FIRST SECTION
CASE OF
KAYKHANIDI v. RUSSIA
(Application
no. 32185/02)
JUDGMENT
STRASBOURG
10 October 2013
This judgment is final
but it may be subject to editorial revision.
In the case of Kaykhanidi v. Russia,
The European Court of Human Rights (First Section), sitting as
a Committee composed of:
Khanlar Hajiyev, President,
Julia Laffranque,
Dmitry Dedov, judges,
and André Wampach, Deputy Section Registrar,
Having deliberated in private on 17 September 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
32185/02) 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 a Russian national, Mrs Marina Ilyinichna Kaykhanidi
(“the applicant”), on 8 August 2002.
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 9 May 2006 the application was communicated to
the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant, Mrs Marina Ilyinichna Kaykhanidi, is a
Russian national who was born in 1979 and now lives in Berlin.
Since 1996 the applicant studied at the Moscow
State Linguistic University (the MSLU). In 2000 she obtained a traineeship with
the Humboldt University in Berlin. She went to Germany for several months and,
consequently, abandoned her courses at the MSLU. She claims that she returned
to Moscow in September 2000 and resumed her studies in the MSLU. However, in
May 2001 she was sent down from this university for repetitive non-attendance
and failure to pass the exams.
On 17 July 2001 the applicant challenged her
dismissal before the court. On 20 December 2001 the Cheremushkinskiy
District of Moscow granted her claim. The court established that the applicant
had been dismissed without having been heard about the reasons of her absences.
On this ground the court found the dismissal unlawful and ordered the MSLU to
reinstate her as a student.
The MSLU appealed, but on 20 February 2002 the
Moscow City Court upheld the decision in favour of the applicant.
On 28 February 2002 the MSLU brought a supervisory
review application. On 13 June 2002 the Presidium of the Moscow City Court
quashed the lower courts’ decisions. As to the fact that the applicant had not
been heard before having been dismissed, the Presidium found that the MSLU dean
tried to contact the applicant, but to no avail, since she was outside Russia.
The court obtained information from the border police about the applicant’s
absences from the Russian territory. According to that information, the
applicant was outside Russia for at least seven weeks during the study time.
Further, the court obtained information from the Humboldt University which
confirmed that starting from April 2001 the applicant had been enrolled at that
University as a full-time student. The Presidium also held that the lower
courts applied the law incorrectly and decided to remit the case to the first
instance court for a fresh examination.
After the transmittal of the case to the first
instance court the applicant amended her initial complaint, claiming from the
MSLU 600,000 Russian roubles (RUB) as non-pecuniary damages.
On 19 March 2003 the Cheremushkinskiy District
Court of Moscow discontinued the proceedings. The court found that the
complaint was introduced under the provisions of the law of 1993, which
provided for the judicial review of administrative actions. However, after the
enactment of the new Code of Civil Proceeding on 1 February 2003, such claims
should have been examined under the rules of “contentious proceedings” (исковое производство).
The court advised her to re-introduce her complaint within the contentious
proceedings. On 16 May 2003 the Moscow Regional Court upheld the decision of 19 March 2003.
The applicant re-introduced her claim; however,
she did not follow the instructions of the courts. The courts at two instances
again refused to examine her action.
II. RELEVANT DOMESTIC LAW
For relevant provisions of the Russian law on
supervisory review see Ryabykh v. Russia (no. 52854/99, ECHR 2003-IX).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE
CONVENTION AS REGARDS SUPERVISORY REVIEW
The applicant complained about the quashing, by
way of supervisory review, of the court final decision of 20 December 2001
in her favour. Article 6 of the Convention reads as follows:
“In the determination of his civil rights and obligations ...
everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
The Government argued that Article 6 § 1 was
inapplicable in the instant case, as the applicant’s claim to declare the order
of the President of the MSLU on her dismissal from the MSLU was covered by the
sphere of public relations and that the result of these proceedings was not
directly decisive for her civil rights.
The Government asserted that even if the Court
decides to apply Article 6, the quashing of the judgment in applicant’s favour
did not contravene the principle of legal certainty for the following reasons. First,
the supervisory-review application had been lodged by a party to the
proceedings. Moreover, the supervisory review application had been lodged eight
days after entry into force of the judgment of 20 December 2001. The Government
also noted that the ground for quashing the judgment aimed at correcting
fundamental defect, namely, a breach of substantive law by the lower courts. Finally,
the Government asserted that the supervisory instance court had delivered a new
decision by which the case had been remitted for a fresh examination.
The applicant maintained her complaint.
A. Admissibility
The Court reiterates that according to its
well-established case-law the applicability of the civil limb of Article 6 § 1
requires the existence of “a genuine and serious dispute” over a “civil right”
which can be said, at least on arguable grounds, to be recognised under
domestic law. It may relate not only to the actual existence of a right but
also to its scope and the manner of its exercise. Moreover the result of the
proceedings must be directly decisive for the right in question (see, for
example, Benthem v. the Netherlands, 23 October 1985, § 32,
Series A no. 97; Rolf Gustafson v. Sweden, 1 July 1997, § 38, Reports
of Judgments and Decisions 1997-IV; and Skärby v. Sweden, 28
June 1990, §§ 27 - 30, Series A no. 180-B).
The Court reiterates its constant case-law that
disputes regarding the right to education and namely the right to higher
education fall within the scope of Article 6 (see Lukach v. Russia
(dec.), no. 48041/99, 16 November 1999; Eren v. Turkey (dec.), no.
60856/00, 6 June 2002; E. H. v. Greece (dec.), no. 42079/98, 12
October 2000; and Emine Araç v.
Turkey, no. 9907/02, §§ 16 - 26, ECHR 2008). Article
6 § 1 is therefore applicable in the instant case.
. The
Court notes that this 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. This part of the application must therefore
be declared admissible.
B. Merits
According to the Court’s case-law one of the fundamental
aspects of the rule of law is the principle of legal certainty, which requires,
among other things, that where the courts have finally determined an issue,
their ruling should, in principle, not be called into question (see Brumărescu
v. Romania [GC], no. 28342/95, § 61, ECHR 1999-VII).
This principle insists that no party is entitled
to seek re-opening of the proceedings merely for the purpose of a rehearing and
a fresh decision of the case. Higher courts’ power to quash or alter binding
and enforceable judicial decisions should be exercised for correction of
fundamental defects. The mere possibility of two conflicting views on the
subject is not a ground for re-examination. Departures from that
principle are justified only when made necessary by circumstances of a
substantial and compelling character (see Ryabykh v. Russia, cited
above, § 52; Kot v. Russia, no. 20887/03, § 24, 18 January
2007; and Dovguchits v. Russia, no. 2999/03, § 27, 7 June 2007).
The Court has to assess whether in the present
case the quashing of the final judgment in the applicant’s favour by way of
supervisory review was justified by the circumstances and whether a fair
balance between the interests of the applicant and the need to ensure the proper
administration of justice has been achieved.
The Court is not persuaded by the Government’s
argument that the supervisory-review application had been lodged by a party to
the proceedings. The Court reiterates that this distinction is not of crucial
importance for its analysis (see Kot v. Russia, cited above, § 28, and Nelyubin
v. Russia, no. 14502/04, § 27, 2 November 2006).
As regards the Government’s argument that the
supervisory review application had been lodged only eight days after entry into
force of the final judgment, the Court considers that it was the absence of any
time-limit in respect of the possible reopening of the case which created the uncertainty
for the litigants. The fact that it took the authorities eight days to
instigate the review in the present case does not affect this fundamental
problem of uncertainty (see Sutyazhnik v. Russia, no. 8269/02, § 29, 23 July 2009).
As to the third argument of the Government
relating to the grounds for quashing, in the Court’s opinion the fact that the
Presidium disagreed with the assessment made by the first-instance and appeal
courts was not, in itself, an exceptional circumstance warranting the quashing
of a binding and enforceable judgment and re-opening of the proceedings on the
applicant’s claim (see Dovguchits v. Russia, cited above, § 30, and Kot
v. Russia, cited above, § 29). In the present case the lower courts
have found the fundamental procedural defect of disciplinary proceedings as the
MSLU did not inform the applicant and decided to dismiss her in absentia,
but the Presidium ignored this defect.
Lastly, the Court is not convinced by the
Government’s position that the supervisory instance court had not adopted a new
decision but had remitted the case for a fresh examination. The Court considers
that this fact did not by itself efface the effects of legal uncertainty the
applicant had to endure after the court decisions in her case had been quashed
(see Klimenko v. Russia, no. 11785/02, § 23, 18 January 2007). The
developments in the proceedings that followed are of no relevance as there
existed no domestic remedies capable of remedying the impairment of the
principle of legal certainty brought about by the use of the supervisory-review
procedure (see Chernitsyn v. Russia, no. 5964/02, § 35, 6 April 2006,
and Sardin v. Russia (dec.), no. 69582/01, ECHR 2004-II).
The foregoing considerations are sufficient to
enable the Court to conclude that there has been a violation of Article 6 § 1
of the Convention on account of the quashing of the judgments given in the
applicant’s case by way of supervisory-review proceedings.
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE
CONVENTION AS REGARDS ACCESS TO COURT
The applicant complained about the refusal of
the domestic courts to examine her action against the MSLU. She relied on
Article 6 of the Convention.
The Government asserted that the domestic courts’
refusal to consider the merits of applicant’s case complied with the law. The
courts clarified that the applicant had a right to settle the dispute in
contentious proceedings. However the applicant failed to have recourse to this
kind of procedure.
The Court notes that this part of the application
shall be declared admissible. However, having regard to its finding under
Article 6 as regards supervisory review, the Court does not deem it necessary
in the present case to make a separate finding under Article 6 with regard to the
access to court.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The applicant also complained under Article 8,
Article 2 of Protocol No. 1, Article 2 § 2 of Protocol No. 4.
Having regard to all the material in its
possession, and insofar as these complaints come within the Court’s competence,
it finds that these 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 must be rejected as being manifestly ill-founded,
pursuant to Article 35 §§ 3 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 applicant claimed lost earnings in the
amount of 87,200 United States dollars (USD) (possible salary which she
could have received); 30,403 euros (EUR) and USD 99,410 in respect of actual
damage (financial aid from her parents); and EUR 10,000 in respect of non-pecuniary
damage.
The Government argued stating that the applicant
had failed to substantiate her claim as regards lost earnings therefore they
could not be reimbursed. As to the reimbursement for the pecuniary support provided
by her family, according to the Government, it could not be recovered either.
The Government further considered the applicant’s claim in respect of non-pecuniary
damage as manifestly excessive and unreasonable.
As regards the claim in respect of pecuniary
damage, the Court reiterates that a clear causal link must be established
between the damage and the violation found. A merely tenuous or speculative
connection between the two is not enough. In the instant case the Court does
not discern any connection between the alleged pecuniary damage and the found violation
of applicant’s rights.
As regards the claim for non-pecuniary damage, the
Court considers that the applicant suffered distress and frustration resulting
from the quashing of the judicial decisions in her favour by way of supervisory-review
proceedings. However, the particular amount claimed is excessive. Making its
assessment, the Court awards the applicant EUR 2,000 in respect of
non-pecuniary damage, plus any tax that may be chargeable on this amount.
B. Costs and expenses
The applicant claimed that her legal and postage expenses
amounted to EUR 36 and 5,764 Russian roubles (RUB).
The Government stated that only the sums of EUR 36.30
and RUB 4,839 had been confirmed by the documents.
According to the Court’s case-law, an applicant is
entitled to reimbursement of his or her 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, the applicant submitted receipts
supporting her claims in respect of postal expenses for the amounts of EUR 36.30
and RUB 4,839. These sums do not appear excessive or unreasonable. Regard being
had to the documents in its possession and to its case-law, the Court considers
it reasonable to award the applicant the sum of EUR 177, plus any tax that may
be chargeable on that amount.
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 complaints concerning the
quashing of the judgment in the applicant’s favour by way of supervisory review
and the lack of access to court admissible and the remainder of the application
inadmissible;
2. Holds that
there has been a violation of Article 6 § 1 of the Convention with regard to
the quashing of the judgment in the applicant’s favour by way of supervisory
review;
3. Holds that
there is no need to make a separate finding under Article 6 of the Convention as
regards the lack of access to court;
4. Holds
(a) that the respondent State is to pay the applicant,
within three months the following amounts, to be converted into Russian roubles
at the rate applicable at the date of settlement:
(i) EUR 2,000 (two thousand euros), plus any tax
that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 177 (one hundred and seventy seven 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 10 October 2013,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Khanlar
Hajiyev
Deputy Registrar President
