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FIRST
SECTION
CASE OF MORDACHEV v. RUSSIA
(Application
no. 7944/05)
JUDGMENT
STRASBOURG
25
February 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 Mordachev v.
Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina Vajić,
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 4 February 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 7944/05) 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 Vladimir Vladimirovich
Mordachev (“the applicant”), on 4 February 2005.
- The
applicant was represented by Ms N. Mukhlayeva, a lawyer practising in
Astrakhan. The Russian Government (“the Government”) were
represented by Ms V. Milinchuk, former
Representative of the Russian Federation at the European Court of
Human Rights.
- On
10 September 2007 the President of the First Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1951 and lives in the village of Tri Protoka in
the Astrakhan Region.
- On
6 December 2003 the applicant was dismissed from his position in a
private company. He sued his former employer claiming reinstatement
in the position and damages.
- On
11 March 2004 the Krasnoyarskiy District Court of Astrakhan rejected
his claims.
- On
8 June 2004 the Astrakhan Regional Court set it aside on appeal,
reinstated the applicant in his position and awarded him 157,427.98
Russian roubles (RUB) of outstanding salary, RUB 5,000 of
non-pecuniary damages and RUB 4,000 of legal fees. The appeal
judgment became final and enforceable on the same date.
- On
28 June 2004 the defendant company lodged an application for
supervisory review of the appeal judgment of 8 June 2004. On 12 July
2004 the local public prosecutor, who had earlier participated in the
proceedings, lodged a similar application.
- On
3 August 2004 a judge of the Astrakhan Regional Court referred the
case to its Presidium.
- On
18 August 2004 the Presidium of the Astrakhan Regional Court, having
heard the parties and the prosecutor, quashed the appeal judgment of
8 June 2004 and reinstated the judgment of 11 March 2004, on the
grounds that the appeal court had made wrong findings of fact.
II. RELEVANT DOMESTIC LAW
- The relevant domestic law
governing the supervisory review procedure at the material time is
summed up in the Court’s judgment in the case of Sobelin
and Others (see Sobelin
and Others v. Russia, nos. 30672/03,
et seq., §§ 33-42, 3 May 2007).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained under Article 6 of the Convention that the
appeal judgment 8 June 2004 had been quashed by way of supervisory
review on 18 August 2004. In so far as relevant, this Article read as
follows:
Article 6 § 1
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing ...
by [a] ... tribunal...”
- The
Government contested that argument. They argued, inter alia,
that the supervisory review had been compatible with the Convention
as it was the only possibility to correct a judicial error, which was
fundamental; that the public prosecutor participated in the hearings
in accordance with the law and therefore could apply for supervisory
review, and this application was lodged and the case reviewed within
a very short period of time.
A. Admissibility
14. 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
Court reiterates that for the sake of legal certainty implicitly
required by Article 6, final judgments should generally be left
intact. They may be disturbed only to correct fundamental errors. The
mere possibility of there being two views on the subject is not a
ground for re examination (see Ryabykh
v. Russia,
no.
52854/99, §§ 51-52, ECHR 2003 IX).
- The Court further reiterates
that it has frequently found violations of the principle of legal
certainty and of the right to a court in the supervisory review
proceedings governed by the Code of Civil Procedure in force since
2003 (see, among other authorities, Sobelin
and Others, cited above, §§ 57 58,
and Bodrov v. Russia,
no. 17472/04, § 31, 12 February 2009).
- In the present case the final
and binding appeal judgment was quashed for wrong findings of fact,
which is not in itself an exceptional circumstance warranting the
quashing (see Kot v. Russia,
no. 20887/03, § 29, 18 January 2007).
18. The respondent State’s argument
that the public prosecutor could have applied for supervisory review
is irrelevant, as the other party to the proceedings had earlier
applied for it anyway.
- Accordingly, there has been a
violation of Article 6 § 1 of the Convention.
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 997,623.70 Russian roubles (RUB) in respect of
pecuniary damage. He took the sums awarded to him by the final
judgment (RUB 157,427.98 of outstanding salary, RUB 5,000
of non pecuniary damages and RUB 4,000 of legal fees), and added
the sums he could have received as a salary had the judgment not been
quashed by way of supervisory review.
- He
also claimed 50,000 euros (EUR) in respect of non-pecuniary damage.
- The
Government noted that no satisfaction should be awarded since the
applicant’s rights were not violated and he had failed to
substantiate his allegedly excessive and unreasonable claims.
- The Court reiterates that in general the most
appropriate form of redress in respect of violations found is to put
applicants as far as possible in the position they would have been in
if the Convention requirements had not been disregarded (see, amongst
other authorities, Piersack v. Belgium (Article 50),
26 October 1984, § 12, Series A no. 85,
p. 16, § 12, and Dovguchits v. Russia,
no. 2999/03, § 48, 7 June 2007).
- In the present case insofar as
the applicant did not receive the money he had legitimately expected
to receive under the quashed final appeal judgment, there is a causal
link between the violations found and the applicant’s claims in
respect of pecuniary damage.
- As regards the applicant’s
claims in respect of his future salary loss, however, they inevitably
rely on highly speculative assumptions that veil them in a great deal
of uncertainty (Parolov
v. Russia, no. 44543/04, § 45,
14 June 2007).
- The Court therefore can only
award in respect of pecuniary damage the sums which would have been
paid under the appeal judgment quashed by way of supervisory review
(EUR 4,640).
- The Court furthermore finds that
the applicant has suffered non pecuniary damage as a result of
the violation 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, the Court
awards to applicant the sum of EUR 3,000 in respect of non-pecuniary
damage.
B. Costs and expenses
- The
applicants also claimed RUB 4,000 for the costs and expenses
incurred.
- The
Government asserted that the applicant had failed to substantiate the
claims.
- 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 documents in its possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 68.
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 in respect of the quashing by way of supervisory
review of the final appeal judgment in the applicant’s favour;
- 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 4,640 (four thousand six hundred and forty euros), in respect of
pecuniary damage;
(ii)
EUR 3,000 (three thousand euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage;
(iii)
EUR 68 (sixty eight euros), plus any tax that may be chargeable to
the applicant, in respect of costs and expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount 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 25 February 2010,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Nina Vajić
Registrar President
