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FIRST
SECTION
CASE OF MURTAZIN v. RUSSIA
(Application
no. 26338/06)
JUDGMENT
STRASBOURG
27 March 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 Murtazin v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos
Rozakis,
President,
Nina
Vajić,
Anatoly
Kovler,
Elisabeth
Steiner,
Khanlar
Hajiyev,
Giorgio
Malinverni,
George
Nicolaou,
judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 6 March 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 26338/06) 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 Danyal Abdulovich
Murtazin (“the applicant”), on 22 May 2006.
- The
Russian Government (“the Government”) were represented by
Mr P. Laptev, former Representative of the Russian Federation at the
European Court of Human Rights.
-
The applicant complained about the continued non-enforcement of the
judgment in his favour and its subsequent quashing by way of
supervisory review.
- On
6 September 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 1937 and lives in Novocherkassk, a town in the
Rostov Region. He is a retired military officer.
- On
10 August 2004 the applicant brought proceedings against the Military
Service Commissariat of Novocherkassk (Военный
комиссариат
г. Новочеркасска
– “the Commissariat”) seeking to recover his
pension arrears from January 1995 to March 1998 to take account of
the increase of the minimum monthly wage.
- On 15 September 2004 the Novocherkassk Town Court of
the Rostov Region granted the applicant's claim and awarded him
261,343.87 roubles (RUB) in arrears. On the applicant's request the
court held that the judgment should be enforced immediately since it
concerned the applicant's main source of income and was of
considerable importance for the applicant's financial situation. The
Commissariat did not appeal against the judgment and on 25 September
2004 it became final.
- On
12 October 2004 the applicant's representative submitted the copy of
the judgment and the writ of execution to the Social Welfare Office
of the Military Commissariat of the Rostov Region.
- On
24 February 2005 the enforcement proceedings were opened. In the same
month the applicant was informed that the sums awarded to him could
not be paid as the Commissariat was conducting an examination of his
case.
- On
19 September 2005 the Commissariat filed an application for
supervisory review of the judgment of the Novocherkassk Town Court of
15 September 2004, referring to the lack of grounds in domestic
law for increasing the applicant's pension, and asked for a stay of
enforcement.
- On
9 December 2005 the Rostov Regional Court examined the above
application and remitted the case for examination on its merits by
the Presidium of the Rostov Regional Court.
- On
22 December 2005 the Presidium of the Rostov Regional Court quashed
the judgment of 15 September 2004 and remitted the case to the
Oktyabrskiy District Court for a fresh consideration. It concluded
that the first-instance court had erroneously applied the substantive
law and that the matter should have been examined by a district court
rather than by a town court.
- On
20 March 2006 the Oktyabrskiy District Court of Rostov-on-Don
dismissed the applicant's claim.
II. RELEVANT DOMESTIC LAW
A. The 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 209. Entry into force of judicial decisions
“1. A judicial decision becomes legally
binding upon expiry of the time-limit for lodging an appeal against
it if no such appeal had been lodged.”
Article 210. Enforcement of judicial decisions
“A judicial decision is to be enforced after it
becomes legally binding, unless it provides for immediate
enforcement...”
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) a violation or incorrect application of
substantive or procedural law.”
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 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 the substantive law has been erroneously
applied or interpreted.”
B. Enforcement Proceedings Act (Law of 21 July 1997)
- Once
instituted, enforcement proceedings must be completed within two
months upon receipt of the execution warrant by the bailiff
(Section 13).
C. The 2004 Federal Budget Act and the 2005 Federal
Budget Act
- Collection
of funds from the recipients of the federal budget is carried out
through the local branches of the Federal Treasury upon submission of
warrants of execution and court orders (Section 133 and Section 109
respectively).
D. The Federal Law of 12 February 1993 4468-1 on
provision of pensions for the retired military servicemen
- Pensions
to the retired military servicemen are paid by the specialised
territorial services of the Ministry of Defence (Section 56).
E. The Agreement between the Ministry of Finance and
the Savings Bank of the Russian Federation № 01 01-06/03-1710
of 31 December 2002
- The
local branches of the Savings Bank (the Sberbank) distribute the
funds allocated by the federal budget for payment of pensions to the
retired military servicemen to the specialised territorial services
of the Ministry of Defence (Section 2.2.2).
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 IN THE APPLICANT'S FAVOUR
- The
applicant complained that the quashing of the judgment of
15 September 2004 by way of supervisory-review proceedings 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. Alleged violation of Article 6 of the Convention
- The
Government submitted that the quashing of the judgment of
15 September 2004 by way of supervisory review fully complied
with Articles 376 § 1, 387 and 390 of the Russian Code of Civil
Procedure. The supervisory-review procedure was set in motion with
the view of correcting a “judicial error” committed by
the first-instance court in determining the amount of arrears to be
awarded to the applicant. There had therefore been no violation of
the principle of legal certainty.
- The
applicant maintains his complaints.
- 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 (see, mutatis
mutandis, Ryabykh v. Russia, no. 52854/99, § 52, ECHR
2003-X; and Sypchenko v. Russia, no.
38368/04, § 26, 1 June 2007).
25. 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
enforceable judicial decision to be quashed by a higher court merely
on the ground of disagreement with the assessment made by lower
courts with the view of carrying out a fresh examination (see Kot
v. Russia, no. 20887/03, § 27-30, 18 January 2007).
- In
the present case the judgment of 15 September 2004 in the applicant's
favour was set aside by the way of a supervisory review on the ground
that the Town Court had allegedly incorrectly applied the substantive
law and the rules of territorial jurisdiction. 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 ...).
- 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. 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). The judgment of 15
September 2004 was quashed by way of supervisory-review because of an
alleged incorrect application of the substantive law and the rules of
territorial jurisdiction. These defects could have been cured in the
appeal proceedings. Thus, a situation where the final judgment in the
applicant's favour was called into question could have been avoided,
had the Military Commission lodged an ordinary appeal within the
statutory ten-day time-limit (see Borshchevskiy v. Russia, no.
14853/03, § 48, 21 September 2006, and Nelyubin v. Russia,
no. 14502/04, § 27, 2 November 2006).
- The
Court further notes that the Russian Code of Civil Procedure permits
a party to apply for supervisory review even if it had not previously
exhausted an ordinary appeal. In the present case the Military
Commissariat 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 15 September 2004. The Government did not
point to any exceptional circumstances that would have prevented the
Military Commissariat from exposing its arguments to the Town Court
or making use of an ordinary appeal in good time (see Nelyubin;
cited above, § 28).
- Having
regard to these considerations, the Court finds that, by granting the
Military Commission's request to set aside the judgment of
15 September 2004, the Presidium of the Rostov 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.
2. Alleged violation of 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; Androsov v. Russia, no. 63973/00,
§ 69, 6 October 2005; and Borshchevskiy v. Russia, cited
above, § 51).
- The
Court observes that the quashing of the judgment of 15 September
2004 by way of supervisory review led to the dismissal of the
applicant's claim. In these circumstances, the Court considers that
the quashing of the enforceable judgment of 15 September 2004 by way
of supervisory review 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.
Furthermore, the quashing of the judgment of 15 September 2004 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. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1 ON ACCOUNT OF LENGTHY
NON-ENFORCEMENT OF THE JUDICIAL DECISION
- The
applicant further complained about the non-enforcement of the
judgment of 15 September 2004. He relied on Article 6 of the
Convention and Article 1 of Protocol No. 1, cited above.
A. 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.
B. Merits
- The
Government claimed that the applicant had submitted the warrant of
execution without indicating the requisites of his bank account.
- The
applicant responded that there was no need to indicate his bank
requisites as the lump sum awarded to him should have been simply
transferred to his relevant pension account to which the Commissariat
regularly paid his monthly pension.
- Furthermore,
the Government advanced the argument that the administration of the
Social Welfare Office of the Military Commissariat did not take any
steps in order to enforce the judgment of 15 September 2004
as it had been passed in breach of the substantive and procedural
domestic law.
- The
applicant asserted on this point that the judgment of 15 September
2004 was not appealed against and became final. Moreover, it provided
for its immediate enforcement, and, therefore, the Government's
argument was unconvincing.
- The
Court observes that on 15 September 2004 the applicant obtained a
judgment by which the Military Service Commissariat was to pay him a
certain sum of money. The judgment provided for its immediate
enforcement. From that moment on, it was incumbent on the debtor, a
State agency, to comply with it. On 25 September 2004 the
judgment became legally binding since no appeal was lodged against
it. The Town Court issued the applicant with a warrant of execution,
and it was submitted to the debtor on 12 October 2004. However, no
attempts were made to execute the judgment. The Rostov Regional
Court's decision of 5 October 2005 had the effect of staying the
enforcement proceedings but did not affect the validity of the
underlying judgment which remained unenforced on that date. The
launching of the supervisory-review procedure could not, in itself,
extinguish the debtor's obligation to comply with an enforceable
judgment which obligation existed until its quashing by the Presidium
of the Rostov Regional Court in supervisory-review procedure on
22 December 2005.
- It
follows that at least between 15 September 2004 and 22 December 2005
the judgment in the applicant's favour was “enforceable”
and it was incumbent on the State agency to abide by its terms. In
any event, the Court reiterates that the quashing of a judgment in a
manner which has been found to have been incompatible with the
principle of legal certainty and the applicant's “right to a
court” cannot be accepted as a justification for the failure to
enforce that judgment (see Sukhobokov v. Russia, no. 75470/01,
§ 26, 13 April 2006).
- The
Court has frequently found violations of Article 6 § 1 of the
Convention and Article 1 of Protocol No. 1 in cases raising issues
similar to the ones in the present case (see, for example, 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. 1), no. 15021/02, 18 November
2004, and Sukhobokov, cited above).
- Having examined the material submitted to it, 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. They did not advance any plausible justification
for the delay in enforcement. Having regard to its case-law on the
subject, the Court finds that by failing to comply with the judgment
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 § 1
of the Convention and Article 1 of Protocol No. 1 as regards
non-enforcement of the judgment in the applicant's favour.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- Lastly, the applicant complained that the
non-enforcement of the judgment of 15 September 2004 and its
subsequent quashing by way of supervisory review violated his rights
enshrined in Article 13 of the Convention.
- In so far as the applicant may be understood to
complain about the lack of an effective domestic remedy against the
continued non-enforcement of the judgment in his favour, the Court
considers that, having regard to the above findings (see paragraph 42
above), it is not necessary to examine whether, in this case, there
has been a violation of Article 13 (see Tolokonnikova v. Russia,
no. 24651/03, § 27, 17 November 2005, and Gerasimenko v.
Russia, no. 24657/03, § 29, 17 November 2005).
- Thus,
the Court rejects this complaint under Article 35 § 4 of the
Convention.
- In so far as the applicant may be understood to
complain about the lack of an effective domestic remedy against the
quashing by way of supervisory review of a judgment in his favour,
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).
47. It
follows that this part of 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.
IV. 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 that the Government should pay him 261,343.87
Russian roubles (RUB) lost as a result of the non-enforcement of the
judgment of 15 September 2004 and its subsequent quashing by way of
supervisory review. He also claimed 5,000 Euros (EUR) in respect of
non-pecuniary damage.
- The
Government claimed that no award should be made because the
applicant's claim had been rejected by the domestic courts. As
regards the non-pecuniary damage, the Government considered that the
applicant's claim was excessive and unreasonable.
- 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 remained
unenforced for a long period of time and was subsequently quashed.
The applicant was thereby prevented from receiving the money he had
legitimately expected to receive. There is, therefore, a causal link
between the violations found and the applicant's claim for the
pecuniary damage. The Court thus awards the applicant 7,300 Euros
(EUR) representing the amount due to him under the quashed judgment
of 15 September 2004 (to be converted into Russian roubles).
- The
Court further considers that the applicant suffered distress because
of the State authorities' failure to enforce the judgment in his
favour and its subsequent decision to quash it. The Court takes into
account the amount and nature of the award in the instant case and
the period of the authorities' inactivity. Making its assessment on
an equitable basis, it awards the applicant the amount of EUR 4,700,
plus any tax that may be chargeable on it.
B. Costs and expenses
- The
applicant did not claim costs or expenses and there is accordingly no
call to make an award under this head.
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 complaints concerning the continued
non-enforcement of the judgment of 15 September 2004 in the
applicant's favour and its subsequent quashing by way of supervisory
review admissible and the remaining complaints inadmissible;
- 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 15 September 2004 by way of supervisory
review;
- 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 15 September 2004;
- 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) EUR
7,300 (seven thousand three hundred Euros) to be converted into
Russian roubles in respect of pecuniary damage;
(ii) EUR
4,700 (four thousand seven hundred Euros) in respect of non-pecuniary
damage, to be converted into Russian roubles at the rate applicable
at the date of settlement;
(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.
Done in English, and notified in writing on 27 March 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
