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FIRST
SECTION
CASE OF OSHER AND OSHER v. RUSSIA
(Application
no. 31296/02)
JUDGMENT
STRASBOURG
25
October 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 Osher and Osher 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 4 October 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 31296/02) 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 Russian nationals, Mr Mikhail Ilyich Osher
(“the first applicant”) and Mrs Inessa Samuilovna Osher
(“the second applicant”), on 9 August 2001.
- 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.
- The
applicants complained about non-enforcement of two judgments in their
favour and their subsequent quashing by way of supervisory review.
- On
15 September 2006 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 FACTS
- The
first applicant was born in 1933. The second applicant was born in
1935. They live in Lynn, MA, the United States of America.
- On
an unspecified date the applicants sued the Social Security Office of
the Oktyabrskiy District of Rostov-on-Don (“the social security
office”) for pension arrears for the period from 1 February
1998 to 31 March 1999.
- On
20 October 1999 the Oktyabrskiy District Court of Rostov-on-Don
granted the applicants' claims. The court awarded 2,050.16 Russian
roubles (RUB) to the first applicant, and RUB 1,862 to the second
applicant.
- On
26 November 1999 the Oktyabrskiy District Court ordered that the
social security office pay RUB 1,025.08 to the first applicant and
RUB 931 to the second applicant in respect of pension arrears for the
period from 1 April 1999 to 1 November 1999.
- On
26 January 2000 the Rostov Regional Court upheld the judgments of 20
October 1999 and 26 November 1999 on appeal. The judgments became
enforceable.
- On an unspecified date the President of the Rostov
Regional Court lodged an application for supervisory-review of the
judgments of 20 October and 26 November 1999, as upheld on 26
January 2000.
- On 15 March 2001 the Presidium of the Rostov Regional
Court found that the District Court had incorrectly applied domestic
law, quashed the judgments of 20 October and 26 November 1999,
as upheld on 26 January 2000, and dismissed the applicants' claims.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION AND ARTICLE 1 OF PROTOCOL NO. 1
- The
applicants complained about non-enforcement of the judgments of
20 October and 26 November 1999, as upheld on 26 January 2000,
and their subsequent quashing by way of supervisory review. They
relied on Article 6 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.
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 Court notes that the application 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. Quashing of the judgments of 20 October and 26
November 1999, as upheld on 26 January 2000, on supervisory review
- The
Government argued that the Presidium of the Rostov Regional Court
quashed the judgments of 20 October and 26 November 1999 with a
view to correcting the judicial error committed by the District
Court.
- The
applicants maintained their claims.
(a) Article 6 § 1 of the Convention
- The
Court observes that on 20 October and 26 November 1999 the
Oktyabrskiy District Court of Rostov-on-Don accepted the applicants'
actions and awarded them pension arrears. On 26 January 2000 the
Rostov Regional Court upheld the judgments on appeal and they became
binding and enforceable. On 15 March 2001 those judgments were
quashed by way of supervisory review initiated by the President of
the Rostov Regional Court who was a State official but not a party to
the proceedings (see paragraph 10 above).
- 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 Roseltrans v. Russia, no. 60974/00,
§§ 27-28, 21 July 2005; Volkova
v. Russia, no. 48758/99,
§§ 34-36, 5 April 2005; and Ryabykh v.
Russia, no. 52854/99, §§ 51-56, ECHR
2003 IX).
- 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 judgments given in the applicants'
case by way of supervisory-review proceedings.
(b) Article 1 of Protocol No. 1
- The
Court reiterates 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. Quashing of such a judgment amounts to an interference
with his or her 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
judgments of 20 October and 26 November 1999, upheld on appeal
on 26 January 2000, by which the applicants had been awarded certain
sums of money were quashed on a supervisory review on 15 March 2001.
The applicants' claims were dismissed. Thus, the applicants were
prevented from receiving the initial awards through no fault of their
own. The quashing of the enforceable judgments frustrated the
applicants' reliance on the binding judicial decisions and deprived
them of an opportunity to receive the money they had legitimately
expected to receive. In these circumstances, the Court considers that
the quashing of the enforceable judgments of 20 October and 26
November 1999, as upheld on 26 January 2000, by way of supervisory
review placed an excessive burden on the applicants and was
incompatible with Article 1 of Protocol No. 1. There has
therefore been a violation of that Article.
2. Non-enforcement of the judgments of 20 October
and 26 November 1999, as upheld on 26 January 2000
- The
Government submitted that the judgments had not been enforced because
they had been quashed on supervisory review.
- The
applicants maintained their claims.
- The
Court observes that on 20 October and 26 November 1999 the
applicants obtained judgments by which the local social security
office was to pay them pension arrears. The judgments were upheld on
appeal on 26 January 2000 and became enforceable on that date.
From that moment on, it was incumbent on the debtor, a State body, to
comply with them. On 15 March 2001 the Presidium of the Rostov
Regional Court quashed the judgments of 20 October and 26
November 1999.
- It
follows that at least from 26 January 2000 to 15 March 2001
the judgments of 20 October and 26 November 1999 were
enforceable and it was incumbent on the State to abide by their terms
(compare Velskaya v. Russia, no. 21769/03, § 18,
5 October 2006).
- The
Government cited the institution of supervisory-review proceedings in
respect of the judgments of 20 October and 26 November 1999 as
the sole reason for the non-enforcement. In this respect, the Court
reiterates that it has 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 18 and 20 above, the Court notes that the
Government did not put forward any fact or argument capable of
persuading it to reach a different conclusion in the present case.
The Government did not advance any other justification for the
failure to enforce the judgments of 20 October and 26 November
1999, as upheld on 26 January 2000. Having regard to its
case-law on the subject (see Reynbakh v. Russia,
no. 23405/03, §§ 23 et seq., 29 September 2005;
Gizzatova v. Russia, no. 5124/03, §§ 19 et seq.,
13 January 2005; Petrushko v. Russia, no. 36494/02,
§§ 23 et seq., 24 February 2005; Wasserman v.
Russia, no. 15021/02, §§ 35 et seq., 18 November
2004; and Burdov v. Russia, no. 59498/00, §§
34 et seq., ECHR 2002 III), the Court finds that by failing to
comply with the judgments of 20 October and 26 November 1999, as
upheld on 26 January 2000, the domestic authorities violated the
applicants' right to a court and prevented them from receiving the
money which they were 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 judgments of 20 October and 26 November
1999, as upheld on 26 January 2000.
II. 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
applicants did not submit a claim for just satisfaction within the
specified time-limit. Accordingly, the Court considers that there is
no call to award them any sum on that account.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
- 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 judgments of 20 October and
26 November 1999, as upheld on 26 January 2000;
- Holds that 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 judgments of 20 October
and 26 November 1999, as upheld on 26 January 2000;
- Decides not to make an award under Article 41 of
the Convention.
Done in English, and notified in writing on 25 October 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
