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FIRST
SECTION
CASE OF DAVLETKHANOV
and
other “Chernobyl pensioners” v. RUSSIA
(Applications
nos. 7182/03, 10115/04, 21752/04, and 22963/04)
JUDGMENT
STRASBOURG
23
September 2010
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 Davletkhanov and
other “Chernobyl pensioners” v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis, President,
Nina
Vajić,
Anatoly Kovler,
Dean
Spielmann,
Sverre Erik Jebens,
Giorgio
Malinverni,
George Nicolaou, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 2 September 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in four applications (nos. 7182/03, 10115/04,
21752/04 and 22963/04) 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 four Russian nationals
(“the applicants”). The applicants’ names and the
dates of their applications to the Court appear in the table below.
- The
Russian Government (“the Government”) were represented by
their Agents, Mr P. Laptev and Ms V. Milinchuk, former
Representatives of the Russian Federation at the European Court of
Human Rights; and Mr G. Matyushkin, Representative of the
Russian Federation at the European Court of Human Rights.
- The
applicants complained inter alia of the quashing of binding
and enforceable judgments by way of supervisory-review in 2002-2005.
- On
various dates the President of the First Section decided to
communicate these complaints to the respondent Government. It was
also decided in all cases to examine the merits of the applications
at the same time as their admissibility (Article 29 § 1). The
Government objected to the joint examination of the admissibility and
merits in several cases, but the Court rejected this objection.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants, whose names and years of birth are tabulated below, took
part in the cleaning-up operation at the Chernobyl nuclear disaster
site. They were subsequently registered disabled, becoming entitled
to various social benefits.
- On
various dates the applicants successfully sued authorities for
inflation adjustment of these benefits. The judgments became final.
- On
various dates the Presidiums of higher courts allowed the defendant
authorities’ applications for supervisory review (in the case
of Spivak it was the applicant who initiated supervisory
review of the judgment of 30 October 2003, asking reversal of its
part unfavourable to him) and quashed the judgments, considering that
the lower courts misapplied the material law (see details of the
judgments in the table below).
II. RELEVANT DOMESTIC LAW
- The
relevant domestic law governing the supervisory review procedure
before 2003 is summed up in the Court’s judgment in the case of
Ryabykh v. Russia (no. 52854/99, §§ 31-42,
ECHR 2003 IX), from 2003 – in the
Court’s judgment in the case of Kot
v. Russia (no. 20887/03, § 17,
18 January 2007).
THE LAW
I. JOINDER OF THE APPLICATIONS
- Given
that these four applications concern similar facts and complaints and
raise almost identical issues under the Convention, the Court decides
to consider them in a single judgment (see Kazakevich
and 9 other “Army Pensioners” cases v. Russia,
nos. 14290/03 et seq., § 15, 14 January 2010).
II. ALLEGED VIOLATION OF ARTICLE 6 AND ARTICLE 1 OF
PROTOCOL No. 1 ON ACCOUNT OF THE QUASHING OF THE JUDGMENTS IN THE
APPLICANTS’ FAVOUR
- All
applicants complained of violations of Article 6 on account of the
quashing of the binding and enforceable judgments in their favour by
way of supervisory review. They also complained of violations of
Article 1 of Protocol No. 1 in relation to the same facts. The Court
will consider all the cases in the light of both provisions, which
insofar as relevant, read as follows:
Article 6 § 1
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair and public 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 the applicants’ complaints
are not manifestly ill-founded within the meaning of Article 35 §
3 of the Convention. It also notes that they are not inadmissible on
any other grounds. They must therefore be declared admissible.
B. Merits
- All
applicants argued in substance that the quashing of the binding and
enforceable judgments in their favour by way of supervisory review
had violated the principle of legal certainty and therefore their
right to a court under Article 6.
- The
Government argued that the supervisory review proceedings resulting
in the quashing of the judgments at issue were lawful: they were
initiated by the defendant authorities within the time-limits
provided for by domestic law. The regional courts quashed lower
courts’ unlawful judgments, thus correcting flagrant injustice
and erasing dangerous precedents. In respect of the case of Spivak
the Government also noted that it was the applicant who initiated
supervisory review of the final judgment of 30 October 2003.
- The
Court reiterates that legal certainty, which is one of the
fundamental aspects of the rule of law, presupposes respect for the
principle of res judicata, which is the principle of the
finality of judgments. A departure from that principle is justified
only when made necessary by circumstances of a substantial and
compelling character, such as correction of fundamental defects or
miscarriage of justice (see Brumărescu v. Romania
[GC], no. 28342/95, § 61, ECHR 1999 VII; Ryabykh
v. Russia, no. 52854/99, §§ 51-52, ECHR
2003 IX).
- The Court further recalls that it has already found
numerous violations of the Convention on account of the quashing of
binding and enforceable judgments by way of supervisory review under
the Code of Civil Procedure as in force at the material time (for
supervisory review before 2003, see Ryabykh, cited above, §§
52-58; for this procedure after 2003 – see Kot, cited
above, § 29). Some of these violations were found in similar
and, on certain occasions, virtually identical circumstances
concerning benefits to the former participants in the cleaning-up
operation at the Chernobyl nuclear disaster site (see, amongst many
other authorities, Androsov v. Russia, no. 63973/00, 6 October
2005; Kot, cited above; Finkov v.
Russia, no. 27440/03, 8 October 2009).
In those cases the Court found that the quashing of final judgments
in the applicants’ favour was not justified by circumstances of
compelling and exceptional character. The Court finds no reason to
come to a different conclusion in the present cases.
- The
arguments submitted by the Government in the present cases were
addressed in detail and dismissed in previous similar cases.
Misapplication of material law by the first instance courts does not
in itself justify the quashing of binding and enforceable judgments
on supervisory review (Kot, cited above, § 29).
- As
to the fact that in the case of Spivak it was the applicant
who asked for supervisory review of the judgment of 30 October 2003,
the Court observes that the applicant asked to set aside only the
part of the judgment unfavourable to him. However, the
supervisory-review instance quashed the judgment in its entirety,
thereby also destroying the part favourable to the applicant (see, by
contrast, Fadin v. Russia, no. 58079/00, § 34, 27 July
2006).
- The
Court accordingly concludes that the quashing of the binding and
enforceable judgments in the applicants’ favour amounts to a
breach of the principle of legal certainty in violation of Article 6
of the Convention.
- The Court further reiterates that the binding and
enforceable judgments created an established right to payment in the
applicants’ favour, which is considered as an asset within the
meaning of Article 1 of Protocol No. 1 (see Vasilopoulou
v. Greece, no. 47541/99, § 22, 21 March
2002). The quashing of these judgments in breach of the principle of
legal certainty frustrated the applicants’ reliance on the
binding judicial decisions and deprived them of an opportunity to
receive the judicial awards they had legitimately expected to receive
(see Dovguchits v. Russia, no. 2999/03, § 35, 7 June
2007). There has accordingly been also a violation of that Article 1
of Protocol No. 1.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
20. In
the case of Davletkhanov
the applicant complains under
Article 6 about the length of the
proceedings. In the case of Kutsevalov
the applicant complains under the
same Article about non-execution of the judgment of 2 February
2004; he also complains under Article 1 of Protocol No. 1
about the allegedly insufficient amount of social benefits; he also
invokes Article 14 of the Convention. In the case of Spivak
the applicant complains under Article 6 about conflicting
rulings of the Constitutional Court and their non-enforcement.
- However, in the light of all the
material in its possession, and in so far as the matters complained
of are within its competence, the Court finds that these 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
they are manifestly ill-founded and must be rejected in accordance
with Article 35 §§ 1, 3 and 4 of the Convention.
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
1. The parties’ submissions
- The
details of the applicants’ claims appear in the table below.
- The
Government disagreed and asked the Court to reject the applicants’
claims. As to pecuniary damage, the Government noted that the
applicant failed to substantiate the claim for pecuniary damage or
made wrong calculations. As to non-pecuniary damage, the Government
considered the applicants’ claims to be excessive and
unreasonable.
2. The Court’s assessment
(a) Pecuniary damage
- The
Court recalls that the most appropriate form of redress in respect of
the violations found would be to put the applicants as far as
possible in the position they would have been if the Convention
requirements had not been disregarded (see Piersack v. Belgium
(Article 50), 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 considers that this principle should apply in the
present cases as it did in numerous similar ones decided in the past
(see Dovguchits cited above, § 48).
- The
Court therefore finds it appropriate to award the applicants the
amounts they would have received under the domestic judgments in
their favour. On the other hand, the Court cannot grant the
applicants’ claims in so far as they include the monthly
payments allegedly due after the quashing of the domestic judgments
on supervisory review and the ensuing dismissal of the applicants’
claims by the domestic courts (Tarnopolskaya
and Others v. Russia, nos.
11093/07 et al.,
§ 51, 7 July 2009).
- The
Court accordingly awards the following amounts:
400
euros (EUR) to Mr Davletkhanov;
EUR
2,380 to Mr Spivak;
EUR
1,010 to Mr Kutsevalov;
EUR
1,270 to Mr Puryatkin.
(b) Non-pecuniary damage
- With
reference to its established case-law in similar cases the Court
finds that the applicants have suffered non-pecuniary damage as a
result of the violations found which cannot be compensated by the
mere finding of a violation. Having regard to the circumstances of
the cases and making its assessment on an equitable basis, as
required by Article 41 of the Convention, the Court awards to
each applicant a sum of EUR 3,000 in respect of non-pecuniary damage,
plus any tax that may be chargeable on that amount.
B. Costs and expenses
- In
three cases (Davletkhanov, Puryatkin and Kutsevalov)
the applicants claimed certain amounts for costs and expenses (see
details in the table below).
- The
Government found those claims unsubstantiated. In the case of
Davletkhanov the Government conceded that the applicant
substantiated a part of the claims.
- The
Court reiterates that 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. Regard being had to the information in its possession and
the above criteria, the Court decides to grant the applicants’
claims in the cases of Kutsevalov and Puryatkin, and to
grant them in part in the case of Davletkhanov (EUR 150).
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
- Decides to join the applications;
- Declares the complaints concerning the quashing
of the binding and enforceable judgments in supervisory-review
proceedings admissible and the remainder of the applications
inadmissible;
- Holds that there has been a violation of Article
6 of the Convention and of Article 1 of Protocol No. 1 in all
cases on account of the quashing of the judgments in the applicants’
favour by way of supervisory review;
- Holds
(a) that
the respondent State is to pay the applicants, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following
sums to be converted into Russian roubles at the rate applicable at
the date of the settlement:
(i) in
respect of pecuniary damage:
EUR
400 (four hundred euros) to Davletkhanov Mazit Zakiryanovich;
EUR
2,380 (two thousand three hundred and eighty euros) to Spivak Mikhail
Aleksandrovich;
EUR
1,270 (one thousand two hundred and seventy euros) to Puryatkin Fedor
Alekseyevich.
EUR
1,010 (one thousand and ten euros) to Kutsevalov Vyacheslav
Ivanovich;
(ii) EUR
3,000 (three thousand euros) to each applicant in respect of
non-pecuniary damage plus any tax that may be chargeable on these
amounts;
(iii) in
respect of costs and expenses:
EUR
150 (one hundred and fifty euros) to Davletkhanov Mazit
Zakiryanovich;
EUR
30 (thirty euros) to Puryatkin Fedor Alekseyevich;
EUR
30 (thirty euros) to Kutsevalov Vyacheslav Ivanovich;
(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 applicants’
claim for just satisfaction.
Done in English, and notified in writing on 23 September 2010,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
APPENDIX
|
App.
No
(date)
|
Applicant
(year
of birth)
|
judgment(s)
court(s)/date(s)
|
Amount(s)
awarded
(RUB)
|
supervisory
review judgment
court/date(s)
|
Just
satisfaction
claims
(Article 41)
|
|
7182/03
(30/01/2003)
|
Davletkhanov Mazit Zakiryanovich
(1957)
|
Leninskiy District Court of Perm, 07/06/2001,
enforceable on 2 April 2002
|
30,219.59
+
18,625.57
|
Presidium of the Perm Regional Court
29/11/2002
|
RUB 2,562,702.33 (pecuniary damage); 1,000,000
(non-pecuniary damage); 11,219.4 (costs and expenses)
|
|
10115/04
(16/02/2004)
|
Spivak Mikhail Aleksandrovich
(1953)
|
Proletarskiy District Court of Rostov-on-Don,
25/02/2003, enforceable on 23/04/2003;
|
Extra monthly payments + 76,769.87 in arrears
|
Presidium
of the Rostov Regional Court 04/09/2003
|
EUR 75,321.87 (pecuniary damage);
EUR 6,000 (non-pecuniary damage)
|
|
Proletarskiy District Court of Rostov-on-Don,
30/10/2003, enforceable on 26/11/2003
|
Extra monthly payments +
8,534.32 in arrears
|
Presidium
of the Rostov Regional Court 03/11/2005 (the review initiated by
the applicant)
|
|
21752/04
(29/04/2004)
|
Puryatkin Fedor Alekseyevich
(1949)
|
Zernogradskiy District Court of the Rostov Region,
26/02/2003, enforceable on 02/04/2003
|
Extra monthly payments +
44,527.52 in arrears
|
Presidium
of the Rostov Regional Court 30/10/2003
|
RUB 44,527.52 (pecuniary damage);
EUR 50,000 (non-pecuniary damage); RUB 1,000 (costs
and expenses)
|
|
22963/04
(27/04/2004)
|
Kutsevalov Vyacheslav Ivanovich
(1960)
|
Zernogradskiy District Court of the Rostov Region,
18/03/2003,
enforceable on 07/05/2003
|
Extra monthly payments +
35,383.25 in arrears
|
Presidium
of the Rostov Regional Court 30/10/2003
|
EUR 50,000 (did not specify the nature);
RUB 1,000 (costs and expenses)
|
