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FIRST
SECTION
CASE OF BODROV v. RUSSIA
(Application
no. 17472/04)
JUDGMENT
STRASBOURG
12 February 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 Bodrov 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,
Giorgio
Malinverni,
George Nicolaou, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 22 January 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 17472/04) 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, Mr Guriy Nikolayevich
Bodrov (“the applicant”), on 6 April 2004.
- The
Russian Government (“the Government”) were represented by
Mrs V. Milinchuk, their former Representative at the European Court
of Human Rights.
- On
16 November 2007 the President of the First Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1934 and lives in Vologda, the Vologda Region.
A. The first round of the pension proceedings
- The
applicant is a former military officer. He brought a claim against
the Vologda Regional Military Service Commissariat (“the
Commissariat”), seeking recalculation of his pension on account
of increase of daily allowances due to servicemen of the military
units belonging to the nuclear weapons complex of the Russian
Federation.
- On
12 May 2003 the Vologda Town Court of the Vologda Region granted his
claim and held that the Commissariat should increase his pension on
account of an increase of the official salary rate with the
multiplier of 1.5 as from 1 January 2001, and also pay him the
arrears for the period from 1 January 2001 to 30 April 2003.
- The
Commissariat did not file an ordinary appeal and the judgment became
binding and enforceable ten days later.
- While
the judgment was in force the Commissariat paid to the applicant
39,171.16 Russian roubles (RUB) in respect of increased pension and
arrears for the period from 1 January 2001 to 30 September 2003.
- On
22 October 2003 the Commissariat filed an application for supervisory
review of the judgment of 12 May 2003 referring to the lack of
grounds in domestic law for increasing the applicant's pension.
- On
19 November 2003 a judge of the Vologda Regional Court ordered the
case to be sent for examination by the Presidium of the Vologda
Regional Court.
- On
8 December 2003 the Presidium of the Vologda Regional Court quashed
the judgment of 12 May 2003 and rejected the applicant's initial
claim on the ground that the Town Court's findings had been premised
on an incorrect application of substantive law. In particular, the
Presidium found that the Town Court had examined all the relevant
circumstances of the case, but incorrectly applied the multiplier of
1.5 in the applicant's case. The court found that the applicant's
unit could not be considered as belonging to the nuclear weapons
complex of Russia, because it had been discontinued before the list
of such units had been established in the respective Decree of the
Russian Government.
- The
applicant subsequently attempted to challenge the judgment of
8 December 2003 by lodging an application for its supervisory
review with the Supreme Court of the Russian Federation. On 30
September 2004 the Supreme Court rejected his application.
- At
some point the Commissariat claimed return of the amount paid in
execution of the judgment of 12 May 2003, referring to the fact that
the judgment had been quashed by way of the supervisory review
proceedings. The applicant contested the request for repayment on the
ground that the sums already paid represented compensation for health
damage which, once paid, could not be recovered in accordance with
the domestic law.
- On
22 January 2004 the Vologda Town Court dismissed the applicant's
argument on the ground that the amount to be returned had been paid
in respect of pension, not compensation for health damage. The court
granted the Commissariat's application and ordered the applicant to
return RUB 39,171.16 to the Commissariat.
- On
20 February 2004 the Vologda Regional Court upheld the judgment on
appeal.
- In
2005 the applicant's military unit was added to the list of the units
belonging to the nuclear weapons complex of Russia, in accordance
with the Decree no. 949 of 9 August 2005 by the President of the
Russian Federation. In March 2007 the Commissariat recalculated the
applicant's pension and increased it with the multiplier of 1.5, as
from 1 January 2005.
B. The second round of the pension proceedings
- The
applicant brought a separate set of proceedings against the
Commissariat for increase of his pension. He claimed index-linking of
the monetary compensation instead of
uncollected food allowance, which constituted a part of his
pension, and arrears for the period from 1 January 2000 to 30 June
2005.
- On
26 August 2005 the Vologda Regional Court rejected the claim in the
final instance.
II. RELEVANT DOMESTIC LAW
- For
the relevant provisions on the supervisory review proceedings
contained in the Code of Civil Procedure of the Russian Federation
(“the CCivP”) 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. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AND
ARTICLE 1 OF PROTOCOL No. 1 ON ACCOUNT OF QUASHING OF THE
JUDGMENT IN THE APPLICANT'S FAVOUR
- With
reference to Articles 6, 13, 14 and 17 the applicant complained in
substance about unfairness of the quashing of the judgment of 12 May
2003 by way of supervisory review. He further complained under
Article 1 of Protocol No.1 that as a result of the quashing he had
been obliged to repay the pension and arrears paid to him to the
respondent Commissariat. The Court will examine the quashing problem
under Article 6 of the Convention and Article 1 of Protocol No. 1,
the relevant parts of which read as follows:
Article 6 § 1
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... 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....”
A. The parties' submissions
1. The Government
- The
Government argued that the applicant had not raised a legal certainty
issue in his application to the Court, but only challenged the
fairness of those proceedings and accuracy of the Commissariat's
submissions in their application for the supervisory review. Thus,
even having a right to investigate proprio motu whether the
facts at consideration disclosed other violations of the Convention
than those stated in the application, the Court had raised the legal
certainty issue outside the six months time-limit established by
Article 35 § 1 of the Convention.
- They
further claimed that the dispute concerning the calculation of
pension belonged to the realm of public law and fell outside the area
of “civil rights and obligations” within the meaning of
Article 6. They also argued that the proceedings had not established
the applicant's property right, because the Presidium had rejected
his claims in full, and the domestic law did not give him a
“legitimate expectation” within the meaning of Article 1
of Protocol No.1 to receive an increased pension. The
supervisory-review proceedings were held in compliance with the
domestic law requirements, and the Presidium had reversed the
judgment because of a serious violation of substantive law. They
provided detailed information on the material norms allegedly
misinterpreted by the first instance court. The quashing had been
lawful, pursued a legitimate aim of correction of a judicial error,
and was in the interests of prevention of violations of the rights
and legal interests of other persons. Civil procedure of other
countries, for example Austria, Germany, and Switzerland had also
allowed for the annulment of binding judgments. Besides, the Council
of Europe had been satisfied with reforms of the supervisory-review
procedure in Russia.
- With
reference to the Fadin v. Russia case (no. 58079/00,
§ 34, 27 July 2006) they further argued that the
applicant himself had asked for further supervisory review of the
judgment of the Presidium of the Vologda Regional Court. Accordingly,
he could not claim to be a victim of the alleged breach of the
principle of legal certainty. They finally argued that he could not
be considered as a victim, since in March 2007 his pension had been
increased with the effect as from 1 January 2005.
2. The applicant
- The
applicant maintained his claims. He submitted that the Commissariat
could have lodged an ordinary appeal against the judgment of 12 May
2003, but had not done so, having preferred to apply for supervisory
review four months after the judgment had become final. The Presidium
of the Vologda Regional Court wrongly applied the domestic law. Thus,
the quashing was in breach of the legal certainty principle. The
order to return to the Commissariat the amount paid pursuant to the
judgment of 12 May 2003 had had no basis in the domestic law.
B. The Court's assessment
1. Admissibility
- As
regards the Court's competence to examine the matter and compliance
with the six months rule, the Court reiterates that it has
jurisdiction to review in the light of the entirety of the
Convention's requirements the circumstances complained of by an
applicant and, notably, is free to attribute to the facts of the
case, as found to be established on the evidence before it, a
characterisation in law different from that given by the applicant
or, if need be, to view the facts in a different manner (see Foti
and Others v. Italy ,10 December 1982, Series A no. 56, §
44, and Smirnova and Smirnova v. Russia (dec.), nos. 46133/99
and 48183/99, 3 October 2002). The Court further notes that the
application form submitted on 6 April 2004, that is within the six
months time limit, set out the relevant facts concerning the
supervisory review proceedings and made a general claim in relation
to Article 6 of the Convention. The Court therefore finds that it may
examine whether the proceedings in question disclose a violation of
Article 6 of the Convention (see, mutatis mutandis, C.J.M.E.,
J.C.D. AND W.A.C.S. v. the Netherlands, nos. 5100/71 et al,
Commission decision of 29 May 1973, and O'Reilly v. Ireland,
no. 21624/93, Commission decision of 31 August 1994) and dismisses
the objection.
- As
regards the objections concerning applicability of Article 6 § 1
of the Convention and Article 1 of Protocol No. 1, the Court has
found in many cases that Article 6 § 1 was applicable to
proceedings concerning the calculation of the applicant's pension
(see, among others, Bulgakova v. Russia, no. 69524/01,
§ 28-30, 18 January 2007) and that the existence of a debt
confirmed by a binding and enforceable judgment constituted the
beneficiary's “possession” within the meaning of Article
1 of Protocol No. 1. Quashing of such a judgment amounted 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 sees no reason to
depart from those findings in the present case and dismisses the
respective objections.
- Turning
to the argument that the applicant himself had asked for further
supervisory review of the judgment of 8 December 2003 and cannot
claim to be a victim of the alleged breach of the legal certainty
principle, the Court notes that, by contrast to the Fadin v.
Russia case (cited above), the applicant was not an initiator of
the proceedings which resulted into the judgment of 8 December 2003,
at issue in the present case. The Court further observes that the
applicant's subsequent attempts to challenge the quashing in a new
round of the supervisory review proceedings proved unsuccessful, and,
in any event, were provoked by the overturning of the final judgment
in his favour. Finally, as regards the alleged impact of the
recalculation of the pension in March 2007 on the applicant's victim
status, the Court notes that the adjustment only concerned the
pension the applicant had received as from 1 January 2005, while the
quashed judgment awarded him such pension with the effect as from 1
January 2001, and the amount he had to repay represented arrears in
respect of 2001-2003. The alleged violation was not recognised and no
redress was afforded. Thus, the pension increase as from 2005 did not
have any impact on his victim status. The objection in this respect
should be dismissed.
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention and it is not
inadmissible on any other grounds. It must therefore be declared
admissible.
2. Merits
a. Article 6 of the Convention
- 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). Departures from that
principle are justified only when made necessary by circumstances of
a substantial and compelling character (see, mutatis mutandis,
Ryabykh v. Russia, cited above, § 52).
- Turning
to the present case, the Court observes, first, that the Commissariat
did not challenge the judgment of 12 May 2003 before the court of
appeal. The Court reiterates that it has found a violation of an
applicant's “right to a court” 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 by a party to the proceedings when the latter had not
made use of the ordinary appeal procedure (see, among others,
Nelyubin v. Russia, no. 14502/04, §§ 29-30,
2 November 2006). The Court does not find
any reason to depart from these findings in the present case, since
the Government did
not point to any exceptional circumstances that would have prevented
the respondent authority from raising the relevant issues of
application of the domestic law on appeal (see Petrov v. Russia,
no. 7061/02, § 19, 21 December 2006).
- The
Court further observes that the judgment of 12 May 2003 was set aside
by way of a supervisory review on the grounds that the Vologda Town
Court had incorrectly applied the substantive law. 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 Dovguchits v. Russia,
no. 2999/03, § 30, 7 June 2007; and Kot v. Russia, no.
20887/03, § 29, 18 January 2007).
- 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
12 May 2003 by way of supervisory-review proceedings.
b. Article 1 of Protocol No. 1
- The
Court observes that by virtue of the judgment of 12 May 2003 the
applicant's pension 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. Furthermore, following
the quashing, on 22 January 2004, as upheld on 20 February 2004, the
domestic court ordered the applicant to return to the respondent
authority the amount he had already received pursuant to the judgment
of 12 May 2003. In these circumstances, even assuming that the
interference was lawful and pursued a legitimate aim, the Court
considers that the quashing of the enforceable judgment of 12 May
2003 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. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant complained under Articles 6 and 13 of the Convention about
forgery of evidence, the bias and insufficient independence of the
national courts in the pension proceedings, and about incorrect
application of the domestic law by the domestic courts in these
proceedings. He also referred to Articles 14 and 17 in respect of his
grievances.
- The
Court has examined these complaints as submitted by the applicant.
However, having regard to all the material in its possession, it
finds that these complaints 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.”
A. Damage
- The
applicant claimed RUB 88,779.53 in respect of pecuniary damage, of
which RUB 39,171.16 represented the sum he had had to repay to the
respondent authority pursuant to the judgment of 22 January 2004, RUB
12,338.92 compensation for depreciation of that sum as a result of
inflation during the period from January 2005 to December 2008 and
RUB 37,269.45 unpaid pension for the period between 1 January 2004
and 31 July 2005. He further claimed 5,400 euros (EUR) in
respect of non-pecuniary damage.
- The
Government submitted that the applicant was not entitled to receive
the pecuniary damage claimed, since the judgment in his favour was
quashed in accordance with the domestic law. They argued that he had
not produced any documents in support of his claim for non-pecuniary
damage. They submitted that the finding of a violation would in
itself constitute sufficient just satisfaction.
- The
Court observes that in the present case it has found a violation of
Article 6 § 1 of the Convention and Article 1 of Protocol No. 1
in that the applicant's title to the money confirmed by the final
judgment was reversed as a result of the quashing of the final
judgment by way of the supervisory review. The Court notes that the
most appropriate form of redress in respect of a violation of Article
6 is to ensure that the applicant as far as possible is put in the
position he would have been in had the requirements of Article 6 not
been disregarded (see Piersack v. Belgium (Article 50),
judgment of 26 October 1984, Series A no. 85, p. 16, § 12,
and, mutatis mutandis, Gençel v. Turkey, no.
53431/99, § 27, 23 October 2003). The Court finds that in the
present case this principle applies as well, having regard to the
violations found. It observes that the applicant had to repay the
money which he legitimately considered his property under the
judgment of 12 May 2003. The Court accepts the applicant's claim
in this part and awards him the sum of RUB 39,171.16 under this head,
plus any tax that may be chargeable.
- The
Court further recalls that the adequacy of the compensation would be
diminished if it were to be paid without reference to various
circumstances liable to reduce its value (see, mutatis mutandis,
Gizzatova v. Russia, no. 5124/03, § 28, 13 January
2005). The Court accepts the applicant's argument relating to the
loss of value of the judgment debt and notes that the applicant
submitted detailed calculations based on the consumer price index in
the reference period. Taking into account that the Government
has not submitted any comment in respect of the method used by the
applicant for the calculation of the inflation losses, the
Court also awards the applicant EUR 341, plus any tax that may be
chargeable, and dismisses the remainder of his claim for just
satisfaction.
- The
Court further reiterates that there is no requirement that an
applicant furnish any proof of the non-pecuniary damage he or she
sustained (see Gridin v. Russia, no. 4171/04, § 20, 1
June 2006). It considers that the applicant suffered distress and
frustration resulting from the quashing of the judgment of 12 May
2003. 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 from this amount, and dismisses the
remainder of his claim in respect of damages.
B. Costs and expenses
- The
applicant claimed RUB 12,000 for the costs and expenses, of this sum
RUB 7,000 representing legal costs and RUB 5,000 the cost of the
translation of the applicant's observations in French. The Government
submitted that no award should be made under this head since the
applicant had failed to submit any documentary evidence in support of
his claim.
- The
Court notes that the applicant did not submit any receipts or other
vouchers confirming that the expenses had been actually incurred.
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 complaint concerning quashing of
the judgment of 12 May 2003 by way of supervisory review admissible
and the remainder of the application inadmissible;
- Holds that there has been a violation of Article
6 of the Convention and Article 1 of Protocol No.1 on account of
quashing of the judgment by way of supervisory review;
- Holds
(a) that
the respondent State, within three months from the date on which the
judgment becomes final according to Article 44 § 2 of the
Convention, is to pay the award made by the domestic courts in the
applicant's favour under the judgment of 12 May 2003, that is RUB
39,171.16, plus any tax that may be chargeable on this amount;
(b) 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 the settlement:
(i) EUR
341 (three hundred forty one euro) 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;
(c) 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 12 February 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
