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FIFTH
SECTION
CASE OF AGASARYAN v. RUSSIA
(Application
no. 39897/02)
JUDGMENT
STRASBOURG
20 November 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 Agasaryan v. Russia,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Rait Maruste, President,
Anatoly
Kovler,
Renate Jaeger,
Mark Villiger,
Isabelle
Berro-Lefèvre,
Mirjana Lazarova
Trajkovska,
Zdravka Kalaydjieva, judges,
and
Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 21 October 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 39897/02) 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 a Russian national, Ms Tatyana Samvelovna
Agasaryan (“the applicant”), on 20 September 2002.
- The
applicant was represented by Mr A. Glashev, a lawyer practising in
Moscow. The Russian Government (“the Government”) were
represented by Mr P. Laptev and Ms V. Milinchuk, former
Representatives of the Russian Federation at the European Court of
Human Rights.
- On
11 May 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
- The
applicant was born in 1949 and lives in Moscow.
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant worked as chief physician in a hospital managed by the
Moscow patriarchate. On 29 November 2000 the applicant on her own
initiative left her place of work in order to participate in a
conference dedicated to the fight against drug addiction in Russia,
organised by the Russian Orthodox Church.
- On
18 December 2000 the applicant was dismissed for unjustified absence
from work on 29 November 2000. She believed that the dismissal was
unlawful and brought civil proceedings for reinstatement and for
compensation for pecuniary and non-pecuniary damage.
- On 28 March 2001 the Simonovskiy District Court of
Moscow partly allowed the claims, ordered her reinstatement and
awarded her 19,401.03 Russian roubles (RUB) in respect of
pecuniary damage. The applicant’s claims for non-pecuniary
damage were dismissed. On 14 May 2001 the Moscow City Court upheld
the judgment on appeal.
- On
16 May 2001 the Moscow Prosecutor’s Office lodged an
application for supervisory review of the judgment. On 1 June 2001
the Presidium of the Moscow City Court quashed the judgment of 28
March 2001 and the appeal decision of 14 May 2001 and remitted the
case to the first-instance court for a fresh examination.
- On
19 September 2001 the Simonovskiy District Court of Moscow dismissed
the applicant’s claims in full. The Moscow City Court upheld
the judgment on 22 October 2001.
- The
Vice-President of the Supreme Court lodged an application for
supervisory review of the ruling of the Presidium of the Moscow City
Court of 1 June 2001 and the subsequent judgments.
- On
16 April 2002 the Supreme Court of Russia, by way of supervisory
review, quashed the ruling of 1 June 2001 and the judgment of
19 September 2001 and restored the validity of the judgment of
28 March and the appeal decision of 14 May 2001 as regards the
applicant’s reinstatement and the refusal to pay her
compensation for non-pecuniary damage. The applicant’s
pecuniary claims were remitted to the first-instance court for a
fresh examination as the amount initially awarded had by that time
considerably decreased in purchasing power. No appeal lay against
this ruling.
- The
Prosecutor General’s Office lodged an application for
supervisory review of the Supreme Court’s ruling of 16 April
2002.
- On
5 June 2002 the Presidium of the Supreme Court of Russia quashed the
judgment of 16 April 2002 by way of supervisory review and restored
the validity of the judgment of 19 September 2001, upheld on appeal
on 22 October 2001.
II. RELEVANT DOMESTIC LAW
- For the relevant provisions on the supervisory review
proceedings contained in the 1964 Code of Civil Procedure, see the
Court’s judgment in the case of Ryabykh v. Russia
(no. 52854/99, §§ 31-42, ECHR 2003-IX).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AND
ARTICLE 1 OF PROTOCOL No. 1 IN RESPECT OF THE SUPERVISORY REVIEW OF
THE JUDGMENT OF 16 APRIL 2002
- The
applicant complained that the quashing under the supervisory review
procedure of the Russian Supreme Court’s judgment of 16 April
2002 had violated her right to a fair hearing, guaranteed by Article
6 § 1 of the Convention, and her right to the peaceful enjoyment
of possessions, guaranteed by Article 1 of Protocol No. 1 to the
Convention.
Article
6 § 1 and Article 1 of Protocol No. 1 to the Convention, in so
far as relevant, provide 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.
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. Alleged violation of Article 6 of the Convention
1. 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 grounds. It must
therefore be declared admissible.
2. Merits
(a) Submissions by the parties
- The
Government submitted that, in quashing the Supreme Court’s
decision of 16 April 2002, the Presidium of the Supreme Court of
Russia had based its findings on the fact that the Supreme Court had
wrongly assessed the arguments of the Presidium of the Moscow City
Court set forth in the ruling of 1 June 2001. In particular, the
Supreme Court in its decision had mentioned that the “arguments
of the Presidium of the Moscow City Court appeared to be a
reassessment of evidence, whereas a supervisory-review court is not
eligible to make such a reassessment”. The Government further
noted that the ruling of 16 April 2002, which had restored the
validity of the judgment of 28 March and the appeal decision of 14
May 2001, had been based on unverified allegations as to the
lawfulness of the applicant’s absence from work. Thus, the
ruling had been quashed to eliminate a judicial error made by the
first-instance court in the judgment of 28 March 2001 and to prevent
any possible violations of the rights and legal interests of other
persons.
- Lastly,
the Government drew the Court’s attention to the fact that,
contrary to the situation in the Ryabykh v. Russia case (no.
52854/99, ECHR 2003-X), the applicant and her counsel had been able
to attend the hearing before the Presidium and to give explanations
on the merits of the case.
- The
applicant maintained her complaint.
(b) The Court’s assessment
- 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, in
its relevant part, declares 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 [GC], no. 28342/95, § 61, ECHR
1999-VII).
- This
principle underlines that no party is entitled to seek the reopening
of proceedings merely for the purpose of obtaining a rehearing and a
fresh determination of the case. Higher courts’ power to quash
or alter binding and enforceable judicial decisions should be
exercised to correct fundamental defects. The mere possibility of
there being 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, cited above,
§ 52, and Pravednaya v. Russia,
no. 69529/01, § 25, 18 November 2004).
22. 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 was not subject to any time-limit, with the result
that the judgments were liable to challenge indefinitely (see
Ryabykh, cited above, §§ 54-56).
- Although
the Court has accepted that the mere possibility of reopening a case
is prima facie compatible with the Convention and that in
certain circumstances a final and binding judgment may be revised
(see, for a recent example, Protsenko v. Russia, no.
13151/04, § 34, 31 July 2008), it has held that a
quashing of final judgment is justified only when made necessary by
circumstances of a substantial and compelling character (see Ryabykh,
cited above, § 52). The Court has, consequently, to assess in
each case before it whether the power to conduct a supervisory review
was exercised by the authorities in such a way as to strike, to the
maximum extent possible, a fair balance between the interests of the
individual and the need to ensure the proper administration of
justice (see Prisyazhnikova and Dolgopolov v. Russia, no.
24247/04, § 24, 28 September 2006).
- Turning
to the present case, the Court first notes that the judgment of 16
April 2002, which was set aside by the Presidium of the Supreme Court
of Russia by way of supervisory review, had been delivered by way of
the same procedure. As both supervisory review procedures were
covered by the “old” Code of Civil Procedure, both were
initiated by State officials who were not parties to the proceedings:
in the first case, by the Moscow Prosecutor’s Office and in the
second, by the Vice-President of the Supreme Court. For both
procedures no time-limit was set as regards the date for bringing an
application for supervisory review. The only significant difference
between these procedures concerned their outcome, which was
favourable to the applicant in the first case and unfavourable in the
second.
- Since
the applicant complained about the quashing of the Supreme Court’s
judgment of 16 April 2002, the Court has to examine whether the
principle of legal certainty was complied with in this respect. It
notes that the judgment of 16 April 2002 was final in the part which
restored the validity of the favourable judgment of 28 March and the
appeal decision of 14 May 2001. No ordinary appeal lay against this
ruling. However, the Supreme Court’s judgment was set aside by
a higher court, the Presidium of the Supreme Court of Russia. The
fact that the ruling of the Supreme Court was subsequently quashed on
a further application for supervisory review could not be said to
have enhanced legal certainty in the applicant’s case (see,
mutatis mutandis, Volkova v. Russia, no. 48758/99, §
33, 5 April 2005). Further, the Government did not provide the Court
with any arguments enabling it to establish any circumstances of a
substantial and compelling character justifying the quashing of the
final judgment of 16 April 2002. The fact that the Presidium
disagreed with the assessment made by the Supreme Court was not, in
itself, an exceptional circumstance warranting the quashing of a
binding and enforceable judgment and the review of the applicant’s
claim.
- The
Court thus finds no reason to depart from its well-established
case-law in respect of the quashing by way of supervisory review of
the final judgment in the applicant’s favour. Consequently, it
finds that by using the supervisory review procedure to set aside the
judgment of 16 April 2002, the Presidium of the Supreme Court of
Russia 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 Article 6 § 1 of the
Convention.
B. Alleged violation of Article 1 of Protocol No. 1 to
the Convention
- The
Government submitted that the complaint under Article 1 of Protocol
No. 1 was inadmissible as the judgment of 16 April 2002, in the part
concerning the applicant’s pecuniary claims, had not contained
any awards. The Supreme Court had quashed this part of the initial
judgment of 28 March 2001 and had referred it back for fresh
consideration. The Government noted that the applicant had neither
had a “possession” within the meaning of Article 1 of
Protocol No. 1, nor any legitimate expectation of obtaining pecuniary
compensation for her unauthorised absence from work.
- The
applicant maintained her complaint. She claimed that the initial
judgment of 28 March 2001, whose validity had been restored, had
included an award for pecuniary damage amounting to RUB 19,401.03 and
that the Supreme Court in its ruling of 16 April 2002 had quashed
that part of the judgment in order to increase the sum.
- The
Court reiterates that, according to its established case-law,
“possessions” within the meaning of Article 1 of Protocol
No. 1 can be “existing possessions” (see Van der
Mussele v. Belgium, 23 November 1983, § 48, Series A no. 70)
or assets, including claims, in respect of which the applicant can
argue that he or she has at least a “legitimate expectation”
of obtaining effective enjoyment of a property right (see Kopecký
v. Slovakia [GC], no. 44912/98, § 25, ECHR 2004 IX).
- The
Court notes that when the Supreme Court gave its decision of 16 April
2002 it restored the validity of part of the judgment of 28 March
2001 (and the subsequent appeal judgment of 14 May 2001). It did not,
it is true, restore the validity of the award of RUB 19,401.03 in the
applicant’s favour, but instead remitted that question to the
first instance court. Accordingly, at that moment, the applicant did
not have an “existing possession” within the meaning of
the case-law on Article 1 of Protocol No. 1. However, given that
it was not open to the first instance court to reduce the amount
awarded, the applicant had a legitimate expectation that she would
receive at least that sum from the first instance court. Her claim
therefore falls within the definition of “possessions”
for these purposes.
- It
follows that the quashing of the judgment of 16 April 2002 frustrated
the applicant’s reliance on a binding judicial decision and
deprived her of an opportunity to receive the money she had
legitimately expected to receive.
- In
these circumstances, the Court considers that the quashing of the
judgment of 16 April 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. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
- Lastly,
the applicant complained under Article 10 of the Convention that she
had been unlawfully dismissed from her post for participating in a
conference, in breach of her right to freedom of expression.
- The
Court reiterates that in accordance with Article 35 § 1 of the
Convention, those seeking to bring their case against the State
before the Court are required to use first the remedies provided by
the national legal system. The applicant did not raise
the complaint about the alleged violation of her right to freedom of
expression in the applications she lodged with the domestic
authorities.
- It
follows that this complaint must be dismissed pursuant to Article 35
§§ 1 and 4 of the Convention for non-exhaustion of domestic
remedies.
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 11,546 euros (EUR) in respect of pecuniary damage,
representing her unpaid wages from 19 December 2000 to 31 October
2006. She also claimed EUR 14,285 in respect of the non-pecuniary
damage caused by the uncertainty as to the finality of the judgment
in her favour.
- The
Government contested these claims.
- As
regards the claim in respect of pecuniary damage, the Court considers
that, since it is impossible for it to assess what the increase in
the initial sum would have been after the review of the claim for
non-pecuniary damage by the domestic courts, it would be appropriate
to award the applicant the minimum amount which she would have
received following a fresh examination as ordered by the final
judgment. Thus, having regard to the nature of the violations found
and to the circumstances of the present case, the Court awards the
applicant EUR 750 in respect of the pecuniary damage, plus any tax
that may be chargeable on this amount.
- The
Court further considers that the applicant suffered distress and
frustration as a result of the quashing of the judicial decisions in
her favour by way of supervisory-review proceedings. However, the
particular amount claimed is excessive. Making its assessment on an
equitable basis, the Court awards the applicant EUR 2,000 in respect
of non-pecuniary damage, plus any tax that may be chargeable on this
amount.
B. Costs and expenses
- The
applicant also claimed EUR 202 for the costs and expenses incurred in
ordering an expert assessment of pecuniary damage and for postage.
- The
Government found this amount unjustified. They argued that no
contract or receipt of payment had been produced by the applicant to
substantiate her expenses under this head.
- According
to the Court’s case-law, an applicant is entitled to
reimbursement of his 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 information in its possession and the above criteria, the Court
dismisses the claim as the applicant did not submit any receipts or
other vouchers in support of it.
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 complaint concerning the quashing
of the final judgment in the applicant’s favour admissible and
the remainder of the application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds that there has been a violation of Article
1 of Protocol No. 1 to 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
750 (seven hundred and fifty 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 20 November 2008,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Rait Maruste
Registrar President
