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FIFTH
SECTION
CASE OF PSHENICHNYY v. RUSSIA
(Application
no. 30422/03)
JUDGMENT
STRASBOURG
14
February 2008
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 Pshenichnyy v. Russia,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer
Lorenzen,
President,
Snejana
Botoucharova,
Volodymyr
Butkevych,
Margarita
Tsatsa-Nikolovska,
Rait
Maruste,
Anatoli
Kovler,
Renate
Jaeger, judges,
and
Claudia Westerdiek, Section Registrar,
Having
deliberated in private on 22 January 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 30422/03) 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 Aleksandr Nikolayevich
Pshenichnyy (“the applicant”), on 25 August 2003.
- The
applicant was represented before the Court by Mr S. Fedoryuk, a
lawyer practising in Stavropol. 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
applicant complained, in particular, about the quashing of the
judgment in his favour on supervisory review.
- On
21 March 2007 the Court decided to communicate the complaint about
the supervisory review 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 1957 and lives in Stavropol.
- A
private company sued the applicant on a claim of unjust enrichment
not related to his salary. It submitted a document showing that the
applicant had received money from the company. The applicant
counterclaimed that the document had been void.
- On
20 June 2002 the Leninskiy District Court of Stavropol rejected the
applicant's claim, partly allowed the company's claim and ordered
that the applicant repay 295,176 Russian roubles (RUB) to the
company.
- By
a supplementary judgment of 28 June 2002, the Leninskiy District
Court ordered that the applicant pay the court fee of RUB 4,371.77.
- On
18 September 2002 the Stavropol Regional Court quashed the judgments
and remitted the case.
- On
10 October 2002 the Leninskiy District Court allowed the applicant's
claim. It declared the voucher void, confirmed the applicant's title
to the disputed money, ordered that the company pay the applicant
RUB 4,916 in legal costs and expenses and ordered that the
applicant pay the company RUB 112.
- In
its grounds of appeal the company complained that the first-instance
and appeal courts had erred in the establishment of the facts.
- On
27 November 2002 the Stavropol Regional Court reversed the award of
RUB 112, rejected the company's claims in full, and upheld the
remainder of the judgment.
- On 16 June 2003 the company filed an application for
supervisory review of the judgments of 10 October and 27 November
2002. It reiterated its argument that that the first-instance and
appeal courts had erred in the establishment of the facts and asked
the Presidium of the Stavropol Regional Court to quash their
judgments and to remit the case to the first-instance court.
- On
28 July 2003 the applicant filed comments on the application for
supervisory review. He maintained his claims and asked the Presidium
of the Stavropol Regional Court to reject the application.
- On 4 August 2003 the Presidium of the Stavropol
Regional Court quashed the judgments of 18 September, 10 October and
27 November 2002 because the courts had incorrectly established the
facts. It reinstated the judgment of 20 June 2002. Counsel for the
applicant was present at the hearing.
- On
an unspecified date the applicant repaid RUB 295,176 to the company.
II. RELEVANT DOMESTIC LAW
- On 29 September 1999 the Supreme Commercial Court gave
a binding interpretation of the provisions governing legal fee
agreements. It indicated, inter alia, that contingency fee
agreements were not enforceable. On 23 January 2007 the
Constitutional Court confirmed that approach.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1
- The
applicant complained about the quashing of the judgments of
18 September and 10 October 2002, as upheld on appeal on 27
November 2002, by way of supervisory review. He relied on Article 6 §
1 of the Convention and Article 1 of Protocol No. 1, the
relevant parts of which 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 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
1. Submissions by the parties
- The
Government submitted that the application for supervisory review of
the judgment of 10 October 2002, as upheld on 27 November 2002,
had been lodged by a party to the proceedings less than one year
after it had become legally binding. The Presidium of the Stavropol
Regional Court had quashed the judgment with a view to correcting the
judicial error committed by the District Court. The Government
concluded that there had been no violation of the applicant's rights
under Article 6 § 1 of the Convention or Article 1 of Protocol
No. 1.
- The
applicant maintained his claims. He submitted that the Presidium of
the Stavropol Regional Court had quashed the judgment of 18 September
2002 of its own motion, although the other party had asked it to
quash only the judgments of 10 October and 27 November 2002.
2. The Court's assessment
(a) 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).
- 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. Departures from that
principle are justified only when made necessary by circumstances of
a substantial and compelling character. 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 (see
Borshchevskiy v. Russia, no. 14853/03, § 42,
21 September 2006, with further references).
- The
Court has already found a violation of an applicant's “right to
a court” guaranteed by Article 6 § 1 of the Convention in
Russian cases in which a judicial decision that had become binding
and enforceable, was subsequently quashed by a higher court on an
application by a State official or a party to the proceedings which
disagreed with the findings of facts or with the application of the
substantive law. The Court found that in the absence of a fundamental
defect in the proceedings a party's disagreement with the assessment
made by the first-instance and appeal courts was not a circumstance
of a substantial and compelling character warranting the quashing of
a binding and enforceable judgment and re-opening of the proceedings
on the applicant's claim (see Dovguchits v. Russia,
no. 2999/03, § 30, 7 June 2007; and Kot
v. Russia, no. 20887/03, § 29, 18 January
2007).
- The
Court observes that in the present case the supervisory-review
procedure had been initiated by the private company which was a party
to the proceedings. However, once initiated, the supervisory review
was not limited to the examination of the arguments advanced by the
company. The Presidium of the Stavropol Regional Court conducted a
full review of the case, and quashed not only the two most recent
judgments which had been contested by the company, but also of its
own motion quashed another judgment adopted earlier in the
proceedings and reinstated the judgment which had been previously
quashed on appeal (see paragraphs 13 and 15 above).
- It
was not claimed before the supervisory-review instance that the
previous proceedings had been tarnished by a fundamental defect, such
as, in particular, a jurisdictional error, serious breaches of court
procedure or abuses of power. The judgments in the applicant's favour
were set aside on the ground that the first-instance court had erred
in its findings of facts. In the Court's view, only errors of fact
which could not have been corrected by an ordinary appeal because
they became apparent only after the judgment had acquired binding
force could be considered a circumstance of a substantial and
compelling character justifying a departure from the principle of
legal certainty. The Court observes that the arguments invoked by the
company in its application for supervisory review were identical to
those invoked in its grounds for appeal. Since these arguments have
been already examined and rejected by the appeal court, the
supervisory review proceedings were, in essence, an attempt by the
company to re-argue the case on the same points which failed on
appeal.
- Having
regard to the above considerations, the Court finds that by quashing
the judgments of 18 September and 10 October 2002, as
upheld on appeal on 27 November 2002, by way of supervisory-review
proceedings, the Presidium of the Stavropol Regional 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 quashing of an 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 10 October 2002, as upheld on 27 November 2002, by
which the company's claims against the applicant had been dismissed,
the applicant's title to the disputed money had been confirmed, and
the applicant had been awarded a sum of money against the company,
was quashed on a supervisory review on 4 August 2003. The Presidium
of the Stavropol Regional Court reinstated the judgment of 20 June
2002, by which the applicant's claims had been rejected and he had
been ordered to return the disputed money to the company. Thus, the
applicant was prevented from benefiting from the final judgment in
his favour through no fault of his own. The quashing of the
enforceable judgment frustrated the applicant's reliance on the
binding judicial decision and deprived him of an opportunity to
retain the disputed money and to receive an additional sum of money
he had legitimately expected to receive. In these circumstances, the
Court considers that the quashing of the enforceable judgment of
10 October 2002, as upheld on 27 November 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. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
Court has examined the other complaints submitted by the applicants.
However, having regard to all the material in its possession, and
in so far as these complaints fall within the Court's competence, it
finds that those 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 RUB 295,176 in respect of pecuniary damage. He
indicated that RUB 295,176 was equivalent to 8,443 euros (EUR) on the
date of the submission of his claims. He also claimed EUR 2,860 in
respect of non-pecuniary damage.
- The
Government considered that the claims were excessive. Moreover, the
applicant had not produced any documents in support of his claim for
non-pecuniary damage as required by Russian law. The Government
argued that the finding of a violation would in itself constitute
sufficient just satisfaction.
- 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 applicant's title to the money confirmed by the final
judgment was reversed 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 in 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. The applicant had to
repay the money which he legitimately considered his property under
the judgment of 10 October 2002, as upheld on 27 November
2002. The Court accepts the applicant's claim in respect of the
pecuniary damage and awards him the sum of EUR 8,443 under this
head, plus any tax that may be chargeable on that amount.
-
The Court further reiterates that there is no requirement that an
applicant furnish any proof of the non-pecuniary damage he or she
sustained (see Gridin v. Russia, no. 4171/04, § 20,
1 June 2006). It considers that the applicant suffered distress and
frustration resulting from the quashing of the judgments of
18 September and 10 October 2002, as upheld on appeal on
27 November 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, and dismisses the remainder of his claim for non-pecuniary
damage.
B. Costs and expenses
- The
applicant also claimed EUR 3,390 for his representation by Mr S.
Fedoryuk. He relied on the contingency fee agreement under which Mr
Fedoryuk was to receive thirty per cent of any amount awarded by the
Court.
- The
Government considered the claims excessive and unsubstantiated.
- The
Court notes that the applicant entered into a contingency fee
agreement with his lawyer. Such agreements may show, if they are
legally enforceable, that the sums claimed are actually payable by
the applicant (see Iatridis v. Greece (just satisfaction)
[GC], no. 31107/96, § 55, ECHR 2000 XI; and
Dudgeon v. the United Kingdom (Article 50), judgment of
24 February 1983, Series A no. 59, § 22).
Under Russian law, contingency fee agreements would be unenforceable
against the client (see paragraph 17 above). Accordingly, the
applicant is not under any legal liability to pay these fees; nor is
there any indication that he in fact paid them. This being so, he
cannot be said in any sense actually to have incurred these fees. The
Court therefore rejects the applicant's claim for costs and expenses
in full.
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 admissible the applicant's complaint
about the quashing of the judgments of 18 September and 10 October
2002, as upheld on appeal on 27 November 2002, by way of supervisory
review, and the remainder of the application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention and 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, to be converted into Russian roubles at the rate applicable
at the date of settlement:
(i)
EUR 8,443 (eight thousand four hundred and forty-three euros) in
respect of pecuniary damage;
(ii) EUR
2,000 (two thousand euros) in respect of non-pecuniary
damage;
(iii)
plus 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 14 February 2008,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
