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SECOND
SECTION
CASE OF
ESERTAS v. LITHUANIA
(Application
no. 50208/06)
JUDGMENT
STRASBOURG
31 May
2012
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 Esertas v. Lithuania,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Danutė Jočienė,
Isabelle
Berro-Lefèvre,
András Sajó,
Işıl
Karakaş,
Paulo Pinto de Albuquerque,
Helen
Keller, judges,
and Françoise Elens-Passos,
Deputy Registrar,
Having
deliberated in private on 10 May 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 50208/06) against the Republic
of Lithuania lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Lithuanian national, Mr Tomas Esertas (“the
applicant”), on 8 December 2006.
- The
applicant was represented by Ms R. A. Kučinskaitė,
a lawyer practising in Vilnius. The Lithuanian Government (“the
Government”) were represented by their Agent, Ms E. Baltutytė.
- The
applicant alleged that his rights under Article 6 § 1 of the
Convention had been breached by the fact that the court’s
decision made in his favour was set aside in violation of the res
judicata principle.
- On
3 June 2009 the application was communicated to the Government. It
was also decided to rule on the admissibility and merits of the
application at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1978 and lives in Kaunas.
- The
applicant owned a flat together with another person, I.B. On 15 May
2001 the applicant and I.B. disconnected the flat from the central
heating system provided by the company “Litesko Ltd.”
(hereinafter – Litesko), and signed a contract with an
alternative heating provider. On 15 June 2001 the new provider’s
heating system was installed in the flat. On 6 August and repeatedly
on 17 October 2001 the applicant informed Litesko about the
termination of their old agreement. According to the applicant, in
the following months they received no bills from the old heating
provider. In February 2002, however, Litesko sent a bill for
heating to the applicant and I.B.
A. First set of civil proceedings
- Following
the refusal by the applicant to pay the bill, Litesko filed a
civil claim for payment for the period from 1 January 2002 to 1
September 2003.
- On
7 June 2004 the Palanga City District Court (hereinafter - the
Palanga Court) dismissed the claim by Litesko. The court
observed that the owners of the flat were free to choose their
heating provider and they had informed the plaintiff about the
termination of the agreement and properly disconnected from the
heating system. The court concluded that the plaintiff itself had
acknowledged that it no longer supplied heating to the flat. It was
also established that the applicant together with I.B. and Litesko
were no longer in a contractual relationship for heat consumption.
The Palanga Court noted that the claim filed by the plaintiff was an
unsubstantiated attempt to enrich itself at the expense of the other
party.
- Litesko
missed the time-limit for lodging an appeal and its request to renew
it was dismissed. Neither of the parties requested re-opening of the
proceedings.
B. Second set of civil proceedings
- In
2006 Litesko brought a new claim against the applicant and
I.B., requesting payment for heating for the period 1 April 2004 to 1
September 2005.
- On
20 March 2006 the Kaunas City District Court upheld the claim and
awarded Litesko 490 Lithuanian litai (LTL; approximately 142
euros (EUR)) against each of the owners. Having re-interpreted the
domestic law, the court ruled that the applicant and I.B. were still
in a contractual relationship with Litesko because they had
arbitrarily disconnected the heating system and thus they had to pay
for the heating. The court found that the 7 June 2004 court decision
did not have res judicata effect as the new claim concerned a
different period of time, and that this situation was therefore not
identical to the one ruled upon earlier by another District Court.
- On
20 June 2006 the Kaunas Regional Court upheld the decision, having
found that the lower court had correctly assessed all the
circumstances of the case and made a reasonable conclusion as to the
existence of a contractual relationship between the parties and the
supply of heating to the flat.
- The
applicant did not have the right to lodge a cassation appeal as the
amount of the claim was smaller than the minimum required by domestic
law for the lodging of such an appeal.
II. RELEVANT DOMESTIC LAW
- Article 279 § 4 of the Code of Civil Procedure
provides that once a judgment, decision or ruling becomes effective,
the parties or other persons to the proceedings as well as the
successors to their rights may not raise once again the same claims
on the same grounds, and may not contest the facts and legal
relations that had been established by a court in another case.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that his right to a fair hearing was violated in
the second set of civil proceedings when the domestic courts granted
the plaintiff’s claim by overruling the binding court decision
and the facts established thereby.
- Article
6 § 1 of the Convention, in so far as relevant, reads as
follows:
“In the determination of his civil rights and
obligations ... everyone is entitled to a fair ... hearing ... by [a]
... tribunal ...”
A. The parties’ submissions
- The
applicant complained that the overruling of the final and enforceable
decision and the determination of the same facts and legal relations
differently was in breach of the res judicata principle. He
noted that the Palanga Court had established the fact that no
contractual relationship existed between him and the old heating
provider. It was also concluded that there was no dispute between the
parties that no heating was supplied by Litesko to the
apartment. Since the courts in the second proceedings ignored the
above-mentioned conclusions concerning the same parties and issues,
they delivered decisions that were favourable to the plaintiff and
not the applicant. The applicant pointed out that the lawfulness and
validity of the Palanga Court’s decision could have been
assessed only by a court of higher instance, deciding an appeal
against that decision.
- The
Government contested that argument and submitted that the two civil
claims were not identical. Besides, in the first proceedings the
court had not followed well established case-law of the Supreme Court
in analogous cases, therefore overruling the decision of 7 June 2004
could be considered necessary in view of an “error”
committed by the Palanga Court.
B. The Court’s assessment
1. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
2. Merits
- As
the Court has stated in previous cases, the right to a fair hearing
under Article 6 § 1 of the Convention, interpreted in the light
of the principles of rule of law and legal certainty, encompasses the
requirement that where the courts have finally determined an issue,
their ruling should not be called into question (see Brumărescu
v. Romania [GC], no. 28342/95, § 61, ECHR 1999 VII;
Kehaya and Others v. Bulgaria, nos. 47797/99 and
68698/01, § 61, 12 January 2006).
- The
principle of res judicata requires that no party is entitled
to seek a review of a final and binding judgment merely for the
purpose of obtaining a rehearing and a fresh determination of the
case. Any review should not be treated as an appeal in disguise, and
the mere possibility of there being two views on the subject is not a
ground for re-examination (see Shchurov v. Russia, no.
40713/04, § 18, 29 March 2011).
- The
Court observes that in all legal systems the res judicata
effects of judgments have limitations ad personam and as to
material scope (see Kehaya, cited above, § 66).
- Turning
to the present case, the Court notes that although both sets of
proceedings concerned the same parties – the heating provider
and the applicant – and the core of the dispute was the same,
the time period for which the plaintiff claimed payments was
different (see paragraphs 7-10 above). Therefore, the Court shares
the Government’s view that the two civil claims were not
identical. However, it cannot be ignored that both civil proceedings
concerned exactly the same legal relations and the same
circumstances, which were crucial for deciding the dispute.
- In
the present case, unlike in Brumărescu, the 2004 final
decision was not quashed. A significant part of it was rendered
devoid of any legal effect, however, as in new separate proceedings
the question concerning contractual relations and the supply of the
heating was re-examined and decided differently.
- The
Court considers that a situation where the facts already determined
by a final decision in one case are later overruled by the courts in
a new case between the same parties, is similar to the one where,
following a re-opening of the proceedings, a binding and enforceable
decision is quashed in its entirety. Consequently, such a situation
may also amount to a breach of the principle of legal certainty in
violation of Article 6 § 1 of the Convention.
- In
the instant case there is no doubt that the decisive circumstances
established by the final decision of 7 June 2004 of the Palanga Court
were reassessed and overruled by the courts in the second
proceedings. The Court observes that such a situation was also in
breach of the domestic law, namely Article 279 § 4 of the Code
of Civil Procedure which provides that the facts and legal relations
that had been established by a court in one case may not be contested
in another case (see paragraph 14 above).
- Having
examined the materials submitted by the parties, the Court finds that
there was no justification for requiring the applicant to prove
again, in the second proceedings, the fact that he was not in
contractual relations with Litesko or that no heating was
supplied to the flat. These circumstances had been established in the
first set of proceedings. It should also be noted that no new factual
circumstances were invoked during the second set of proceedings.
- The
Court also recalls that the departure from the principle of legal
certainty would be compatible with requirements of Article 6 § 1
of the Convention only if it is justified by considerations of a
pressing social need as opposed to merely legal purism (see
Sutyazhnik v. Russia, no. 8269/02, § 38, 23 July
2009). The Court has held that, as a matter of principle, a judgment
may be quashed exclusively in order to rectify an error of truly
fundamental importance to the judicial system (ibid.).
- The
Government have argued that the overruling of the court’s
decision of 7 June 2004 was necessary for the correct interpretation
and application of the domestic law regulating consumers’
agreements with heating providers. The circumstances established in
the decision of the Palanga Court, namely that the applicant was not
in a contractual relationship with Litesko and that his flat
was not provided with heating by the latter, were disregarded on the
basis merely of a different interpretation and application of the
domestic law and on the apparently factual argument that the new
claim concerned a different period of time. 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 (see Luchkina v. Russia, no. 3548/04, § 21, 10
April 2008). The Court also does not find that the first set of
proceedings had been tarnished by a fundamental defect, such as, in
particular, a jurisdictional error, serious breaches of court
procedure or abuses of power. There was, therefore, no pressing
social need shown for disregarding the judgment in question.
- The
Court is therefore of the opinion that departure from the principle
of legal certainty was unjustified in the second set of the
proceedings.
- The
foregoing considerations are sufficient to enable the Court to
conclude that the applicant’s rights under Article 6 § 1
of the Convention were prejudiced as the courts in the second set of
proceedings ignored the previous judicial process. By depriving of
res judicata effect the final decision of 7 June 2004, the
national courts acted in breach of the principle of legal certainty
inherent in Article 6 § 1 of the Convention.
- It
follows that there has been a violation of that provision.
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 1,741.47 euros (EUR) in respect of pecuniary
damage. It consisted of the amount the Kaunas City District Court had
ordered the applicant to pay by the decision of 20 March 2006
(EUR 142.47) plus the amount he had spent for installation of an
autonomous heating system (EUR 1,599). He further claimed EUR 5,000
in compensation for non-pecuniary damage.
- The
Government held that as concerns the pecuniary damage only the amount
that was adjudged by the domestic court was reasonable, while his
claim for non-pecuniary damage was excessive and unjustified.
- The
Court observes that in the present case it has found a violation of
Article 6 § 1 of the Convention on the ground that by the
disregarding of the final decision the applicant was ordered to
fulfil the obligation which he had been previously relieved of. The
Court considers that the most appropriate form of redress in respect
of a violation of Article 6 § 1 is to ensure that the applicant
is put as far as possible in the position he would have been if had
the requirements of that provision not been disregarded (see Piersack
v. Belgium (Article 50), 26 October 1984, § 12, Series A
no. 85, 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 violation found. The applicant had to pay the money
according to the decision of 20 March 2006. The Court accepts the
applicant’s claim and awards him the sum of EUR 142.47 under
this head, plus any tax that may be chargeable on that amount.
- As
regards the pecuniary damage related to the installation of the
heating system, the Court does not discern any causal link between
the violation found and the expenses claimed; it therefore rejects
this part of the claim.
- The
Court further considers that the applicant suffered some distress and
frustration resulting from not taking into account of the final and
binding judicial decision in his favour. However, it finds the amount
claimed by the applicant excessive. Making its assessment on an
equitable basis, the Court awards the applicant EUR 4,000 in respect
of non pecuniary damage, plus any tax that may be chargeable on
this amount.
B. Costs and expenses
- The
applicant also claimed EUR 10.94, plus any tax that may be chargeable
to the applicant, for the costs and expenses incurred before the
Kaunas City District Court, the sum being indicated in the
above-mentioned court decision.
- The
Government found that sum reasonable.
- The
Court considers it reasonable to award the sum of EUR 10.94, plus any
tax that may be chargeable on this amount to the applicant, for costs
and expenses in the domestic proceedings.
C. Default interest
- The
Court considers it appropriate that the default interest rate 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 § 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 Lithuanian litas at the rate
applicable at the date of settlement:
(i) EUR
142.47 (one hundred and forty-two euros and forty-seven cents), plus
any tax that may be chargeable, in respect of pecuniary damage;
(ii) EUR
4,000 (four thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage;
(b) EUR
10.94 (ten euros and ninety-four cents), plus any tax that may be
chargeable to the applicant, in respect of costs and expenses;
(c) 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 31 May 2012, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos Françoise
Tulkens
Deputy Registrar President
