FIRST SECTION
CASE OF
ZELENKEVICH AND OTHERS v. RUSSIA
(Application no.
14805/02)
JUDGMENT
STRASBOURG
20 June 2013
This judgment is final but
it may be subject to editorial revision.
In the case of Zelenkevich and Others v. Russia,
The European Court of Human Rights (First Section), sitting as
a Committee composed of:
Elisabeth Steiner, President,
Mirjana Lazarova Trajkovska,
Linos-Alexandre Sicilianos, judges,
and André Wampach, Deputy Section Registrar,
Having deliberated in private on 28 May 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
14805/02) 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 five Russian nationals, Mr Konstantin Igorevich
Zelenkevich, Mrs Irina Valentinovna Zelenkevich, Mr Sergey Viktorovich
Sosnovskiy, Mrs Svetlana Evgenyevna Yeliseyeva (Sosnovskaya) and Mr Ivan
Nikolayevich Anpilov (“the applicants”), on 14 March 2002.
The Russian Government (“the Government”) were
represented by Mr. P. Laptev, former Representative of the Russian Federation at the European Court of Human Rights, and subsequently by their Representative,
Mr G. Matyushkin.
On 30 August 2006 the application was
communicated to the Government.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
The applicants were born in 1962, 1962, 1967,
1969 and 1962 respectively and live in Budennovsk of the Stavropol Region.
The facts of the case, as submitted by the applicants, may be
summarised as follows.
Three applicants, Mr Sosnovskiy, Mrs Yeliseyeva
and Mr Anpilov, are acting military servicemen. Two applicants, Mrs Zelenkevich
and Mr Zelenkevich, retired from the armed forces in 1998 and 1999
respectively.
The applicants, all acting military servicemen at the material
time, were entitled to a special monthly allowance due to combatants.
On 25 April 2001 the applicants brought a civil action against their military unit requesting arrears of a special
allowance.
On 19 September 2001 the Pyatigorsk Garrison
Military Court of the North-Caucasian Command granted the applicants’ claims in
part and awarded different sums to be calculated by the defendant at the moment
of actual payment on the basis of applicants’ wages multiplied by their
personal coefficient, including but not limited to 19,301.19 and
69,822.48 Russian roubles (RUB) to Mr Zelenkevich; RUB 24,092.98
to Mrs Zelenkevich; RUB 170,765 to Mr Sosnovskiy; RUB 103,246.40
to Mrs Yeliseyeva; RUB 50,947 to Mr Anpilov and taking into
account the inflation index in the region on the day of actual payment.
The judgment was not appealed against and became
final on 2 October 2001.
On 22 October 2001 the court issued writs of execution. The applicants forwarded them to the local branch of the State
treasury. On 14 December 2001 the writs were returned to the applicants
unexecuted. The Ministry of Finance explained that the debtor had no available
funds which could have been used for paying off the judgment debts. The
applicants were advised to address the writs of execution to the Ministry of
Defence, which they did later.
On 11 April 2002 the President of the North-Caucasian Command Military Court brought a request for supervisory review of the
judgment of 19 September 2001 and ordered to stay the enforcement proceedings.
On 11 June 2002 the Presidium of the North-Caucasian Command Military Court quashed by way of a supervisory review the judgment
of 19 September 2001 because of misapplication of material law by the
first-instance court and remitted a case for a fresh examination to the
first-instance court.
On 21 November 2002 the Pyatigorsk Garrison
Military Court dismissed the applicants’ claims in full.
On 8 January 2003, upon the applicants’ appeal,
the North-Caucasian Command Military Court upheld the judgment of
21 November 2002.
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 applicants
complained that the quashing by way of supervisory review of the binding and
enforceable judgments in their favour violated their rights under Article 6 and
Article 1 of Protocol No. 1, which insofar as relevant, provide as follows:
Article 6 § 1
“In the determination of his civil rights and obligations ...,
everyone is entitled to a fair and public hearing within a reasonable time 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
Referring to the case of Pellegrin v. France
[GC], no. 28541/95, ECHR 1999-VIII, the Government argued that the
applicants’ complaint under Article 6 was incompatible ratione materiae
with the Convention insofar as the applicants were military officers.
The Court notes that it has already considered
the argument submitted by the Government and rejected it in previous similar
cases (see Tetsen v. Russia, no. 11589/04, § 18, 3 April 2008, and Dovguchits v. Russia, no. 2999/03, § 19, 7 June 2007). Article 6 accordingly applied to their cases. The
Government’s objection must therefore be dismissed.
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
1. Article 6 of the Convention
(a) Supervisory review procedure: legal certainty
The applicants argued that the quashing of the
binding and enforceable judgments delivered by domestic courts in their favour had
violated the principle of legal certainty and, therefore, their right to a
court and the right to peaceful enjoyment of their possessions.
The Government stated that the supervisory-review
proceeding had been lawful and necessary to remedy fundamental errors made by
lower courts. They provided information on the material norms that had
allegedly been ignored by the lower courts. In the Government’s view, a
judicial decision could not be considered as equitable and lawful, and the
judicial protection as effective, without judicial errors being corrected. In
view of the Government, the domestic courts struck a fair balance between the
interests of the applicants and the need to ensure the proper administration of
justice (see Nikitin v. Russia, no. 50178/99, §§ 58-59, ECHR 2004-VIII).
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, that is 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 Brumărescu
v. Romania [GC], no. 28342/95, § 61, ECHR 1999-VII, and Ryabykh
v. Russia, no. 52854/99, §§ 51-52, ECHR 2003-IX).
The Court has to consider whether the
application of the supervisory-review procedure was justified in the present
cases by circumstances of a substantial and compelling character, such as
correction of fundamental defects or miscarriage of justice (see paragraph 20
above).
The Court notes at the outset that the
misapplication of material law by the first-instance court was the sole reason
quoted by the higher courts for quashing the binding and enforceable judgments
in the supervisory-review proceedings. It is not the Court’s role to
reconsider what domestic provisions should have been applied in the applicants’
cases. While acknowledging the need stressed by the Government to correct
judicial errors and to ensure a uniform application of the domestic case-law,
the Court considers that these must not be achieved at any cost and notably
with disregard for the applicants’ legitimate reliance on res judicata.
The authorities must strike a fair balance between the interests of the
applicants and the need to ensure the proper administration of justice (see Nikitin,
cited above, § 59).
The Court considers that in the present cases
the authorities failed to preserve the required balance in this regard. The
Court further reiterates its constant approach that in the absence of a
fundamental defect in the proceedings that have been concluded by a final and
lengthy judgment party’s disagreement with the assessment made by the
first-instance and appeal courts is not a circumstance of a substantial and
compelling character warranting the quashing of that judgment and re-opening of
the proceedings on the applicant’s claim (see Dovguchits, cited above, § 30, and Kot v. Russia, no.
20887/03, § 29, 18 January 2007). The Government did not put forward any
argument which would enable the Court to reach a different conclusion in the
present case. There has been, accordingly, a violation of Article 6 § 1 of the
Convention.
(b) Supervisory review procedure: procedural issues
24. The
applicants also complained about the procedural defects and errors in facts and
law of the supervisory-review proceeding.
The Court finds that, having concluded that
there had been an infringement of the applicants’ “right to a court” by the
very use of the supervisory review procedure, it is not necessary to consider
whether the procedural guarantees of Article 6 of the Convention were available
in those proceedings (see Volkova v. Russia, no. 48758/99, § 39,
5 April 2005).
2. Article 1 of Protocol No. 1
. The
Court reiterates that the existence of a debt confirmed by a binding and
enforceable judgment constitutes the beneficiary’s “possession” within the
meaning of Article 1 of Protocol No. 1 (see Androsov v. Russia, no.
63973/00, § 69, 6 October 2005). The Court has found in many cases that
the quashing of binding and enforceable judgments by way of supervisory review frustrated
the applicants’ reliance on the binding judicial decision and deprived them of
an opportunity to receive the money they had legitimately expected to receive
(see, among others, Sizintseva and Others v. Russia, nos. 38585/04 et
al., § 35, 8 April 2010). There has
therefore been a violation of Article 1 of the Protocol No. 1.
II. ALLEGED
VIOLATION OF ARTICLE 6 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1 ON
ACCOUNT OF NON-ENFORCEMENT
The applicants complained about the non-enforcement
of the judgment in their favour. They relied on Article 6 § 1 of the Convention
and Article 1 of Protocol No. 1, both cited above.
The Government argued that the judgment of 19
September 2001 was not enforced, being quashed by way of supervisory review.
According to the Government, the request for supervisory review of the judgment
of 19 September 2001 was made by the President of the North-Caucasian
Command Military Court at an early stage and the applicants were informed of this request at least on 1 February
2001. Consequently, the length of enforcement procedure calculated up to this
day was less than one year, which is not excessive in view of the Court’s
case-law (see Presnyakov
v. Russia (dec.), no.
41145/02, 10 November 2005).
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. Having regard to its finding of
violations of Article 6 on account of the quashing of the judgments in
supervisory-review proceeding, the Court finds that it is not necessary to
examine separately the issue of their subsequent non-enforcement by the
authorities (see Boris Vasilyev v. Russia, no. 30671/03, §§ 41-42,
15 February 2007, and Sizintseva and Others, cited above, § 39). Therefore,
the Court does not consider it necessary to examine separately the issue of
non-enforcement because the judgment in the applicants’ favour was quashed
within a relatively short time after they became binding and enforceable.
III. 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 in respect of pecuniary
damage the sums awarded to them by the domestic courts’ judgment, which were
later quashed in supervisory-review proceedings.
The Government argued that the judgement was
partly enforced in respect of Mr. Zelenkevich.
32. The Court
reiterates that under Rule 60 of the Rules of Court any claim for just
satisfaction must be itemised and submitted in writing together with the relevant supporting
documents, failing which the Court may reject the claim in whole or in part.
. The
Court notes that the applicants failed to submit itemised claim of just
satisfaction. It is therefore impossible for the Court to calculate it on the basis of the domestic judgement in so far as the
latter did not specify the exact sums to be paid by the defendant but rather a
method for calculation including certain data available only to the defendant
authority.
. Having
regard to the principles outlined in paragraph 34 above, the Court considers it
appropriate to Court rejects the claims for pecuniary damage as
unsubstantiated.
The applicants did not make any claim in respect
of non-pecuniary damage.
Consequently, the Court does not award any sum
under this head.
B. Costs and expenses
The applicants did not make any claim in respect
costs and expenses.
Consequently, the Court does not award any sum
under this head.
C. Default interest
The Court considers it appropriate that the
default interest rate 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 complaint under Article 6 of
the Convention and Article 1 of Protocol No. 1 concerning the non-enforcement
and quashing of the judgment in the applicants’ favour on supervisory review
admissible and the remainder of the application inadmissible;
2. Holds that there has been a violation of
Article 6 of the Convention and of Article 1 of Protocol No. 1 on account of
the quashing of the judgment of 19 September 2001 in the applicants’ favour by
way of supervisory review;
3. Holds that there is no need to examine the
complaint under Article 6 of the Convention and Article 1 of Protocol No. 1 on
account of non-enforcement of the judgment of 19 September 2001 and on
account of alleged defects of the supervisory review procedure;
4. Dismisses the applicants’ claim for just
satisfaction.
Done in English, and notified in writing on 20 June 2013,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Elisabeth
Steiner
Deputy Registrar President
