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FIRST
SECTION
CASE OF ANDREYEV v. RUSSIA
(Application
no. 32991/05)
JUDGMENT
STRASBOURG
4
March 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 Andreyev 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 9 February 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 32991/05) 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 Aleksandr Aleksandrovich
Andreyev (“the applicant”), on 12 August 2005.
- The
applicant was represented by Mr S. Matytsyn, a lawyer practising in
Voronezh. The Russian Government (“the Government”) were
represented by Mr G. Matyushkin, Representative
of the Russian Federation at the European Court of Human Rights.
- On
12 June 2008 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 1964 and lives in Voronezh.
- On
12 July 2002 the applicant rented out his flat to M.
- On
26 September 2002 M. allegedly forgot to turn off water in the
bathroom and thus damaged neighbouring flats of Sh. and A.
- Subsequently
M. compensated damages to Sh., but refused to pay A., considering the
sums claimed excessive.
- On
20 November 2002 A. brought proceedings against the applicant for
damages. M. took part in the proceedings as a co defendant.
- On
12 November 2003 the Justice of the Peace of the 3rd Court
Circuit ordered the applicant to pay A. 40,983 Russian roubles (RUB)
in damages and to pay the authorities RUB 1,639.49 of legal costs.
- The
applicant lodged an appeal and on 28 April 2004 the Sovetskiy
District Court of Voronezh quashed the judgment, found that there was
no fault by the applicant in the damage caused to the A.'s flat and
awarded A. RUB 15,261 from M.
- On
27 August 2004 A. lodged an application for supervisory review of the
appeal judgment.
- On
14 February 2005 the Presidium of the Voronezh Regional Court quashed
that appeal judgment and upheld the judgment of 12 November 2003. The
Presidium reassessed the evidence and found that though on
25 September 2002 the applicant concluded an agreement under
which he should have obtained the right of property to the flat, this
right was duly registered only on 10 April 2003. Therefore before
that date the applicant could not rent out his flat to anyone. Thus
he remained the flat's sole de jure
owner and should have been responsible for it.
- On
7 Mach 2007 the applicant transferred to the bailiffs RUB 42,322.49
in accordance with the Presidium decision of 14 February 2005.
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
Kot v. Russia
(no. 20887/03, § 17, 18 January 2007).
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 and under
Article 1 of Protocol No. 1 that the final appeal judgment of 28
April 2004 had been quashed via supervisory review. 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.[...]”
- The
Government contested that argument. They argued, inter alia,
that the supervisory review had been compatible with the Convention
as it was aimed to correct a fundamental defect. They referred to a
definition of a fundamental defect given in the case of Luchkina
as “a jurisdictional error, serious breaches of court procedure
or abuses of power” (Luchkina v. Russia, no.
3548/04, § 21, 10 April 2008). In the Government's view, the
appeal court ignored that at the date of the infliction of the damage
the applicant was still a de jure
owner of the flat.
A. Admissibility
- The Court notes 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
- 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,
Bodrov v. Russia,
no. 17472/04, § 31, 12 February 2009).
- In the present case the
Presidium disagreed with the assessment made by the appeal court
which is not, in itself, an exceptional circumstance warranting the
quashing of a binding and enforceable judgment
(see Kot,
cited above, § 29). It was
not claimed before the supervisory-review instance that the previous
proceedings had been tarnished by a fundamental defect, such as, in
particular, a jurisdictional error, serious breaches of court
procedure or abuses of power (see, amongst other authorities,
Luchkina, cited above, § 21). The court discerns no
other fundamental defect to justify the quashing of the final
judgment on supervisory review in the present case. Accordingly,
there has been a violation of Article 6 § 1 of the Convention.
- The Court further observes that
as a result of supervisory review the applicant was deprived of his
possessions (see paragraph 13 above). 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 bee.n 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 52,000 Russian roubles (RUB) in respect of
pecuniary damage (RUB 42,322.49 paid in
accordance with the Presidium decision, plus relevant expenses and
inflation losses). He also claimed 1,500 euros (EUR) in
respect of non-pecuniary damage.
- The
Government noted that no satisfaction should be awarded since the
applicant's rights were not violated and he had failed to
substantiate his allegedly excessive and unreasonable claims.
- The
Court reiterates that in general the most appropriate form of redress
in respect of violations found is to put applicants as far as
possible in the position they would have been in if the Convention
requirements had not been disregarded (see, amongst other
authorities, Piersack v. Belgium (Article 50), 26 October
1984, § 12, Series A no. 85, and Dovguchits
v. Russia, no. 2999/03, § 48, 7 June 2007).
- The
Court observes that in the present case the applicant was eventually
forced to pay an amount of RUB 42,322.49 contrary to a final judgment
in his favour which had relieved him of any payment obligation. There
is therefore a causal link between the quashing of the final judgment
and the pecuniary loss claimed by the applicant.
- As
to the claim for the inflation losses, on which the applicant
submitted a detailed calculation, the Government made no
comment in respect of the methods used by the applicant for that
calculation. Nor have the Government provided the Court with any
alternative one. Therefore the Court accepts the applicants'
calculation in respect of the inflation losses.
- The Court therefore awards the applicant the sum
claimed (EUR 1,470), plus any tax that may be chargeable.
- The Court furthermore finds that
the applicant has suffered non pecuniary damage as a result of
the violation found which cannot be compensated by the mere finding
of a violation. Having regard to the circumstances of the cases and
making its assessment on an equitable basis, the Court awards the
applicant the sum of EUR 1,500 in respect of non pecuniary
damage, plus any tax that may be chargeable on that amount.
B. Costs and expenses
- The
applicants also claimed RUB 5,000 for the costs and expenses
incurred.
- The
Government asserted that the applicant had failed to substantiate the
claims.
- According
to the Court's case-law, an applicant is entitled to the
reimbursement of 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 documents in its possession and the above criteria, the Court
considers it reasonable to grant the applicant's claim in full and to
award him the sum of EUR 142.
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 of Article 1 of Protocol No. 1 in respect of
the quashing of the final appeal judgment in the applicant's favour
via supervisory review;
- 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, the following
amounts, to be converted into Russian roubles at the rate applicable
at the date of settlement:
(i)
EUR 1,470 (one thousand four hundred and seventy euros), plus any tax
that may be chargeable, in respect of pecuniary damage;
(ii)
EUR 1,500 (one thousand five hundred euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage;
(iii)
EUR 142 (one hundred and forty two euros), plus any tax that may be
chargeable to the applicant, in respect of costs and expenses;
(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 4 March 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos
Rozakis
Registrar President
