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FIRST
SECTION
CASE OF SHANOVY v. RUSSIA
(Application
no. 21834/05)
JUDGMENT
STRASBOURG
7
February 2012
This
judgment is final but it may be subject to editorial revision.
In the case of Shanovy v. Russia,
The
European Court of Human Rights (First Section), sitting as a
Committee composed of:
Mirjana Lazarova Trajkovska,
President,
Anatoly Kovler,
Erik Møse,
judges,
and André Wampach,
Deputy Section Registrar,
Having
deliberated in private on 17 January 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 21834/05)
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 two
Russian nationals, Ms Olga Yuryevna Shanova
and Mr Aleksandr Aleksandrovich Shanov
(“the applicants”), on 12 April 2005.
2. The
Russian Government (“the Government”) were represented by
Mr G. Matyushkin, the Representative of the Russian Federation at the
European Court of Human Rights.
- On
27 August 2010 the President of
the First Section decided to give notice of the application to
the Government.
4. The
Government objected to the examination of the application by a
Committee. After having considered the Government’s objection,
the Court rejects it.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicants are mother and son who were born in 1954 and
1985 respectively and live in Selyatino in the Moscow Region.
- On 14 March 1997 the applicants’ husband and
father Mr Shanov died. Before his death Mr Shanov was a recipient of
the Chernobyl social benefits.
- On 29 May 1999 the first applicant brought proceedings
before the Naro-Fominsk Town Court of the Moscow Region (“the
Town Court”) against the Pension Department of the Naro-Fominsk
District (Управление
пенсионного
фонда
РФ по
Наро-Фоминскому
району)
seeking reassessment of the amount of benefits that she and the
second applicant were entitled to after Mr Shanov’s death.
- Her claims were rejected by a judgment of the Town
Court of 21 March 2000, as upheld by the Moscow Regional Court
(“the Regional Court”) on 18 April 2000.
- On an unspecified date at the first applicant’s
request the president of the Regional Court lodged an extraordinary
appeal for supervisory review against the above court decisions.
- On 17 January 2001 the Presidium of the Regional Court
granted the appeal, quashed the judgment of 21 March 2000 and the
decision of 18 April 2000 by way of supervisory review and
remitted the matter to the first instance for fresh consideration.
- On 31 May 2001 the Town Court granted the first
applicant’s claims for reassessment and recovery of the
benefits. However, on 8 August 2001 the judgment was set aside on
appeal by the Regional Court which required a new hearing.
- On 21 October 2002 the Town Court granted the first
applicant’s claims against the Pension Department and
Department of Social Protection of the Naro-Fominsk District (Комитет
социальной
защиты
населения
администрации
Наро-Фоминского
района)
for recovery of the benefits, awarding her lump-sum compensation
amounting to 298,801 Russian roubles (RUB) and monthly payments in
the amount of RUB 15,381.
- On 2 December 2002 the above judgment was upheld by
the Regional Court on the respondents’ appeal. The appeal court
did not recite the reasoning of the grounds of appeal but mentioned
that the arguments of the appellant had been considered by the trial
court.
- In respect of the lump-sum compensation award, the
first applicant received the first instalment on 4 August 2004 and
the second instalment on 13 November 2004. She has not received
the remaining RUB 100,014 (approximately 2,380 euros (EUR)) to
date.
- On 21 April 2003 the respondent lodged an application
for supervisory review on account of allegedly erroneous application
of the material law in the judgment of 21 October 2002 and the appeal
decision upholding it.
- The applicants were notified that a hearing of the
application for supervisory review by the Presidium of the Regional
Court was scheduled for 8 September 2004.
- On 8 September 2004 the applicants’
representative appeared in court but was informed that the hearing
had been rescheduled to a later date of which he would be notified in
due course.
- On an unspecified date the applicants received the
decision of the Presidium of the Regional Court of 8 December 2004 to
quash by way of supervisory review the impugned judgments for
incorrect application of the material law and a failure to subtract a
previously received payment from the total amount due. The Presidium
remitted the matter for fresh consideration to the first instance.
The applicants had not been notified of the hearing of 8 December
2004 and did not appear in it.
- On 6 February 2005 the first applicant brought
proceedings for compensation of pecuniary and non-pecuniary damage
resulting from the delayed enforcement of the judgment of 21 October
2002. Her original claims and damages action were joined in one case
against the Treasury of Russia and the Moscow Region Department of
the Ministry of Social Protection (Министерство
социальной
защиты
населения
Московской
области),
where the claimant party was eventually represented by the second
applicant who had come of age.
- On 12 September 2005 the Town Court delivered a new
judgment which partially granted the applicant’s claims for
recovery of the benefits but dismissed the damages action.
- On 2 November 2005 the Regional Court upheld on appeal
the part of the judgment dismissing the claim for damages and
remitted the rest of the judgment for fresh consideration due to
erroneous application of the material law.
- On 28 March 2006 the Town Court again granted the
second applicant’s claims in part awarding him RUB 10,474 in
monthly payments and a lump-sum amount of RUB 98,564. According to
the Government, this judgment was enforced on 29 November 2007, but
the applicants submitted that they had received the payment on 5
December 2007.
- By a final decision of 12 December 2008 the Town Court
index linked the lump-sum amount awarded by the judgment of 28
March 2006. This amount was paid to the applicants on 28 October
2009.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1 ON ACCOUNT OF SUPERVISORY
REVIEW
- The
applicants complained under Article 6 § 1
of the Convention and Article 1 of Protocol No. 1 about the quashing
of the final judgment in their favour on 8 December 2004. They also
complained under Article 6 § 1 that they had not been duly
summoned to the hearing at the supervisory instance on 8 December
2004. These provisions read in the relevant part as follows:
Article 6
“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 preceding provisions shall not, however, in any way
impair the right of a State to enforce such laws as it deems
necessary to control the use of property in accordance with the
general interest or to secure the payment of taxes or other
contributions or penalties.”
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- The
Government claimed that the supervisory review had been
used to correct a “fundamental defect” in the
adjudication of the dispute by the lower courts, namely errors in the
calculation of the amounts due to the applicant. As a result of one
of these errors, the applicants had allegedly received twice the
amount of compensation for a certain period.
- The
Court reiterates that legal certainty, which is one of the
fundamental aspects of the rule of law, implies 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, and Ryabykh
v. Russia, no. 52854/99, §§ 51-52, 24 July 2003). The
Court has previously listed among such possible defects
jurisdictional errors, serious breaches of court procedure or abuse
of power (see Luchkina v. Russia, no. 3548/04, § 21,
10 April 2008).
- Turning
to the present case, the Court observes that the judgment of
21 October 2002 was quashed by way of supervisory review two
years after it became final and enforceable, for incorrect
application of the material law and erroneous calculation of the
final amount due to the applicant. It further observes that the
respondent appealed the original judgment in the context of the
normal court procedure and was free to raise the same issues in its
grounds of appeal as it did in the application for supervisory
review. The Court cannot agree that possible arithmetical errors or
errors in application of the material law here at issue fall into the
category of a “fundamental defect” as it has so far been
interpreted in the Court’s case-law. Nor does the Court discern
any other element warranting a departure from the principle of legal
certainty in the present case.
- The
foregoing considerations are sufficient to enable the Court to
conclude that there has been a violation of Article 6 § 1 of the
Convention and Article 1 of Protocol No. 1 on account of the
quashing.
- As to the complaint of the lack of due notification of
the hearing at the supervisory instance, the Court does not find it
necessary to consider it separately in view of its finding that the
quashing of the final judgment in the applicant’s favour as
such breached the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1 ON ACCOUNT OF DELAYED
ENFORCEMENT
- The applicants also complained
about the failure of the authorities to pay them the remaining amount
of RUB 100,014 due by the judgment of 21 October 2002 and the
delayed payment of RUB 98,564 due by the judgment of 28 March
2006. They relied on Article 6 § 1 of the Convention and Article
1 of Protocol No. 1. The relevant parts of these provisions are
quoted above.
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- The
Government submitted that if the judgment of 21 October 2002 had been
enforced in full, the applicant would have unlawfully received RUB
376,785. They did not provide any other comments on this complaint.
- The
Court reiterates that the principles insisting that a final judicial
decision must not be called into question and should be enforced
represent two aspects of the same general concept, namely the right
to a court (see Ryabykh, cited above, §§ 55-57, and
Burdov v. Russia, no. 59498/00, § 34, ECHR 2002-III).
Having regard to its finding of a violation of Article 6 on account
of the quashing of the judgment of 21 October 2002 in
supervisory review proceedings above, the Court finds that it is
not necessary to examine separately the issue of its subsequent
partial non enforcement by the authorities (see Kulkov and
Others v. Russia, nos. 25114/03 et al, § 35, 8 January
2009, with further references).
- However,
prior to being quashed, the judgment of 21 October 2002 in the
applicants’ favour had remained partially unenforced for
approximately two years. Furthermore, the judgment
of 28 March 2006 was enforced with a delay of one year and eight
months. The Court considers that the delay in the enforcement of
these two judgments is such as to breach the Convention.
- Accordingly,
there has been a violation of Article 6 § 1 and Article 1
of Protocol No. 1 on this account.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The applicants further complained
under Articles 6 and 13 of unreasonable length of the proceedings
that ended with the judgment of 28 March 2006. They also
complained under Article 6 and Article 1 of Protocol No. 1 of the
Convention of unlawfulness of the judgments adopted by the courts on
21 September 2005 and 28 March 2006, and under Article 6 of a
biased court.
- In
the light of all the material in its possession, and in so far as the
matters complained of are within its competence, the Court finds that
the above 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 is manifestly
ill-founded and must be rejected in accordance with Article 35 §§
3 (a) and 4 of the Convention.
IV. 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
applicants claimed pecuniary damage in the
amount of 490,511 Russian roubles (RUB) (approximately 11,840
euros (EUR)) calculated as the amount that had remained unpaid under
the judgment of 21 October 2002 with compensation for its
depreciation, as well as compensation for allegedly delayed payment
of the remainder of the award due by that judgment and of the award
under the judgment of 28 March 2006. In particular, they
calculated that according to the bank refinancing rates in force
between 2 December 2002 and 31 March 2011, their losses
resulting from the authorities’ failure to pay them RUB 100,014
under the judgment of 21 October 2002 amounted to RUB 99,735
(approximately EUR 2,370).
- They
also claimed non-pecuniary damage in the amount of EUR 3,000 for
violation of their right to legal certainty, EUR 3,000 for partial
non-enforcement of the judgment of 21 October 2002, EUR 2,375
for the delay in the enforcement of the judgment of 28 March 2006,
and EUR 5,000 for an allegedly excessive length of the
proceedings.
- The
Government disagreed with the claims. They pointed out that the award
under the judgment of 21 October 2002 had ceased to be enforceable
with adoption of the decision to quash that judgment in supervisory
review. In any event, under that judgment the applicants had already
received the money that they had not been entitled to, and despite
the quashing they had not been required to return the money. The
Government also disputed the claim for non-pecuniary damage as
excessive and unsubstantiated.
- The
Court reiterates that the most appropriate form of redress in respect
of the violations found would be to put the applicants as far as
possible in the position they would have been if the Convention
requirements had 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). It further reiterates its constant
approach 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).
- Having
regard to the claim for pecuniary damage, the Court notes firstly
that the applicants’ complaints of non-enforcement concerned
originally only the unpaid amount of RUB 100,014 and the delayed
enforcement of the judgment of 28 March 2006. It also notes that the
applicants have already been paid compensation for pecuniary damage
resulting from delayed enforcement of the judgment of 28 March 2006
(see paragraph 23 above).
- In
these circumstances the Court decides that the amount of RUB 100,014
which has not been paid in accordance with the judgment of 21 October
2002 must be paid in full. Furthermore, the Court notes that the
Government did not provide an alternative method of calculation of
the pecuniary damage sustained by the applicants as a result of the
depreciation of the original award. It does not find the applicants’
calculation unreasonable and awards them a total of EUR 4,750 for
pecuniary damage.
- As
to the claim for non-pecuniary damage, the Court accepts that the
applicants suffered distress and frustration on account of the
violation of their right to legal certainty and the right to access
to a court and awards them EUR 3,000 in respect of non-pecuniary
damage.
B. Costs and expenses
- The
applicants also claimed RUB 4,081 (approximately
EUR 100) for the costs and expenses incurred before the Court. In
support of their claim they submitted several receipts for postal
expenses, as well as various administrative and legal fees.
- The
Government challenged the claim as unsubstantiated.
- Regard
being had to the documents in its possession and to its
case law, the Court considers it reasonable to accept the
applicants’ claim and awards them EUR 100 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 complaints concerning quashing in
supervisory review and delayed enforcement admissible and the
remainder of the application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention and Article 1 of Protocol No. 1 on
account of the quashing in supervisory review;
- Holds that there has been a violation of Article
6 § 1 of the Convention and Article 1 of Protocol No. 1 on
account of delayed enforcement of the judgments in the applicants’
favour;
- Holds
(a) that
the respondent State is to pay the applicants,
within three months, the following amounts, to be converted into
Russian roubles at the rate applicable at the date of settlement:
(i) EUR
4,750 (four thousand seven hundred and fifty euros), plus any tax
that may be chargeable, in respect of pecuniary damage;
(ii) EUR
3,000 (three thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage;
(iii) EUR
100 (one hundred euros), plus any tax that may be chargeable, 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 applicants’
claim for just satisfaction.
Done in English, and notified in writing on 7 February 2012, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Mirjana
Lazarova Trajkovska
Deputy Registrar President
