THIRD SECTION
DECISION
Application no. 58068/13
Aleksandr Alekseyevich SAMOYLENKO against Russia
and 2 other applications
(see list appended)
The European Court of Human Rights (Third Section), sitting on 7 March 2017 as a Chamber composed of:
Helena Jäderblom, President,
Branko Lubarda,
Luis López Guerra,
Dmitry Dedov,
Pere Pastor Vilanova,
Alena Poláčková,
Georgios A. Serghides, judges,
and Stephen Phillips, Section Registrar,
Having regard to the above applications lodged on the various dates indicated in the Appendix,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
1. A list of the applicants is set out in the Appendix.
2. The Russian Government (“the Government”) are represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
1. Background of the case
4. Between 1986 and 1987 the applicants took part in the clean-up operation at the Chernobyl nuclear disaster site. They were subsequently registered disabled and became entitled to various social benefits and compensation paid on a regular basis.
5. Considering these benefits insufficient, the applicants together with 482 other people, most of them represented by Ms A., sued the Russian Ministry of Finance for additional compensation corresponding to non-pecuniary damage suffered as a result of their participation in the operation.
6. On different dates in February and April 2011 the Nalchik Town Court of Kabardino-Balkaria (“the Town Court”), presided over by Judge Be., allowed their claims in part and awarded each claimant, including the applicants, compensation ranging between 1,200,000 Russian roubles (RUB) and RUB 1,800,000 for non-pecuniary damage.
7. No appeals were lodged against these judgments within the statutory ten-day time-limit.
8. On 26 October 2011 Mr Samoylenko (no. 58068/13), Mr Chechenov (no. 58078/13) and Mr Ovcharov (no. 58429/13) received the amounts awarded by the Town Court.
9. On 21 December 2011 Mr Kuchmezov (no. 58078/13) received his payment.
2. The defendant authority’s first attempt to appeal against the main judgments
10. On 6 and 7 June 2011 respectively the Town Court, again presided over by Judge Be., rejected a request by the defendant authority to have the time-limits for appeal extended (“extension request”) on the ground that it had not given a valid reason for its failure to comply with the statutory time‑limits. The decision indicated that the defendant authority had been represented at the hearing by Ms B., an employee of the regional department of the State Treasury.
3. The defendant authority’s second attempt to appeal against the main judgments
(a) Extension request
11. On 23 October 2012 the defendant authority lodged an appeal against the decision issued in 2011 by which the Town Court refused to extend the time-limits for appealing against the main judgments. It was accompanied by an extension request.
12. On 15 and 16 November 2012 respectively the Town Court, presided over by Judge Be., granted the defendant authority’s extension request.
13. Mr Chechenov appealed.
14. On 27 December 2012 the regional Supreme Court dismissed his appeal on the grounds that the domestic courts had failed to serve the defendant authority with the main judgments. Moreover, it noted that it was apparent from the transcript of the hearing of 6 June 2011 that the Town Court had neither verified whether Ms B. had been duly appointed to represent the Ministry of Finance nor ascertained her identity.
(b) Appeal against the main judgments
15. On 28 February 2013 the regional Supreme Court quashed the decisions adopted by the Town Court on 6 and 7 June 2011 and granted the defendant authority’s extension request on the ground that it had had a valid reason for missing the statutory time-limit for appeal.
16. On the same day the regional Supreme Court quashed the main judgments delivered by the Town Court in the applicants’ favour on the grounds that they had been based on a retrospective application of the law. The applicants were ordered to repay the sums received under the judgments.
17. The applicants, all assisted by their lawyers, lodged a supervisory review application. There is no indication that they requested the enforcement proceedings to be suspended pending the examination of their supervisory review application.
18. According to the applicants, they were visited by bailiffs who sought the reimbursement of the sums received under the quashed judgments.
19. On 11 July and 29 August 2013 the Presidium of the regional Supreme Court partially quashed the appeal judgments as regards the applicants’ obligation to reimburse the sums paid.
4. Disciplinary and criminal proceedings
(a) Disciplinary and criminal proceedings against Judge Be.
20. On an unspecified date at the end of 2012 the President of the Supreme Court of Kabardino-Balkaria lodged a request with the Judicial Qualifications Board of Kabardino-Balkaria, seeking to have disciplinary measures taken against Judge Be. for serious procedural violations during the examination of civil claims for compensation by clean-up workers at the Chernobyl nuclear disaster site. In particular, she had accepted for examination claims failing to comply with the admissibility criteria, had failed to publish her judgments on the court’s website within a reasonable time, had allowed representatives without proper forms of authority to take part in the proceedings, and had failed to properly inform the parties of the decisions taken.
21. On 7 December 2012 the Judicial Qualifications Board found Judge Be. responsible for the serious procedural violations and ordered her removal from office.
22. On 25 October 2013 the North Caucasus investigative committee initiated a criminal investigation against Judge Be. under Article 305 § 2 of the Criminal Code (pronouncement of a deliberately unlawful judgment).
(b) Criminal proceedings against other people
23. On 4 March 2013 the North Caucasus investigative committee opened criminal case no. 70/17-13 against Ms A., the applicants’ representative in the domestic proceedings, under Article 159 of the Criminal Code (fraud). Ms D., the clerk of the Town Court was also prosecuted.
24. According to the Government, in June 2015 both of them decided to plead guilty.
(c) Criminal proceedings against Mr Kuchmezov (no. 58078/13)
25. On 10 October 2014 Mr Kuchmezov, the head of the regional organisation Chernobyl Union, was arrested on suspicion of fraud.
26. It was established in the course of the investigation that on 22 December 2011 and 26 June 2012 he had withdrawn money from two other former Chernobyl workers’ bank accounts. However, he had not informed them of the exact amounts awarded by the court and had given them only a part of their compensation.
B. Relevant domestic law
27. Article 112 of the Russian Code of Civil Procedure (“the CCvP”) provides that a court may extend a time-limit for a procedural action, such as lodging an appeal, if it finds that a party has a valid reason for missing it.
28. Under Article 338 of the CCvP, in force before 1 January 2012, an appeal in a civil case could be lodged within ten days of delivery of the first‑instance judgment in its final form. Since 1 January 2012 the time‑limit for lodging an appeal has been one month (Article 321 of the CCvP).
29. Article 1109 § 3 of the CCvP stipulates that where a decision to award compensation for damage to health is quashed on appeal or by way of supervisory review, and that decision has been taken in the absence of bad faith and miscalculation on the part of the recipient, the compensation itself cannot be claimed back.
30. Section 39 (2) (1) of the Enforcement Act provides that enforcement proceedings may be suspended by the domestic court if the judgment on the basis of which a writ of execution was issued is amenable to review. Section 45(6) of the same Act provides that no coercive measures may be taken if enforcement proceedings have been stayed.
COMPLAINTS
31. The applicants complained under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention that the unlawful extension of the time-limit for appeal granted by the domestic courts following the defendant authority’s request had resulted in the judgments in their favour being quashed, which consequently constituted a violation of their right to a court and to respect for their property.
THE LAW
A. Joinder of the applications
32. Given their similar factual and legal background, the Court decides that the applications should be joined pursuant to Rule 42 § 1 of the Rules of Court.
B. No significant disadvantage
33. The Government submitted from the outset that the domestic judgments in the applicants’ favour had been executed in full prior to being quashed and they were not required to reimburse them afterwards. Consequently, the Government considered that the applicants had not suffered any significant disadvantage as a result of the domestic judgments in their favour being quashed.
34. The applicants argued that they had been subjected to distress because of the enforcement action taken by bailiffs against them and interrogations by investigators in the course of the criminal proceedings against Judge B. and their former representative Ms A.
35. Article 35 of the Convention provides as follows:
“3. The Court shall declare inadmissible any individual application submitted under Article 34 if it considers that:
...
(b) the applicant has not suffered a significant disadvantage, unless respect for human rights as defined in the Convention and the Protocols thereto requires an examination of the application on the merits and provided that no case may be rejected on this ground which has not been duly considered by a domestic tribunal.”
36. The Court notes that the main aspect of this criterion is whether the applicant has suffered any significant disadvantage. The absence of any such disadvantage can be based on criteria such as the financial impact of the matter in dispute or the importance of the case for the applicant (see Adrian Mihai Ionescu v. Romania (dec.), no. 36659/04, § 33, 1 June 2010, with further references).
37. In the present case, the applicants do not dispute that the payments due under the initial judgments were made to them in full. Although these judgments were subsequently quashed, the domestic courts ruled that the applicants could not be required to repay the sums paid (see paragraph 19 above). Consequently, the financial implications of the proceedings could not present any particular hardship for the applicants.
38. As regards their claim that they had suffered distress on account of the enforcement proceedings, the Court observes that on 28 February 2013 the judgments in their favour were quashed by the regional Supreme Court, which also ordered the reversal of the awards paid. The applicants then lodged a supervisory review application with the Presidium of the same court. It was open to them and their lawyers to request while lodging their supervisory review application that the enforcement proceedings be stayed (see paragraph 30 above). They could thus have avoided exposing themselves to the risk of having bailiffs attempt to seize their property pending the examination of their supervisory review application. They however failed to do so.
39. Similarly, in assessing whether the applicants suffered a significant disadvantage the Court cannot take into consideration the fact they were questioned in the framework of criminal proceedings initiated against the former judge Be. and the lawyer Ms A. In this connection, it observes that these proceedings were opened following the results of the disciplinary proceedings conducted against Judge Be., which resulted in her removal from office. Consequently, there is no indication that they were frivolous or arbitrary.
40. In these circumstances, the Court finds that the applicants did not suffer any “significant disadvantage”.
41. As to the question whether respect for human rights as defined in the Convention and the Protocols thereto requires an examination of the application on the merits, the Court points out that it has already held that respect for human rights does not require it to continue the examination of an application when, for example, the relevant law has changed and similar issues have been resolved in other cases before it (see Léger v. France (striking out) [GC], no. 19324/02, § 51, 30 March 2009).
42. The present case raises a problem of an unjustified extension of the time-limits for appeal resulting in a final judgment in the applicants’ favour being quashed, an issue which has already been addressed by the Court on several occasions, including in a case against Russia (see Ponomaryov v. Ukraine, no. 3236/03, §§ 41-42, 3 April 2008; Bezrukovy v. Russia, no. 34616/02, §§ 33-44, 10 May 2012; and Karen Poghosyan v. Armenia, no. 62356/09, §§ 44-53, 31 March 2016). The examination of this application on the merits would not bring any new elements to the Court’s existing case-law (see Burov v. Moldova (dec.), no. 38875/03, § 33, 14 June 2011, and, by contrast, Mikhaylova v. Russia, no. 46998/08, § 49, 19 November 2015).
43. The Court therefore concludes that respect for human rights as defined in the Convention and its Protocols does not require an examination of the applications on the merits.
44. Lastly, as regards the third condition of this inadmissibility criterion, namely that the case must have been “duly considered” by a domestic tribunal, the Court notes that the applicants’ case was subject to several rounds of domestic proceedings. The applicants were present at each hearing and were therefore able to submit their arguments in adversarial proceedings.
45. The three conditions of the inadmissibility criterion having therefore been satisfied, the Court finds that the applications must be declared inadmissible under Article 35 §§ 3 (b) and 4 of the Convention.
For these reasons, the Court, unanimously,
Decides to join the applications;
Declares the applications inadmissible.
Done in English and notified in writing on 30 March 2017.
Stephen PhillipsHelena Jäderblom
RegistrarPresident
APPENDIX
No.
Application No.
Lodged on
Applicant
Date of birth
Place of residence
Nationality
Represented by
58068/13
26/08/2013
Aleksandr Alekseyevich SAMOYLENKO
21/01/1956
Vinogradnyy,
Kabardino-Balkar Republic
Russian
Magamed Saltanmuratovich ABUBAKAROV
58078/13
26/08/2013
Ali Alikayevich KUCHMEZOV
31/05/1940
Tyrnyauz,
Kabardino-Balkar Republic
Russian
Marat Borisovich CHECHENOV
06/04/1967
Kashkhatau,
Kabardino-Balkar Republic
Russian
Magamed Saltanmuratovich ABUBAKAROV
58429/13
26/08/2013
Vladimir Nikolayevich OVCHAROV
01/01/1945
Mayskiy,
Kabardino-Balkar Republic
Russian
Magamed Saltanmuratovich ABUBAKAROV
Full & Egal Universal Law Academy