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FIRST
SECTION
CASE OF TETSEN v. RUSSIA
(Application
no. 11589/04)
JUDGMENT
STRASBOURG
3
April 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 Tetsen v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis,
President,
Anatoly Kovler,
Elisabeth
Steiner,
Dean Spielmann,
Sverre Erik
Jebens,
Giorgio Malinverni,
George Nicolaou,
judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 13 March 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 11589/04) 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 Oleg Yuryevich Tetsen
(“the applicant”), on 15 March 2004.
- The
Russian Government (“the Government”) were represented by
Mrs V. Milinchuk, Representative of the Russian Federation at the
European Court of Human Rights.
- The
applicant complained about non-enforcement of the judgment in his
favour.
- On
21 June 2007 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
- The
applicant was born in 1979 and lives in Vizinga in the Komi Republic.
- From
14 June 2001 to 31 July 2003 the applicant was employed in the
military commander’s office in the Chechen Republic. On the
commander’s orders, he took part in counter-terrorist
operations. For his participation he was paid an additional
compensation of 55,807.70 Russian roubles (RUB) for a period of
eighty-five days.
- The
applicant applied to a court, claiming that the additional
compensation should be paid for the entire duration of his employment
in the military commander’s office. He submitted original
employment contracts and orders signed by the military commander.
- The
military commander’s office did not send a representative to
take part in the proceedings and asked the court to hear the case in
his absence.
- On
25 August 2003 the Military Court of the Rostov-on-Don Garrison
accepted the applicant’s claim and awarded him RUB 444,965.37
against the military commander of the Chechen Republic.
- No
appeal having been lodged against the judgment, it became enforceable
ten days later.
- On 6 September 2003 the applicant obtained a writ of
execution and submitted it to the Ministry of Finance.
- On
23 August 2005 a representative of the military commander’s
office asked the Military Court of the Rostov-on-Don Garrison to
quash the judgment of 25 August 2003 on account of newly discovered
circumstances. He claimed that it had been founded on “unreliable
evidence” (недостоверные
доказательства).
- By
decision of 20 October 2005, a judge of the Military Court of the
Rostov-on-Don Garrison set aside the judgment of 25 August 2003 on
account of newly discovered circumstances. The parties did not make
available a copy of that decision to the Court. According to the
applicant, it did not specify why the evidence in the original
judgment was considered “unreliable”. The Government
indicated that it was unreliable because “the applicant’s
calculations of the indebtedness [had] had no legal effect”.
- In
the re-opened proceedings the applicant’s claims were rejected
in full. Copies of these judgments were not made available to the
Court.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AND
ARTICLE 1 OF PROTOCOL NO. 1
- The
applicant complained about non-enforcement of the judgment of 25
August 2003. 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
Government, relying on the Court’s judgment in the case of
Pellegrin v. France ([GC], no. 28541/95, ECHR 1999-VIII),
argued that the applicant’s complaint under Article 6 of the
Convention was inadmissible ratione
materiae because the applicant was a military officer and
the judgment award had concerned wage arrears for his military
service.
- The
Court recalls that in the
Pellegrin judgment
it attempted to establish an autonomous interpretation of the
term “civil service”. To that end the Court introduced a
functional criterion based on the nature of the employee’s
duties and responsibilities. However, in its recent judgment in
the case of Vilho
Eskelinen and Others v. Finland ([GC],
no. 63235/00, 19 April 2007), the Court found that the
functional criterion, adopted in the
Pellegrin judgment,
did not simplify the analysis of the applicability of Article 6 in
proceedings to which a civil servant was a party or brought about a
greater degree of certainty in this area as intended (§ 55). For
these reasons the Court decided to further develop the functional
criterion set out in Pellegrin
and adopted the
following approach (see Vilho
Eskelinen, cited
above, § 62):
“To
recapitulate, in order for the respondent State to be able to rely
before the Court on the applicant’s status as a civil servant
in excluding the protection embodied in Article 6, two conditions
must be fulfilled. Firstly, the State in its national law must have
expressly excluded access to a court for the post or category of
staff in question. Secondly, the exclusion must be justified on
objective grounds in the State’s interest. The mere fact that
the applicant is in a sector or department which participates in the
exercise of power conferred by public law is not in itself decisive.
In order for the exclusion to be justified, it is not enough for the
State to establish that the civil servant in question participates in
the exercise of public power or that there exists, to use the words
of the Court in the Pellegrin
judgment, a ‘special bond of trust and loyalty’ between
the civil servant and the State, as employer. It is also for the
State to show that the subject matter of the dispute in issue is
related to the exercise of State power or that it has called into
question the special bond. Thus, there can in principle be no
justification for the exclusion from the guarantees of Article 6 of
ordinary labour disputes, such as those relating to salaries,
allowances or similar entitlements, on the basis of the special
nature of relationship between the particular civil servant and the
State in question. There will, in effect, be a presumption that
Article 6 applies. It will be for the respondent Government to
demonstrate, first, that a civil-servant applicant does not have a
right of access to a court under national law and, second, that the
exclusion of the rights under Article 6 for the civil servant is
justified”.
- Turning
to the facts of the present case, the Court notes that the applicant
had access to a court under national law. He made use of his right
and introduced an action against his former employer. The Military
Court of the Rostov-on-Don Garrison examined the applicant’s
claims and accepted them, awarding wage arrears to the applicant.
Neither the domestic courts nor the Government indicated that the
domestic system barred the applicant’s access to a court.
Accordingly, Article 6 is applicable (compare Dovguchits v.
Russia, no. 2999/03, § 24, 7 June 2007)
and the Government’s objection must be dismissed.
- 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
- The
Government pointed out that the judgment of 25 August 2003 had been
eventually quashed on account of “unreliable evidence”
produced by the applicant. They submitted that there had been no
impairment of the res judicata principle because the applicant
could not legitimately expect the stability of a judicial decision
founded on “unreliable evidence”. Likewise, he could not
legitimately expect that the judgment would be enforced because he
had been aware that his claims had been based on “unreliable
evidence”. Defects in the evidentiary base had not been known
to the defendant in due time because its representative had not taken
part in the hearing on 25 August 2003.
- The
applicant submitted that the judgment should be enforced once it
became enforceable. There had been no reasons justifying the
two-years delay in the enforcement of the judgment of 25 August 2003.
As regards the re-opening of the proceedings, he pointed out that the
certificates he had produced bore the signatures and stamps of the
military commander’s office. All of his evidence had come from
the official bodies.
- The
Court observes that on 25 August 2003 the applicant obtained a
judgment by which the military commander of the Chechen Republic was
to pay him a sum of money. The judgment was not appealed against and
became enforceable ten days later. From that moment on, it was
incumbent on the debtor, a State official, to comply with it. On 20
October 2005 a judge of the Military Court of the Rostov-on-Don
Garrison set the judgment aside. It follows that at least from
September 2003 to 20 October 2005 the judgment of 25 August 2003 was
enforceable and it was incumbent on the State to abide by its terms
(compare Dovguchits, cited above, § 41, and Velskaya
v. Russia, no. 21769/03, § 18, 5 October 2006).
- The
Court is not convinced by the Government’s claim that the
applicant could not have a legitimate expectation that the judgment
would be enforced because it had been founded on “unreliable
evidence”. The Military Court examined the evidence produced by
the applicant and granted his claim. There was no indication in the
judgment that the court had considered the evidence insufficient or
unreliable. Nor were there any allegations of forgery. The judgment
itself was valid and enforceable without any legal defect. There was
thus no justification for the State authorities’ failure to
comply with the judgment.
- As
regards the eventual quashing of the judgment on account of newly
discovered circumstances, the Court reiterates its constant approach
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 Velskaya, cited
above, §§ 19-21, and Sukhobokov v. Russia,
no. 75470/01, § 26, 13 April 2006). The Court
accordingly has to determine whether the principle of legal certainty
was respected in the instant case. It observes that the judgment of
25 August 2003 was set aside more than two years later, further to an
application by the military commander’s office. In granting the
application, the judge determined that the original judgment had been
premised on “unreliable evidence”. In the Government’s
submission, unreliability of the evidence was a newly discovered
circumstance because a representative of the military commander’s
office had been absent from the original proceedings.
- The
Court reiterates that “the procedure for quashing of a final
judgment presupposes that there is evidence not previously available
through the exercise of due diligence that would lead to a different
outcome of the proceedings. The person applying for rescission [on
account of newly discovered circumstances] should show that there was
no opportunity to present the item of evidence at the final hearing
and that the evidence is decisive” (see Pravednaya v.
Russia, no. 69529/01, § 27, 18 November
2004). The Government did not point to any exceptional circumstances
that would have prevented the commander’s office from
challenging the evidence at either first or appeal instance. On the
contrary, it transpires that the military commander’s office
expressly waived its right to take part in the proceedings before the
Military Court and subsequently chose not to avail itself of the
right of appeal against the first-instance court’s judgment. It
follows that the commander’s office’s request to re-open
the case due to the discovery of the new circumstances was in essence
an attempt to re-argue the case on points which the office had been
able, but had failed, to raise in the original proceedings. The Court
therefore considers the office’s request to be an “appeal
in disguise” rather than a conscientious effort to make good a
miscarriage of justice (compare Pravednaya, cited above, §
32). The Court furthermore notes an exceptionally long period of time
which preceded the office’s application for rescission of the
judgment of 25 January 2003. No justification for that delay was put
forward by the Government. In these circumstances, the Court finds
that the quashing of the judgment of 25 August 2003 breached the
principle of legal certainty and that, in any event, it may not serve
as a justification for the authorities’ failure to execute a
valid and enforceable judgment in the preceding period.
- Having
regard to its case-law on the subject (see 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. 15021/02, 18 November 2004, and
also the Dovguchits and Velskaya judgments, cited
above), the Court finds that by failing to comply with the judgment
of 25 August 2003 in the applicant’s favour the domestic
authorities violated his right to a court and prevented him from
receiving the money which he legitimately expected to receive.
- There
has therefore been a violation of Article 6 § 1 of the
Convention and Article 1 of Protocol No. 1 on account of the
non-enforcement of the judgment of 25 August 2003.
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.”
A. Damage
- The
applicant claimed 10,000 euros (EUR) in respect of non-pecuniary
damage and the money which had been awarded to him under the judgment
of 25 August 2003.
- The
Government considered his claim to be “manifestly excessive and
groundless”.
- 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 judicial decision in the applicant’s favour was not
enforced. 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 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). The
Court finds that in the present case this principle applies as well,
having regard to the violations found (compare Poznakhirina § 33,
and Sukhobokov, § 34, both cited above). The applicant
was prevented from receiving money he had legitimately expected to
receive under the judgment of 25 August 2003. The Court, accordingly,
awards the applicant EUR 12,600 in respect of pecuniary damage, plus
any tax that may be chargeable on that amount.
- The
Court further considers that the applicant must have suffered
distress and frustration resulting from the State authorities’
failure to enforce the judgment in her favour. Making its assessment
on an equitable basis, the Court awards the applicant EUR 1,500 in
respect of non-pecuniary damage, plus any tax that may be chargeable
on the above amount.
B. Costs and expenses
- The
applicant did not submit a claim for costs and expenses. Accordingly,
the Court considers that there is no call to award him any sum 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 application admissible;
- Holds that there has been a violation of Article
6 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 12,600 (twelve thousand six hundred euros) in respect of
pecuniary damage;
(ii) EUR 1,500 (one thousand five hundred euros) in respect of
non-pecuniary damage;
(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 3 April 2008, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos
Rozakis
Registrar President
