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FIRST
SECTION
CASE OF KALINICHENKO v. RUSSIA
(Application
no. 19136/04)
JUDGMENT
STRASBOURG
12 March 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 Kalinichenko 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 17 February 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 19136/04) 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 Vladimir Vasilyevich
Kalinichenko (“the applicant”), on 22 March 2004.
- The
applicant was represented by Mr V. Gandzyuk, a lawyer practising in
Ryazan. The Russian Government (“the Government”) were
represented by Ms V. Milinchuk, former representative of the Russian
Federation at the European Court of Human Rights, and subsequently by
their Representative, Mr G. Matyushkin.
- On
28 February 2008 the President of the First Section decided to
communicate 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 1979 and lives in Ryazan.
- He
is a former military serviceman. From 22 August 2000 to 15 October
2001 he served in the Russian peacekeeping contingent in Bosnia and
Herzegovina, the former Republic of Yugoslavia.
- Upon
his return, the applicant brought proceedings against the head of his
military unit to secure payment of his daily allowance for his
service abroad.
- On
25 July 2003 the Military Court of the Ryazan Garrison granted the
applicant's claim and ordered the military unit to pay the applicant
400,164.75 Russian roubles (RUB) in remuneration and RUB 1,000 in
expenses for legal advice.
- The
military unit did not lodge an ordinary appeal, and on 22 August 2003
the judgment became binding and enforceable.
- However,
following the respondent's request, on 19 November 2003 the Presidium
of the Military Court of the Moscow Command quashed the judgment of
25 July 2003 by way of supervisory review and dismissed the
applicant's claims in full. The reason given for the quashing of the
judgment was the “wrongful application of substantive law by
the first-instance court”.
II. RELEVANT DOMESTIC LAW
- The
Code of Civil Procedure of the Russian Federation provides as
follows:
Article 362. Grounds on which appeal courts may quash
or alter judicial decisions
“1. The grounds on which appeal courts
may quash or alter judicial decisions are:
...
(4) a violation or incorrect application of
substantive or procedural law.”
Article 387. Grounds on which judicial decisions may
be quashed or altered
by way of supervisory review
“Judicial decisions of lower courts may be quashed
or altered by way of supervisory review on the grounds of substantial
violations of substantive or procedural legal provisions.”
Article 390. Competence of the supervisory-review
court
“1. Having examined the case by way of
supervisory review, the court may ...
(2) quash the judicial decision issued by a
court of first, second or supervisory-review instance in whole or in
part and remit the matter for fresh examination ...
(5) quash or alter the judicial decision
issued by a court of first, second or supervisory-review instance and
issue a new judicial decision, without remitting the matter for fresh
examination, if the substantive law has been erroneously applied or
interpreted.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1 ON ACCOUNT OF THE QUASHING
OF THE JUDGMENT IN THE APPLICANT'S FAVOUR
- The
applicant complained that the quashing of the judgment of 25 July
2003 by way of supervisory-review proceedings had violated his “right
to a court” under Article 6 § 1 of the Convention and his
right to the peaceful enjoyment of possessions under Article 1 of
Protocol No. 1. 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 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. Submissions by the parties
- The
Government, relying on the Court's judgments in the cases of
Pellegrin v. France ([GC], no. 28541/95, ECHR 1999 VIII)
and Kanayev v. Russia (no. 43726/02, 27 July 2006), argued
that the applicant's complaint under Article 6 of the Convention was
incompatible ratione materiae
because the applicant had been a military officer at the material
time and the judgment award had concerned allowances for his military
service. They further argued that Article 1 of Protocol No. 1 was
also inapplicable because the applicant had not had a “possession”
within the meaning of that Convention provision as he had had no
right to receive “payments in the amount claimed”. He had
neither an “existing possession” nor a “legitimate
expectation”. As to the merits of the complaint, the Government
noted that the judgment of 25 July 2003 had been quashed because the
Military Court of the Ryazan Garrison had incorrectly interpreted and
applied substantive law.
- The
applicant averred that the quashing of the final judgment of 25 July
2003 had irremediably impaired the principle of legal certainty and
deprived him of the right to receive money he was entitled to
receive.
B. The Court's assessment
1. Article 6 § 1 of the Convention
(a) Admissibility
- The Government contested the applicability of Article
6 to the dispute raised by the applicant. Relying on Pellegrin
(cited above), they argued that Article 6 was not applicable since
complaints raised by servants of the State such as military officers
over their conditions of service were excluded from its ambit.
15. The Court accepts
that in the Pellegrin
judgment it attempted
to establish an autonomous interpretation of the term “civil
service”. To that end the Court introduced a functional
criterion based on the nature of the employee's duties and
responsibilities.
- However, in its judgment in
the case of Vilho
Eskelinen and Others v. Finland ([GC],
no. 63235/00, 19 April 2007), the Court found that the functional
criterion adopted in the
Pellegrin judgment
did not simplify the analysis of the applicability of Article 6 in
proceedings to which a civil servant was a party, or bring about a
greater degree of certainty in this area as intended (§ 55). For
these reasons the Court decided to further develop the functional
criterion set out in Pellegrin
and adopted the
following approach:
“To recapitulate, in order for the respondent
State to be able to rely before the Court on the applicant's status
as a civil servant in excluding the protection embodied in Article 6,
two conditions must be fulfilled. Firstly, the State in its national
law must have expressly excluded access to a court for the post or
category of staff in question. Secondly, the exclusion must be
justified on objective grounds in the State's interest. The mere fact
that the applicant is in a sector or department which participates in
the exercise of power conferred by public law is not in itself
decisive. In order for the exclusion to be justified, it is not
enough for the State to establish that the civil servant in question
participates in the exercise of public power or that there exists, to
use the words of the Court in the Pellegrin judgment, a
'special bond of trust and loyalty' between the civil servant and the
State, as employer. It is also for the State to show that the subject
matter of the dispute in issue is related to the exercise of State
power or that it has called into question the special bond. Thus,
there can in principle be no justification for the exclusion from the
guarantees of Article 6 of ordinary labour disputes, such as those
relating to salaries, allowances or similar entitlements, on the
basis of the special nature of relationship between the particular
civil servant and the State in question. There will, in effect, be a
presumption that Article 6 applies. It will be for the respondent
Government to demonstrate, first, that a civil-servant applicant does
not have a right of access to a court under national law and, second,
that the exclusion of the rights under Article 6 for the civil
servant is justified.” (see Vilho
Eskelinen and Others v. Finland [GC], no. 63235/00, 19
April 2007, § 62)
- Turning
to the facts of the present case, the Court notes that the applicant
had access to a court under national law. He made use of his right
and introduced an action against his employer. The Military Court of
the Ryazan Garrison examined the applicant's claims and accepted
them, awarding the applicant a daily allowance for his service abroad
and compensation for legal costs. After the final judgment of 25 July
2003 had been quashed by way of supervisory review, the applicant's
claims were once again re-examined and dismissed. Neither the
domestic courts nor the Government indicated that the domestic system
barred the applicant's access to a court. Accordingly, Article 6 is
applicable (see Vilho
Eskelinen, cited above,
§ 63, and, for a similar context in a Russian case, Dovguchits
v. Russia, no. 2999/03, § 33, 7 June 2007).
- The Court further notes that this complaint 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
- The
Government pointed out that the aim of the application of the
supervisory review procedure in the present case was to correct
judicial errors. The applicant's case clearly did not call for any
payment of a daily allowance and the supervisory review court had to
give a proper explanation and an appropriate legal interpretation of
the matter in dispute for the purpose of delivering a fair and lawful
judgment and for the purpose of securing the correct application of
the relevant domestic law in future similar cases. There had
therefore been no violation of the principle of legal certainty.
- The
Court observes 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
declares, in its relevant part, 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, 28 October 1999, § 61,
Reports of Judgments and Decisions 1999-VII).
- This principle states that no party is entitled to
seek the re-opening of proceedings merely for the purpose of a
rehearing and a fresh decision of the case. The power of the higher
courts to quash or alter binding and enforceable judicial decisions
should be exercised only for the correction of fundamental defects.
The mere possibility of two views on the subject does not constitute
grounds 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 v.
Russia, no. 52854/99, § 52, ECHR 2003-X, and Pravednaya
v. Russia, no. 69529/01, §
25, 18 November 2004).
22. The Court observes 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 enforceable judicial decision to be quashed by a
higher court merely on the ground of disagreement with the assessment
made by lower courts, with a view to carrying out a fresh examination
(see Kot v. Russia, no. 20887/03, §§ 27-30,
18 January 2007, and Zvezdin v. Russia, no. 25448/06, §
28, 14 June 2007).
- In
the present case the judgment of 25 July 2003 in the applicant's
favour was set aside on 19 November 2003 by way of a supervisory
review on the grounds that the Military Court of the Ryazan Garrison
had incorrectly applied the substantive law. The Court has to assess
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, mutatis
mutandis, Nikitin v. Russia, no. 50178/99, §§ 57
and 59, ECHR 2004-VIII).
- The
Court reiterates that a binding and enforceable judgment should be
quashed only in exceptional circumstances rather than for the sole
purpose of obtaining a different decision in the case. In the Russian
legal system, the grounds for quashing or altering judgments through
appeal courts largely overlap with those for quashing or altering
judgments by way of supervisory review (compare Article 362 § 1
(4) and Article 387 of the Code of Civil Procedure). The judgment of
25 July 2003 was quashed by way of supervisory review because of the
incorrect application of the substantive law. That defect could have
been rectified in appeal proceedings. Thus, a situation where a final
judgment in the applicant's favour was called into question could
have been avoided, had the military unit lodged an ordinary appeal
within the statutory ten-day time-limit.
- The
Court notes that the military unit failed to exercise its right to
lodge an ordinary appeal and permitted the statutory ten-day
time-limit to expire without challenging the judgment of 25 July
2003. Instead, it applied for supervisory review after the judgment
in the applicant's favour had become binding and enforceable and
after the bailiffs had initiated enforcement proceedings. The
Government did not point to any exceptional circumstances that would
have prevented the military unit from making use of an ordinary
appeal in good time (see, for a similar case, Nelyubin v. Russia,
no. 14502/04, 2 November 2006). Equally important is the fact that
the Government, while relying on the need to correct a judicial
error, have not shown that the error was of such fundamental
character as to justify the quashing of the final judgment.
- Having
regard to these considerations, the Court finds that, by granting the
respondent's request to set aside the judgment of 25 July 2003, the
Presidium of the Military Court of the Moscow Command 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 that Article.
2. Article 1 of Protocol No. 1
(a) Admissibility
- The
Court observes that the Government contested the applicability of
Article 1 of Protocol No. 1 on the grounds that the applicant did not
have a “possession” within the meaning of that Convention
provision. In this connection, the Court notes that it has already on
a number of occasions found that the existence of a debt confirmed by
a binding and enforceable judgment constitutes the judgment
beneficiary's “possession” within the meaning of Article
1 of Protocol No. 1 (see, for example, Bulgakova v. Russia,
no. 69524/01, § 31, 18 January 2007, and Pravednaya,
cited above, § 38). The Court
sees no reason to depart from those findings in the present case and
dismisses the Government's objection that the applicant's complaint
is incompatible ratione
materiae with Article 1
of Protocol No. 1.
- The
Court further observes that the complaint under Article 1 of Protocol
No. 1 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
- The
Government claimed that there was no violation of the applicant's
property rights because he had not had any “possessions”.
Nor could he have had any “legal expectations” to benefit
from the judgment, since it had been delivered as a result of an
evident judicial error.
- The
Court observes that the existence of a debt confirmed by a binding
and enforceable judgment constitutes a beneficiary's “possessions”
within the meaning of Article 1 of Protocol No. 1. The quashing
of such a judgment amounts to an interference with his or her right
to the peaceful enjoyment of possessions (see, among other
authorities, Brumărescu, cited above, § 74, and
Androsov v. Russia, no. 63973/00, § 69, 6 October
2005).
- The
Court observes that the proceedings concerned compensation for a
daily allowance in respect of the applicant's military service abroad
and compensation for legal costs. A substantial amount was found by a
domestic court to be payable by the military unit. The quashing of
that enforceable judgment frustrated the applicant's reliance on a
binding judicial decision and deprived him of an opportunity to
receive the money he had the right to receive. In these
circumstances, the Court considers that the quashing of the judgment
of 25 July 2003 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. 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. Damages
- The
applicant claimed 401,164.75 Russian roubles (RUB) in respect of
pecuniary damage, referring to the unpaid judgment debt, and
RUB 321,117.14, relating to inflation losses accrued during the
period of the non-enforcement of the judgment of 25 July 2003. The
applicant further claimed 7,000 euros (EUR) in respect of
non-pecuniary damage.
- The
Government submitted firstly that no award should be made as the
judgment of 25 July 2003 was lawfully quashed. They further noted
that the applicant did not apply to a national court with a claim for
recalculation of the sum due to inflation. They maintained that in
his calculation the applicant did not refer to any official sources
in respect of rates of inflation from 2003-2007. This part of his
claim should thus be dismissed. As regards the claim in respect of
non-pecuniary damages, the Government considered that the applicant's
claim was wholly excessive and unreasonable.
- 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 award in the applicant's favour was not paid to him as a
result of the quashing of the final judgment by way of 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), 26 October 1984, § 12,
Series A no. 85, and, mutatis mutandis, Gençel v.
Turkey, no. 53431/99, § 27, 23 October 2003). The Court
finds that this principle also applies in the present case, having
regard to the violations found. The applicant was prevented from
receiving money he had legitimately expected to receive under the
judgment of 25 July 2003. The Court considers that the Government
should pay the judgment award made under the judgment of 25 July
2003.
- 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, such as an extended delay
in enforcement (see Gizzatova v. Russia,
no. 5124/03, § 28, 13 January 2005, and Metaxas v.
Greece, no. 8415/02, § 36, 27 May 2004). Having regard to
the materials in its possession and the fact that the Government did
not furnish any objection to the applicant's method of calculation of
compensation or submit any other official sources for inflation rates
in the relevant period, the Court also awards the applicant EUR 7,750
in respect of pecuniary damage, plus any tax that may be chargeable.
- The
Court further considers that the applicant suffered distress and
frustration resulting from the quashing of the final judgment of 25
July 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 on that amount.
B. Costs and expenses
- The
applicant also claimed RUB 10,000 for costs and expenses incurred
before the Court.
- The
Government did not accept that the applicant's claims under this head
were reasonable and substantiated as no service contract between the
applicant and his counsel had been submitted. They further claimed
that it was not clear whether the applicant's lawyer had represented
his interests before the domestic courts and the Court.
- 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 considers it
reasonable to award EUR 240, plus any tax that may be chargeable
to the applicant on that amount.
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 application admissible;
- Holds that there has been a violation of Article
6 of the Convention and Article 1 of Protocol No. 1 on account of the
quashing of the judgment of 25 July 2003;
3. 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, shall pay the award made in the applicant's favour under
the judgment of 25 July 2003, that is, RUB 401,164 (four hundred and
one thousand one hundred and sixty-four Russian roubles);
(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
7,750 (seven thousand seven hundred and fifty euros) in respect of
pecuniary damage;
(ii) EUR
2,000 (two thousand euros) in respect of non-pecuniary damage;
(iii) EUR
240 (two hundred and forty euros) in respect of costs and expenses;
(iv) any
tax that may be chargeable to the applicant 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 March 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
