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FIRST
SECTION
CASE OF DEMENTYEV v. RUSSIA
(Application
no. 3244/04)
JUDGMENT
STRASBOURG
6 November 2008
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 Dementyev v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis, President,
Nina
Vajić,
Anatoly
Kovler,
Dean Spielmann,
Sverre Erik
Jebens,
Giorgio Malinverni,
George Nicolaou,
judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 16 October 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 3244/04) 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 Vladislav Yevgenyevich
Dementyev (“the applicant”), on 17 December 2003.
- The
applicant was represented by Mr V. Gandzyuk, a lawyer practising in
Ryazan. The Russian Government (“the Government”) were
represented by Ms V. Milinchuk, former Representative of the Russian
Federation at the European Court of Human Rights.
- On
2 July 2007 the President of the First Section decided to give notice
of the application to the Government. Under the provisions of
Article 29 § 3 of the Convention, it was decided to examine
the merits of the application at the same time as its admissibility.
- The
Government objected to the joint examination of the admissibility and
merits of the application. Having examined the Government’s
objection, the Court dismissed it.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1976 and lives in Ryazan.
- He
is currently a military serviceman.
- From
13 May 2000 to 5 May 2001 the applicant served in the Russian
peacekeeping contingent in Kosovo.
- Upon
his return to Russia, he brought proceedings against the head of his
military unit for his daily allowance in relation to his service
abroad.
- On
14 April 2003 the Military Court of the Ryazan Garrison ordered the
military unit to pay the applicant 371,543.84 Russian roubles in
respect of his daily allowance.
- The
military unit did not lodge an ordinary appeal within the statutory
ten-day time-limit and on 25 April 2003 the judgment became binding
and enforceable. The enforcement proceedings started.
- However,
on 25 August 2003 the military unit applied for a supervisory review
of the judgment.
- On
5 November 2003 the Presidium of the Military Court of the Moscow
Command quashed the judgment of 14 April 2003 by way of supervisory
review, re-examined the claim and dismissed it in full. The reason
given for the quashing of the judgment was the “wrongful
application of substantive law by the first-instance court”.
II. RELEVANT DOMESTIC LAW
- The
Code of Civil Procedure of the Russian Federation provides as
follows:
Article 362. Grounds for quashing or altering
judicial decisions by appeal courts
“1. The grounds for quashing or
altering judicial decisions by appeal courts are:
...
(4) a violation or incorrect application of
substantive or procedural law.”
Article 387. Grounds for quashing or altering
judicial decisions
by way of supervisory review
“Judicial decisions of lower courts may be quashed
or altered by way of supervisory review on the grounds of substantial
violations of substantive or procedural legal provisions.”
Article 390. Competence of the supervisory-review
court
“1. Having examined the case by way of
supervisory review, the court may ...
(2) quash the judicial decision issued by a
court of first, second or supervisory-review instance in whole or in
part and remit the matter for a fresh examination ...
(5) quash or alter the judicial decision
issued by a court of first, second or supervisory-review instance and
issue a new judicial decision, without remitting the matter for a
fresh examination, if the substantive law has been erroneously
applied or interpreted.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1 ON ACCOUNT OF THE QUASHING
OF THE JUDGMENT IN THE APPLICANT’S FAVOUR
- The
applicant complained that the quashing of the judgment of 14 April
2003 by way of supervisory-review proceedings had violated his “right
to a court” under Article 6 § 1 of the Convention and his
right to the peaceful enjoyment of possessions under 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 within a
reasonable time ... 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
- The
Government, relying on the Court’s judgments in the cases of
Pellegrin v. France ([GC], no. 28541/95, ECHR 1999 VIII)
and Kanayev v. Russia (no. 43726/02, 27 July 2006), argued
that the applicant’s complaint under Article 6 of the
Convention was incompatible ratione
materiae because the applicant had been a military officer
and the judgment award had concerned allowances for his military
service. They further argued that Article 1 of Protocol No. 1 was
also inapplicable because the applicant had not had a “possession”
within the meaning of the invoked Convention provision as he had had
no right to receive “payments in the amount claimed”. He
neither had an “existing possession”, nor a “legitimate
expectation”. As to the merits of the complaint, the Government
noted that the judgment of 14 April 2003 had been quashed because the
Military Court of the Ryazan Garrison had incorrectly interpreted and
applied substantive law.
- The
applicant averred that the quashing of the final judgment of 14 April
2003 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
- The Government contested the applicability of Article
6 to the dispute raised by the applicant. Relying on Pellegrin
(cited above), they argued that Article 6 was not applicable since
disputes raised by servants of the State such as military officers
over their conditions of service were excluded from its ambit.
45. The Court accepts
that in the Pellegrin
judgment it attempted
to establish an autonomous interpretation of the term “civil
service”. To that end the Court introduced a functional
criterion based on the nature of the employee’s duties and
responsibilities.
- However, in its judgment in
the case of Vilho
Eskelinen and Others v. Finland ([GC],
no. 63235/00, 19 April 2007), the Court found that the functional
criterion, adopted in the
Pellegrin judgment,
did not simplify the analysis of the applicability of Article 6 in
proceedings to which a civil servant was a party or bring about a
greater degree of certainty in this area as intended (§ 55). For
these reasons the Court decided to further develop the functional
criterion set out in Pellegrin
and adopted the
following approach:
“To recapitulate, in order for the respondent
State to be able to rely before the Court on the applicant’s
status as a civil servant in excluding the protection embodied in
Article 6, two conditions must be fulfilled. Firstly, the State in
its national law must have expressly excluded access to a court for
the post or category of staff in question. Secondly, the exclusion
must be justified on objective grounds in the State’s interest.
The mere fact that the applicant is in a sector or department which
participates in the exercise of power conferred by public law is not
in itself decisive. In order for the exclusion to be justified, it is
not enough for the State to establish that the civil servant in
question participates in the exercise of public power or that there
exists, to use the words of the Court in the Pellegrin
judgment, a ‘special bond of trust and loyalty’ between
the civil servant and the State, as employer. It is also for the
State to show that the subject matter of the dispute in issue is
related to the exercise of State power or that it has called into
question the special bond. Thus, there can in principle be no
justification for the exclusion from the guarantees of Article 6 of
ordinary labour disputes, such as those relating to salaries,
allowances or similar entitlements, on the basis of the special
nature of relationship between the particular civil servant and the
State in question. There will, in effect, be a presumption that
Article 6 applies. It will be for the respondent Government to
demonstrate, first, that a civil-servant applicant does not have a
right of access to a court under national law and, second, that the
exclusion of the rights under Article 6 for the civil servant is
justified.” (see Vilho
Eskelinen and Others v. Finland [GC], no. 63235/00, 19
April 2007, § 62)
- Turning
to the facts of the present case, the Court notes that the applicant
had access to a court under national law. He made use of his right
and introduced an action against his employer. The Military Court of
the Ryazan Garrison examined the applicant’s claims and
accepted them, awarding the applicant a daily allowance for his
service abroad. After the final judgment of 14 April 2003 had been
quashed by way of supervisory review, the applicant’s claims
were once again re-examined and dismissed. Neither the domestic
courts nor the Government indicated that the domestic system barred
the applicant’s access to a court. Accordingly, Article 6 is
applicable (see Vilho
Eskelinen, cited above,
§ 63, and, for a similar context in Russian cases, Dovguchits
v. Russia, no. 2999/03, § 33, 7 June 2007).
- The Court further notes that this complaint 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
- The
Government pointed out that an application for supervisory review had
been lodged by a party to the proceedings only four months after the
judgment of 14 April 2003 had become binding. The Government referred
to the German Code of Civil Procedure which provided for the
possibility to lodge an application for review of a judicial decision
within one month of it being served. The aim of the application of
the supervisory review procedure was to correct judicial errors. The
applicant’s case clearly did not call for any payment of a
daily allowance and the supervisory review court had to give a proper
explanation and an appropriate legal interpretation of the matter in
dispute for the purpose of delivering a fair and lawful judgment and
for the purpose of securing the correct application of the relevant
domestic law in future similar cases. There had therefore been no
violation of the principle of legal certainty.
- The
Court observes 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, 28 October 1999, § 61, Reports of
Judgments and Decisions 1999-VII).
- This principle states that no party is entitled to
seek the re-opening of proceedings merely for the purpose of a
rehearing and a fresh decision of the case. The power of the higher
courts to quash or alter binding and enforceable judicial decisions
should be exercised only for the correction of fundamental defects.
The mere possibility of two views on the subject does not constitute
grounds 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).
45. The Court observes 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 enforceable judicial decision to be
quashed by a higher court merely on the ground of disagreement with
the assessment made by lower courts with the view of carrying out a
fresh examination (see Kot v. Russia, no. 20887/03, §§
27-30, 18 January 2007, and Zvezdin v. Russia, no. 25448/06, §
28, 14 June 2007).
- In
the present case the judgment of 14 April 2003 in the applicant’s
favour was set aside on 5 November 2003 by way of a supervisory
review on the grounds that the Military Court of the Ryazan Garrison
had incorrectly applied the substantive law. The Court has to assess
whether the power to conduct a supervisory review was exercised by
the authorities so as to strike, to the maximum extent possible, a
fair balance between the interests of the individual and the need to
ensure the proper administration of justice (see, mutatis
mutandis, Nikitin v. Russia, no. 50178/99, §§ 57
and 59, ECHR 2004-VIII).
- The
Government distinguished the present application from the
above-mentioned cases on account of the fact that the
supervisory-review procedure had been initiated by the military unit,
that is a party to the case, within four months of the delivery of
the judgment. The Court, however, is not persuaded that this
distinction is of crucial importance for its analysis.
- The
Court stresses that a binding and enforceable judgment should only be
quashed in exceptional circumstances rather than for the sole purpose
of obtaining a different decision in the case. In the Russian legal
system, the grounds for quashing or altering judgments by appeal
courts largely overlap with those for quashing or altering judgments
by way of supervisory review (compare Article 362 § 1 (4) and
Article 387 of the Code of Civil Procedure). The judgment of 14 April
2003 was quashed by way of supervisory review because of the
incorrect application of the substantive law. That defect could have
been rectified in the appeal proceedings. Thus, a situation where the
final judgment in the applicant’s favour was called into
question could have been avoided, had the military unit lodged an
ordinary appeal within the statutory ten-day time-limit.
- The
Court further notes that the Russian Code of Civil Procedure permits
a party to apply for supervisory review even if it had not previously
exhausted the ordinary appeal procedure. In the present case the
military unit failed to exercise its right to lodge an ordinary
appeal and permitted the statutory ten-day time-limit to expire
without challenging the judgment of 14 April 2003. Instead, it
applied for supervisory review more than four months later, after the
judgment in the applicant’s favour had become binding and
enforceable and after the bailiffs had initiated enforcement
proceedings. The Government did not point to any exceptional
circumstances that would have prevented the military unit from making
use of an ordinary appeal in good time (see, as a similar case,
Nelyubin v. Russia, no. 14502/04, 2 November 2006).
- Having
regard to these considerations, the Court finds that, by granting the
military unit’s request to set aside the judgment of 14 April
2003, the Presidium of the Military Court of the Moscow Command
infringed the principle of legal certainty and the applicant’s
“right to a court” under Article 6 § 1 of the
Convention. There has accordingly been a violation of that Article.
2. Article 1 of Protocol No. 1
(a) Admissibility
- The
Court observes that the Government contested the applicability of
Article 1 of Protocol No. 1 on the grounds that the applicant did not
have a “possession” within the meaning of the invoked
Convention provision. In this connection, the Court notes that it has
already on a number of occasions found 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 (see, for example, Bulgakova
v. Russia, no. 69524/01, § 31, 18 January 2007, and
Pravednaya v. Russia, no. 69529/01, § 38, 18
November 2004). The Court sees no
reason to depart from those findings in the present case and
dismisses the Government’s objection that the applicant’s
complaint is incompatible ratione
materiae with Article 1
of Protocol No. 1.
- The
Court further observes that the 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
- The
Government claimed that there was no violation of the applicant’s
property rights because he had not had any “possessions”.
Neither could he have any “legal expectations” to benefit
from the judgment, since it had been delivered as a result of an
evident judicial error.
- The
Court observes that the existence of a debt confirmed by a binding
and enforceable judgment furnishes the judgment beneficiary with a
“legitimate expectation” that the debt will be paid and
constitutes a beneficiary’s “possessions” within
the meaning of Article 1 of Protocol No. 1. The quashing of such
a judgment amounts to an interference with his or her right to
peaceful enjoyment of possessions (see, among other authorities,
Brumărescu,
cited above, § 74, and Androsov v. Russia, no. 63973/00,
§ 69, 6 October 2005).
- The
Court observes that the proceedings concerned compensation for a
daily allowance for the applicant’s military service abroad. A
substantial amount was found to be payable by a domestic court from
the military unit. The quashing of the enforceable judgment
frustrated the applicant’s reliance on a 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 judgment of 14 April 2003 by
way of supervisory review placed an excessive burden on the applicant
and was therefore incompatible with Article 1 of the Protocol No. 1.
There has therefore been a violation of that Article.
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. Damages
- The
applicant claimed 371,543.84 Russian roubles (RUB) in respect of
pecuniary damage, referring to the unpaid judgment debt and
RUB 200,745.13, relating to inflation losses accrued during the
period of the non-enforcement of the judgment of 14 April 2003. The
applicant further claimed 7,000 euros (EUR) in respect of
non-pecuniary damage.
- The
Government submitted firstly that no award should be made as the
judgment of 14 April 2003 was lawfully quashed. They further noted
that the applicant did not apply to a national court with a claim for
recalculation of the sum due to inflation. They maintained that in
his calculation the applicant did not refer to any official sources
in respect of rates of inflation from 2003-2007. This part of his
claim should thus be dismissed. As regards the claim in respect of
non-pecuniary damages, the Government considered that the applicant’s
claim was wholly excessive and unreasonable.
- The
Court observes that in the present case it has found a violation of
Article 6 § 1 of the Convention and Article 1 of Protocol No. 1
in that the award in the applicant’s favour had not been paid
to him as a result of the quashing of the final judgment by way of
the supervisory review. The Court notes that the most appropriate
form of redress in respect of a violation of Article 6 is to
ensure that the applicant as far as possible is put in the position
he would have been had the requirements of Article 6 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 this principle also applies in
the present case, having regard to the violations found. The
applicant was prevented from receiving money he had legitimately
expected to receive under the judgment of 14 April 2003. The Court
considers that the Government should pay the judgment award made
under the judgment of 14 April 2003, i.e. RUB 371,543.
- The
Court further recalls that the adequacy of the compensation would be
diminished if it were to be paid without reference to various
circumstances liable to reduce its value, such as an extended delay
in enforcement (see Gizzatova v. Russia,
no. 5124/03, § 28, 13 January 2005, and Metaxas v.
Greece, no. 8415/02, § 36, 27 May 2004). Having regard to
the materials in its possession and the fact that the Government did
not furnish any objection to the applicant’s method of
calculation of compensation or submitted any other official sources
for inflation rates in the relevant period, the Court also awards the
applicant RUB 200,745 in respect of pecuniary damage, plus any tax
that may be chargeable.
- The
Court further considers that the applicant suffered distress and
frustration resulting from the quashing of the final judgment of 14
April 2003. Making its assessment on an equitable basis, the Court
awards the applicant EUR 2,000 in respect of non-pecuniary damage,
plus any tax that may be chargeable on that amount.
B. Costs and expenses
- The
applicant also claimed RUB 10,000 for the costs and expenses incurred
before the Court.
- The
Government did not accept that the applicant’s claims under
this head were reasonable and substantiated as no service contract
between the parties had been submitted. They further claimed that it
was not clear whether the applicant’s lawyer had represented
his interests before the domestic courts and the Court.
- 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 sum claimed in full, plus any
tax that may be chargeable to the applicant on that amount.
C. Default interest
- 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
- Declares the application admissible;
- Holds that there has been a violation of Article
6 of the Convention and Article 1 of Protocol No. 1 on account of the
quashing of the judgment of 14 April 2003;
3. Holds
(a) that
the respondent State, within three months from the date on which the
judgment becomes final according to Article 44 § 2 of the
Convention, shall pay the award made in the applicants favour under
the judgment of 14 April 2003, i.e. RUB 371,543 (three hundred
seventy-one thousand five hundred and forty-three Russian roubles);
(b) 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, where appropriate, into Russian roubles at the rate
applicable at the date of the settlement:
(i) RUB
200,745 (two hundred thousand seven hundred and forty-five Russian
roubles) in respect of pecuniary damage;
(ii) EUR
2,000 (two thousand euros) in respect of non-pecuniary damage;
(iii) RUB
10,000 (ten thousand Russian roubles) in respect of costs and
expenses;
(iv) any
tax that may be chargeable to the applicant on the above amounts;
(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 6 November 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
