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FIRST
SECTION
CASE OF PAROLOV v. RUSSIA
(Application
no. 44543/04)
JUDGMENT
STRASBOURG
14 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 Parolov 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 24 May 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 44543/04) 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 Sergeyevich
Parolov (“the applicant”), on 16 November 2004.
- The
Russian Government (“the Government”) were represented by
Mr P. Laptev, Representative of the Russian Federation at the
European Court of Human Rights.
- The
applicant complained about the quashing of the judgment in his favour
by way of supervisory review and alleged violation of his property
rights.
- On
15 May 2006 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.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1944 and lives in Moscow. He is a retired
military officer.
- In 2001 he brought proceedings against the Military
Service Commission of Moscow (Военный
комиссариат
г. Москвы
– “the Commission”) for recalculation of his
pension in view of the fact that he served in the extreme north of
Russia which made him eligible for a higher pension.
- On 12 March 2002 the Tverskoy District Court of Moscow
granted the applicant's claim and adjusted his pension by a
coefficient 1.4 as from 17 September 2001.
- The Commission did not lodge an ordinary appeal against
the judgment, and it became binding and enforceable on 22 March 2002.
- On 3 November 2003 the Commission filed an application
for supervisory review of the judgment, claiming that the civil-law
provisions on which the court based its judgment were not relevant to
the applicant.
- On 19 May 2004 the applicant received notification of
the initiation of the supervisory-review procedure.
- On 20 May 2004 the Presidium of the Moscow City Court
held a supervisory-review hearing. It held that the first-instance
court had erroneously applied the substantive law. On that ground it
quashed the judgment of 12 March 2002 and remitted the matter for a
fresh examination. Before the announcement of the judgment the
applicant was asked to wait outside the courtroom. At the same time
the respondent remained there. The decision of the court was
announced to the applicant by the bailiff. The applicant received the
final decision on 4 August 2004.
- The applicant sought to initiate the supervisory
review of the decision of 20 May 2004, but on 25 August 2004 his
request was dismissed.
- The new hearing of the case was scheduled for 13
August 2004. Since the applicant was outside of Moscow and could not
attend it, his representative asked the court to postpone the hearing
until 5 September 2004. However, the court did not reply to this
request.
- On 1 September 2004 the Tverskoy District Court of
Moscow left the applicant's action without consideration for his
failure to appear twice before the court. The applicant was never
served with the above decision.
II. RELEVANT DOMESTIC LAW
A. Code of Civil Procedure of the Russian Federation
- The Code of Civil Procedure of the Russian Federation
(“the new Code”) was enacted on 14 November 2002 and
replaced the RSFSR Code of Civil Procedure (“the old Code”)
from 1 February 2003. It provides as follows:
Article 362. Grounds for quashing or altering
judicial decisions by appeal courts
“1. The grounds for quashing or
altering judicial decisions by appeal courts are:
...
(4) violation or incorrect application of
substantive or procedural legal provisions.”
Article 376. Right to apply to a court exercising
supervisory review
“1. Judicial decisions that have become
legally binding, with the exception for judicial decisions by the
Presidium of the Supreme Court of the Russian Federation, may be
appealed against ... to a court exercising supervisory review, by
parties to the case and by other persons whose rights or legal
interests have 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 381. Examination of an application for
supervisory review
“2. Having examined an application for
supervisory review, the judge issues a decision on –
(1) obtaining the case file if there exist
doubts as to the lawfulness of the judicial decision...
4. If a decision to obtain the file has been
made, the judge may suspend enforcement of the judicial decision
until the supervisory-review proceedings have been completed...”
Article 384. Decision on remitting the case for
examination on the merits
by a supervisory-review court
“1. A judicial decision on remitting
the case for examination on the merits by a supervisory-review court
must contain:
(7) a reasoned description of the grounds for
remitting the case for examination on the merits...”
Article 387. Grounds for quashing or altering
judicial decisions
by way of supervisory review
“Judicial decisions of lower courts may be quashed
or altered by way of supervisory review on the grounds of substantial
violations of substantive or procedural legal provisions.”
Article 390. Competence of the supervisory-review
court
“1. Having examined the case by way of
supervisory review, the court may...
(2) quash the judicial decision issued by a
court of first, second or supervisory-review instance in whole or in
part and remit the matter for a fresh examination; ...
(5) quash or alter the judicial decision
issued by a court of first, second or supervisory-review instance and
issue a new judicial decision, without remitting the matter for a
fresh examination, if substantive legal provisions have been
erroneously applied or interpreted.”
B. Resolution of the Plenary Supreme Court of the
Russian Federation
- Resolution no. 2 of the Plenary Supreme Court of the
Russian Federation of 20 January 2003, “On certain issues
arising in connection with adoption and coming into force of the Code
of Civil Procedure of the Russian Federation”, provided that
“22. ... The [one-year] time-limit for
lodging an application for supervisory review of judicial decisions
that became legally binding before 1 February 2003, shall run from 1
February 2003.”
C. Case-law review of civil cases in the second quarter
of 2004 by the Supreme Court (Resolution of 6 October 2004)
- In response to question no. 4 concerning calculation
of the time-limit for lodging an application for supervisory review
of judicial decisions that became legally binding before 1 February
2003, the Presidium of the Supreme Court clarified that the final
date for lodging such an application should be 2 February 2004.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1 ON ACCOUNT OF THE QUASHING
OF THE JUDGMENT
- The
Court will firstly examine the applicant's complaint concerning the
quashing of the judgment of 12 March 2002 by way of
supervisory-review proceedings. The applicant complained that the act
of quashing had violated his “right to a court” under
Article 6 § 1 of the Convention and his right to the peaceful
enjoyment of possessions under 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 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...”
A. Admissibility
- The Court considers 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. It must therefore be declared admissible.
B. Merits
1. Arguments by the parties
- The
Government submitted that the supervisory-review proceedings in the
applicant's case fully complied with the requirements set out in the
Code of Civil Procedure of the Russian Federation. The application
for supervisory review was lodged by a party to the proceedings
within the prescribed time-limit, that is nine months after the
beginning of the time-limit for lodging such applications against the
judicial decisions which entered into force before 1 February 2003,
as clarified by the Resolution no. 2 of the Plenary Supreme
Court of the Russian Federation of 20 January 2003 “On certain
issues arising in connection with adoption and coming into force of
the Code of Civil Procedure of the Russian Federation”.
Furthermore, the ground for quashing of the judgment of 12 March
2002 was the breach of substantive provisions of the domestic law
which led to unjustified increase of the applicant's pension. There
had therefore been no violation of the principle of legal certainty.
- The
applicant maintained his claims.
2. The Court's assessment
(a) Article 6 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).
- 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).
24. 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 has found a violation of an applicant's “right to a
court” guaranteed by Article 6 § 1 of the Convention in
many 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 whose power to intervene was not subject to any
time-limit (see, among other authorities, Ryabykh, cited
above, §§ 51-56; and more recently Volkova
v. Russia, no. 48758/99, §§ 34-36, 5 April 2005;
Roseltrans v. Russia, no. 60974/00, §§ 27-28,
21 July 2005; and Kutepov and Anikeyenko v.
Russia, no. 68029/01, §§ 49-52, 25
October 2005).
- In
the present case the judgment of 12 March 2002 in the applicant's
favour was set aside by way of a supervisory review on the ground
that the District Court had incorrectly applied the substantive law.
The Court has to assess whether the power to conduct a supervisory
review was exercised by the authorities so as to strike, to the
maximum extent possible, a fair balance between the interests of the
individual and the need to ensure the proper administration of
justice (see, mutatis mutandis, Nikitin v. Russia,
no. 50178/99, §§ 57 and 59, ECHR 2004-VIII).
- The
Government distinguished the present application from the
above-mentioned cases on account of the fact that the
supervisory-review procedure had been initiated by the Military
Service Commission, that is a party to the case, rather than a State
official. The Court, however, is not persuaded that this distinction
is of crucial importance for its analysis.
- The
Court notes, firstly, a rather long period of time – about
twenty months – that lapsed from the date the judgment in the
applicant's favour had become binding to the date the
supervisory-review procedure was launched. It observes that the RSFSR
Code of Civil Procedure set no time-limit for lodging an application
for supervisory review thus permitting a final judgment to be
challenged indefinitely (see Ryabykh, cited above). The
supervisory-review proceedings in the present case were instituted
under the new Code of Civil Procedure which limited the time-limit to
one year (Article 376 § 2, cited in paragraph 15 above).
However, the transitional provisions governing the entry into force
of the new Code of Civil Procedure, as they were clarified by the
Plenary Supreme Court of the Russian Federation, introduced the
possibility for lodging an application for supervisory review of any
judgment that had become legally binding before 1 February 2003
(see paragraphs 16 and 17 above). In the present case the Commission
availed itself of this opportunity to challenge the judgment in the
applicant's favour that had become binding twenty months earlier.
- The
Court stresses that a binding and enforceable judgment should only be
quashed in exceptional circumstances rather than for the sole purpose
of obtaining a different decision in the case (see the case-law cited
in paragraph 23 above). In the Russian legal system, the grounds for
quashing or altering judgments by appeal courts largely overlap with
those for quashing or altering judgments by way of supervisory review
(compare Article 362 § 1 (4) and Article 387 of the Code of
Civil Procedure). Thus, a situation where the binding judgment in the
applicant's favour was called into question could have been avoided,
had the Commission lodged an ordinary appeal. It is noteworthy,
however, that the Russian Codes of Civil Procedure, both that of
RSFSR and that of the Russian Federation, permitted a party to apply
for supervisory review even if it had not previously exhausted an
ordinary appeal. In the present case the Commission failed to
exercise its right to lodge an ordinary appeal and permitted the
statutory ten-day time-limit to expire without challenging the
judgment of 12 March 2002. The Government did not point to any
exceptional circumstances that would have prevented the Commission
from exposing its arguments to the District Court or making use of an
ordinary appeal in good time.
- Having
regard to the above considerations, the Court finds that, by granting
the Commission's request to set aside the judgment of 12 March 2002,
the Presidium of the Moscow City Court infringed the principle of
legal certainty and the applicant's “right to a court”
under Article 6 § 1 of the Convention. There has accordingly
been a violation of that Article.
(b) 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, and Androsov v. Russia, no. 63973/00,
§ 69, 6 October 2005).
- The
Government denied that there had been a violation of the applicant's
property rights since the domestic law did not give the applicant a
“legitimate expectation” to receive an increased pension.
- The
Court observes that by virtue of the judgment of 12 March 2002 the
applicant's pension was considerably increased. The quashing of the
enforceable judgment frustrated the applicant's reliance on a 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 judgment
of 12 March 2002 by way of supervisory review placed an excessive
burden on the applicant and was therefore incompatible with Article 1
of Protocol No. 1. There has therefore been a violation of that
Article.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant complained under Article 13 of the Convention that he had
no effective domestic remedy in respect of the decision of the
Presidium of the Moscow City Court of 20 May 2004 to quash, on
supervisory review, the final judgment of 12 March 2002.
- The Court notes that Article 13 of the Convention
does not, as such, guarantee the right to appellate remedies in
respect of a decision taken by way of supervisory review, and the
mere fact that the judgment of the highest judicial body is not
subject to further judicial review does not infringe in itself the
said provision (see Tregubenko v. Ukraine (dec.),
no. 61333/00, 21 October 2003, and Sitkov v. Russia
(dec.), no. 55531/00, 9 November 2004).
- It follows that the applicant's complaint under
Article 13 of the Convention is incompatible ratione materiae
with the provisions of the Convention within the meaning of Article
35 § 3 and must be rejected in accordance with Article 35 §
4 thereof.
- The
applicant complained under Article 6 § 1 of the Convention about
various procedural defects of the hearing before the Presidium of the
Moscow City Court.
- The
Court finds that, having concluded that there has been an
infringement of the applicant's “right to a court” by the
very use of the supervisory review procedure, it is not necessary to
consider whether the procedural guarantees of Article 6 of the
Convention were available in those proceedings (see Ryabykh,
cited above, § 59).
- Finally,
the applicant complained Article 14 of the Convention that the
domestic court discriminated against him.
- The
Court notes that the applicant did not substantiate his complaint
under this Convention provision.
- It
follows that this part of the application is manifestly ill-founded
and must be rejected in accordance with Article 35 §§ 3 and
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.”
A. Damage
- As
regards the pecuniary damage, the applicant submitted that by virtue
of the judgment of 12 March 2002 his pension was increased by 40% or
3,431 Russian roubles (RUR). Therefore, he claimed RUR 99,503.64 lost
from August 2004 to January 2007 as a result of quashing of the above
judgment by way of supervisory review. He further asked the Court to
secure his right to receive the increased pension in the future or
award him the lump sum of the 40% increase for 18 years ahead, which
he determined in term of numbers at RUR 741,130.56. The applicant
left the determination of the amount of the non-pecuniary damage to
the discretion of the Court.
- The
Government considered that the finding of a violation would
constitute adequate just satisfaction.
- As
regards the claim in respect of pecuniary damage, the Court recalls
that in the instant case it found a violation of Article 6 § 1
of the Convention and Article 1 of Protocol No. 1, in that the
judgment in the applicant's favour had been quashed in supervisory
review. The applicant was thereby prevented from receiving the money
he had legitimately expected to receive. There has been therefore a
causal link between the violations found and the applicant's claims
for the pecuniary damage in so far as they relate to the period from
August 2004 to January 2007. As regards the applicant's claims in
respect of his future pecuniary loss, the Court believes that these
estimates rely on highly speculative assumptions that veil them in a
great deal of uncertainty. Therefore, the Court considers it
appropriate to award the applicant RUR 99,503.64 as compensation for
pecuniary damages, plus any tax that may be chargeable on this
amount.
- The Court further considers that the applicant
suffered distress and frustration because of the quashing by way of
supervisory review of the final judgment in his favour. Making its
assessment on an equitable basis, it awards him 2,000 euros in
respect of non-pecuniary damage (see Chernitsyn v. Russia, no.
5964/02, § 40, 6 April 2006), plus any tax that may be
chargeable on that amount.
B. Costs and expenses
- The
applicant claimed RUR 1,000 to cover his expenses for legal advice.
The Government did not dispute that this cost had been actually
incurred and reasonable as to quantum.
- 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, the applicant submitted receipts
supporting his claim. The sums indicated in the receipts do not
appear excessive or unreasonable. Regard being had to the information
in its possession, the Court considers it reasonable to award the
applicant the sum requested, 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 complaint concerning the quashing
of the judgment in the applicant's favour by way of supervisory
review admissible and the remainder of the application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds that there has been a violation of Article
1 of Protocol No. 1;
- Holds
(a) 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:
(i) RUR
99,503.64 (ninety-nine thousand five hundred and three Russian
roubles sixty-four kopecks) in respect of pecuniary damage;
(ii)
EUR 2,000 (two thousand euros) in respect of non-pecuniary damage, to
be converted into Russian roubles at the rate applicable at the date
of settlement;
(iii)
RUR 1,000 (one thousand Russian roubles) in respect of costs and
expenses;
(iv) any tax that may be chargeable on the above amounts;
(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.
Done in English, and notified in writing on 14 June 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos
Rozakis
Registrar President
