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FIRST
SECTION
CASE OF KURINNYY v. RUSSIA
(Application
no. 36495/02)
JUDGMENT
STRASBOURG
12
June 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 Kurinnyy v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos
Rozakis,
President,
Anatoly
Kovler,
Elisabeth
Steiner,
Dean
Spielmann,
Sverre
Erik Jebens,
Giorgio
Malinverni,
George
Nicolaou,
judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 22 May 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 36495/02) 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, Mr Nikolay Mikhaylovich
Kurinnyy (“the applicant”), on 25 September 2002.
- The
Russian Government (“the Government”) were represented by
Mr P. Laptev, the former Representative of the Russian Federation at
the European Court of Human Rights.
- On
17 May 2006 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. Having examined the Government’s
objection concerning the application of Article 29 § 3 of
the Convention, the Court dismissed it.
THE FACTS
- The
applicant was born in 1939 and lives in the village of Rakitnyy in
the Rostov Region.
A. Judgment of 27 May 1999
- In
1998 the applicant brought court proceedings against the Social
Security Service of the Zernogradskiy District of the Rostov Region
(“the Social Security Service”) claiming old-age pension
arrears.
- By
judgment of 27 May 1999, the Zernogradskiy District Court awarded the
applicant 3,770.46 Russian roubles (RUB) in pension arrears for the
period from August 1998 to April 1999 and RUB 469.21 in monthly
payments as from May 1999. The judgment was not appealed against and
became final on 6 June 1999.
- On
7 December 1999 the District Court issued the applicant with writs of
execution which he submitted to the bailiffs but they refused to
enforce the judgment.
B. Judgment of 31 July 2001
- In
April 2001 the payment of the applicant’s pension was entrusted
to the Zernogradskiy District Agency of the Pension Fund (“the
Agency”). In July 2001 the applicant sued the Agency and the
Social Security Service for pecuniary damages on account of their
failure to enforce the judgment of 27 May 1999.
- By
judgment of 31 July 2001, the District Court established that the
judgment of 27 May 1999 had not been enforced and ordered the
Agency to pay the applicant RUB 24,998.55 in pension arrears for
the period from August 1998 to July 2001, adjusted in line with the
increases in the level of pensions during this period. The District
Court revoked the enforcement writs issued in December 1999.
- The
Agency appealed. It appears that the sole ground of its appeal was
that it should not have been held responsible for the period of time
when the payment of the applicant’s pension had been entrusted
to the Social Security Service. On 10 October 2001 the Rostov
Regional Court upheld the judgment.
- On
15 January 2002 the amount of RUB 24,998.55 was transferred to
the applicant’s account.
C. Quashing of the judgment of 31 July 2001
- On
30 April 2002 the President of the Rostov Regional Court lodged an
application for supervisory review of the judgment of 31 July 2001,
as upheld on 10 October 2001. The applicant challenged the above
application relying on the Brumarescu judgment and alleging
that the quashing of the judgment in his favour would violate Article
6 § 1 of the Convention.
- On
23 May 2002 the Presidium of the Rostov Regional Court set aside the
judgment of 31 July 2001, as upheld on appeal, on the ground that it
had infringed the rules of civil procedure by re-awarding the
applicant the sums due under the judgment of 27 May 1999 and thereby
re-considering the issues resolved by that final judgment. The
Presidium also noted that the courts had failed to set out detailed
calculations of the awarded sums and their conclusions in that part
had been unsubstantiated. It remitted the case for a new examination
by the District Court.
D. Further examination of the case
- By
judgment of 9 October 2002, the District Court granted the
applicant’s claims in part. The Regional Court reversed the
judgment on 27 November 2002 and remitted the case to the
District Court.
- By
judgment of 25 March 2003, the District Court dismissed the
applicant’s claims in full. It noted, among other things, that
the Agency had paid the applicant the sums due under the judgment of
31 July 2001 and that those sums had not been claimed from him.
- On
14 May 2003 the Regional Court upheld the judgment. It endorsed the
District Court’s reasoning and noted that the amounts paid to
the applicant under the judgment of 31 July 2001 could not be claimed
from him under the relevant legislation.
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 Ryabykh v. Russia (no.
52854/99, §§31-42, ECHR 2003-IX).
- Article
208 § 3 of the 1964 Code of Civil Procedure, as in force at the
material time, provided that when a court judgment had become legally
binding the parties were not allowed to re-submit to courts the
claims resolved by that final judgment.
- Article
1109 of the 1995 Civil Code stipulates that salary and other
payments, including pensions, granted as means of subsistence, to a
person in the absence of bad faith and miscalculations on his or her
part cannot be claimed back.
- The
2003 Code of Civil Procedure provides that if a judicial decision is
annulled after it has been enforced and if in ensuing proceedings the
claims are dismissed in full or in part, the respondent can recover
the sums awarded against him under the annulled judicial decision
(Article 443). The court which examines the case afresh is under an
obligation to examine the above issue of its own motion or upon the
respondent’s request (Article 444).
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 31 JULY 2001
- The
applicant complained under Article 6 of the Convention and Article 1
of Protocol No. 1 about the quashing of the judgment of 31 July 2001,
as upheld on 10 October 2001, by way of supervisory review. 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. 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.
B. Merits
1. Alleged violation of Article 6 of the Convention
(a) Submissions by the parties
- The
Government submitted that the judgment of 31 July 2001, as upheld on
appeal, had been issued in breach of Article 208 § 3 of the 1964
Code of Civil Procedure, which prohibited re-examination of the
claims already resolved by a final judgment. On 31 July 2001 the
District Court had awarded the applicant the sums already due under
the judgment of 27 May 1999. Such decision had amounted to a
manifest and substantial procedural error. Besides, it had lacked a
detailed calculation and substantiation of the awarded sums. When
examining the appeal against the impugned judgment the Regional Court
“had not paid attention” to the above errors and thus the
President of the Regional Court had not had other ways to rectify it
but to apply for supervisory review. The supervisory review ruling
had intervened only six months after the judgment had become final
and the ensuing examination of the case had been prompt. Finally, the
supervisory review procedure had been amended in the new Code of
Civil Procedure which clearly demonstrated the authorities’
respect for the principle of legal certainty.
- The
applicant submitted that on 31 July 2001 the District Court had
awarded him compensation in respect of pecuniary damage incurred as a
result of non-enforcement of the judgment of 27 May 1999. Hence, the
District Court had not committed any errors and the review had been
initiated with the sole purpose of a fresh determination of the case.
Relying on the Ryabykh judgment, the applicant stressed that
the supervisory review proceedings had been initiated by the
President of the Regional Court who had not been party to the
proceedings and not by the Agency which had never objected to the
impugned judgment in the relevant part and had duly paid the award.
The judgment in his favour had been set aside four months after it
had been enforced.
(b) The Court’s assessment
- The
Court reiterates its constant case-law to the effect that the
quashing by way of supervisory review of a judicial decision which
has become final and binding may render the litigant’s right to
a court illusory and infringe the principle of legal certainty (see,
among many other authorities, Brumărescu v. Romania [GC],
no. 28342/95, § 62, ECHR 1999-VII; Ryabykh
v. Russia, no. 52854/99, §§ 56-58,
24 July 2003; Roseltrans v. Russia, no. 60974/00,
§§ 27-28, 21 July 2005). Furthermore, the Court
has found in this respect in the judgment Sovtransavto Holding v.
Ukraine no. 48553/99, § 77, ECHR 2002 VII:
“... judicial systems characterised by the
objection (protest) procedure and, therefore, by the risk of final
judgments being set aside repeatedly, as occurred in the instant
case, are, as such, incompatible with the principle of legal
certainty that is one of the fundamental aspects of the rule of law
for the purposes of Article 6 § 1 of the Convention, read in the
light of Brumărescu...”
- Whereas
the Court has accepted that the mere possibility of reopening a case
is prima facie compatible with the Convention (see, in the
context of criminal proceedings, Nikitin v. Russia,
no. 50178/99, § 57, ECHR 2004 VIII) and in
certain circumstances a final and binding judgment may be revised, it
has held that a departure from the principle of legal certainty is
justified only when made necessary by circumstances of a substantial
and compelling character (see Ryabykh, cited above, § 52).
It has stressed that the power of review should not be used in an
arbitrary manner (see Petrov v. Russia, no. 7061/02,
§ 17, 21 December 2006) and certain special circumstances
of the case may reveal that the actual manner in which the reopening
was used impaired the very essence of a fair trial (see Nikitin,
ibid.). Therefore, the Court has to assess in each case before it
whether the power to conduct a supervisory review was exercised by
the authorities so 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 takes note of the Government’s
argument that the judgment in the applicant’s favour had been
set aside by the Presidium to correct what they considered the
courts’ “substantial procedural error”, namely the
re-examination of the issues already resolved by a final judicial
decision.
- The
Court considers, however, that the cogency of their argument is, at
the very least, open to doubt. It cannot but note that the Government
rely on the need to ensure respect for the res judicata
principle to justify the domestic authorities’ encroachment on
that same principle. It would furthermore appear that the rationale
behind the annulled judgment of 31 July 2001 was to remedy the
domestic authorities’ failure to enforce the judgment of 27 May
1999 (see para 9).
- Moreover,
as regards the manner in which the supervisory review was conducted
in the present case, the Court considers it necessary to note the
following.
- First,
the Court observes that the application for supervisory review was
lodged by the President of the Regional Court who had not been a
party to the proceedings (see Ryabykh v. Russia,
no. 52854/99, § 54, ECHR 2003 IX).
- Furthermore,
it transpires that the Agency did not challenge the judgment of 31
July 2001 before the court of appeal on the ground that it had
re-examined the issues already resolved by another final judgment. It
promptly paid the amounts awarded to the applicant after the judgment
had become final. Indeed, had the Agency had any objections to the
re-examination in 2001 of the issues already resolved by a final
judgment of 1999, it would have been open to it to raise those points
in its ordinary appeal against the judgment of 31 July 2001.
Thus, a situation where the final judgment in the applicant’s
favour was called into question could have been avoided (see, mutatis
mutandis, Nelyubin v. Russia, no. 14502/04, §§ 28-29,
2 November 2006). The Government did not point to any exceptional
circumstances that would have prevented the Agency from raising those
issues on appeal (see Petrov v. Russia, cited above, § 19).
The Court does not discern any reason as to why it should be for the
applicant to bear the burden of the Agency’s omission or the
Regional Court’s failure to “pay attention” to the
District Court’s alleged error and to find himself in a
situation where the final and binding judgment in his favour is set
aside four months after it was enforced.
- Finally,
as to the Government’s submission concerning lack of
calculation and substantiation of the awarded sums in the judgment of
31 July 2001, the Court has already held that it did not
consider similar shortcomings to amount to “circumstances of a
substantial and compelling character” which could require
departure from the principle of legal certainty (see Boris
Vasilyev v. Russia, no. 30671/03, § 34,
15 February 2007).
- In
sum, even though the Court does not underestimate the importance of
the procedural rule relied on by the Government, it considers that in
the case at hand the authorities failed to strike, to the maximum
extent possible, a fair balance between the interests of the
applicant and the need to ensure the proper administration of
justice.
- Having
regard to the circumstances, the Court does not find any reason for
departing from its aforementioned case-law and considers that there
has been a violation of Article 6 § 1 in respect of the quashing
of a final and binding judgment given in the applicant’s case.
2. Alleged violation of Article 1 of Protocol No. 1
- The
Government submitted, with reference to the judgment of 14 May
2003 and Article 1109 § 3 of the Civil Code (see Relevant
Domestic Law above), that the sums paid to the applicant could not be
claimed back from him.
- The
applicant referred, among other things, to Articles 443-444 of the
2003 Code of Civil Procedure and claimed that the sums paid under the
annulled judgment could be claimed back from him at any moment.
- The
Court observes that the applicant was paid the award made to him
under the judgment of 31 July 2001. It was subsequently set aside by
way of supervisory review and in the ensuing proceedings the courts
dismissed the applicant’s claims. Nevertheless, in their
judgments of 25 March and 14 May 2003, the courts expressly
held that the amounts already paid to the applicant could not be
recovered from him. In this connection the Court reiterates that it
is in the first place for the domestic authorities, notably the
courts, to interpret and apply domestic law (see, for example, Jahn
and Others v. Germany [GC] nos. 46720/99, 72203/01 and
72552/01, § 86, ECHR 2005 ).
- Having
regard to the findings made by the domestic courts, the Court does
not consider it necessary to rule on the question whether there has
been a violation of Article 1 of Protocol No. 1 (see Klimenko v.
Russia, no. 11785/02, §§ 170-172, 18 January
2007; Zasurtsev v. Russia, no. 67051/01, §§ 53-55,
27 April 2006 and cf. Kuznetsova v. Russia, no. 67579/01,
§§ 46-52, 7 June 2007).
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant further complained that the judgment of 27 May 1999 had not
been enforced, the proceedings after the quashing of the judgment of
31 July 2001 had been unfair and had culminated in incorrect court
decisions.
- As
to the applicant’s complaint about the non-enforcement, the
Court is satisfied that, by making a payment on 15 January 2002 under
the judgment of 31 July 2001, the authorities complied with their
obligations under the judgment of 27 May 1999 (see paras 6-10 above).
However, the applicant first raised this complaint in his application
form dated 11 February 2004, that is more than six months after
the judgment had been enforced. It follows that this complaint has
been introduced out of time and must be rejected in accordance with
Article 35 §§ 1
and 4 of the Convention.
- As
to the remainder of the applicant’s complaints, the Court
finds, having regard to all the material in its possession, that
these do not disclose any appearance of a violation of the rights and
freedoms set out in the Convention or its Protocols. It follows that
this part of the application must be rejected as being manifestly
ill-founded, pursuant to Article 35 §§ 3 and 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.”
- The
applicant did not submit a claim for just satisfaction. Accordingly,
the Court considers that there is no call to award him any sum on
that account.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning quashing of
the judgment of 31 July 2001, as upheld on 10 October 2001,
by way of supervisory review 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 is no need to examine the
complaint under Article 1 of Protocol No. 1 of the Convention;
- Decides to make no award under Article 41 of the
Convention.
Done in English, and notified in writing on 12 June 2008,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
