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FIRST
SECTION
CASE OF LUCHKINA v. RUSSIA
(Application
no. 3548/04)
JUDGMENT
STRASBOURG
10 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 Luchkina 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 20 March 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 3548/04) 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, Ms Valentina Petrovna
Luchkina (“the applicant”), on 21 November 2003.
- The
applicant was represented by Ms H. Clement and Mr K. Koroteev,
lawyers practising in Paris. The Russian Government (“the
Government”) were represented by Mr P. Laptev,
the former Representative of the Russian Federation at the European
Court of Human Rights.
- On
30 January 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 1964 and lives in Troyes, France.
- On
an unspecified date in 2001 the applicant brought an action to
recover her property from a third person. On 1 November 2001 the
Dzerzhinskiy District Court of Volgograd granted her claim in full
and awarded her, inter alia, 5,000 Russian roubles (RUB) in
respect of the non-pecuniary damage.
- On
11 September 2002 the Volgograd Regional Court upheld the above
judgment on appeal. The judgment was enforced in full.
- On
9 August 2003 the other party to the proceedings lodged an
application for a supervisory review of the judgment of 1 November
2001, as upheld on appeal on 11 September 2002.
- On
29 October 2003 a judge of the Volgograd Regional Court examined the
above application and decided to remit the case for examination on
the merits by the Presidium of the Volgograd Regional Court. He
presented the case to the Presidium as the judge rapporteur.
- On
13 November 2003 the Presidium of the Volgograd Regional Court
held a supervisory-review hearing. It held that the lower courts had
erroneously applied the substantive law. On that ground it quashed
the judgment of 1 November 2001, as upheld on appeal on
11 September 2002, in the part concerning the award in respect
of the non-pecuniary damage. Both the applicant and the defendant
attended the hearing and made submissions to the court. The decision
was delivered by four judges. The judge rapporteur did not take part
in the deliberations or voted on the case.
- On
12 January 2004 the Dzerzhinskiy District Court of Volgograd obliged
the applicant to repay RUB 5,000 which she had received by virtue of
the judgment of 1 November 2001.
II. RELEVANT DOMESTIC LAW
A. 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 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 381. Examination of an application for
supervisory review
“2. Having examined an application for supervisory
review, the judge issues a decision on –
(1) obtaining the case file if there exist
doubts as to the lawfulness of the judicial decision...
4. If a decision to obtain the file has been
made, the judge may suspend enforcement of the judicial decision
until the supervisory-review proceedings have been completed...”
Article 384. Decision on remitting the case for
examination on the merits
by a supervisory-review court
“1. A judicial decision on remitting
the case for examination on the merits by a supervisory-review court
must contain:
(7) a reasoned description of the grounds for
remitting the case for examination on the merits...”
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 substantive legal provisions have been
erroneously applied or interpreted.”
B. Resolution of the Plenary Supreme Court of the
Russian Federation
- Resolution
no. 2 of the Plenary Supreme Court of the Russian Federation of 20
January 2003, “On certain issues arising in connection with
adoption and coming into force of the Code of Civil Procedure of the
Russian Federation”, provided that –
“22. ... The [one-year] time-limit for
lodging an application for supervisory review of judicial decisions
that became legally binding before 1 February 2003, shall run from
1 February 2003.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION ON ACCOUNT OF QUASHING OF THE JUDGMENT IN THE APPLICANT'S
FAVOUR
- The
applicant complained about the partial quashing of the judgment of
1 November 2001, as upheld on appeal on 11 September 2002, by
way of supervisory review. She relied on Article 6 § 1 of the
Convention, the relevant part of which reads as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing within a
reasonable time ... by [a] ... tribunal...”
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 1 November 2001, as upheld on 11 September 2002,
had been lodged within the one-year time-limit set out in Article 376
§ 2 of the Code of Civil Procedure of the Russian Federation.
Furthermore, the Presidium of the Volgograd 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.
- The
applicant maintained her claims. She submitted that the quashing of
the final judgment of 1 November 2001, as upheld on 11 September
2002, had irremediably impaired the principle of legal certainty and
her “right to a court”.
2. The Court's assessment
- 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, mutatis mutandis,
Ryabykh v. Russia, no. 52854/99, § 52, ECHR 2003-X, and
Pravednaya v. Russia,
no. 69529/01, § 25, 18 November 2004).
- 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 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 Kot v. Russia, no. 20887/03, § 29,
18 January 2007, and Dovguchits v. Russia, no. 2999/03,
§ 30, 7 June 2007).
- The
Court observes that in the present case on 1 November 2001 the
applicant obtained a judgment in her favour. On 11 September
2002 the judgment was upheld on appeal and became binding and
enforceable. However, on 13 November 2003 that judgment was quashed
within the supervisory-review procedure.
- 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 judgment in the applicant's favour
was set aside on the ground that the lower courts had incorrectly
applied the substantive law. That ground was not a fundamental defect
within the meaning of the Court's case-law and could not justify a
departure from the principle of legal certainty.
- Having
regard to the above considerations, the Court finds that by quashing
the judgment of 1 November 2001, as upheld on appeal on 11 September
2002, by way of supervisory-review proceedings, the Presidium of the
Volgograd 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.
II. OTHER ALLEGED VIOLATION OF THE CONVENTION
23. Lastly,
the applicant contended that the supervisory-instance
court had failed to meet the requirement of impartiality. She relied
on Article 6 § 1 of the Convention which in its
relevant part reads as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing ... by an
independent and impartial tribunal established by law.”
- The
Court finds that, having concluded that there has been an
infringement of the applicant's “right to a court” by the
very use of the supervisory review procedure, it is not necessary to
consider whether the procedural guarantees of Article 6 of the
Convention were available in those proceedings (see, by analogy,
Ryabykh, cited above, § 59). It therefore rejects this
part of the application pursuant to Article 35 § 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 5,000 Russian roubles in respect of pecuniary
damage and 10,000 euros (EUR) in respect of the non-pecuniary damage.
- The
Government submitted that the applicant's claims were wholly
excessive and that the finding of a violation would constitute
adequate just satisfaction.
- The
Court observes that in the present case it has found a violation of
Article 6 § 1 of the Convention 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 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 she legitimately considered her property under
the judgment of 1 November 2001, as upheld on appeal on 11 September
2002. The Court accepts the applicant's claim in respect of the
pecuniary damage and awards her the sum of EUR 160 under this head,
plus any tax that may be chargeable on that amount.
- The
Court further considers that the applicant suffered distress and
frustration because of the State authorities' decision to quash the
judgment in her favour. The particular amount claimed is, however,
excessive. Making its assessment on an equitable basis, the Court
awards the applicant EUR 2,000, plus any tax that may be chargeable
on this amount.
B. Costs and expenses
- The applicant also claimed EUR 2,051.20 for the legal
costs of the Convention proceedings, inclusive of value-added tax
(VAT). This figure represented work completed by the applicant's
representatives (5 hours at EUR 114.34 plus VAT per hour and 5 hours
at EUR 228.67 plus VAT per hour). The applicant submitted a copy of
the fee agreement to that effect.
- The
Government submitted that the applicant had failed to substantiate
the above claim.
- According
to the Court's case-law, an applicant is entitled to the
reimbursement of 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 applicant the sum of EUR
2,051.20 for the legal costs and expenses of the Convention
proceedings. The sum is inclusive of VAT.
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 applicant's complaint about the
partial quashing of the judgment of 1 November 2001, as upheld on
appeal on 11 September 2002, by way of supervisory review,
admissible, and the remainder of the application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- 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
160 (one hundred sixty euros) in respect of pecuniary damage;
(ii) EUR
2,000 (two thousand euros) in respect of non-pecuniary damage;
(iii) EUR
2,051.20 (two thousand fifty-one euros and twenty cents) in respect
of the costs and expenses;
(iv) any
tax that may be chargeable on the amounts under (i) and (ii);
(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 10 April 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
