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
1.  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.
3.  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
5.  The applicants are mother and son who were born in 1954 and 1985 respectively and live in Selyatino in the Moscow Region.
6.  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.
7.  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.
8.  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.
9.  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.
10.  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.
11.  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.
12.  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.
13.  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.
14.  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.
15.  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.
16.  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.
17.  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.
18.  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.
19.  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.
20.  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.
21.  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.
22.  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.
23.  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
24.  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
25.  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
26.  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.
27.  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).
28.  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.
29.  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.
30.  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
31.  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
32.  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
33.  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.
34.  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).
35.  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.
36.  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
37.  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.
38.  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
39.  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
40.  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).
41.  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.
42.  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.
43.  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).
44.  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).
45.  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.
46.  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
47.  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.
48.  The Government challenged the claim as unsubstantiated.
49.  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
50.  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.  Declares the complaints concerning quashing in supervisory review and delayed enforcement admissible and the remainder of the application inadmissible;

2.  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;

3.  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;

4.  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;

5.  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