FIRST SECTION

CASE OF GULYAYEV v. RUSSIA

(Application no. 20023/07)

JUDGMENT

STRASBOURG

12 May 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 ,
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,
	Giorgio Malinverni, judges,
and SørenNielsenSection Registrar,
Having deliberated in private on 22 April 2010,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 20023/07) 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 Vasiliy Fedorovich Gulyayev (“the applicant”), on 5 March 2007.
2.  The applicant was represented by Mr A.N. Golovachev, a lawyer practising in Kursk. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, representative of the Russian Federation before the European Court of Human Rights.
3. On 17 November 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
4.  The applicant was born in 1928 and lives in Kursk.
5.  On 4 November 1992 the Presidium of the Kursk Regional Council of People's Deputies issued the applicant with a certificate showing that he had participated in mine cleaning in the Kursk Region in 1943-1948.
6.  On 8 December 2000 the Kursk Social Security Office upon applicant's request exchanged the above certificate for a certificate of a war veteran. The new document made the applicant eligible for an increased pension.
7.  In March 2005 the Kursk Social Security Office asked the Kursk Military Commission to remove the applicant's status as a war veteran on the ground that the police had established forgery of the war-time document, in which the applicant's name was mentioned. In May 2005 the Social Security Office stopped paying the increased pension to the applicant and decided to withhold the amount which it had overpaid in the preceding period.
8.  The applicant challenged the discontinuation of payments as unlawful. The Social Security Office counterclaimed, seeking a court order for annulment of the veteran certificate. The Military Commission joined the proceedings as a co-defendant.
9.  On 20 April 2006 the Leninskiy District Court of Kursk found for the applicant. It determined that the allegedly forged document had not been the basis for granting the applicant the veteran status and could not be invoked as a ground for annulment of the certificate. The discontinuation of payments had been therefore unlawful.
10.  Neither the Social Security Office nor the Military Commission filed an ordinary appeal and the judgment became final and enforceable.
11.  In September 2006 the Military Commission lodged an application for supervisory review of the judgment of 20 April 2006.
12.  On 15 November 2006 the Presidium of the Kursk Regional Court granted the application, quashed the contested judgment and remitted the matter for a new examination by the District Court. In so doing, it held that the District Court had gone beyond the scope of the claims since it had found that the veteran certificate had been lawfully issued to the applicant, whereas the Social Security Office had not raised that issue. It also found that the District Court had not examined the administrative decision to suspend the monthly payments to the applicant and had not indicated the statute regulating seizure of certificates in court proceedings.
13.  On 29 December 2006 the Leninskiy District Court issued a new judgment. On the applicant's claim, it held that the discontinuation of payments had been lawful, but awarded the applicant the amount outstanding and interest on it. The District Court also granted the Social Security Office's counterclaim and annulled the veteran certificate on the ground that he had failed to produce any documents showing that he had taken part in mine cleaning prior to 9 May 1945 (the official date of the end of the war).

II. RELEVANT DOMESTIC LAW
14.  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 v. Russia (nos. 30672/03, et seq., §§ 33-42, 3 May 2007).
THE LAW
I.  THE GOVERNMENT'S OBJECTION AS TO ABUSE OF PETITION
15.  The Government submitted that the applicant had provided the Court with false information as to the lawfulness and good faith of the manner in which he had obtained the certificate of a war veteran. Such failure amounted to an abuse of the right of application within the meaning of Article 35 § 3 of the Convention which, insofar as relevant, reads as follows:
“The Court shall declare inadmissible any individual application submitted under Article 34 which it considers incompatible with the provisions of the Convention or the Protocols thereto, manifestly ill-founded, or an abuse of the right of application.”
16.  The Court reiterates that, except in extraordinary cases, an application may only be rejected as abusive if it was knowingly based on untrue facts (see Akdivar and Others v. Turkey, 16 September 1996, Reports of Judgments and Decisions 1996-IV, §§ 53-54; I.S. v. Bulgaria (dec.), no. 32438/96, 6 April 2000; Varbanov v. Bulgaria, no. 31365/96, § 36, ECHR 2000-X).
17.  In the circumstances of the present case, the Court considers that the manner in which the applicant obtained the document does not have any bearing on the issue being examined. The Court therefore rejects the Government's objection.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF SUPERVISORY REVIEW
18.  The applicant complained that the quashing of the judgment of 20 April 2006 by way of supervisory review had impaired the requirement of legal certainty as provided in Article 6 of the Convention, which reads as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
A.  Admissibility
19.  The Court notes that the application 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
20.  The Government argued that the supervisory review had been justified as it had intended to correct a “fundamental defect” in the judgment of the lower court. It further maintained that the Military Commission had failed to lodge an ordinary appeal for lack of financial means needed to pay a court fee. It also held that in any event the applicant's rights had not been violated as the judgment of 20 April 2006 had been fully enforced prior to the quashing.
21.  The applicant maintained his claims.
22.  The Court reiterates that legal certainty, which is one of the fundamental aspects of the rule of law, presupposes respect for the principle of res judicata, the principle of the finality of judgments. A departure from that principle is justified only when made necessary by circumstances of a substantial and compelling character, such as correction of fundamental defects or miscarriage of justice (see, among many other authorities, Brumărescu v. Romania [GC], no. 28342/95, § 61, ECHR 1999-VII; Ryabykh v. Russia, no. 52854/99, §§ 51-52, 24 July 2003).
23.  The Court found on numerous occasions that the quashing of final and binding judgments by way of supervisory review under the Code of Civil Procedure as in force at the material time infringed the principle of legal certainty and was only justified in exceptional circumstances (see Protsenko v. Russia, no. 13151/04, §§ 29-34, 31 July 2008; Tishkevich v. Russia, no. 2202/05, §§ 24-27, 4 December 2008)
24.  Turning to the present case, the Court observes that the judgment of 20 April 2006 was set aside by way of supervisory review on the ground that the lower court considered of its own motion the question of lawfulness of the applicant's veteran certificate (see paragraph 12 above). The arguments put forward by the authorities do not warrant the conclusion that this discloses a fundamental defect warranting the departure from the principle of legal certainty.
25.  Furthermore, in the Russian legal system such defects could have been cured in the appeal proceedings. Thus, a situation where the final judgment in the applicant's favour was called into question could have been avoided, had the Military Commission lodged an ordinary appeal within the statutory ten-day time-limit (see Zvezdin v. Russia, no. 25448/06, § 30, 14 June 2007). The Government's argument concerning a lack of financial means necessary to lodge an appeal is unsupported by any evidence. The Court notes that even if this fact had proved true, the appellant was free to request a deferment or payment by instalments of the court fee, in accordance with Section 333.41 of the Tax Code of Russia of 5 August 2000.
26.  As for the Government's contention that the judgment had been fully enforced prior to the quashing, the Court considers that this fact did not by itself efface the effects of legal uncertainty the applicant had to endure after the judgment of 20 April 2006 had been quashed. Nor did so the fact that the applicant's claim was granted as a result of the proceedings following the quashing (see Zasurtsev v. Russia, no. 67051/01, § 51, 27 April 2006).
27. There has accordingly been a violation of Article 6 § 1 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
28.  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
29.  The applicant claimed 10,000 euros (EUR) in respect of non-pecuniary damage.
30.  The Government noted that the applicant had failed to substantiate his allegedly excessive and unreasonable claims.
31.  The Court 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 case and making its assessment on an equitable basis, the Court considers it reasonable to award the applicant EUR 3,000 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount.
B.  Costs and expenses
32.  The applicant also claimed 13,000 Russian roubles (RUB) (EUR 312) for the costs and expenses incurred before the domestic courts and RUB 13,700 (EUR 329) for those incurred before the Court.
33.  The Government asserted that the claimed costs were unreasonable.
34.  As regards the costs and expenses incurred before the domestic courts, in support of his claim the applicant submitted an agreement for provision of legal assistance in the proceedings before the Presidium of the Kursk Regional Court and subsequent round of proceedings for RUB 10,000, the lawyer's bill for RUB 13,000, and two receipts for the amounts of RUB 10,000 and RUB 3,000. The Court observes that the lawyer's bill was not itemised and thus finds it impossible to determine whether the amount of RUB 3,000 was incurred necessarily.
35.  As regards the costs and expenses incurred before the Court, in support of his claim the applicant submitted the lawyer's bill for RUB 10,000 and corresponding receipts, as well as two powers of attorney with notary fees charged in the amount of RUB 300 and 400, respectively. The Court notes that the applicant failed to submit any supporting documents to account for the remaining amount of RUB 3,000.
36.  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 award the sum of EUR 500 covering costs under all heads.
C.  Default interest
37.  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
1.  Dismisses the Government's objection as to abuse of petition;

2. Declares the application admissible;

3.  Holds that there has been a violation of Article 6 § 1 of the Convention;

4.  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 3,000 (three thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 500 (five hundred 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;

5.  Dismisses the remainder of the applicant's claim for just satisfaction.
Done in English, and notified in writing on 12 May 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Søren Nielsen	Christos Rozakis
	Registrar	President