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FIRST
SECTION
CASE OF DOVGUCHITS v. RUSSIA
(Application
no. 2999/03)
JUDGMENT
STRASBOURG
7
June 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 Dovguchits
v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Mr C.L. Rozakis, President,
Mr L.
Loucaides,
Mrs N. Vajić,
Mr A.
Kovler,
Mrs E. Steiner,
Mr K. Hajiyev,
Mr D.
Spielmann, judges,
and Mr S. Nielsen, Section Registrar,
Having
deliberated in private on 15 May 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 2999/03) 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 Yevgeniy Anatolyevich
Dovguchits (“the applicant”), on 2 December 2002.
- The
applicant was represented by Mr V. Gandzyuk, a lawyer practising in
Ryazan. The Russian Government (“the Government”) were
initially represented by Mr P. Laptev, the former Representative of
the Russian Federation at the European Court of Human Rights, and
subsequently by their new Representative, Mrs V. Milinchuk.
- On
13 May 2003 the Court decided to give notice of 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. On 10 April 2006 the Court put
additional questions to the parties.
- The
Government objected to the joint examination of the admissibility and
merits of the application. Having examined the Government's
objection, the Court dismissed it.
THE FACTS
- The
applicant was born in 1956 and lives in the town of Ryazan in the
Ryazan Region. He is a former military officer.
- In
2002 the applicant sued his military unit for wage arrears for his
military service in 1996 when he had taken part in a military
operation in Tajikistan.
- On
22 February 2002 the Military Court of the Ryazan Garrison upheld the
action and awarded the applicant 163,732.80 Russian roubles (RUR).
The judgment was not appealed against and became final.
- On
3 April 2002 the applicant received a writ of execution and submitted
it to the Ryazan Office of the State Treasury. On 26 April 2002,
after the Ryazan Office of the State Treasury had refused to execute
the judgement, the applicant submitted the writ to the Ministry of
Finance of the Russian Federation.
- On
30 September 2002 the applicant was discharged from the army.
- On
16 July 2003 the Presidium of the Military Court of the Moscow
Command, by way of a supervisory review, quashed the judgment of
22 February 2002 and remitted the case for a fresh examination
to the Military Court of the Ryazan Garrison.
- On
15 September 2003 the Military Court of the Ryazan Garrison decided
not to examine the action as the applicant had defaulted at two
hearings.
- On
12 August 2004 the Military Section of the Supreme Court of the
Russian Federation, acting on a supervisory review, found that the
applicant had not been duly summonsed to the hearings before the
Military Court of the Ryazan Garrison, quashed the judgment of 16
July 2003 and the decision of 15 September 2003 and ordered a
re-examination of the case by the Presidium of the Military Court of
the Moscow Command.
- On
15 September 2004 the Presidium of the Military Court of the Moscow
Command, by way of supervisory-review proceedings, re-examined the
case, awarded the applicant RUR 56,311.20 and dismissed the remainder
of his claims.
- In
January 2005 the applicant asked the Military Section of the Supreme
Court of the Russian Federation to initiate a supervisory review in
respect of the judgment of 15 September 2004. On 3 May 2005 the
request was dismissed.
- In
July 2005 the applicant unsuccessfully requested the President of the
Supreme Court of the Russian Federation to quash the judgment of
15 September 2004 by way of a supervisory review. On 10 August
2005 the Vice President of the Supreme Court of the Russian
Federation refused to institute supervisory-review proceedings in
respect of the judgment of 15 September 2004.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AND
ARTICLE 1 OF PROTOCOL No. 1 ON ACCOUNT OF THE QUASHING OF THE
JUDGMENT OF 22 FEBRUARY 2002
- The
applicant complained that the quashing of the final judgment of 22
February 2002 made in his favour violated his “right to a
court” and his right to peaceful enjoyment of possessions. The
Court considers that this complaint falls to be examined under
Article 6 § 1 of the Convention and Article 1 of Protocol No. 1.
The relevant parts of these provisions 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. Submissions by the parties
- The
Government, relying on the Court's judgments in the cases of
Pellegrin v. France ([GC], no. 28541/95, ECHR 1999 VIII)
and Kanayev v. Russia (no. 43726/02, 27 July 2006),
argued that the applicant's complaint under Article 6 of the
Convention was incompatible ratione
materiae because the applicant had been a military officer
and the judgment award had concerned wage arrears for his military
service. They further argued that Article 1 of Protocol No. 1 was
also inapplicable because the applicant had not had a “possession”
within the meaning of the invoked Convention provision as he had had
no right to receive “payments in the amount desirable”.
He neither had an “existing possession” nor a “legitimate
expectation”. As to the merits of the complaint, the Government
noted that the judgment of 22 February 2002 had been quashed because
the Military Court of the Ryazan Garrison had incorrectly interpreted
and applied material law.
- The
applicant averred that the quashing of the final judgment of
22 February 2002 had irremediably impaired the principle of
legal certainty and had deprived him of the right to receive money he
had been entitled to receive.
B. The Court's assessment
1. Article 6 § 1 of the Convention
(a) Admissibility
- The Government contested the applicability of Article
6 to the dispute raised by the applicant.
- In this connection, the Court, firstly, notes that it
has not been disputed by the parties that the applicant had been
entitled to wage arrears for his military service in 1996 in
Tajikistan. Nor did the domestic courts dismiss the applicant's
claims as lacking any basis. To the contrary, by the final judgment
of 22 February 2002 the Military Court of the Ryazan Garrison
accepted the applicant's action and awarded him wage arrears claimed.
Thus, the dispute to which the applicant was a party was over a
“right” which was recognised under domestic law.
- The parties, however, disputed whether that right was
“civil” in nature. The Government, relying on Pellegrin
(cited above), argued that Article 6 was not applicable since
disputes raised by servants of the State such as military officers
over their conditions of service were excluded from its ambit.
22. The Court accepts
that in the Pellegrin judgment it attempted to
establish an autonomous interpretation of the term “civil
service”. To that end the Court introduced a functional
criterion based on the nature of the employee's duties and
responsibilities.
- However, in its recent judgment in
the case of Vilho Eskelinen and Others v. Finland ([GC],
no. 63235/00, 19 April 2007), the Court found that the functional
criterion, adopted in the
Pellegrin judgment, did not simplify the analysis of the
applicability of Article 6 in proceedings to which a civil servant
was a party or brought about a greater degree of certainty in this
area as intended (§ 55). For these reasons the Court decided to
further develop the functional criterion set out in Pellegrin
and adopted the following approach:
“To recapitulate, in order for the respondent
State to be able to rely before the Court on the applicant's status
as a civil servant in excluding the protection embodied in Article 6,
two conditions must be fulfilled. Firstly, the State in its national
law must have expressly excluded access to a court for the post or
category of staff in question. Secondly, the exclusion must be
justified on objective grounds in the State's interest. The mere fact
that the applicant is in a sector or department which participates in
the exercise of power conferred by public law is not in itself
decisive. In order for the exclusion to be justified, it is not
enough for the State to establish that the civil servant in question
participates in the exercise of public power or that there exists, to
use the words of the Court in the Pellegrin judgment, a
“special bond of trust and loyalty” between the civil
servant and the State, as employer. It is also for the State to show
that the subject matter of the dispute in issue is related to the
exercise of State power or that it has called into question the
special bond. Thus, there can in principle be no justification for
the exclusion from the guarantees of Article 6 of ordinary labour
disputes, such as those relating to salaries, allowances or similar
entitlements, on the basis of the special nature of relationship
between the particular civil servant and the State in question. There
will, in effect, be a presumption that Article 6 applies. It
will be for the respondent Government to demonstrate, first, that a
civil-servant applicant does not have a right of access to a court
under national law and, second, that the exclusion of the rights
under Article 6 for the civil servant is justified.” (see Vilho
Eskelinen and Others v. Finland [GC], no. 63235/00, 19
April 2007, § 62)
- Turning
to the facts of the present case, the Court notes that the applicant
had access to a court under national law. He made use of his right
and introduced an action against his employer. The Military Court of
the Ryazan Garrison examined the applicant's claims and accepted
them, awarding the applicant wage arrears. After the final judgment
of 22 February 2002 had been quashed by way of supervisory
review, the applicant's claims were once again re-examined and partly
upheld. Neither the domestic courts nor the Government indicated that
the domestic system barred the applicant's access to a court.
Accordingly, Article 6 is applicable (see Vilho
Eskelinen, cited above, § 63).
- The Court further notes that this complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 of
the Convention and is not inadmissible on any other grounds. It must
therefore be declared admissible.
(b) Merits
- 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).
- 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 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, mutatis mutandis,
Ryabykh v. Russia, no. 52854/99, § 52, ECHR 2003-X; and
Pravednaya v. Russia, no. 69529/01,
§ 25, 18 November 2004).
28. The
Court reiterates that Article 6 § 1 secures to everyone the
right to have any claim relating to his civil rights and obligations
brought before a court or tribunal. In this way it embodies the
“right to a court”, of which the right of access, that is
the right to institute proceedings before courts in civil matters,
constitutes one aspect. However, that right would be illusory if a
Contracting State's domestic legal 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 is not subject to any time-limit, with the result that
the judgments were liable to challenge indefinitely (see Ryabykh,
cited above, §§ 54-56).
- The
Court observes that on 22 February 2002 the Military Court of the
Ryazan Garrison upheld the applicant's action and granted him a sum
of money. The judgment was not appealed against and became binding
and enforceable. On 16 July 2003 that judgment was quashed by way of
a supervisory review and the re-examination of the case was ordered.
Although the judgment of 16 July 2003 was also quashed on a
supervisory review, the applicant's situation was not remedied in any
way. The quashing of the judgment of 16 July 2003 only meant that the
case was to be re-examined but by the supervisory court itself and
not by the lower courts.
- The
Court reiterates that it has found a violation of an applicant's
“right to a court” guaranteed by Article 6 § 1 of
the Convention in many Russian cases in which a judicial decision
that had become final and binding, was subsequently quashed by a
higher court on an application by a State official or a party to the
proceedings, especially when a particularly long period of time, as
in the present case, lapsed from the date the judgment in the
applicant's favour had become binding to the date the
supervisory-review proceedings were instituted (see Roseltrans v.
Russia, no. 60974/00, §§ 27-28, 21 July 2005;
Volkova v. Russia, no. 48758/99,
§§ 34-36, 5 April 2005; Ryabykh,
cited above, §§ 51-56; Borshchevskiy v. Russia,
no. 14853/03, §§ 46-48, 21 September 2006; and
Nelyubin v. Russia, no. 14502/04, §§ 28-30,
2 November 2006). Furthermore, in the case of Kot v. Russia
the Court found as follows:
“It is unavoidable that in civil proceedings the
parties would have conflicting views on application of the
substantive law. The courts are called upon to examine their
arguments in a fair and adversarial manner and make their assessment
of the claim. The Court observes that before an application for
supervisory review was lodged, the merits of the applicant's claim
had been examined... by the first-instance and appeal courts. It has
not been claimed that the courts acted outside their competences or
that there was a fundamental defect in the proceedings before them.
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.”
(no. 20887/03, § 29, 18 January 2007)
- 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 case. Accordingly, the Court finds that there
has been a violation of Article 6 § 1 of the Convention on
account of the quashing of the final judgment of 22 February 2002, by
way of supervisory-review proceedings.
2. Article 1 of Protocol No. 1
(a) Admissibility
- The
Court observes that the Government contested the applicability of
Article 1 of Protocol No. 1 on the ground that the applicant did not
have a “possession” within the meaning of the invoked
Convention provision. In this connection, the Court notes that its
has already on a number of occasions found that the existence of a
debt confirmed by a binding and enforceable judgment constitutes the
judgment beneficiary's “possession” within the meaning of
Article 1 of Protocol No. 1 (see, for example, Bulgakova v.
Russia, no. 69524/01, § 31, 18 January 2007 and
Pravednaya v. Russia, no. 69529/01, § 38, 18
November 2004). The Court sees no
reason to depart from those findings in the present case and
dismisses the Government's objection that the applicant's complaint
is incompatible ratione materiae with Article 1 of Protocol
No. 1.
- The
Court further observes that the complaint under Article 1 of Protocol
No. 1 is not manifestly ill-founded within the meaning of Article 35
§ 3 of the Convention and is not inadmissible on any other
grounds. It must therefore be declared admissible.
(b) Merits
- The
Court reiterates that quashing of a final and enforceable judgment
amounts to an interference with the judgment beneficiary's right to
peaceful enjoyment of possessions (see, among other authorities,
Androsov v. Russia, no. 63973/00, § 69, 6 October
2005).
- The Court observes that the final and enforceable
judgment of 22 February 2002, by which the applicant had been
awarded a sum of money, was quashed on a supervisory review on 16
July 2003. The judgment of 16 July 2003 was subsequently quashed on
12 August 2004. Following that quashing, on 15 September 2004 the
Presidium of the Military Court of the Moscow Command, by way of a
supervisory review, re-examined the applicant's claims and
substantially reduced the amount of the initial award made under the
final judgment of 22 February 2002. Thus, the applicant, through no
fault of his own, was prevented from receiving the initial award made
by the Military Court of the Ryazan Garrison. The quashing of the
enforceable judgment frustrated the applicant's reliance on the
binding judicial decision and deprived him of an opportunity to
receive the money he had legitimately expected to receive. In these
circumstances, the Court considers that the quashing of the
enforceable judgment of 22 February 2002 by way of supervisory
review placed an excessive burden on the applicant and was
incompatible with Article 1 of Protocol No. 1. There has
therefore been a violation of that Article.
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AND
ARTICLE 1 OF PROTOCOL No. 1 ON ACCOUNT OF THE NON-ENFORCEMENT OF THE
JUDGMENT OF 22 FEBRUARY 2002
- The
applicant complained about the non-enforcement of the judgment of 22
February 2002. The Court considers that this complaint falls to be
examined under Article 6 § 1 of the Convention and Article 1 of
Protocol No. 1. The relevant parts of these provisions are cited
above.
A. Submissions by the parties
- The
Government argued that the judgment of 22 February 2002 could not be
enforced because it had been quashed on the supervisory review on 16
July 2003.
- The
applicant maintained his complaints.
B. The Court's assessment
1. Admissibility
- The Court notes that the 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. It must therefore be declared admissible.
2. Merits
- Turning
to the facts of the present case, the Court observes that on 22
February 2002 the applicant obtained a judgment by which the military
unit was to pay him a certain sum of money. The judgment of 22
February 2002 was not appealed against and became enforceable. From
that moment on, it was incumbent on the debtor, a State body, to
comply with it. On 16 July 2003 the Presidium of the Military
Court of the Moscow Command quashed the judgment of 22 February 2002.
- It
follows that at least from 22 February 2002 to 16 July 2003 the
judgment of 22 February 2002 was enforceable and it was incumbent on
the State to abide by its terms (cf. Velskaya v. Russia, no.
21769/03, § 18, 5 October 2006).
- The
Government cited the initiation of the supervisory-review proceedings
in respect of the judgment of 22 February 2002 as the sole reason for
its non-enforcement. In this respect, the Court reiterates that it
has recently addressed and dismissed the same argument by the
Government in the case of Sukhobokov v. Russia (no. 75470/01,
13 April 2006). In particular, the Court held that “the
quashing of the judgment, which did not respect the principle of
legal certainty and the applicant's “right to a court”,
cannot be accepted as a reason to justify the non-enforcement of the
judgment” (see Sukhobokov, cited above, § 26, and
Velskaya, cited above, §§ 19-21).
- Having
examined the material submitted to it and taking into account its
findings in paragraphs 31 and 35 above, the Court notes that the
Government did not put forward any fact or argument capable of
persuading the Court to reach a different conclusion in the present
case. The Government did not advance any other justification for the
failure to enforce the judgment of 22 February 2002. Having regard to
its case-law on the subject (see Burdov v.
Russia, no. 59498/00, ECHR 2002 III; and, more
recently, Poznakhirina v. Russia, no.
25964/02, 24 February 2005; Wasserman v. Russia, no.
15021/02, 18 November 2004), the Court finds that by failing to
comply with the judgment of 22 February 2002 in the applicant's
favour the domestic authorities violated his right to a court and
prevented him from receiving the money which he was entitled to
receive.
- The
Court finds accordingly that there was a violation of Article 6 § 1
of the Convention and Article 1 of Protocol No. 1 on account of the
non-enforcement of the judgment of 22 February 2002.
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
applicant claimed RUR 196,935.78 in respect of pecuniary damage, of
which RUR 107,421.16 represented the difference between the initial
judgment award made on 22 February 2002 and the judgment award made
under the supervisory-review judgment on 15 September 2004 and RUR
89,514.62 represented inflation losses accrued by the applicant
during the period of the non-enforcement. The applicant further
claimed 15,000 euros (EUR) in respect of non-pecuniary damage.
- The
Government submitted that there was no basis for the applicant's
claims in respect of pecuniary damage “in the national
legislation” and thus this part of his claims should be
dismissed. As regards the claims in respect of non-pecuniary damage,
the Government considered that the applicant had not claimed anything
under this head.
- The
Court observes that in the present case it has found a violation of
Article 6 § 1 of the Convention and Article 1 of Protocol No. 1
in that the award in the applicant's favour had not been paid to him
in full as a result of the quashing of the final judgment by way of
the supervisory review. The Court notes that the most appropriate
form of redress in respect of a violation of Article 6 is to
ensure that the applicant as far as possible is put in the position
he would have been had the requirements of Article 6 not been
disregarded (see Piersack v. Belgium (Article 50),
judgment of 26 October 1984, Series A no. 85, p. 16,
§ 12, and, mutatis mutandis, Gençel v.
Turkey, no. 53431/99, § 27, 23 October 2003). The
Court finds that in the present case this principle applies as well,
having regard to the violations found (cf. Poznakhirina, cited
above, § 33, and Sukhobokov, cited above, §
34). The applicant was prevented from receiving money he had
legitimately expected to receive under the judgment of 22 February
2002. Deducting the sum which the applicant was awarded and paid
under the judgment of 15 September 2004, the Court considers that the
Government shall pay the remaining part of the judgment award made
under the judgment of 22 February 2002, i.e. RUR 107,421.
- The
Court further recalls that the adequacy of the compensation would be
diminished if it were to be paid without reference to various
circumstances liable to reduce its value, such as an extended delay
in enforcement (see Gizzatova v. Russia,
no. 5124/03, § 28, 13 January 2005; Metaxas v.
Greece, no. 8415/02, § 36, 27 May 2004). Having
regard to the materials in its possession and the fact that the
Government did not furnish any objection to the applicant's method of
calculation of compensation, the Court also awards the applicant RUR
89,515 in respect of pecuniary damage, plus any tax that may be
chargeable.
- The
Court further considers that the applicant suffered distress and
frustration resulting from the non-enforcement and the quashing of
the judgment of 22 February 2002. Making its assessment on an
equitable basis, the Court awards the applicant EUR 2,000 in respect
of non-pecuniary damage, plus any tax that may be chargeable on that
amount.
B. Costs and expenses
- The
applicant also claimed RUR 7,571.65 for the costs and expenses
incurred before the Court.
- The
Government accepted that the applicant's claims under this head were
reasonable and substantiated.
- According
to the Court's case-law, an applicant is entitled to reimbursement of
his 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 claimed in full, plus any tax that may be
chargeable on that amount.
C. Default interest
- The
Court considers it appropriate that the default interest 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
- Declares the application admissible;
- Holds that there has been a violation of Article
6 of the Convention and Article 1 of Protocol No. 1 on account of the
quashing of the judgment of 22 February 2002;
- Holds that there has been a violation of Article
6 of the Convention and Article 1 of Protocol No. 1 on account of the
non-enforcement of the judgment of 22 February 2002;
- Holds
(a) that
the respondent State, within three months from the date on which the
judgment becomes final according to Article 44 § 2 of the
Convention, is to pay the award made in the applicant's favour under
the judgment of 22 February 2002, deducting the sum which was awarded
to the applicant under the judgment of 15 September 2004, i.e.
RUR 107,421 (one hundred seven thousand four hundred and
twenty-one Russian rouble);
(b)
that the respondent State is to pay the applicant, within three
months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention,
the following amounts, to be converted, where appropriate, into
Russian roubles at the rate applicable at the date of the settlement:
(i)
RUR 89,515 (eighty-nine thousand five hundred and fifteen Russian
roubles) in respect of pecuniary damage;
(ii)
EUR 2,000 (two thousand euros) in respect of non-pecuniary damage;
(iii)
RUR 7,572 (seven thousand five hundred and seventy-two Russian
roubles) in respect of costs and expenses;
(iv)
any tax that may be chargeable on the above amounts;
(c) 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;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 7 June 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
