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THIRD
SECTION
CASE OF KLIMENKO v. RUSSIA
(Application
no. 11785/02)
JUDGMENT
STRASBOURG
18 January 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 Klimenko v. Russia,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Mr B.M. Zupančič,
President,
Mr J. Hedigan,
Mr C. Bîrsan,
Mr A.
Kovler,
Mrs A. Gyulumyan,
Mr E. Myjer,
Mr David Thór
Björgvinsson, judges,
and Mr V. Berger, Section Registrar,
Having
deliberated in private on 12 December 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 11785/02) 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 Gennadiy Ivanovich
Klimenko on 9 April 2001.
- The
Russian Government (“the Government”) were represented by
Mr P. Laptev, Representative of the Russian Federation at the
European Court of Human Rights.
- On
22 November 2005 the Court decided to communicate the application to
the Government. Under 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 1967 and lives in the town of Taganrog.
1. Main set of proceedings
- On
10 July 2000 the Taganrog Town Court (“the Town Court”,
Таганрогский
городской
суд) granted the
applicant's claim for recovery of 42,900 Russian roubles (“RUR”)
which he had lent to a private company and awarded him the interest
of RUR 50,543. The applicant's action in respect of the second
defendant, a private person, was rejected.
- The
judgment, in its part relating to the award of interests, was quashed
by the Rostov Regional Court (“The Regional Court”,
Ростовский
областной
суд) on appeal on 27
September 2000 and remitted at first instance.
- On
14 March 2001 the Town Court rendered a new judgment in the
applicant's favour. The court decided that the private company was to
pay the applicant RUR 86,937.60 in respect of the accrued
interest. In addition the court ruled that the co-defendant, a
private person, was to be held vicariously liable for the debts of
the private company to the applicant in the total amount of RUR
129,837.60.
- The
judgment was not appealed against and on 25 March 2001 it came into
force.
2. Supervisory review proceedings
- On
6 June 2002 the Presidium of the Rostov Regional Court, acting upon
the protest lodged by its President, quashed the judgments of
10 July 2000 and 14 March 2001 as well as the decision of
27 September 2000 and remitted the case at first instance. In
particular, the court noted that the factual findings of the
first-instance court had been erroneous and in breach of the relevant
procedural rules.
3. Fresh examination of the case at first instance
- By
judgment of 10 November 2002 the Town Court freshly examined the case
and granted the applicant's claims in full. The court ruled that the
private company was to pay the applicant RUR 42,900 in respect of the
principal debt and RUR 86,937.60 in respect of the accrued interest.
The court also decided that the co-defendant, the private person, was
to be held vicariously liable for the entirety of the debts of the
private company to the applicant in the total amount of RUR
129,837.60.
- The
judgment of 10 November 2002 was upheld by the Rostov Regional Court
on appeal on 6 February 2003.
4. Other episodes
- It
appears that the applicant was unsuccessful in a few sets of civil
litigation against various third persons who had allegedly failed to
re-pay their debts. He also tried unsuccessfully to prosecute these
persons.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1
- The applicant complained that the quashing under
supervisory review procedure of the judgments of 10 July 2000
and 14 March 2001 as well as the decision of 27 September 2000
violated his right to a fair trial guaranteed by Article 6 § 1
of the Convention and his right to the peaceful enjoyment of his
possessions guaranteed by Article 1 of Protocol No. 1.
These Articles, in so far as relevant, provides 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.
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.”
A. Admissibility
- The
Government submitted that on 6 June 2002 the Presidium of the
Rostov Regional Court acted in accordance with the domestic law and
procedure, that it quashed the court decisions in the applicant's
case because the first instance court had made erroneous factual
findings in breach of the relevant domestic law. The Government
contended that the application for supervisory review had been lodged
in order to correct the judicial error and, therefore, in the
interests of prevention of violations of rights and legal interests
of other persons. They further noted that as a result of the
subsequent examination of the applicant's claim the courts had
granted the entirety of the applicant's claims and that the fresh
award had been identical to the original one. Accordingly, there had
been no breach of either Article 6 § 1 of the Convention or
Article 1 of Protocol No. 1.
- The
applicant contested the Government's submissions and maintained the
initial complaints.
- The Court notes 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
- The
parties' submissions on the merits of the complaint are similar to
those on the admissibility.
1. Article 6 § 1 of the Convention
- The
Court first notes that the contractual dispute regarding the debt
owed to the applicant by a number of third persons was of a pecuniary
nature and indisputably concerned a civil right within the meaning of
Article 6 § 1 of the Convention.
- The
Court observes that the issue of the present case is whether the
supervisory review procedure permitting a final judgment to be
quashed can be considered compatible with Article 6 and, more
specifically, whether on the facts of the present case the principle
of legal certainty was respected.
- The
Court finds that this case is similar to the case of Ryabykh v.
Russia, cited above, where it was said, in so far as relevant to
the instant case:
“51. ... 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...
54. The Court notes that the supervisory
review of the judgment ... was set in motion by the President of the
Belgorod Regional Court – who was not party to the proceedings
... As with the situation under Romanian law examined in Brumărescu,
the exercise of this power by the President was not subject to any
time-limit, so that judgments were liable to challenge indefinitely.
55. 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, binding judicial decision to remain inoperative to
the detriment of one party. It would be inconceivable that Article 6
§ 1 should describe in detail procedural guarantees afforded to
litigants – proceedings that are fair, public and expeditious –
without protecting the implementation of judicial decisions; to
construe Article 6 as being concerned exclusively with access to a
court and the conduct of proceedings would be likely to lead to
situations incompatible with the principle of the rule of law which
the Contracting States undertook to respect when they ratified the
Convention (see Hornsby v. Greece, judgment of 19 March 1997,
Reports of Judgments and Decisions 1997 II, p. 510, §
40).
56. The Court considers that the right of a
litigant to a court would be equally illusory if a Contracting
State's legal system allowed a judicial decision which had become
final and binding to be quashed by a higher court on an application
made by a State official.”
- Furthermore, the Court has found in this respect in
the judgment Sovtransavto Holding v. Ukraine, (no. 48553/99,
§ 77, ECHR 2002 VII):
“...judicial systems characterised by the
objection (protest) procedure and, therefore, by the risk of final
judgments being set aside repeatedly, as occurred in the instant
case, are, as such, incompatible with the principle of legal
certainty that is one of the fundamental aspects of the rule of law
for the purposes of Article 6 § 1 of the Convention, read in the
light of Brumărescu ...”
- Turning
to the facts of the present case, the Court notes that by two
judgments dated 10 July 2000 and 14 March 2001 respectively
and the decision of 27 September 2000 the domestic courts granted the
applicant's claims against a few third persons and awarded him
certain amounts. After these court decisions in the applicant's
favour had become final and binding, the President of the Rostov
Regional Court brought an application for their supervisory review.
On 6 June 2002 the Presidium of the Rostov Regional Court quashed the
said decisions on the grounds that the first instance court had
erroneously established the facts in the case.
- The
Court further notes that as a result of a fresh determination of the
applicant's case, his claims were granted in full by the first
instance judgment of 10 November 2002, as upheld on appeal on 26
February 2003. The Court considers, however, that this fact did not
by itself efface the effects of legal uncertainty he had to endure
after the court decisions in his case had been quashed (see Ryabykh,
cited above, § 49, and Roseltrans v. Russia, no.
60974/00, § 27, 21 July 2005).
- Having
regard to the circumstances of the present case, the Court does not
find any reason for departing from its aforementioned judgments and
considers that there has been a violation of Article 6 § 1 in
respect of the quashing of the final and binding judgment given in
the applicant's case.
Article 1 of Protocol No. 1
- The
Court notes that by judgment of 10 July 2000, as upheld on
appeal on 27 September 2000, and judgment of 14 March 2001 the
Taganrog Town Court awarded the applicant RUR 129,837.60 as a
principal debt and interests from two private co-defendants.
Thereafter these decisions were quashed by way of supervisory review
and as a result of the fresh determination of the case on 10 November
2002 the Taganrog Town Court again awarded the applicant these
amounts from the same co-defendants.
- The
Court observes that the applicant's claims were granted in full and
that the applicant did not seek any additional interest payments in
respect of the period between the supervisory review and the fresh
determination of the case at first instance.
- Having
regard to the circumstances of the present case, the Court does not
consider it necessary to rule on the question where there has been a
violation of Article 1 of Protocol No. 1 (see Zasurtsev v. Russia,
no. 67051/01, §§ 53-55, 27 April 2006).
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant also complained under various Convention provisions about
the unsuccessful outcome of court proceedings in other episodes.
Having regard to all the material in its possession, the Court finds
that these complaints do not disclose any appearance of a violation
of the rights and freedoms set out in the Convention or its
Protocols.
- It
follows that this part of the application must be rejected as being
manifestly ill-founded, pursuant to 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
- The
applicant claimed 3,000 euros (EUR) in damages.
- The
Government submitted that the applicant had failed to substantiate
and itemise his claims and that they should therefore be rejected.
- Making
its assessment on an equitable basis, as required by Article 41
of the Convention, the Court awards the applicant the sum of EUR 500
in respect of non-pecuniary damage, plus any
tax that may be chargeable on that amount, and rejects the remainder
of the applicant's claims as unsubstantiated.
B. Costs and expenses
- The
applicant also claimed EUR 1,000 for the costs and expenses incurred
before the Court.
- The
Government submitted that the receipts presented by the applicant to
substantiate his legal costs were invalid because the applicant
failed to present a written agreement between him and his counsel.
- 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 of EUR 500 covering costs for the
proceedings before the Court.
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
supervisory review of 6 June 2002 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 is no need to examine the
complaint under 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 according to
Article 44 § 2 of the Convention, the following
amounts, to be converted into Russian roubles at the rate applicable
at the date of settlement:
(i) EUR
500 (five hundred euros) in respect of non-pecuniary damage;
(ii) EUR
500 (five hundred euros) in respect of costs and expenses;
(iii) 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;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 18 January 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Vincent Berger Boštjan M. Zupančič
Registrar President
