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FIRST
SECTION
CASE OF KHOTULEVA v. RUSSIA
(Application
no. 27114/04)
JUDGMENT
STRASBOURG
30 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 Khotuleva v.
Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina Vajić,
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 7 July 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 27114/04) 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 Nina Dmitriyevna
Khotuleva (“the applicant”), on 14 September 2001.
- The
Russian Government (“the Government”) were represented by
their Agent, Ms V. Milinchuk, former Representative of the Russian
Federation at the European Court of Human Rights.
- The
applicant alleged, in particular, that the final judgment in her
favour of 4 April 2000, as upheld on 30 May 2000, was not enforced
and was subsequently quashed by way of supervisory review on
25 January 2001.
- On
8 December 2006 the President of the First Section decided to
communicate these complaints to the respondent Government. It was
also decided to examine the merits of the applications at the same
time as their admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1937 and lives in Safonovo, Smolensk Region.
- In January 2000 the applicant applied to the
Safonovskiy Town Court of the Smolensk Region for recalculation of
her pension.
- On
4 April 2000 the Safonovskiy Town Court found in her favour and
ordered the social welfare authority to recalculate her pension in
accordance with the relevant provisions of the domestic law and to
apply an individual pension rate of 0.7 for its recalculation. On 30
May 2000 the Smolensk Regional Court upheld this judgment on appeal.
- On
25 January 2001 the Presidium of the Smolensk Regional Court on the
initiative of the President of the Smolensk Regional Court quashed
the judgment and the decision and dismissed the applicant’s
claim in full. The applicant was informed about it in April 2001. The
Presidium based its decision on that the lower courts had
misinterpreted the relevant substantive law provisions.
II. RELEVANT DOMESTIC LAW
- The
relevant domestic law governing the supervisory review procedure in
the material time is summed up in the Court’s judgment in the
case of Ryabykh (see Ryabykh v. Russia, no.
52854/99, §§ 31-42, ECHR 2003 IX).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AND OF
ARTICLE 1 OF PROTOCOL No. 1 ON ACCOUNT OF SUPERVISORY REVIEW
- The
applicant complained under Article 6 of the Convention that the
judgment of 4 April 2000, as upheld on 30 May 2000, had been quashed
on a supervisory review on 25 January 2001. The Court will examine
this complaint under Article 6 § 1 of the Convention and
Article 1 of Protocol No. 1. Insofar as relevant, these
Articles 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.[...]”
- The
Government contested that argument. They argued that the supervisory
review had been compatible with the Convention as the lower courts
had erroneously interpreted and applied the substantive law
provisions.
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
- The
Court reiterates that for the sake of legal certainty implicitly
required by Article 6, final judgments should generally be left
intact. They may be disturbed only to correct fundamental errors (see
Ryabykh v. Russia, no. 52854/99, §§ 51-52,
ECHR 2003 IX). To answer this complaint the Court will hence
have to determine if the grounds for the quashing of the applicant’s
judgment fell within this exception (see Protsenko v. Russia,
no. 13151/04, § 29, 31 July
2008).
- In
the present case the final judgment was quashed solely on the grounds
of the alleged misinterpretation of the substantive law.
- The
Court recalls that it has frequently found violations of the
principle of legal certainty and of the right to a court in the
supervisory-review proceedings governed by the former Code of Civil
Procedure as it allowed final judgments in the applicants’
favour to be set aside by higher courts following applications by
state officials, whose power to make such applications was not
subject to any time-limit (see, among other authorities, Ryabykh,
cited above, §§ 51-56;
Volkova v. Russia,
no. 48758/99, §§ 34-36, 5 April 2005; Roseltrans
v. Russia, no. 60974/00,
§§ 27-28, 21 July 2005) .
- According
to the Court’s constant case-law, the fact that the Presidium
disagreed with the interpretation of substantive law made by the
lower courts was not, in itself, an exceptional circumstance
warranting the quashing of a binding and enforceable judgment (see
Kot v. Russia, no. 20887/03, § 29, 18 January
2007).
- The
foregoing considerations are sufficient to enable the Court to
conclude that in the present cases there were no circumstances
justifying departure from the principle of legal certainty.
- There
has accordingly been a violation of Article 6.
- The Court further notes that the final judgment,
though it did not indicate specific sums, unconditionally ordered the
State to recalculate the pension payments which had been made
earlier. The judgments thus created an asset
within the meaning of Article 1 of Protocol No. 1 (see
Vasilopoulou v. Greece, no. 47541/99, § 22,
21 March 2002, and Malinovskiy v. Russia, no. 41302/02, §
43, ECHR 2005 VII (extracts)). The quashing of the judgment in
breach of the principle of legal certainty frustrated the applicant’s
reliance on the binding judicial decision and deprived her of an
opportunity to receive the judicial awards she had legitimately
expected to receive (see Dovguchits v. Russia, no.
2999/03, § 35, 7 June 2007).
- There
has accordingly been a violation of Article 1 of Protocol No. 1.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON
ACCOUNT OF NON-ENFORCEMENT
- The
applicant complained under Article 6 (cited above) of the Convention
that the judgment in her favour of 4 April 2000, as upheld on 30 May
2000, was not enforced.
- The
Government contested that argument.
-
As to non-enforcement of the judgment of 4 April 2000 before it was
quashed by way of supervisory review on 25 January 2001, it does not
raise an issue under Article 6, as the judgment in the applicant’s
favour was quashed within a relatively short time after it became
binding and enforceable (in about ten months). Therefore there was no
violation of the Convention in that respect.
- As
to non-enforcement after the quashing, the Court reiterates 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 Boris
Vasilyev v. Russia, no. 30671/03, §§ 41-42, 15
February 2007; and Sobelin and others, cited above, §§
67-68). Therefore it considers that there is no separate issue on the
matter, having regard to its finding of a violation of Article 6 on
account of the quashing of the judgment in supervisory-review
proceedings (see Kulkov and Others v. Russia, nos.
25114/03, 11512/03, 9794/05, 37403/05, 13110/06, 19469/06, 42608/06,
44928/06, 44972/06 and 45022/06, § 35, 8 January
2009).
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- Insofar
as the applicant invokes Article 1 of the Convention alleging the
State’s failure to secure her rights, the Court recalls that
this provision, even where invoked in conjunction with other
Articles, cannot be the subject of a separate violation. No separate
issue therefore arises (see, mutatis mutandis, Danini v. Italy,
22998/93, Commission decision of 14 October 1996, Decisions and
Reports (DR) 87, p. 24).
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
applicant claimed 100,000 euros (EUR) in respect of damage, not
specifying its nature.
- The
Government considered the sum was wholly excessive and fully
ungrounded. They submitted that finding of a violation would
constitute adequate just satisfaction in the present case.
- Insofar
as the applicant may be understood to claim pecuniary damages, the
Court recalls that the most appropriate form of
redress in respect of the violations found would be to put the
applicant as far as possible in the position she would have been if
the Convention requirements had not been disregarded (see, among many
authorities, Piersack v. Belgium
(Article 50), 26 October 1984, § 12, Series A
no. 85; Kondrashov and Others v.
Russia, nos. 2068/03, 2076/03, 5224/03,
5385/03, 5414/03 and 5656/03, § 41, 8 January 2009).
The applicant was prevented from receiving the amounts she had
legitimately expected to receive under the binding judgment of 4
April 2000, as upheld on 30 May 2000, at least until
the subsequent dismissal of her claims by the domestic courts
following the supervisory review. However, the judgment did not
indicate the specific sums when ordering the authorities to
recalculate pension payments, and the applicant did not submit to the
Court any calculation of the sums she would have received under that
judgment. Her claim for pecuniary damages must therefore be rejected
as unsubstantiated.
- Insofar
as the applicant may be understood to claim non-pecuniary damage, the
Court takes the view that the applicant must have suffered such
damage as a result of the violation found which cannot be made good
by the mere finding of a violation. The particular amount
claimed is, however, excessive. Making its assessment on an equitable
basis, as required by Article 41 of the Convention, the Court awards
the applicant the sum of EUR 3,000 in respect of non-pecuniary
damage.
B. Costs and expenses
- The
applicant made no claims under this head. Accordingly, the Court will
make no 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 complaints concerning the
supervisory review proceedings and non-enforcement admissible and the
remainder of the application inadmissible;
- Holds that there has been a violation of Article
6 of the Convention and of Article 1 of Protocol No. 1 in respect of
the quashing by way of supervisory review of the final judgment in
the applicant’s favour;
- Holds that there has been no violation of
Article 6 of the Convention in respect of non-enforcement of the
judgment of 4 April 2000 before it was quashed by way of supervisory
review on 25 January 2001 and that there is no need to examine the
complaint concerning non-enforcement of that judgment after the date
of the quashing;
- 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, EUR 3,000
(three thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage, to be converted into Russian roubles
at the rate applicable at the date of settlement;
(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 30 July 2009, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Nina
Vajić
Registrar President
