KLIMOVA AND OTHERS v. RUSSIA - 22419/05 (Judgment (Merits and Just Satisfaction) : Court (Third Section Committee)) [2015] ECHR 1068 (08 December 2015)

In the case of Klimova and Others v. Russia,

The European Court of Human Rights (Third Section), sitting as a Committee composed of:

          Helena Jäderblom, President,
          Dmitry Dedov,
          Branko Lubarda, judges,
and Marialena Tsirli, Deputy Section Registrar,

Having deliberated in private on 17 November 2015,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in three applications (nos. 22419/05, 26493/06 and 41910/06) 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 three Russian nationals (“the applicants”), on the dates indicated in the Appendix.

2. The Russian Government (“the Government”) were represented by Mr G.Matyushkin, Representative of the Russian Federation to the European Court of Human Rights.

3. On 8 September 2009 the applications were communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

4. The applicants are Russian citizens whose details are tabulated in the Appendix.

5. The applicants brought court actions against the authorities, seeking to recover the monetary value of the State promissory notes for purchasing of Russian-made cars. On the dates listed in the Appendix the domestic courts granted their actions and awarded them different amounts in compensation, payable by the Ministry of Finance. The judgments were upheld on appeal and became final on the dates listed below. They remained unenforced.

6. On various dates the supervisory review courts, upon applications from the Ministry of Finance and by way of supervisory-review proceedings, quashed the first-instance and the appeal judgments in the applicants’ favour, re-examined the cases and dismissed the applicants’ respective actions, having found that the lower courts had incorrectly interpreted and applied the domestic law.

II. RELEVANT DOMESTIC LAW

7. 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 Kot v. Russia (no. 20887/03, § 17, 18 January 2007).

THE LAW

I. JOINDER OF THE APPLICATIONS

8. Given that these three applications concern similar facts and complaints and raise almost identical issues under the Convention, the Court decides to consider them in a single judgment (see Kazakevich and 9 other “Army Pensioners” cases v. Russia, nos. 14290/03, 19089/04, 42059/04, 27800/04, 43505/04, 43538/04, 3614/05, 30906/05, 39901/05 and 524/06, § 15, 14 January 2010).

II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AND OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION ON ACCOUNT OF SUPERVISORY REVIEW

9. The applicants complained under Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention that the supervisory review decisions violated the principle of legal certainty. Insofar as relevant, these Articles read as follows:

Article 6 § 1

“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. ...”

A. Admissibility

10. The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.

B. Merits

11. The Government argued that the supervisory review proceedings resulting in the quashing of the judgments at issue were lawful: they were initiated by the defendant authorities within the time-limits provided for by domestic law after their appeal had been rejected (with the exception of the application no. 41910/06). They further indicated that the quashing of final domestic judgments in the applicants’ favour was justified by a fundamental defect, that is abuse of power of lower courts and a violation of the rules on jurisdiction since these courts ruled on the compatibility of the Federal Law on State Promissory notes of 1 June 1995 with the Constitution, the issue falling under the exclusive jurisdiction of the Russian Constitutional Court.

12. The applicants maintained their complaint.

13. The Court recalls that it has already found numerous violations of the Convention on account of the quashing of binding and enforceable judgments by way of supervisory review under the Code of Civil Procedure as in force at the material time (see Kot, cited above, § 29). Some of these violations were found in similar and, on certain occasions, virtually identical circumstances concerning quashing of final domestic judgments awarding applicants monetary value of state promissory notes for purchase of a Russian-made car (see, amongst many other authorities, Molodyka and Others v. Russia, nos. 3447/05, 15560/05 and 21613/05, § 15, 23 July 2009, and Mikhail Mikhaylovich Sidorenko v. Russia, no. 3519/05, § 19, 26 July 2007).

14. Having examined the materials submitted to it, the Court observes that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present cases. Accordingly, the Court finds that the quashing of the binding and enforceable judgments in the applicants’ favour by way of supervisory review amounts to a breach of the principle of legal certainty in violation of Article 6 of the Convention and of Article 1 of Protocol No. 1 to the Convention.

III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AND OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION ON ACCOUNT OF NON-ENFORCEMENT

15. The applicants also complained in substance under Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention that the judgments in their favour were not enforced in good time.

16. The Government argued that the periods of non-enforcement had been short. In respect of the case of Ms Sevidova they did not comment on the reasons for non-enforcement of the judgment of 10 February 2003 before it was quashed on 16 February 2006.

17. 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 a violation of Article 6 of the Convention on account of the quashing of the judgment of 25 March 2005 in supervisory-review proceedings, the Court does not consider it necessary to examine separately the issue of non-enforcement in the case of Mr Dudchenko, in which the above judgment in the applicant’s favour was quashed within less than a year after it became binding and enforceable (see Kulkov and Others v. Russia, nos. 25114/03, 11512/03, 9794/05, 37403/05, 13110/06, 19469/06, 42608/06, 44928/06, 44972/06 and 45022/06, § 35, 8 January 2009 with further references).

18. The situation is however different in the Klimova and Sevidova cases in which the domestic judgments in the applicants’ favour remained binding and enforceable for a longer period of time but the authorities failed to abide by their terms. The applicants’ complaints in this respect thus call for a separate examination (see Kulkov and Others, cited above, § 36).

A. Admissibility

19. The Court observes that Ms Klimova’s and Ms Sevidova’s complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.

B. Merits

20. The Court reiterates that an unreasonably long delay in the enforcement of a binding judgment may breach the Convention (see Burdov v. Russia, no. 59498/00, ECHR 2002-III).

21. As to the non-enforcement of the judgment of 10 April 2003 in the case of Ms Klimova and the judgment of 10 February 2003 in the case of Ms Sevidova, they had been enforceable until at least the days of their quashing, on 16 December 2004 and 16 February 2006, respectively, and it was incumbent on the State to abide by their terms (see Velskaya v. Russia, no. 21769/03, § 18, 5 October 2006). However, the State avoided paying the judgment debts for more than a year.

22. Therefore there was a violation of Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention in that respect in the cases of Ms Klimova and Ms Sevidova.

IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

23. The applicants further complained under Article 1 of Protocol No. 1 to the Convention that eventually, as a result of supervisory review proceedings, the State failed to fulfil its obligations under the promissory notes. Ms Klimova also complained under Article 13 of the Convention about the lack of effective remedies against the non-enforcement of the judgment in her favour.

24. Having regard to its findings above (see paragraphs 14 and 17 above), the Court considers, while declaring the complaints admissible, that it is not necessary to examine whether, in these cases, there has been a violation of Article 1 of Protocol No. 1 to the Convention and Article 13 of the Convention (see, among other authorities, Murtazin v. Russia, no. 26338/06, § 44, 27 March 2008).

V. APPLICATION OF ARTICLE 41 OF THE CONVENTION

25. 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.”

26. Ms Sevidova did not lodge any claim for damage or just satisfaction. Accordingly, the Court does not make any award in her case.

A. Damage

27. As regards pecuniary damage, Ms Klimova claimed 250,000 Russian roubles (RUB) approximately equal to the purchasing power of the State promissory note she had and Mr Dudchenko claimed RUB 192,416.35 equal to the sum he would have received under the quashed judgment together with its indexation. They also claimed 10,000 euros (EUR) and EUR 4,000, respectively, in respect of non-pecuniary damage.

28. The Government considered that these claims were unreasonable and unsubstantiated.

29. The Court notes that the present cases are similar to numerous other Russian cases that concern the same issues it has already addressed in numerous other judgments finding violations of the Convention on account of the quashing of final judgments by way of the supervisory review procedure and non-enforcement of domestic judicial decisions. In cases involving many similarly situated victims a unified approach may be called for. This approach will ensure that the applicants remain aggregated and that no disparity in the level of the awards will have a divisive effect on them (see, for instance, Moskalenko and Others v. Ukraine, nos. 1270/12 et al., § 23, 18 July 2013; Goncharova and Others and 68 other “Privileged Pensioners” cases v. Russia, nos. 23113/08 et al., §§ 22-24, 15 October 2009).

30. In addition, if one or more heads of damage cannot be calculated precisely or if the distinction between pecuniary and non-pecuniary damage proves difficult, the Court may decide to make a global assessment (see Comingersoll S.A. v. Portugal [GC], no. 35382/97, § 29, ECHR 2000-IV).

31. In these circumstances and having regard to the principles developed in its case-law on determination of compensation in similar cases, the Court considers it reasonable and equitable to award the applicants a total of EUR 5,000 to cover all heads of damage.

B. Costs and expenses

32. Mr Dudchenko claimed EUR 1,500 in respect of costs and expenses representing his lawyer’s fees. The applicant submitted different contracts signed with his lawyer and a document in which the latter acknowledged having received the above amount from the applicant for his representation before the Court without further details.

33. The Government contested the claim as unsubstantiated.

34. The Court reiterates that, according to its 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 information in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 150 in respect of costs and expenses.

C. Default interest

35. 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. Decides to join the applications;

2. Declares the applications admissible;

3. Holds that there has been a violation of Article 6 of the Convention and of Article 1 of Protocol No. 1 to the Convention in all cases on account of the quashing of the judgments in the applicants’ favour by way of supervisory review and in cases nos. 22419/05 and 26493/06 on account of non-enforcement of the judgments of 10 April 2003 and 10 February 2003, respectively;

4. Holds that there is no need to examine the remainder of the applications;

5. Holds

(a) that the respondent State is to pay the applicants, within three months the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 5,000 (five thousands euros) each, plus any tax that may be chargeable, in respect of pecuniary and non-pecuniary damage;

(ii) EUR 150 (one hundred and fifty euros), plus any tax that may be chargeable, to Mr Dudchenko in respect cost 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;

6. Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 8 December 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Marialena Tsirli Helena Jäderblom
Deputy Registrar President

Appendix

Appl. number and date of introduction

Name of applicant,

year of birth,

place of residence

Represented by

Final judgment

(date and decision body)

Sums awarded (RUB)

Supervisory review (date and decision body)

22419/05

03/03/2005

Ms Klimova

Larisa

Gennadyevna,

1964,

Shlisselburg

10/04/2003, Mirnyy District Court of the Sakha (Yakutiya) Republic, enforceable on 14/05/2003

138,967

16/12/2004

Presidium of the Supreme Court of the Sakha (Yakutiya) Republic

26493/06

02/06/2006

Ms Sevidova

Anastasia

Ivanovna,

1948,

Krasnomayskiy

28/11/2002, Neryungri Town Court of the Sakha (Yakutiya) Republic, enforceable on 10/02/2003

70,056

16/02/2006

Presidium of the Supreme Court of the Sakha (Yakutiya) Republic

41910/06

18/06/2006

Mr Dudchenko

Yegor

Alekseyevich,

1953,

Podgornoye

Mr I.V. Sivoldayev,

a lawyer practising in Voronezh

25/03/2005

Podgorenskiy District Court of the Voronezh Region, enforceable on 05/04/2005

109,952.20

19/12/2005

Presidium of the Voronezh Regional Court

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