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FIRST SECTION
CASE OF BORIS
VASILYEV v. RUSSIA
(Application no. 30671/03)
JUDGMENT
STRASBOURG
15 February 2007
This judgment will become final in the circumstances set out in
Article 44 § 2 of the Convention. It may be subject to
editorial revision.
In the
case of Boris Vasilyev v. Russia,
The European Court of Human Rights
(First Section), sitting as a Chamber composed of:
Mr L. Loucaides, President,
Mr A.
Kovler,
Mrs E. Steiner,
Mr K. Hajiyev,
Mr D.
Spielmann,
Mr S.E. Jebens,
Mr G. Malinverni, judges,
and
Mr S. Nielsen, Section Registrar,
Having deliberated in private on 25
January 2007,
Delivers the following judgment, which
was adopted on that date:
PROCEDURE
- The case originated in an
application (no. 30671/03) 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, Mr Boris Vasilyevich Vasilyev (“the
applicant”), on 26 August 2003.
- The applicant was
represented by Mrs O. Suprunova, a lawyer practising in Bataysk. The
Russian Government (“the Government”) were represented by
Mr P. Laptev, Representative of the Russian Federation at the
European Court of Human Rights.
- Relying on Article 6 §
1 of the Convention and Article 1 of Protocol No.1, the
applicant complained about the quashing of the judgment in his favour
by way of supervisory review and the non-enforcement of that
judgment.
- On 10 February 2004 the
Court decided to communicate the application to the Government. Under
the provisions of Article 29 § 3 of the Convention, it decided
to examine the merits of the application at the same time as its
admissibility.
- The applicant and the
Government each filed observations on the admissibility and merits
(Rule 54A § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
1. Background
- The applicant was born in
1948 and lives in the town of Bataysk of the Rostov Region.
- In 1986 the applicant
took part in the emergency operation at the Chernobyl nuclear plant.
As a result he suffered from extensive exposure to radioactive
emissions. The applicant underwent medical examinations which
established the link between his poor health and his involvement in
the Chernobyl events. He was consequently granted status of a
disabled person and awarded a monthly pension and a special allowance
from the State, to be adjusted once a year in line with the minimum
subsistence amount (величина
прожиточного
минимума).
- At a certain moment in
2001 the social security authorities ceased to increase regularly the
amounts of pension and allowance, paid to the applicant in connection
with his disability. Instead, he started to receive his pension in a
fixed amount (2,851 Roubles), which was less than he expected.
Presuming that this practice was illegal, the applicant brought
proceedings against the regional social security office (“the
defendant”) claiming the increase of the monthly allowance and
pension in line with the increase of the minimum subsistence amount
during the relevant period.
2. First round of court proceedings
- On 21 January 2003 the
Bataysk Town Court of the Rostov Region (“the Town Court”)
rendered a judgment ordering the increase of the monthly allowance
due to the applicant in line with the increase of the minimal
subsistence amount in the Rostov region. In re-calculating the amount
of the applicant's pension the court applied the multiplier of 1.92
based on the data provided by the regional committee on statistics.
As a result, the monthly pension of the applicant increased to
5,474.5 Roubles. The court ordered the defendant to pay the applicant
the recalculated amount as from 1 January 2002 less the sums already
paid.
- The defendant appealed
challenging, among other things, the multiplier of 1.92 applied by
the first-instance court.
- On 16 April 2003 the
Rostov Regional Court (“the Regional Court”) upheld the
judgment of 21 January 2003 in full. The enforcement proceedings were
opened.
3. Supervisory review proceedings
- On 13 May 2003 the
defendant appealed to the Regional Court by way of supervisory review
seeking to quash the judgment of 21 January 2003, as upheld
on 16 Aril 2003.
- On 30 June 2003 the
judge rapporteur refused to initiate the supervisory review
proceedings and to remit the case for examination on the merits to
the Presidium of the Rostov Regional Court (“the Presidium”).
- On 14 July 2003 the
defendant complained to the President of the Regional Court about the
judgment of 21 January 2003, as upheld on appeal, and the judge
rapporteur's decision of 30 June 2003 rejecting their previous
application for supervisory review. They also requested that the
enforcement proceedings be suspended pending the examination of the
new supervisory review appeal.
- On 6 August 2003 a judge
of the Regional Court requested the case-file from the court of first
instance. On 24 October 2003 judge B. of the Regional Court
initiated the review of the judgment of 21 January 2003, as upheld on
16 April 2003. The decision of 24 October 2003 referred in detail to
the arguments adduced by the defendant but offered no explanation as
to the grounds for overruling the judge rapporteur's decision of 30
June 2003. The case was transferred to the Presidium for the
examination on the merits.
- On
4 November 2003 the applicant was informed about the date and venue
of the hearing of his case by the Presidium.
- On
4 December 2003 the Presidium quashed the judgment of 21 January
2003, as upheld on appeal, stating that the first instance court's
calculation of the minimum subsistence amount, based on the
multiplier of 1.92, had been insufficiently supported by evidence.
The Presidium also noted that the first instance court had
misinterpreted the domestic law. The case was remitted to the first
instance court for a fresh examination.
4. Second round of court proceedings
- On 22 April 2004 the
Town Court examined the case anew. In the course of the proceedings
the court established that the allowance should have been multiplied
by 1.25 in 2002 and by 1.26 for 2003. The applicant maintained that
he accepted that multiplier.
- As a result, the court
held that the amount of pension due to the applicant for 2002 was
3,125 Roubles per month. In 2003 the pension of the applicant should
have amounted to 3,937.5 Roubles per month. The court ordered
the social security authorities to compensate the applicant for
previous underpayments and, starting from January 2004, pay him
4,567.5 Roubles monthly, with subsequent readjustment.
- The judgment of the Town
Court was not appealed against and became final.
II. RELEVANT DOMESTIC LAW
- On 1 February 2003 the
Code of Civil Procedure of the Russian Federation (“the CCivP”)
entered into force introducing, in particular, an amended system of
supervisory review.
- The CCivP, in the
relevant part, provides as follows:
Article 376. Right to apply to a court exercising
supervisory review
“1. Judicial decisions that have become legally
binding ... may be appealed against... to a court exercising
supervisory review by parties to the case and by other persons whose
rights and legal interests had been adversely affected by these
judicial decisions.
2. Judicial decisions may be appealed against to a court
exercising supervisory review within one year after they became
legally binding...”
Article 379. Proceedings in a supervisory review
court after an application
for supervisory review was lodged
“A President or Deputy President of the respective
court transfers the application for supervisory review ... to a judge
of this court for examination.”
Article 381. Examination of an application for
supervisory review
“2. Having examined an application for supervisory
review, the judge issues an interim decision on –
(1) obtaining the case file if there exist
doubts as to the lawfulness of the judicial decision;
(2) refusing to obtain the case file if the
arguments in the application for supervisory review may not, in
accordance with the federal law, result in quashing of the judicial
decision.
...
6. The President of the...regional...court...
may disagree with the judge's decision refusing to obtain the case
file. In such case the President issues his own decision on obtaining
the case file.”
Article 382. Examination of case files obtained
by the supervisory review court
“2. Having examined the case file
obtained by the supervisory review court, the judge issues an interim
decision on –
– refusing to remit the case for examination on
the merits by the supervisory review court;
– remitting the case for examination of the
application for supervisory review on the merits by the supervisory
review court.”
Article 383. Interim decision refusing to
remit the case for examination
on the merits by the supervisory
review court
“2. The President of
the...regional...court...may disagree with the judge's decision
refusing to remit the case for examination on the merits by the
supervisory-review court. In such case the President issues his own
decision on remitting the case for examination on the merits by the
supervisory review court.”
Article 387. Grounds for quashing or varying judicial
decisions
by way of supervisory review
“The grounds for quashing or varying the judicial
decisions of the lower courts by way of supervisory review are
serious violations of the substantive and procedural laws”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 AND ARTICLE 1
OF PROTOCOL NO. 1 ON ACCOUNT OF THE QUASHING OF THE JUDGMENT IN THE
APPLICANT'S FAVOUR
- The applicant complained
that the quashing of the judgment of 21 January 2003 in his
favour, as upheld on appeal, violated his rights under Article 6 §
1 of the Convention 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 ... 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.
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.”
- The Government argued
that the new system of supervisory review, introduced by the CCivP of
2003, differed from the old one. In particular, it was a judge who
decided whether to obtain the case-file following a supervisory
review complaint and to remit the case to the supervisory review
court. They considered that the time-limits for examination of
applications for supervisory review represented an additional
safeguard of the applicant's rights. They further submitted that
supervisory review of the judgment in the applicant's favour had been
initiated and carried out in full compliance with the applicable
procedure. The Government emphasised that the Presidium had reversed
the judgment in the applicant's favour because of serious violations
of substantive and procedural laws. In particular, the case-file
contained no evidence to support the first instance court findings
about the multiplier of 1.92 which was, moreover, never provided for
by either local or regional legislation. Furthermore, the mentioned
multiplier was overestimated and did not correspond to the level of
inflation. According to the Government, the Town Court in its
judgment of 22 April 2004 referred to correct multipliers of 1.25 and
1.26 for the years 2001 and 2002 respectively and reached lawful,
just and reasoned conclusions. Accordingly, the Government submitted
that a balance between the State interests and the legal requirements
on the one hand and the applicant's interests on the other hand had
been preserved.
- The Government finally
stressed that the applicant's acceptance of the multiplier in the new
proceedings before the Town Court and the fact that he had chosen not
to appeal against the judgment of 22 April 2004 showed that he
himself considered the initial multiplier incorrect.
- The applicant maintained
his complaints and submitted that the Town Court in its judgment of
22 April 2004 had applied underestimated multipliers which he had to
accept in order to obtain at least some increase in his pension.
A. Admissibility
- The Court considers, in
the light of the parties' submissions, that the complaint raises
serious issues of fact and law under the Convention, the
determination of which requires an examination of the merits. The
Court concludes therefore that this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. No other ground for declaring it inadmissible has been
established.
B. Merits
1. Alleged violation of Article 6 § 1 of the Convention
- The Court reiterates
that the right to a fair hearing before a tribunal as guaranteed by
Article 6 § 1 of the Convention must be interpreted in the
light of the Preamble to the Convention, which declares, in its
relevant part, the rule of law to be part of the common heritage of
the Contracting States. 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 not be called into question (see Brumărescu v.
Romania, judgment of 28 October 1999, Reports of Judgments and
Decisions 1999-VII, § 61).
- In a
number of previous cases the Court examined the Russian system of
supervisory review under the “old” Code of Civil
Procedure. That system allowed a final and binding judicial decision
to be quashed by a higher court on an application made by a State
official whose power to lodge such an application was not
subject to any time-limit, with the result that the judgments were
liable to challenge indefinitely (see, among other authorities, see
Ryabykh v. Russia, no. 52854/99, § 52, ECHR 2003-X,
§§ 54-56; see also Roseltrans v. Russia,
no. 60974/00, §§ 27-28, 21 July 2005; Volkova
v. Russia, no. 48758/99, §§ 34-36, 5
April 2005). In the opinion of the Court, such system was
incompatible with the “legal certainty” principle and the
applicant's “right to a court” enshrined in Article 6 §
1.
- The Court also stressed
in the above cases that the “old” supervisory review
mechanism was used for the purpose of obtaining a rehearing of a
settled judicial dispute (see Ryabykh v.
Russia, mentioned above; see also, mutatis mutandis,
Pravednaya v. Russia, no. 69529/01,
§ 25, 18 November 2004). However, the mere
possibility of two views on the subject is not a ground for
re-examination. Higher courts' power to quash or alter binding and
enforceable judicial decisions should be exercised only for
correction of fundamental defects.
- In 2003 the “old”
system of supervisory review was replaced with the “new”
one (see the “Relevant domestic law” part above). In the
opinion of the Government, the new system guarantees better stability
of court judgments. The Court observes that the supervisory review of
the judgment in the applicant's favour was made under the new rules,
so the Court has now to determine on the facts of the case whether or
not the review was compatible with Article 6 § 1.
- The Court does not find
sustainable the Government's argument that the applicant's rights had
been adequately secured by the time-limits set in the new Code of
Civil Procedure. It is true that the new CCivP established a one-year
time-limit for introducing a supervisory review appeal. However,
under the new CCivP the president's power to overrule decisions of
other judges refusing to initiate supervisory-review proceedings is
not subject to any time-limits (see Denisov v. Russia (dec.),
no. 33408/03, 6 May 2004). Furthermore, it is unclear on what grounds
the president may decide to overrule the decision of the judge
rapporteur (see the “Relevant domestic law” part above).
- In the present case the
Court notes that on 30 June 2003 the judge rapporteur of the Regional
Court examined the defendant's first application for supervisory
review of the final judgment in the applicant's favour and refused to
initiate the supervisory-review proceedings. Dissatisfied with the
refusal, the defendant lodged a repeated supervisory review
complaint, now with the President of the Regional Court, challenging
the final judgment of 21 January 2003, as upheld on appeal, and the
judge rapporteur's decision of 30 June 2003. Four months later, judge
B. of the Regional Court, apparently acting within the President's
powers provided by Article 383 of the CCivP (on behalf of the
President), overruled the decision of 30 June 2003 and remitted the
case to the Presidium for the examination on the merits. Thus, having
disagreed with the judge rapporteur's previous decision and without
giving any reasons for his disagreement, the President made use of
his unfettered discretion to launch supervisory review proceedings.
- The Court further notes
that the judgment of 21 January 2003 in the applicant's favour, as
upheld on 16 April 2003, was set aside because the first-instance and
appeal courts' findings had been insufficiently supported by evidence
and they had misinterpreted the law. In other words, the reason for
quashing the final judgment in the applicant's favour was the
Presidium's disagreement with the way in which the lower courts had
assessed the evidence before them and had applied the domestic law.
Examining the Government's argument that the mentioned shortcomings
constituted “serious violations of substantive and procedural
laws”, the Court is nevertheless unable to conclude that they
amounted to fundamental defects or circumstances of a substantial and
compelling character which could have required departure from the
principle of legal certainty secured by the Convention (see
mutatis mutandis, Ryabykh v. Russia, cited above, and
Pravednaya v. Russia, cited above).
- Thus, the Court
considers that the quashing of the judgment of 21 January 2003
in the applicant's favour, as upheld on appeal on 16 April 2003, by
way of supervisory review proceedings infringed the principle of
legal certainty and the applicant's “right to a court”.
There has been, accordingly, a violation of Article 6 § 1 of the
Convention.
2. Alleged violation of Article 1 of Protocol No. 1
- The Court reiterates
that the existence of a debt confirmed by a binding and enforceable
judgment furnishes the judgment beneficiary with a “legitimate
expectation” that the debt would be paid and constitutes the
beneficiary's “possessions” within the meaning of
Article 1 of Protocol No. 1. Quashing of
such a judgment amounts to an interference with his or her right to
peaceful enjoyment of possessions (see, among other authorities,
Brumărescu, cited above, § 74).
- Insofar as the
Government submitted that the applicant had failed to appeal against
the Town Court judgment of 22 April 2004, the Court observes that the
core issue before it is the quashing of the final and binding
judgment given in the applicant's favour, an instantaneous act (see
Sitokhova v. Russia (dec.), no. 55609/00, 2 September
2004). Thus, the eventual outcome of the post-quashing proceedings is
not directly relevant for the Court's analysis of the complaint about
the annulment of the judgment in the applicant's favour (see
Ivanova v. Ukraine, no. 74104/01, §§ 35-38, 13
September 2005), unless, as a result of the subsequent proceedings,
the applicant obtained more than he had had before the supervisory
review which is clearly not the case.
- Having regard to its
case-law (see §§ 78-80 in the Brumărescu
judgment cited above) and the conclusions under Article 6 above, the
Court considers that the quashing of the judgment by way of
supervisory review, even though it pursued a legitimate aim, imposed
a disproportionate and extreme burden on the applicant and was
therefore incompatible with Article 1 of Protocol No. 1 to the
Convention.
- There has accordingly
been a violation of that Article.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 AND
ARTICLE 1 OF PROTOCOL NO. 1 ON ACCOUNT OF THE NON-ENFORCEMENT
- The applicant also
complained about the non-enforcement of the judgment of 21 January
2003, as upheld on 16 April 2003. He relied on Article 6 § 1 of
the Convention and Article 1 of Protocol No. 1, both cited above.
- The Court observes 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 v. Russia, cited above, §§
55-57; Burdov v. Russia, no. 59498/00, § 34, ECHR
2002 III).
- In the present case the
non-enforcement was due, to a large extent, to the fact that the
judgment to be enforced was twice challenged by the defendant by way
of supervisory review and then quashed by the Presidium in course of
the supervisory review proceedings. Having regard to this
consideration, as well as to the finding above concerning violation
of the applicant's rights under Article 6 §1 and Article 1 of
Protocol No. 1 on account of the quashing of the judgment in his
favour, the Court does not consider it necessary, in the
circumstances, to examine the applicant's complaint concerning the
non-enforcement of that judgment separately and therefore rejects
this part of the application under Article 35 § 4 of
the Convention.
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.”
- The Court points out
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 or vouchers, “failing which
the Chamber may reject the claim in whole or in part”.
- In the instant case the
applicant was invited to submit, by 31 May 2006, his claims
for just satisfaction but failed to do so within the required
time-limits.
- In these circumstances,
the Court makes no award under Article 41 of the Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares
the complaint concerning the quashing of the judgment of
21 January 2003, as upheld on appeal on 16 April 2003, by way of
supervisory review 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
of the judgment of 21 January 2003, as upheld on appeal on 16 April
2003, by way of supervisory review;
3. Decides
to make no award under Article 41.
Done in English,
and notified in writing on 15 February 2007, pursuant to Rule 77 §§
2 and 3 of the Rules of Court.
Søren Nielsen Loukis Loucaides
Registrar President
