CASE OF BOYCHENKO AND GERSHKOVICH v. RUSSIA

FIFTH SECTION

CASE OF BOYCHENKO AND GERSHKOVICH v. RUSSIA

(Application no. 62866/00)

JUDGMENT

STRASBOURG 

28 June 2007

FINAL

28/09/2007

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 Boychenko and Gershkovich v. Russia,

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

MrP. Lorenzen, President,
MrsS. Botoucharova,
MrK. Jungwiert,
MrR. Maruste,
MrA. Kovler,
MrJ. Borrego Borrego,
MrM. Villiger, judges,
and Mrs C. Westerdiek, Section Registrar,

Having deliberated in private on 5 June 2007,

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

PROCEDURE

1. The case originated in an application (no. 62866/00) 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 two Russian nationals, Mr Aleksandr Aleksandrovich Boychenko and Mr Vladislav Vladimirovich Gershkovich (“the applicants”), on 27 October 2000.

2. The applicants were represented by Mr A. Kemishev, a lawyer practising in Moscow. The Russian Government (“the Government”) were initially represented by Mr P. Laptev, the former Representative of the Russian Federation at the European Court of Human Rights, and subsequently by their Representative, Mrs V. Milinchuk.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

3. The applicants, Mr Aleksandr Aleksandrovich Boychenko and Mr Vladislav Vladimirovich Gershkovich, are Russian nationals, who were born in 1953 and 1971 respectively and live in Moscow.

4. On 14 May 1993 the Ministry of Finance of Russia issued “Series III” domestic hard currency bonds (облигации внутреннего государственного валютного займа III серии). On 15 January 1999 the first applicant acquired bonds of a total nominal value 200,000 United States dollars (USD) and the second applicant acquired bonds of a total nominal value USD 2,010,000.

5. On 14 May 1999 the bonds matured and the applicants presented them for redemption.

6. On 11 June 1999 the applicants were informed that Vnesheconombank acting as the Government's agent refused to redeem the bonds, referring to a letter of the Ministry of Finance of 14 May 1999 No. 11-02-09 advising the holders of Series III bonds to refrain from presenting the bonds for redemption for a period of six months in the light of the unfavourable economic situation in the country. In the same letter the Ministry undertook to negotiate restructuring of the debt during this period.

7. On 29 November 1999 the Government of Russia issued Order No. 1306 which provided for the existing Series III bonds to be converted into new bonds of two types with four and eight year maturity periods.

8. On an unspecified date the applicants brought civil proceedings against the Government, the Ministry of Finance and Vnesheconombank seeking recovery of the nominal value of the bonds and damages. They also asked the court to defer the payment of the court fees.

9. On 22 March 2000 the Presnenskiy District Court of Moscow awarded the applicants the nominal value of the bonds and dismissed the claim for damages. The first applicant was awarded USD 200,000 and the second applicant was awarded USD 2,010,000.

10. On 6 June 2000 the Moscow City Court dismissed the appeal lodged by the Ministry of Finance and upheld the judgment.

11. On 17 July 2000 the applicants submitted writs of execution to Vneshtorgbank.

12. On 20 July 2000 Vneshtorgbank refused to comply with the writs of execution, referring to an application for supervisory review of the judgments which was to be lodged by the Prosecutor of Moscow. The applicants' request to see the application was refused.

13. On 10 August 2000 the Prosecutor of Moscow lodged an application for supervisory review of the judgments.

14. On 28 September 2000 the Presidium of the Moscow City Court granted the application. The Presidium quashed the judgment of 22 March 2000 and the appeal decision of 6 June 2000 on the grounds that the courts had erred in interpretation of the law and failed to rule on the issue of payment of court fees, and remitted the case for a fresh examination.

15. On 6 April 2001 the Presnenskiy District Court examined and dismissed the applicants' claim in full.

16. On 22 May 2001 the Presnenskiy District Court delivered an additional judgment ordering the applicants to pay court fees.

17. On an unspecified date the applicants' appeal against the judgment was dismissed.

18. On 21 November 2002, following a request by the applicants, the Prosecutor of Moscow lodged an application for supervisory review of the judgments.

19. On 24 December 2002 the Presidium of the Moscow City Court examined the application and upheld the judgment of 6 April 2001. In the same proceedings it quashed the judgment of 22 May 2001 concerning the payment of court fees and remitted it for a fresh examination.

20. On 11 August 2003 the Presnenskiy District Court discontinued the proceedings concerning the court fees.

21. On 6 June 2005 the Deputy President of the Supreme Court of the Russian Federation lodged an application for supervisory review of the judgment in the applicants' case.

22. On 8 August 2005 the Presidium of the Supreme Court decided to adjourn its examination of the case, apparently pending a ruling from the Constitutional Court on the matter.

23. In July 2006 the parties informed the Court that the examination of the case by the Presidium of the Supreme Court was adjourned in connection with a case pending before the Constitutional Court of the Russian Federation which concerned a similar issue. Since then the parties provided no information to the Court about the development of the case.

II. RELEVANT DOMESTIC LAW

24. Section 11 of the Code of Civil Procedure of 1964 (Гражданский процессуальный кодекс РСФСР), as in force at the relevant time, provided that regional and higher courts could conduct supervisory review of the activities of the lower courts.

25. According to Sections 319, 320 and 327 of the Code, certain senior judicial officers could, at any time, at request of the person concerned or on their own motion, lodge with a higher court an application for supervisory review of a final decision of a lower court on points of law and procedure.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

26. The applicants complained under Article 6 of the Convention about the decision of 28 September 2000 by which the Presidium of the Moscow City Court quashed on supervisory review the final judicial decision in their favour. Article 6, insofar as relevant, reads as follows:

“1. In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing...”

27. The Government alleged that the decisions in the applicants' favour had been erroneous in that the domestic courts wrongly interpreted and applied the relevant law and that therefore the quashing had been justified. They contended that the decisions had been reversed with a view to correct a judicial error. They made no comments concerning the new supervisory review of the case in 2005, or the subsequent procedural steps.

28. The applicants contested the Government's submissions and claimed that their right to the judicial award had not been restored.

A. Admissibility

29. The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.

B. Merits

30. 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, in its relevant part, declares 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 [GC], no. 28342/95, § 61, ECHR 1999-VII).

31. The Court has found a violation of the above principle of legal certainty and of the right to a court in the case of Ryabykh v. Russia (Ryabykh v. Russia, no. 52854/99, ECHR 2003‑IX) where a final and binding judgment in the applicant's favour was set aside, on the ground of misinterpretation of the law, by a higher court in supervisory review proceedings following an application by a president of a regional court, whose power to make such applications was not subject to any time-limit, so that judgments were liable to challenge indefinitely (see Ryabykh, cited above, §§ 51-58).

32. Turning to the circumstances of the present case the Court observes that, by allowing the application lodged by the Prosecutor of Moscow, the Presidium of the Moscow City Court set at naught an entire judicial process which had ended in a final and binding judicial decision of 22 March 2000, upheld on appeal on 6 June 2000, and was thus res judicata. The Court finds no reason to depart from its reasoning in the aforementioned Ryabykh case. It concludes that the setting aside of that decision in supervisory review proceedings for the sake of correcting an alleged judicial error violated the principle of legal certainty enshrined in Article 6 § 1 of the Convention.

33. There has accordingly been a violation of Article 6 § 1 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION

34. The applicants complained under Article 1 of Protocol No. 1 to the Convention that the quashing on supervisory review of the final judicial awards in their favour also constituted an unjustified interference with their right to the peaceful enjoyment of their possessions. Article 1 of Protocol No. 1 to the Convention reads as follows:

“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.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

35. The parties' submissions under this head were the essentially the same as above.

Admissibility

36. In so far as the applicants' complaints concern the outcome of the civil proceedings, the Court notes that the examination of their case has resumed and the proceedings are pending before the domestic courts. The Court, therefore, considers that it is not called upon to decide whether the facts alleged by the applicant disclose any appearance of a violation of Article 1 of Protocol No. 1 to the Convention.

37. It follows that therefore this complaint is premature and this part of the application must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.

III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

38. Lastly, the applicants complained that the ruling of the Presidium of the Moscow City Court of 28 September 2000 violated their right to an effective remedy guaranteed by Article 13 of the Convention, and that it constituted an abuse of rights prohibited by Article 17 of the Convention.

39. Having regard to all the material in its possession, and in so far as these complaints fall within its competence, the Court finds that they 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.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

40. 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

41. The applicants each claimed a compensation of pecuniary and non-pecuniary damage. The first applicant's claims in respect of pecuniary damage included 37,600 United States dollars (USD) representing the nominal value of the bonds and USD 141,818 of accrued interest, plus penalties. The second applicant's claims in respect of pecuniary damage included USD 386,000 representing the nominal value of the bonds and USD 1,431,807 of accrued interest, plus penalties. In respect of non-pecuniary damage the applicants each claimed USD 10,000.

42. The Government contested the applicants' claims as excessive and unfounded.

43. The Court notes that the applicants' claims as regard pecuniary damage related to the alleged violation of their right to the peaceful enjoyment of possessions. In view of the above finding that this complaint is inadmissible, the Court rejects this part of the claims. As regards non-pecuniary damage, it considers that the applicants must have suffered frustration and a feeling of injustice as a consequence of the reversal of the final judicial decision in their favour. Accordingly, making its assessment on an equitable basis, it awards the applicants 2,000 euros each for non-pecuniary damage, plus any tax that may be chargeable on that amount.

B. Costs and expenses

44. The applicants did not make any claim in respect of the costs and expenses incurred before the domestic courts or in the proceedings before the Court. Accordingly, the Court makes no award under this head.

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 under Article 6 § 1 concerning the quashing of the judgment by way of supervisory review admissible and the remainder of the application inadmissible;

2. Holds that there has been a violation of Article 6 § 1 of the Convention on account of the quashing of the judgment of 22 March 2000, upheld on appeal on 6 June 2000;

3. Holds

(a) that the respondent State is to pay each applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 2,000 (two thousand euros) in respect of non-pecuniary damage, plus any tax that may be chargeable;

(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;

4. Dismisses the remainder of the applicants' claim for just satisfaction.

Done in English, and notified in writing on 28 June 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Claudia WesterdiekPeer Lorenzen
RegistrarPresident

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