THIRD SECTION

CASE OF LITVINCHUK v. RUSSIA

(Application no. 5491/11)

JUDGMENT

STRASBOURG

14 March 2017

This judgment is final but it may be subject to editorial revision. 

In the case of Litvinchuk v. Russia,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
	Luis López Guerra, President,
	Dmitry Dedov,
	Branko Lubarda, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having deliberated in private on 21 February 2017,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 5491/11) 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, Ms Anna Nikolayevna Litvinchuk (“the applicant”), on 31 December 2010.
2.  The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.
3.  The applicant complained inter alia of the quashing of binding and enforceable judgments in their favour by way of supervisory review, as existed between 2008 and 2012.
4.  On 27 March 2013 the application was communicated to the Government.
THE FACTS
I.  THE CIRCUMSTANCES OF THE CASE
5.  The applicant was born in 1941 and lives in Staryy Oskol, Belgorod Region.
6.  On 6 May 2005 the applicant concluded a preliminary sale agreement with Mr N. regarding a plot of land with a small house under construction situated in the Belgorod Region. After the signature of this agreement, the applicant started using the plot of land, she finalised the construction of the house and beautified the plot of land.
7.  On 3 July 2006 Mr N. died.
8.  On 10 October 2008 the son of the deceased, Mr N. junior, sold the plot of land to another person, who registered her property right.
9.  Later, the applicant sought to register her property right over the plot of land and found that it already had another registered owner. She then sued Mr N. junior before courts.
A.  First round of proceedings
10.  On 9 April 2009 the Starooskolskiy Town Court of the Belgorod Region declared the sale contract of 10 October 2008 null and void. Mr N. junior was declared the owner of the plot of land and of the house.
11.  On 17 June 2009 the Town Court granted the applicant’s claims against Mr N. junior and awarded her 613,280 Russian roubles (RUB) for unjust enrichment and damages corresponding to different sums invested by the applicant in the plot of land and the house as well as the reimbursement of cost and expenses.
12.  On 4 August 2009 the Belgorod Regional Court partly modified this judgment. It decreased the amount of damages to RUB 246,569, notably quashing the part relating to unjust enrichment.
13.  On unspecified date the applicant lodged a supervisory review application.
14.  On 17 December 2009 the Presidium of the Belgorod Regional Court partly quashed the judgment of 4 August 2009 and sent the case for consideration anew before the second instance court. The Presidium considered that the Belgorod Regional Court misapplied the provisions of the Civil Code on unjust enrichment and miscalculated the amount of damages to which the applicant was entitled to. It concluded that these were significant violations of substantive or procedural law which influenced the outcome of the proceedings and must be corrected in order to restore and protect the applicant’s right to a fair trial as guaranteed by Article 46 § 1 of the Constitution, Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention.
B.  Second round of proceedings
15.  On 19 January 2010 the Belgorod Regional Court restored the judgment of 17 June 2009.
16.  On 11 May 2010 Mr N.’s son lodged a supervisory review application.
17.  On 8 July 2010 the Presidium of the Belgorod Regional Court rejected the supervisory review application lodged by Mr N.’s son, considering that the arguments it contained were limited to a different assessment of evidence. It however quashed the judgment of 19 January 2010 and restored the judgment of 4 August 2009 on its own motion, considering that:
“In the interest of lawfulness and taking into account the principle of legal certainty recognised by the Russian Federation the Presidium considers it possible and necessary to go beyond the arguments developed in the supervisory review application.
As repeatedly indicated the European Court (Ryabykh v. Russia, no. 52854/99, §§ 51‑53, ECHR 2003‑IX, Khotuleva v. Russia, no. 27114/04, 30 July 2009) in order to preserve the aforementioned principle final judgments shall remain unchanged. The mere existence of two points of view on the same matter does not justify the reopening of the case.
Legal certainty presupposes that it is not permissible to have a second examination of the once decided case in the absence of fundamental errors.
Taking into account the aforementioned principle, the final decision in the present case should be the judgment of the Belgorod Regional Court of 4 August 2009 which granted certain damages to the claimant and rejected her claims for the rest, including as regards unjust enrichment.
In the course of the new examination by the cassation court the principles above have not been taken into account, this omission resulted in a violation of the principle of legal certainty provided by Article 6 § 1 of the Convention and undermined the stability of a binding judicial act.
The claimant’s argument that the judgment of 19 January 2010 was lawful is not deemed to be sufficient by the Presidium to disregard the aforementioned principles.
The fact that the Presidium of the Regional Court disagreed with the aforementioned judicial decision does not constitute in itself a ground for quashing of a final and binding judgment and for reopening of the proceedings.
In view of the above, the judgment of 19 January 2010 subject to the present application shall be quashed and the judgment of 4 August 2009 restored.” 
18.  On 3 November 2010 a single judge at the Supreme Court refused the applicant’s supervisory review application.
II.  RELEVANT DOMESTIC LAW AND PRACTICE
19.  The supervisory review procedure in force since 7 January 2008 is summarised in the Court’s recent decision in the case of Martynets (Martynets v. Russia (dec.), no. 29612/09, 5 November 2009).
THE LAW
I.  ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION ON ACCOUNT OF THE QUASHING OF A JUDGMENT IN THE APPLICANT’S FAVOUR
20.  The applicant complained of a violation of Article 6 of the Convention on account of the quashing by way of supervisory review of the binding and enforceable judgment in her favour. She further complained of a violation of Article 1 of Protocol No. 1 to the Convention in relation to the same facts. Both provisions, insofar as relevant, read as follows:
Article 6 § 1 of the Convention
“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 to the Convention
“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
21.  The Court notes that the application 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
22.  The Government indicated that the quashing of the judgment of 19 January 2010 by which the Belgorod Regional Court restored the judgment of 17 June 2009 delivered in the applicant’s favour did not impaired her right to a court because it was justified by the principle of legal certainty and aimed at restoring the rights of the other party to the proceedings since the prior quashing of the final judgment delivered in this party’s favour was not justified by fundamental grounds within the meaning of the Court’s case-law.
23.  The applicant, on the contrary, considered that the misapplication of the domestic law in her case constituted a fundamental error. The lower courts failed to properly apply the domestic legislation, thus depriving her of the opportunity to receive a substantial part of damages.
24.  The Court reiterates that it is not its task to question the interpretation of domestic law by the national courts, save in the event of evident arbitrariness (see, mutatis mutandis, Ādamsons v. Latvia, no. 3669/03, § 118, 24 June 2008), in other words, when it observes that the domestic courts have applied the law in a particular case manifestly erroneously or so as to reach arbitrary conclusions and/or a denial of justice (see, Bochan v. Ukraine (no. 2) [GC], no. 22251/08, § 61, ECHR 2015 with further references, and, mutatis mutandis, albeit in the context of Article 1 of Protocol No. 1 to the Convention, Svetlana Vasilyeva v. Russia, no. 10775/09, § 34, 5 April 2016).
25.  In the present case, the applicant’s case was examined twice in supervisory review by the Presidium of the Belgorod Regional Court, first time on 17 December 2009 upon her own application and second time on 8 July 2010 upon an application lodged by her opponent. While the Presidium first considered that the incorrect application of the domestic legislation governing unjust enrichment was a fundamental error justifying the quashing of the second instance court judgment and a new examination of the case, in the subsequent proceedings it decided exactly the opposite. The Court does not discern any element or fact which could explain this volte-face made by the supervisory review court, acting of its own motion and without this argument had even being raised by the appellant party. As regards the Government’s assertion that the second quashing was justified by the principle of legal certainty and necessary to restore the other party’s rights, this is not of relevance to the case which should be distinguished from other previous cases already delivered by the Court in relation to the supervisory review procedure on account of the element of arbitrariness disclosed in the judgment of 8 July 2010 of the Presidium of the Belgorod Regional Court. The Court is particularly struck by the fact that both times, the Presidium relied on exactly the same grounds and referred to exactly the same domestic and Convention provisions to justify its decisions. In any event, and more fundamentally, it remains unclear how the fact that the appeal court judgment delivered as a result of the first quashing was subsequently quashed on a further application for supervisory review could be said to improve legal certainty (see Ryabykh v. Russia (dec.), no. 52854/99, 21 February 2002).
26.  There has consequently been a violation of Article 6 § 1 of the Convention.
27.  The Court further notes that as a result of such an arbitrary application of domestic procedural rules by the supervisory review court, the applicant was deprived of the possibility to receive a substantial amount of money awarded to her by the appeal court. 
28.  There has accordingly been a violation of Article 1 of Protocol No. 1 to the Convention.
II.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
29.  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
30.  The applicant claimed 8,610 euros (EUR) in respect of pecuniary. According to her, this sum corresponded to the difference between what was granted to her by the judgment of 17 June 2009 restored by the judgment of 19 January 2010 and what she had effectively received in accordance with the judgment 4 August 2009 restored by the judgment of 8 July 2010. She further claimed EUR 5,000 in respect of non-pecuniary damage.
31.  The Government contested the applicant’s claim, considering that there was no violation of her Convention rights in the present case. They further indicated that the amount in respect of non-pecuniary damage was excessive.
32.  The Court accepts that the applicant must have sustained some pecuniary and non-pecuniary damage as a result of the quashing of final domestic judgments in her favour. However, her claims in this respect appear to be excessive. Having regard to the principles developed in its case-law on determination of compensation in similar cases (see, for instance, Kovalenko and Others, §§ 42-43, cited above, Goncharova and Others and 68 other “Privileged Pensioners” cases v. Russia, nos. 23113/08 and 68 others, §§ 22‑24, 15 October 2009), the Court considers it reasonable and equitable to award the applicant a total of EUR 5,000 to cover all heads of damage.
B.  Costs and expenses
33.  The applicant also claimed 7,000 Russian roubles (RUB) for the costs and expenses incurred in the domestic proceedings. She submitted a copy of an agreement for providing legal services and a copy of the receipt.
34.  The Government objected observing that neither the agreement for legal services nor the receipt indicated contained any details demonstrating that the costs and expenses claimed were incurred in relation to the domestic proceedings complained of.
35.  Regard being had to the documents in its possession, the Court cannot but agree with the Government. It consequently rejects the claim for costs and expenses.
C.  Default interest
36.  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 application admissible;

2.  Holds that there has been a violation of Article 6 § 1 of the Convention;

3.  Holds that there has been a violation of Article 1 of Protocol No. 1 to the Convention;

4.  Holds
(a)  that the respondent State is to pay the applicant, within three months EUR 5,000 (five thousand euros) in respect of both pecuniary and non‑pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;
(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount 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 14 March 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Fatoş Aracı	Luis López Guerra
	Deputy Registrar	President