malinverni, judges,
and Mr S. Nielsen, Section Registrar,
Having
deliberated in private on 10 July 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 934/03) 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 Alekseyevich
Kozeyev (“the applicant”), on 15 December 2002. He was
represented before the Court by Mr V. Gandzyuk, a lawyer
practising in Ryazan.
- The
Russian Government (“the Government”) were represented by
Mr P. Laptev, Representative of the Russian Federation at the
European Court of Human Rights.
- On
18 November 2004 the Court decided to communicate 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 1967 and lives in the town of Ryazan.
- The
applicant is a retired serviceman. On unspecified dates in the past,
he had taken part in peace-keeping operations in former Yugoslavia.
A. Court proceedings
- On
an unspecified date, the applicant instituted proceedings against
military unit no. 03611, seeking to recover the unpaid daily
allowances owed to him for his participation in the above operations.
- In
the proceedings before the Military Court of the Ryazan Garrison
(Рязанский
гарнизонный
военный
суд) the
representative of the military unit fully accepted the applicant's
claim.
- He
submitted that it was impossible to pay the sum owed to the
applicant, since there was no mechanism developed for payment of
daily allowances to servicemen who had been commissioned abroad.
Furthermore, no funds were available for this purpose.
- On
11 December 2001 the Military Court of the Ryazan Garrison granted
the applicant's claim and ordered the defendant to pay him 377,776.12
Russian roubles (RUR, approximately 14,100 euros at the material
time).
- The
court found that the applicant could not be deprived of the right to
receive the sum owed to him because of the absence of an appropriate
mechanism of payment. No appeal was lodged and this judgment became
final on 24 December 2001.
B. Enforcement proceedings
- On
5 February 2002 the Military Court issued an execution writ.
- On
an unspecified date, the applicant submitted the execution writ to
the Ryazan Regional Branch of the Federal Treasury.
- It
appears that the Federal Treasury informed the applicant that it was
impossible to enforce the judgment as there were no budgetary funds
available on the defendant's account for this purpose. He was advised
to apply to the Ministry of Finance for the latter to recover the
amount due from the Ministry of Defence.
- On
16 September 2002 the applicant forwarded the execution writ to the
Ministry of Finance.
C. Supervisory review proceedings
- On
6 November 2002 the Moscow Military Circuit Court, acting as a
supervisory review instance upon the application by the President of
that Court, quashed the judgment of 11 December 2001 as unlawful and
unfounded and remitted the case at first instance for a fresh
examination.
- It
does not appear that the applicant and his counsel were notified of
the supervisory review proceedings in advance or that they were able
to take part in them.
D. Fresh examination of the case by the domestic courts
- According
to the Government, in April 2003 the Military Court rejected the
applicant's claims. This judgment was upheld on appeal by the Moscow
Military Circuit Court by two decisions dated 16 May, 10 and 17 June
2003.
II. RELEVANT DOMESTIC LAW
- According
to Articles 13, 209 and 338 of the old Code of Civil Procedure
(Гражданский
процессуальный
кодекс
РСФСР),
in force at the material time, a court judgment, which has become
final, is binding and must be executed.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AND
ARTICLE 1 OF PROTOCOL NO. 1 ON ACCOUNT OF THE QUASHING OF THE
JUDGMENT OF 11 DECEMBER 2001
- The
applicant complained that the quashing of the final judgment of 11
December 2001 made in his favour had violated his “right to a
court” and his right to peaceful enjoyment of possessions. The
applicant relied on Article 6 § 1 of the Convention and Article
1 of Protocol No. 1 in this connection. 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 ... 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. Submissions by the parties
- The
Government submitted that the quashing of the judgment of 11 December
2001 had been justified by the need to correct a judicial error, that
the President of the Moscow Military Circuit Court acted on request
by a party to the proceedings and that the quashing took place
“within all prescribed time-limits”.
- The
applicant maintained his complaints.
B. The Court's assessment
1. Article 6 § 1 of the Convention
(a) Admissibility
- The Court notes 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
ground. It must therefore be declared admissible.
(b) Merits
- 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).
25. 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).
- Turning
to the facts of the present case, the Court notes that by the
judgment dated 11 December 2001 granted the
applicant's claims for unpaid allowances owed to him for his
participation in the peace-keeping operations against the military
authority and awarded him a certain amount. This judgment was not
appealed against by the parties and on 24 December 2001 it became
final and binding. Some time thereafter the President of the
Moscow Military Circuit Court brought an application for the
supervisory review of the judgment. On 6 November
2002 the Presidium of the Moscow Military Circuit Court
examined this application and quashed the said judgment on the ground
of erroneous application of the substantive law. Upon the fresh
examination of the applicant's claims, the domestic courts rejected
his claims in this case as unfounded.
- 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 (see Roseltrans v. Russia, no. 60974/00,
§§ 27-28, 21 July 2005; Volkova
v. Russia, no. 48758/99, §§ 34-36, 5
April 2005; Ryabykh, cited above, §§ 51-56;
Borshchevskiy v. Russia, no. 14853/03, §§
46-48, 21 September 2006; and Nelyubin v. Russia,
no. 14502/04, §§ 28-30, 2 November 2006).
Furthermore, in the case of Kot v. Russia the Court found as
follows:
“It is unavoidable that in civil proceedings the
parties would have conflicting views on application of the
substantive law. The courts are called upon to examine their
arguments in a fair and adversarial manner and make their assessment
of the claim. The Court observes that before an application for
supervisory review was lodged, the merits of the applicant's claim
had been examined... by the first-instance and appeal courts. It has
not been claimed that the courts acted outside their competences or
that there was a fundamental defect in the proceedings before them.
The fact that the Presidium disagreed with the assessment made by the
first-instance and appeal courts 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.”
(no. 20887/03, § 29, 18 January 2007)
- Having examined the materials submitted to it, the
Court observes that the Government have not put forward any fact or
argument capable of persuading it to reach a different conclusion in
the present case. Accordingly, the Court finds that there
has been a violation of Article 6 § 1 of the Convention on
account of the quashing of the final judgment of 11 December 2001 by
way of supervisory-review proceedings.
2. Article 1 of Protocol No. 1
(a) Admissibility
- The Court observes that the applicant's complaint
under Article 1 of Protocol No. 1 is not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention and is
not inadmissible on any other ground. It must therefore be declared
admissible.
(b) Merits
- The
Court reiterates that the existence of a debt confirmed by a binding
and enforceable judgment constitutes the judgment beneficiary's
“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, Androsov v. Russia, no. 63973/00,
§ 69, 6 October 2005).
- The
Court observes that the final and enforceable judgment of 11 December
2001, by which the applicant had been awarded a sum of money, was
quashed on a supervisory review on 6 November 2002. The Moscow
Military Circuit Court re-examined the matter and the domestic courts
eventually dismissed the applicant's claims.
- Thus,
the applicant, through no fault of his own, was prevented from
receiving the award made by the Military Court of the Ryazan
Garrison. The quashing of the enforceable judgment frustrated the
applicant's reliance on the 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 enforceable judgment of 11 December 2001 by way
of supervisory review placed an excessive burden on the applicant and
was incompatible with Article 1 of Protocol No. 1. There has
therefore been a violation of that Article.
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AND
ARTICLE 1 OF PROTOCOL NO. 1 ON ACCOUNT OF THE NON-ENFORCEMENT OF THE
JUDGMENT OF 11 DECEMBER 2001
- Under
Article 6 § 1 of the Convention and Article 1 of Protocol No. 1
the applicant also complained about the non-enforcement of the
judgment of 11 December 2002. The relevant parts of these provisions
are cited above.
A. Submissions by the parties
- The
Government argued that the judgment of 11 December 2001 could not be
enforced because it had been quashed on the supervisory review.
- The
applicant maintained his complaints.
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
- Turning
to the facts of the present case, the Court observes that on 11
December 2001 the applicant obtained a judgment by which the military
authority was to pay him a certain sum of money. The judgment was not
appealed against by the parties and on 24 December 2001 it became
enforceable. From that moment on, it was incumbent on the debtor, a
State body, to comply with it. Enforcement proceedings were
instituted, but on 6 November 2002 the Presidium of the Moscow
Military Circuit Court re-opened the proceedings, quashed the
judgment of 11 December 2001 and remitted the case for a fresh
examination to the first instance court. Upon the fresh examination
of the applicant's claims, the domestic courts rejected his claims as
unfounded.
- It
follows that at least from 24 December 2001 to 6 November 2002 the
judgment in question was enforceable and it was incumbent on the
State to abide by its terms (cf. Velskaya v. Russia, no.
21769/03, § 18, 5 October 2006).
- The
Government cited the initiation of the supervisory-review proceedings
in respect of the judgment of 11 December 2001 as the sole reason for
its non-enforcement. In this respect, the Court reiterates that it
has recently addressed and dismissed the same argument by the
Government in the case of Sukhobokov v. Russia (no. 75470/01,
13 April 2006). In particular, the Court held that “the
quashing of the judgment, which did not respect the principle of
legal certainty and the applicant's “right to a court”,
cannot be accepted as a reason to justify the non-enforcement of the
judgment” (see Sukhobokov, cited above, § 26, and
Velskaya, cited above, §§ 19-21).
- Having
examined the material submitted to it and taking into account its
findings in paragraphs 28 and 32 above, the Court finds that the
Government did not put forward any fact or argument capable of
persuading the Court to reach a different conclusion in the present
case. The Government did not advance any other justification for the
failure to enforce the judgment of 11 December 2001. Having regard to
its case-law on the subject (see Burdov v.
Russia, no. 59498/00, ECHR 2002 III; and, more
recently, Poznakhirina v. Russia, no.
25964/02, 24 February 2005; Wasserman v. Russia, no.
15021/02, 18 November 2004), the Court finds that by failing to
comply with the judgment of 11 December 2001 in the applicant's
favour the domestic authorities violated his right to a court and
prevented him from receiving the money which he was entitled to
receive.
- The
Court finds accordingly that there was a violation of Article 6 § 1
of the Convention and Article 1 of Protocol No. 1 on account of the
non-enforcement of the judgment of 11 December 2001.
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 RUR 377,776.46 (14,100 euros,
EUR) as a principal debt and RUR 255,905.77 (EUR 7,330) as interest
payments in respect of the quashing of the court judgment of 11
December 2001. He also claimed EUR 3,000 as a compensation for
non-pecuniary damage.
- The
Government considered that nothing should be granted to the applicant
under Article 41 of the Convention. They made no specific comments as
regards the calculation of the applicants' alleged pecuniary losses.
- The
Court awards the applicant EUR 14,100 representing the sum which he
lost as a result of the supervisory review procedure. It also accepts
the applicant's claim in respect of pecuniary damage in so far as it
relates to the interest and awards the applicant the sum of EUR 7,330
under this head, plus any tax that may be
chargeable on the amount of the principal debt and the interest.
- As
regards the non-pecuniary damage, the Court finds that the applicant
has suffered some non-pecuniary damage as a result of the violations
found which cannot be compensated by the mere finding of a violation.
Making its assessment on an equitable basis, as required by
Article 41 of the Convention, the Court awards the applicant the
sum of EUR 2,000 in respect of non-pecuniary damage,
plus any tax that may be chargeable on that amount.
B. Costs and expenses
- The applicant did not seek reimbursement of his costs
and expenses incurred before the domestic authorities and the Court.
Accordingly, the Court does not make any award under this head.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
- Holds that there has been a violation of Article
6 of the Convention and Article 1 of Protocol No. 1 on account of the
quashing of the judgment of 11 December 2001;
- Holds that there has been a violation of Article
6 of the Convention and Article 1 of Protocol No. 1 on account of the
non-enforcement of the judgment of 11 December 2001;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final according to
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
21,430 (twenty-one thousand four hundred and thirty euros) in respect
of pecuniary damage;
(ii) EUR
2,000 (two thousand euros) in respect of non-pecuniary damage;
(iii) any
tax that may be chargeable on the above amounts;
(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 31 July 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President