Communicated on 6 July 2017
THIRD SECTION
Application no. 71647/10
Inga Nikolayevna MOSKALENKO against Russia
and 2 other applications
(see list appended)
The applicants’ personal details and the dates of their applications to the Court appear in the Appendix.
A. The circumstances of the cases
The facts of the cases, as submitted by the applicants, may be summarised as follows.
1. Application no. 71647/10 lodged by Ms Moskalenko
On 7 November 2005 the applicant purchased a flat from Mr. Ch.
On 22 November 2005 the applicant registered her title to the flat. Mr Ch. however refused to leave and to transfer the ownership of the flat to the applicant.
On an unspecified date the applicant applied to the court seeking the eviction of Mr Ch. and his family.
On 15 June 2006 Mr Ch. lodged a counterclaim claiming inter alia to declare the purchase contract of the flat null and void.
On 28 November 2007 the Kuntsev District Court of Moscow found for the applicant and ordered to evict Mr Ch. and his family. The court at the same time dismissed the counterclaim lodged by Mr Ch.
On 19 February 2008 the Moscow City Court upheld that judgment on appeal.
On different dates Mr Ch. unsuccessfully lodged supervisory review applications against the aforementioned judgments with the Presidium of the Moscow City Court and the Supreme Court of Russia.
On 14 August 2009 Mr Ch.’s representative applied to the Moscow Prosecutor’s Office asking them to lodge a supervisory review application against the judgments of 28 November 2007 and 19 February 2008.
On 31 August 2009 the public prosecutor lodged a request on behalf of Mr Ch. and his family members for the extension of the time-limits for a supervisory review application.
On 21 September 2009 the Kuntsev District Court of Moscow extended the time-limits for appeal. The court found that the representative of Mr Ch. applied to the Prosecutor’s office after the judgment of 28 November 2007 became final. Thus the Prosecutor’s office could not bring an appeal within the time-limits provided by law.
On 8 February 2010 the public prosecutor lodged a supervisory review appeal with the Presidium of the Moscow City Court against the judgments of 28 November 2007 and 19 February 2008.
On 14 May 2010 the Presidium of the Moscow City Court quashed both judgments and remitted the case for fresh consideration. In the course of the new proceedings Mr Ch. lodged a counterclaim against the applicant seeking to declare the purchase contract null and void.
On 9 November 2010 the Kuntsev District Court of Moscow dismissed the applicant’s claim and granted the counterclaim of Mr Ch. declaring the purchase contract null and void.
2. Application no. 28508/14 lodged by Mr Paul and Mr Borodin
The applicants are lawyers practicing in Russia.
Between 2008 and 2010 the applicants, within the group of lawyers, consulted several municipal organisations about various legal issues and provided other legal service. However municipal organisations did not pay for the service and the applicants instituted proceedings seeking to recover the debt.
On 22 June 2010 the Sovetskiy District Court of Voronezh granted the applicants claim against the municipal transport company and awarded them 40,020,000 Russian rubles (RUB). The judgment was not appealed against and became final. It appears that the judgment was executed at the expense of the municipal budget.
On 9 January 2013 the prosecutor of the Voronezh Region applied to the district court for the extension of the time-limits for an ordinary appeal against the judgment of 22 June 2010.
On 13 June 2013 the district court refused to extend the time-limits. The prosecutor appealed.
On 8 August 2013 the Voronezh Regional Court quashed the decision of the district court and extended the time limit for an ordinary appeal. The court found that the public interest had been concerned as far as the judgment had been executed by means of the municipal budget. Thus the prosecutor had the right to lodge an appeal.
On 12 November 2013 the Voronezh Regional Court granted the appeal lodged by the prosecutor and quashed the judgment of 22 June 2010 and ordered the reversal of execution. It appears that the judgment is still being executed.
3. Application no. 41120/14 lodged by Mr Chistyakov
The applicant is a former prosecutor who has been convicted and then rehabilitated.
On 5 September 2012 the applicant applied to the first instance court seeking to recover arrears for pension. Both the Prosecutor of the Volgograd region and the representative of the Ministry of Finance were parties to the case.
On 2 September 2013 the Kamyshinsk District Court granted the applicant’s claim and awarded RUB 377,614 as pension arrears and RUB 20,161 as cost and expenses. The judgment was not appealed against and became final on 13 September 2013.
On 23 September the prosecutor requested the extension of the time‑limits for appeal.
On 1 October 2013 the Kamyshinsk District Court found that there were valid reasons for the extension of the time-limits since the judgment of 2 September 2013 had been sent to the prosecutor on 9 September and received by him on 13 September 2013.
On 8 October 2013 the Kamyshinsk District Court upon the request of the representative of the Ministry of Finance in the Volgograd region extended the time limit for an ordinary appeal. The court found that the judgment of 2 September 2013 had been sent to the representative only on 16 September 2013, that is after the judgment became final.
On 2 December 2013 the Volgograd Regional Court granted the appeals of the Prosecutor of the Volgograd region and the Ministry of Finance, quashed the judgment of 2 September 2013 and dismissed the applicant’s claims. The court found that the applicant had never applied for pension before his prosecution, at the moment of the prosecution he had not been entitled to pension. Thus the prosecution as such did not infringe his right to pension.
B. Relevant domestic law and practice
The relevant domestic law and practice governing the extension of the time limits for appeal is summed up in the Court’s decision in the case of Samoylenko v. Russia (dec.) (no. 58068/13, §§ 27-30, 30 March 2017).
COMPLAINTS
All the applicants complained under Article 6 of the Convention about unlawful extension of the time limits for appeal and subsequent quashing of the final judgments in their favour by the district or regional courts. Ms Moskalenko in addition invoked Article 1 of Protocol No. 1 to the Convention.
QUESTIONS
1. Did the applicants have a fair hearing in the determination of their civil rights and obligations, in accordance with Article 6 § 1 of the Convention? In particular, did the quashing of the final judgments in the applicants’ favour after the extension of the time-limits for appeal initiated by the public prosecutor violated the principle of legal certainty enshrined in Article 6 § 1 of the Convention (see Protsenko v. Russia, no. 13151/04, §§ 30-34, 31 July 2008, and Bezrukovy v. Russia, no. 34616/02, §§ 30-44, 10 May 2012)?
2. In the Moskalenko case did the quashing of a final judgment in the applicant’s favour after the extension of the time-limits for appeal constitute an interference with the applicant’s right to the peaceful enjoyment of the possession? If so, was such interference compatible with the guarantees of Article 1 of Protocol No. 1 to the Convention? In particular was the above interference proportionate in terms of that Article?
APPENDIX
No.
Application no.
Lodged on
Applicant name
Date of birth
Place of residence
Nationality
Represented by
Complaints
71647/10
13/11/2010
Inga Nikolayevna MOSKALENKO
20/09/1978
Moscow
Russian
Art.6
Art.1 of Protocol No. 1
28508/14
07/04/2014
Aleksey Georgiyevich PAUL
12/11/1977
Voronezh
Russian
Sergey Vladimirovich BORODIN
13/12/1964
Voronezh
Russian
Art.6
41120/14
08/05/2014
Eduard Nikolayevich CHISTYAKOV
14/01/1952
St Petersburg
Russian
Aleksandr Viktorovich SHESTAKOV
Art.6
Full & Egal Universal Law Academy