CASE OF AKALINSKIY v. RUSSIA

FIRST SECTION

CASE OF AKALINSKIY v. RUSSIA

(Application no. 2993/03)

JUDGMENT

STRASBOURG 

7 June 2007

FINAL

07/09/2007

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 Akalinskiy v. Russia,

The European Court of Human Rights (First Section), sitting as a Chamber composed of:

MrC.L. Rozakis, President,
MrL. Loucaides,
MrsN. Vajić,
MrA. Kovler,
MrsE. Steiner,
MrK. Hajiyev,
MrD. Spielmann, judges,
and Mr S. Nielsen, Section Registrar,

Having deliberated in private on 15 May 2007,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 2993/03) 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 Viktor Dmitriyevich Akalinskiy (“the applicant”), on 26 December 2002.

2. The Russian Government (“the Government”) were represented by Mr P. Laptev, the Representative of the Russian Federation at the European Court of Human Rights.

3. On 11 October 2005 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

4. The applicant was born in 1949 and lives in the village of Bukachacha in the Chita Region.

5. Since 1986 the applicant suffers from a work-related illness. In 1999 he instituted proceedings against his former employer, a mining company, and the Social Insurance Fund of the Russian Federation (hereafter – the Fund) seeking compensation for damage.

6. On 21 September 1999 the Chernyshevskiy District Court of the Chita Region found in the applicant's favour and awarded the applicant 42,126.40 Russian roubles (RUR). The judgment was not appealed against and became final.

7. In November 2000 the former employer asked the Presidium of the Chita Regional Court to review the judgment of 21 September 1999. On 9 January 2001 the acting prosecutor of the Chita Region lodged an application for a supervisory review of that judgment.

8. On 15 March 2001 the Presidium of the Chita Regional Court, by way of supervisory-review proceedings, quashed the judgment of 21 September 1999 and remitted the case for a fresh examination. The applicant attended the supervisory-review hearing.

9. On 16 October 2002 the Chernyshevskiy District Court awarded the applicant RUR 751.44 in compensation for pecuniary damage and RUR 12,000 in compensation for non-pecuniary damage. The judgment was not appealed against and became final.

10. On 28 March 2003 the Fund asked the Presidium of the Regional Court to re-examine the case by way of supervisory review.

11. On 26 June 2003 the Presidium of the Chita Regional Court, by way of the supervisory-review proceedings, quashed the judgment of 16 October 2002, re-examined the matter and dismissed the applicant's claims in respect of pecuniary damage. The award in respect of non-pecuniary damage remained unaffected. The Presidium noted that the District Court had incorrectly assessed and applied substantive legal norms. The applicant was not summonsed to the hearing.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL NO. 1 ON ACCOUNT OF THE QUASHING OF THE JUDGMENT OF 16 OCTOBER 2002

12. The applicant complained that the quashing of the final judgment of 16 October 2002 made in his favour had violated his “right to a court” and his right to peaceful enjoyment of possessions. He also complained that he had been deprived of his right to effectively participate in the supervisory-review hearing. The Court considers that this complaint falls to be examined under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1. The relevant parts of these provisions 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...”

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. Submissions by the parties

13. The Government argued that that the Presidium of the Chita Regional Court quashed the judgment of 16 October 2002 with a view to correcting the judicial error committed by the District Court.

14. The applicant averred that the quashing of the final judgment of 16 October 2002 had irremediably impaired the principle of legal certainty and had deprived him of the right to receive money he had been entitled to receive.

B. The Court's assessment

1. Article 6 § 1 of the Convention

(a) Admissibility

15. 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

16. 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).

17. 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).

18. The Court reiterates that Article 6 § 1 secures to everyone the right to have any claim relating to his civil rights and obligations brought before a court or tribunal. In this way it embodies the “right to a court”, of which the right of access, that is the right to institute proceedings before courts in civil matters, constitutes one aspect. However, that right would be illusory if a Contracting State's domestic legal system allowed a final and binding judicial decision to be quashed by a higher court on an application made by a State official whose power to lodge such an application is not subject to any time-limit, with the result that the judgments were liable to challenge indefinitely (see Ryabykh, cited above, §§ 54-56).

19. The Court observes that on 16 October 2002 the Chernyshevskiy District Court upheld the applicant's action and granted him money representing compensation for pecuniary and non-pecuniary damage. The judgment was not appealed against and became binding and enforceable. On 26 June 2003 that judgment was quashed by way of supervisory review initiated by the Fund, a party to the proceedings.

20. The Court reiterates that it has found a violation of an applicant's “right to a court” guaranteed by Article 6 § 1 of the Convention in many Russian cases in which a judicial decision that had become final and binding, was subsequently quashed by a higher court on an application by a State official or by a party to the proceedings when the latter had not made use of the ordinary appeal procedure (see Roseltrans v. Russia, no. 60974/00, §§ 27-28, 21 July 2005; Volkova v. Russia, no. 48758/99, §§ 34-36, 5 April 2005; Ryabykh, cited above, §§ 51-56; Borshchevskiy v. Russia, no. 14853/03, § 46, 21 September 2006; and Nelyubin v. Russia, no. 14502/04, §§ 28-30, 2 November 2006).

21. Having examined the materials submitted to it, the Court observes that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Accordingly, the Court finds that there has been a violation of Article 6 § 1 of the Convention on account of the quashing of the final judgment of 16 October 2002 by way of supervisory-review proceedings.

(c) Supervisory review procedure: procedural issues

22. With regard to the complaint about the procedural defects of the hearing before the Presidium of the Chita Regional Court, 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 (cf. Ryabykh, cited above, § 59, and Volkova, cited above, § 39).

2. Article 1 of Protocol No. 1

(a) Admissibility

23. The Court observes that the applicant's complaint under Article 1 of Protocol No. 1 is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and is not inadmissible on any other grounds. It must therefore be declared admissible.

(b) Merits

24. The Court reiterates that the existence of a debt confirmed by a binding and enforceable judgment constitutes the judgment beneficiary's “possession” within the meaning of Article 1 of Protocol No. 1. Quashing of such a judgment amounts to an interference with his or her right to peaceful enjoyment of possessions (see, among other authorities, Androsov v. Russia, no. 63973/00, § 69, 6 October 2005).

25. The Court observes that the final and enforceable judgment of 16 October 2002 by which the applicant had been awarded money was quashed on a supervisory review on 26 June 2003. The Presidium of the Regional Court re-examined the matter and dismissed the applicant's claims in the part concerning compensation for pecuniary damage. Thus, the applicant, through no fault of his own, was prevented from receiving the initial award made under this head by the District Court. The quashing of the enforceable judgment frustrated the applicant's reliance on the binding judicial decision and deprived him of an opportunity to receive the money he had legitimately expected to receive. In these circumstances, the Court considers that the quashing of the enforceable judgment of 16 October 2002 by way of supervisory review placed an excessive burden on the applicant and was incompatible with Article 1 of Protocol No. 1. There has therefore been a violation of that Article.

II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1 ON ACCOUNT OF THE QUASHING OF THE JUDGMENT OF 21 SEPTEMBER 1999

26. The applicant complained under Articles 6 and 13 of the Convention and Article 1 of Protocol No. 1 that the decision of the Presidium of the Chita Regional Court of 15 March 2001 to quash the judgment of 21 September 1999 had violated his “right to a court” and deprived him of the fruits of the litigation. The Court considers that this complaint falls to be examined under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1, which are cited above.

27. The Court reiterates that, in accordance with Article 35 § 1 of the Convention, it may only examine complaints in respect of which domestic remedies have been exhausted and which have been submitted within six months from the date of the “final” domestic decision. If there is no adequate remedy against a particular act, which is alleged to be in breach of the Convention, the date when that act takes place is taken to be “final” for the purposes of the six months' rule (see, e.g., Valašinas v. Lithuania (dec.), no. 44558/98, 14 March 2000).

28. The Court observes that no ordinary appeal laid against a decision by which the final judgement had been quashed by way of a supervisory review. Such a decision became final and binding on the same day when it was taken.

29. In the absence of an effective remedy the Court concludes that it was the very act of quashing of the final judgment of 21 September 1999 that triggered the start of the six-month time-limit for lodging this part of the application to the Court (cf. Sardin v. Russia (dec.), no. 69582/01, ECHR 2004‑II). The Court further notes that the quashing of a final judgment is an instantaneous act, which does not create a continuing situation, even if it entails a re-opening of the proceedings as in the instant case (see Sitokhova v. Russia (dec.), no. 55609/00, 2 September 2004). In the present case the final judgment was quashed by the Presidium of the Chita Regional Court on 15 March 2001 and the applicant lodged his application on 26 December 2002. The applicant was present at the hearing of 15 March 2001 and thus he was immediately aware of the ruling.

30. It follows that this part of the application is introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

31. The applicant complained under Article 13 of the Convention that he had had no effective remedy in respect of the decision of the Presidium of the Chita Regional Court to quash, on supervisory review, the final judgment of 16 October 2002. The invoked Convention provision reads as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

32. The Court reiterates that Article 13 of the Convention does not, as such, guarantee the right to appellate remedies in respect of a decision taken by way of supervisory review, and the mere fact that the judgment of the highest judicial body is not subject to further judicial review does not infringe in itself the said provision (see Yuriy Romanov v. Russia, no. 69341/01, § 55, 25 October 2005; Tregubenko v. Ukraine (dec.), no. 61333/00, 21 October 2003, and Sitkov v. Russia (dec.), no. 55531/00, 9 November 2004).

33. It follows that the applicant's complaint under Article 13 of the Convention is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4 thereof.

IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

34. The applicant complained that the proceedings which led to the judgment of 16 October 2002 had been unfair in that the District Court had incorrectly applied the law and had not awarded him compensation in full. He further complained that two different State Funds in the Russian Federation calculated and paid compensation for damage caused by a work-related damage, thus creating a confusing legal situation.

35. Having regard to all the material in its possession, 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 this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

V. APPLICATION OF ARTICLE 41 OF THE CONVENTION

36. 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

37. The applicant claimed RUR 38,686 in respect of pecuniary damage, representing the awards made under the judgments of 21 September 1999 and 16 October 2002, which had not been paid to him as a result of the supervisory reviews, and which were adjusted to take account of inflation. He further claimed RUR 50,000 in respect of compensation for non-pecuniary damage.

38. The Government considered that the applicant's claims related to the damage allegedly caused by the quashing of the final judgment of 21 September 1999, which was not under the Court's review. They, therefore, decided no to comment on the applicant's claims.

39. As regards the claims in respect of pecuniary damage, the Court, having regard to the nature of the violation found, considers it appropriate to award the applicant RUR 752 which he would have received had the judgment of 16 October 2002 in his favour not been quashed, plus any tax that may be chargeable (cf. Stetsenko v. Russia, no. 878/03, § 69, 5 October 2006).

40. As regards the remaining claims in respect of pecuniary damage, the Court does not discern any causal link between the violation found and the pecuniary damage alleged in respect of the judgment award made on 21 September 1999. The Court also notes that the applicant did not provide any evidence to substantiate his claims for compensation for inflation losses and did not explain his method of calculation of such losses. The Court therefore rejects those claims.

41. The Court, however, considers that the applicant suffered distress and frustration resulting from the quashing of the judgment of 16 October 2002 by way of supervisory-review proceedings. 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 that amount.

B. Costs and expenses

42. The applicant also claimed RUR 233 for the costs and expenses incurred before various domestic authorities and RUR 138 for those incurred before the Court.

43. The Government did not comment.

44. According to the Court's case-law, an applicant is entitled to reimbursement of his 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 RUR 138, plus any tax that may be chargeable on that amount.

C. Default interest

45. 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

1. Declares the complaint concerning the quashing of the final judgment of 16 October 2002 and the reduction of the compensation for damage following that quashing admissible and the remainder of the application inadmissible;

2. Holds that there has been a violation of Article 6 of the Convention and Article 1 of Protocol No. 1;

3. Holds that it is not necessary to consider the allegations of procedural unfairness of the supervisory-review proceedings;

4. 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:

(i) RUR 752 (seven hundred and fifty-two Russian roubles) in respect of pecuniary damage;

(ii) EUR 1,500 (one thousand and five hundred euros) in respect of non-pecuniary damage, to be converted into Russian roubles at the rate applicable at the date of the settlement;

(iii) RUR 138 (one hundred and thirty-eight Russian roubles) in respect of costs and expenses;

(iv) 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;

5. Dismisses the remainder of the applicant's claim for just satisfaction.

Done in English, and notified in writing on 7 June 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Søren NielsenChristos Rozakis
RegistrarPresident

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