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FIRST
SECTION
CASE OF ABDULLAYEV v. RUSSIA
(Application
no. 11227/05)
JUDGMENT
STRASBOURG
11
February 2010
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 Abdullayev v.
Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis,
President,
Anatoly Kovler,
Khanlar Hajiyev,
Dean
Spielmann,
Sverre Erik Jebens,
Giorgio
Malinverni,
George Nicolaou, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 21 January 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 11227/05) 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 Musakurban
Gazimagomadovich Abdullayev (“the applicant”), on 22
March 2005.
- The
applicant was represented by Mr M.A. Bizhanov, a lawyer practising in
Moscow. The Russian Government (“the Government”) were
represented by Ms V. Milinchuk, former
Representative of the Russian Federation at the European Court of
Human Rights.
- On
18 May 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 1948 and lives in Makhachkala.
- In
2000 he bought a part of a house from a certain Y. The co-owner of
the house, G., brought a court action against the applicant for
annulment of the agreement, on the grounds that she (G.), having a
pre-emption right, had not been informed about the agreement in
advance in accordance with the domestic law.
- On
18 February 2004 the Leninskiy District Court of Makhachkala held in
favour of G., transferred to her the property rights on the
applicant’s part of the house and obliged her to reimburse the
applicant its value.
- On
3 March 2004 Y., a co defendant to the proceedings along with
the applicant, appealed against the judgment. On 16 March 2004 the
applicant joined the appeal.
- On
2 April 2004 the Supreme Court of the Republic of Dagestan quashed
the judgment of 18 February 2004 on appeal and dismissed G.’s
action.
- On
2 July 2004 G. lodged an application for supervisory review of the
appeal judgment of 2 April 2004 with the Supreme Court of the
Republic of Dagestan.
- On
16 September 2004 the President of the Supreme Court of the Republic
of Dagestan referred the case to its Presidium.
- On
23 September 2004 the Presidium of the Supreme Court of the Republic
of Dagestan quashed the appeal judgment of 2 April 2004 for wrong
assessment of evidence and upheld the judgment of 18 February
2004.
- The
applicant submits that he was not duly informed about the date and
the time of the hearing before the Presidium and therefore could not
attend it. The other party’s representative was present and
made submissions.
II. RELEVANT DOMESTIC LAW
- The relevant domestic law
governing the supervisory review procedure at the material time is
summed up in the Court’s judgment in the case of Sobelin
and Others (see Sobelin
and Others v. Russia, nos. 30672/03,
et seq., §§ 33-42, 3 May 2007).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION AND OF ARTICLE 1 OF PROTOCOL No. 1
- The
applicant complained under Article 6 of the Convention and under
Article 1 of Protocol No. 1 that the appeal judgment of 2 April 2004
had been quashed by way of supervisory review on 23 September
2004 and that the supervisory-review hearing had been unfair because
he had not been informed about it and therefore had not been able to
attend it. In so far 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.[...]”
A. Admissibility
- The
Government asserted that the applicant had failed to exhaust all the
domestic remedies as he had not lodged an appeal against the judgment
of the first instance taken against him. This appeal was lodged by
the seller Y., who was a co-defendant to the proceedings along with
the applicant.
- The
Court observes that on 16 March 2004 the applicant joined the Y.’s
appeal (see paragraph 8). In any event, the alleged failure to appeal
against the first-instance judgment would be irrelevant to the matter
considered in the present case, which is supervisory review of the
judgment of the court of the second instance.
- The Court concludes that the 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. Article 6 of the Convention
(a) Supervisory review: legal certainty
- The
Government argued that the supervisory review
had been compatible with the Convention since it was aimed to correct
a fundamental judicial error, since the application for
supervisory review had been lodged by a party to the proceedings and
since it had been lodged, and the case
reviewed, within a very short period of time. They also asserted that
the applicant had been properly notified of the time and place of the
supervisory-review hearing. The applicant maintained his complaint.
- 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. The
mere possibility of there being two views on the subject is not a
ground for re examination (see Ryabykh
v. Russia,
no. 52854/99, §§ 51-52,
ECHR 2003 IX).
- The Court further reiterates
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 Code of Civil Procedure in force since
2003 (see, amongst other authorities, Sobelin
and Others, cited above, §§ 57-58,
and Bodrov v. Russia,
no. 17472/04, § 31, 12 February 2009).
- In the present case the final
and binding appeal judgment was quashed because the Presidium
disagreed with the assessment made by the appeal court,
which is not in itself an exceptional circumstance warranting the
quashing (see Kot v. Russia,
no. 20887/03, § 29, 18 January 2007). Accordingly,
there has been a violation of Article 6 § 1 of the Convention.
(b) Supervisory
review: procedural issue
- The Court finds that,
having concluded that there has been an infringement of the
applicant’s “right to a court” by the very use of
the supervisory review procedure, it is not necessary to consider
separately whether the procedural guarantees of Article 6 of the
Convention were respected during those proceedings (see Ryabykh,
cited above, § 59).
2. Article 1 of Protocol No. 1
- The
Court further observes that under the final appeal judgment
the applicant maintained his title to the contested part of the
house. Its quashing in breach of the principle of legal certainty
frustrated the applicant’s reliance on it. Accordingly,
there has also been a violation of Article 1 of Protocol No. 1.
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.”
- 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 application admissible;
- 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 appeal
judgment in the applicant’s favour;
- Holds that there is no need to examine the
complaint under Article 6 of the Convention that the applicant was
not informed about the hearing of 23 September 2004.
Done in English, and notified in writing on 11 February 2010,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
