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FIRST
SECTION
CASE OF KLIMENKO AND OSTAPENKO v. RUSSIA
(Applications
nos. 30709/03 and 30727/03)
JUDGMENT
STRASBOURG
23 July 2009
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 Klimenko and
Ostapenko 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,
Sverre Erik Jebens, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 2 July 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in two applications (nos. 30709/03 and 30727/03)
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 two Russian nationals, Mr
Nikolay Ivanovich Klimenko (“the first applicant”) and Mr
Anatoliy Nikolayevich Ostapenko (“the second applicant”),
on 27 and 26 August 2003, respectively.
- The
Russian Government (“the Government”) were represented by
Mr P. Laptev and subsequently by Ms V. Milinchuk, both former
Representatives of the Russian Federation at the European Court of
Human Rights.
- On
3 July 2006 the President of the First Section decided to give notice
of the applications to the Government. It was also decided to examine
the merits of the applications at the same time as their
admissibility (Article 29 § 3).
- The
Government objected to the joint examination of the admissibility and
merits of the applications. Having examined the Government's
objection, the Court dismissed it.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. Initial judgments in the applicants' favour and the
supervisory review proceedings
- The
first applicant was born in 1948 and the second applicant in 1952.
They live in Bataysk, the Rostov Region.
-
The applicants, Chernobyl victims, were in receipt of a monthly
pension and a special “food allowance” from the State.
They brought proceedings against the regional social security office
(“the defendant”) claiming recalculation of the pension
and the allowance in line with the increase of the minimum
subsistence amount.
- On
the dates listed below the Bataysk Town Court of the Rostov Region
granted the applicants' claims and ordered the increase of the
allowance and its subsequent index-linking. In re-calculating the
amounts to be paid the court applied the multiplier of 1.92
reflecting the increase of the minimal subsistence amount in the
Rostov Region. The judgments acquired legal force, as upheld on 16
April 2003 by the Rostov Regional Court.
- On
13 May 2003 the defendant appealed to the Regional Court by way of
supervisory review of the judgments.
- On
30 June 2003 the judge rapporteur refused to initiate the supervisory
review proceedings and to remit either of the two cases for
examination on the merits to the Presidium of the Rostov Regional
Court (“the Presidium”).The defendant complained to the
President of the Regional Court about the judgments in the
applicants' favour and the judge rapporteur's decision of 30 June
2003.
- On
19 September 2003 the President of the Rostov Regional Court and on
24 October 2003 judge B. of the Regional Court allowed the defendant
authority's applications for supervisory review of the judgments in
the first and the second applicants' favour respectively and sent the
cases for examination on the merits to the Presidium. These decisions
referred to the arguments adduced by the defendant but offered no
explanation as to the grounds for overruling the judge rapporteur's
decision of 30 June 2003.
- On
the dates listed in the Appendix the Presidium, by way of supervisory
review, quashed the first instance and the appeal judgments on the
ground that that the lower courts had applied an incorrect multiplier
to the applicants' cases, and remitted the cases for a fresh
examination to the first instance court.
B. Subsequent proceedings
1. Judgment of 25 December 2003 in respect of both
applicants
- On
25 December 2003 the Bataysk Town Court examined the cases anew. The
court, by a single judgment, established that the allowance due to
the applicants should have been multiplied by 1.25 in 2002 and by
1.26 for 2003. The court restored in the favour of each applicant
34,500 Russian roubles (RUB) for the period between 1 January 2002
and 1 January 2004 and established that as of 1 January 2004 they
were entitled to the monthly compensation in the amount of RUB
3,937.50, to be index-linked in future. The judgment was not appealed
against and became final ten days later.
2. Further developments in the second applicant's case
-
In 2004 and 2005 the second applicant brought further court
proceedings for adjustment of the allowance. On 22 April 2004 and
12 September 2005 the Bataysk Town Court granted his claims and
ordered the allowance to be increased by application of the
multipliers of 1.16 and 1.08 respectively and to pay him arrears for
the periods from 1 to 30 April 2004 and from 1 January to 30 June
2005.
- As
follows from the Government's additional observations, on 31 October
2006 the second applicant applied for annulment of these two
judgments and the award of 25 December 2003 due to discovery of new
circumstances. On 15 February 2007 the request was granted by an
unspecified court. The judgments of 25 December 2003, 22 April 2004
and 12 September 2005 were annulled on account of discovery of
unspecified new circumstances, and the cases were remitted for a new
examination.
- According
to the Government, on 13 March 2007 the Bataysk Town Court recovered
in the second applicant's favour RUB 142,027.04 of unpaid allowance
in respect of the period from 1 July 2000 to 31 December 2006 and
ordered further increase of the monthly payments up to RUB 8,670.75.
The scope of the applicant's claims was not specified by the
Government and it is unclear whether these claims had been granted in
full or in part. The judgment entered into force on 26 March 2007 and
at some point was executed in full.
-
The parties did not submit copies of the judgments of 15 February
2007 and 13 March 2007, the second applicant's statement of claims in
the respective proceedings and his application dated 31 October 2006
for annulment of the earlier judgments.
II. RELEVANT DOMESTIC LAW
- For the relevant provisions on the supervisory-review
proceedings contained in the Code of Civil Procedure of the Russian
Federation see the Court's judgment in the case of Sobelin and
Others v. Russia (nos. 30672/03 et seq., § 34, 3 May
2007).
THE LAW
I. JOINDER OF THE APPLICATIONS
- Given
that the two applications at hand concern similar facts and
complaints and raise identical issues under the Convention, the Court
decides to consider them in a single judgment.
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AND
ARTICLE 1 OF PROTOCOL No. 1 ON ACCOUNT OF THE QUASHING OF THE
JUDGMENT IN THE APPLICANTS' FAVOUR
- The
applicants complained that the quashing of the judgments in their
favour violated their rights under Article 6 § 1 of the
Convention and Article 1 of Protocol No. 1, which, insofar as
relevant, provide as follows:
Article 6 § 1
“In the determination of his civil rights and
obligations ..., everyone is entitled to a ... 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.”
- The
Government submitted that in the cases at hand the applications for
supervisory review were lodged by a party to the proceedings and
within the time-limit prescribed by law and the proceedings had fully
complied with the requirements set out in the Code of Civil Procedure
of the Russian Federation. The quashing had been justified because
the judgments had been based on a misapplication of law and hence had
contained a fundamental defect. Review of binding judgments had been
legitimate in a democratic society and known to such countries as
Germany, Austria, and Switzerland. Besides, the Council of Europe had
been satisfied with reforms of the supervisory-review procedure in
Russia. As regards the complaint under Article 1 of Protocol No. 1,
the Presidium had found that the applicants' claims had been
unfounded and therefore they had not had a “possession”
within the meaning of Article 1 of Protocol No. 1. The fact that they
had not appealed against the judgment of 25 December 2003 showed that
they considered the initial multiplier incorrect.
- In
their additional observations the Government pointed out that the
second applicant had lost his victim status. After 25 December 2003
he was successful in several sets of the proceedings for adjustment
of the allowance, had benefitted from the new round of the annulment
proceedings and had obtained a new pecuniary award by virtue of the
judgment of 13 March 2007. Therefore, the State had taken
effective measures to restore and protect his rights. They further
argued that the applicant had not made use of the domestic remedies
available to him before applying to the Court and therefore his
complaint should be rejected as premature.
- The
applicants maintained their claims.
A. Admissibility
1. Objection as regards exhaustion and victim status in
the second applicant's case
- As
regards the objection concerning the second applicant's victim
status, the Court reiterates that to deprive an applicant of his
status as a “victim” it is for the national authorities
to acknowledge, either expressly or in substance, and then afford
redress for, the breach of the Convention (see Amuur v. France,
25 June 1996, § 36, Reports of Judgments and Decisions
1996-III, and Dalban v. Romania [GC], no. 28114/95, § 44,
ECHR 1999 VI). The Court notes that parties had not submitted
any documents as regards the proceedings after 12 September 2005,
such as copies of the domestic judgments, the applicant's respective
statements of claims or his application for annulment of the
judgments (see § 16 above), nor even had they identified the
court which had granted the request for annulment. Furthermore,
neither the exact scope of the second applicant's claims in the
proceedings which resulted in the judgment of 13 March 2007 nor the
reasoning of the domestic courts (i.e. the particular method of
calculation of the allowance used by them) was specified. It is
unclear whether the claims had been granted in full or in part and,
in the latter case, to which extent. In these circumstances, there is
no basis on which the Court is able to conclude that the pecuniary
award made on 13 March 2007 in respect of arrears for the period from
2000 to 2006 could be regarded as an acknowledgement and redress for
the alleged breach of the applicant's Convention rights as a result
of the quashing of the judgment in his favour.
- Similarly,
as regards the Government's submission that the complaint was
premature, the Court reiterates that it is incumbent on the
Government claiming non-exhaustion to satisfy the Court that the
remedy was an effective one, and, in particular, that it was capable
of providing redress in respect of the applicant's complaints (see
Selmouni v. France [GC], no. 25803/94, § 76, ECHR 1999-V,
and Mifsud v. France (dec.), no. 57220/00, § 15,
ECHR 2002-VIII). The Court notes that the issue in the present case
is whether the principle of legal certainty was infringed as a result
of the quashing on supervisory review which is an instantaneous act
and does not create a continuing situation, even if it entails a
re-opening of the proceedings (see, mutantis mutandis, Sitokhova
v. Russia (dec.), no. 55609/00, 2 September 2004). In the
present case, it was not demonstrated that the subsequent proceedings
for recalculation of the pension was a remedy to exhaust in respect
of the legal certainty complaint (see, mutatis mutandis,
Ryabykh v. Russia (dec.), no. 52854/99, 21 February 2002). The
objection should therefore be dismissed.
2. Conclusion as regards the two cases
- The
Court notes that the applicants' complaint about quashing of the
judgments in their favour is not manifestly ill-founded within the
meaning of Article 35 § 3 of the Convention and is not
inadmissible on any other grounds. It must therefore be declared
admissible.
B. Merits
1. Article 6 of the Convention
- The
Court reiterates 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 other authorities, Brumărescu v.
Romania [GC], no. 28342/95, § 62, ECHR 1999-VII; Ryabykh
v. Russia, no. 52854/99, §§ 56-58, 24 July 2003).
Departures from that principle are justified only when made necessary
by circumstances of a substantial and compelling character (see
Protsenko v. Russia, no. 13151/04, §§ 25-34, 31 July
2008).
- As
regards the compliance with the time-limits set in the Code of Civil
Procedure of the Russian Federation, the Court rejects this argument,
because according to the domestic law in force at the relevant time
the president's power to overrule decisions of other judges refusing
to initiate supervisory-review proceedings was not subject to any
time-limits, and it was unclear on which grounds the president could
overrule the judge rapporteur's decision (see Septa v. Russia,
no. 30731/03, § 33, 15 February 2007). Indeed, the respective
decisions by the President and judge B. of the Regional Court did not
provide reasons for overruling the judge rapporteur's findings of 30
June 2003.
- The
Court further observes that in the cases at hand the judgments were
set aside by way of a supervisory review solely on the ground that
the lower court applied an incorrect multiplier in the applicant's
cases. The Court reiterates its constant approach that in the absence
of a fundamental defect in the previous proceedings a party's
disagreement with the assessment made by the first-instance and
appeal courts is not a circumstance of a substantial and compelling
character warranting the quashing of a binding and enforceable
judgment and re-opening of the proceedings on the applicant's claim
(see Boris Vasilyev v. Russia, no. 30671/03, § 34,
15 February 2007; Kot v. Russia, no. 20887/03, § 29, 18
January 2007). The Government did not put forward any arguments which
would enable the Court to reach a different conclusion in the cases
at hand. There has been, accordingly, a violation of Article 6 §
1 of the Convention.
2. Article 1 of Protocol No. 1
- The
Court reiterates that the existence of a debt confirmed by a binding
and enforceable judgment constitutes the beneficiary's “possession”
within the meaning of Article 1 of Protocol No. 1. (see, among other
authorities, Androsov v. Russia, no. 63973/00, § 69, 6
October 2005).
a. First applicant's case
-
Insofar as the Government submitted that the first applicant had
failed to appeal against the Town Court judgment of 25 December 2003,
the Court observes that the core issue before it is the quashing of
the final and binding judgment, an instantaneous act. Thus, the
eventual outcome of the post-quashing proceedings is not directly
relevant for the Court's analysis of the quashing complaint (see
Ivanova v. Ukraine, no. 74104/01, §§ 35-38,
13 September 2005), unless, as a result of the subsequent
proceedings, the applicant obtained more than he had had before the
supervisory review (see Boris Vasilyev, cited above, §
37). This was clearly not the case.
- The
Court observes that by virtue of the judgment of 22 January 2003 the
applicant's allowance 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. The Court considers
that the quashing 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 in the first applicant's case.
b. Second applicant's case
- The
Court notes the argument advanced by the Government that the
applicant had been successful in a new round of the court proceedings
after the quashing and that as a result of the proceedings he had
received the amount which equalled or even exceeded the initial one
made in his favour by the final judgment of 16 April 2003. The
Court observes, however, that it is not in possession of any
information on the scope of the applicant's claims before the
domestic courts in these proceedings, the extent to which the claims
were granted and the method of calculation of the allowance used by
the domestic courts (see § 23 above).
- In
these circumstances the Court does not consider it necessary to rule
on the question where there has been a violation of Article 1 of
Protocol No. 1 in respect of the second applicant (see, mutatis
mutandis, Zasurtsev v. Russia, no. 67051/01, §§
53-55, 27 April 2006).
III. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AND
ARTICLE 1 OF PROTOCOL No. 1 ON ACCOUNT OF THE NON-ENFORCEMENT
- The applicants complained about the non-enforcement of
the judgments in their favour. They relied on Article 6 § 1 of
the Convention and Article 1 of Protocol No. 1, both cited above.
- The
Court observes that the principles insisting that a final judicial
decision must not be called into question and should be enforced
represent two aspects of the same general concept, namely the right
to a court (see the Ryabykh judgment, cited above, §§
55-57; Burdov v. Russia, no. 59498/00, § 34, ECHR
2002-III). The Court further observes that the judgments in the
applicants' favour were quashed shortly after having become binding
and enforceable. In these circumstances, the Court considers that the
applicants' non-enforcement complaint is closely linked to the
supervisory review issue and should be declared admissible as well.
However, having regard to its findings above concerning violation of
the applicants' rights on account of the quashing of the judgments in
their favour, the Court does not consider it necessary, in the
circumstances of the case, to examine their complaint concerning the
non-enforcement of the respective judgments separately (see Boris
Vasilyev, cited above, §§ 41-42).
IV. 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
applicants claimed 3,000 euros (EUR) each in respect of non-pecuniary
damage. The Government contested the claims as
excessive and submitted that the amounts claimed could be
adjusted at the domestic level and there was no
causal link between the alleged violation and the claim for damages.
-
The Court accepts that the applicants suffered distress and
frustration because of quashing of the final judgment in their
favour. Making its assessment on an equitable basis and taking into
account the length of the enforcement stage, the Court awards each
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
applicants did not make any claim in respect of costs and expenses.
Accordingly, there is no call for the Court to make an 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
- Decides to join the applications;
- Declares the applications admissible;
- Holds, in respect of both applicants, that there
has been a violation of Article 6 § 1 of the Convention on
account of the quashing of the final judgments in their favour by way
of supervisory review;
- Holds, in respect of the first applicant, that
that there has been a violation of Article 1 of Protocol No. 1 on
account of the quashing of the final judgments in their favour by way
of supervisory review;
- Holds that there is no need to examine the
second applicant's complaint under Article 1 of Protocol No. 1 about
quashing of the final judgment in his favour by way of supervisory
review and the first and the second applicants' complaint about
non enforcement of the judgments in their favour;
- Holds
(a) that
the respondent State is to pay to the applicants, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following amounts in
respect of non-pecuniary damage plus any tax that may be chargeable
on these amounts, to be converted into Russian roubles at the rate
applicable at the date of the settlement:
(i)
EUR 3,000 (three thousand euros) to Mr Klimenko;
(ii)
EUR 3,000 (three thousand euros) to Mr Ostapenko;
(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 23 July 2009, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
APPENDIX
|
application
number
|
applicant's
name
|
judgment
in the applicant's favour (date)
|
award
(
particulars)
|
quashing
on supervisory review (date)
|
|
30709/03
|
KLIMENKO
Nikolay Ivanovich
|
22
January 2003
|
RUB 4,800 (disability pension), and
RUB 576 (“food allowance”) monthly, as of 1 January
2003 until change in the applicant's state of health
|
13
November 2003
|
|
30727/03
|
OSTAPENKO
Anatoliy Nikolayevich
|
21
January 2003
|
RUB
4,800 monthly (disability pension), as of 1 January 2002,
and RUB 576 (“food allowance”),
as of 1 January 2003
|
4
December 2003
|
