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FIRST
SECTION
CASE OF
PROTSENKO v. RUSSIA
(Application
no. 13151/04)
JUDGMENT
STRASBOURG
31 July 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 Protsenko v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis, President,
Nina
Vajić,
Anatoly Kovler,
Elisabeth
Steiner,
Khanlar Hajiyev,
Giorgio
Malinverni,
George Nicolaou, judges,
and Søren Nielsen, Section
Registrar,
Having
deliberated in private on 8 July 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 13151/04) 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, Ms Alla Petrovna Protsenko
(“the applicant”), on 11 March 2004.
- The
applicant was represented by Ms E. Kiryanova, Mr A. Kiryanov and Mr
K. Lugantsev, lawyers practising in Taganrog. The Russian Government
(“the Government”) were 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
applicant complained about the quashing of the final judgment in her
favour by way of supervisory review.
- On
15 November 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
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1951 and lives in Taganrog, the Rostov Region.
- On
12 March 2003 the applicant purchased a recreation centre (“the
centre”), comprising a group of cottages, from a private
company. The centre was situated on a plot of land belonging to a
collective farm.
- The
applicant asked the Registration Office to register the transfer of
the title to the centre from the company to her. However, the
applicant’s request was dismissed, because the company had not
duly registered its title to the centre, and therefore was unable to
transfer it to the applicant.
- The
applicant brought proceedings against the company seeking to obtain
acknowledgement of her title to the centre.
- On
7 April 2003 the Neklinovskiy District Court of the Rostov Region
granted the applicant’s claim.
- No
ordinary appeal was lodged against the judgment.
- On
18 April 2003 the judgment became final and enforceable.
- On
23 June 2003 the Registration Office registered the applicant’s
title to the centre.
- On
an unspecified date in 2003 the collective farm lodged an application
for supervisory review of the judgment of 7 April 2003. It alleged
that the said judgment was unfounded since, even though the
collective farm owned the plot on which the centre in question was
situated, it had not been invited to take part in the proceedings and
its interests had not been taken into consideration by the domestic
court.
- On
3 December 2003 the Rostov Regional Court remitted the
supervisory-review application for examination on its merits by the
Presidium.
- On
25 December 2003 the Presidium of the Rostov Regional Court held a
supervisory-review hearing. It held that the first-instance court
adopted the judgment with significant violations of substantive and
procedural law. In particular, the Presidium pointed out that the
first-instance court did not investigate the circumstances of the
case, that it failed to identify all the parties to the proceedings,
to invite the owner of the land to participate in the proceedings and
that it had pronounced judgment by which the rights of the latter
were considerably affected. On these grounds the Presidium quashed
the judgment of 7 April 2003 and remitted the matter for a fresh
examination.
- On
25 January 2005 the Neklinovskiy District Court of the Rostov Region
dismissed the applicant’s claim, declared the purchase
agreement void, annulled the registration of the applicant’s
title to the centre and restored the parties to their original
position.
- On
30 March 2005 the Rostov Regional Court upheld the above judgment on
appeal.
II. RELEVANT DOMESTIC LAW
- The
Code of Civil Procedure of the Russian Federation (“the new
Code”) was enacted on 14 November 2002 and replaced the RSFSR
Code of Civil Procedure (“the old Code”) from 1 February
2003. It provides as follows:
Article 376. Right to apply to a court exercising
supervisory review
“1. Judicial decisions that have become
legally binding, with the exception for judicial decisions by the
Presidium of the Supreme Court of the Russian Federation, may be
appealed against ... to a court exercising supervisory review, by
parties to the case and by other persons whose rights or legal
interests have been adversely affected by these judicial decisions.
2. Judicial decisions may be appealed against
to a court exercising supervisory review within one year after they
became legally binding ...”
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 substantive legal provisions have been
erroneously applied or interpreted.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION ON ACCOUNT OF THE QUASHING OF THE JUDGMENT
- The
applicant complained that the quashing of the final judgment in her
favour by way of supervisory review had breached the principle of
legal certainty and her “right to a court” under Article
6 § 1 of the Convention, which reads 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 ...”
A. Admissibility
- The Court considers 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
1. Arguments by the parties
- The
Government submitted that when rendering the judgment of 7 April
2003 the District Court had not established all the circumstances of
the case. In particular, the court had not ascertained the owner of
the plot occupied by the recreation centre and failed to find out the
reasons for the company’s not having registered its property
rights to the centre before the transaction had taken place. The
Government further submitted that the District Court failed to invite
the owner of the plot to take part in the proceedings. As a result,
it delivered a judgment which adversely affected the interests of the
owner of the land. For the above reasons, as soon as the owner of the
land became aware of the judgment of 7 April 2003, which by that time
had already entered into force, it lodged an application for its
review within the supervisory review procedure pursuant to Article
376 of the Code of Civil Procedure of the Russian Federation.
- The
Government laid special emphasis on the fact that, contrary to the
Ryabykh case (see Ryabykh v. Russia, no.
52854/99, ECHR 2003 IX), in which the supervisory-review
procedure was initiated by a State official on the ground that the
first-instance court had misinterpreted the relevant laws, in the
instant case the supervisory review was initiated by someone whose
rights and legitimate interests had been grossly violated by the
judgment of 7 April 2003 and who had no other means to protect its
rights.
- The
Government concluded that there had been, therefore, no violation of
the principle of legal certainty and the applicant’s right to a
court under Article 6 § 1 of the Convention.
- The
applicant maintained her claims.
2. The Court’s assessment
- 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, in principle,
not be called into question (see Brumărescu v. Romania,
judgment of 28 October 1999, Reports of Judgments and Decisions
1999-VII, § 61).
- 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 Ryabykh v. Russia, no. 52854/99, § 52,
ECHR 2003-X, and Kot v. Russia, no. 20887/03, § 24,
18 January 2007).
27. The
Court reiterates that Article 6 § 1 secures to everyone the
right to have any claim relating to his or her 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
merely on the ground of disagreement with the assessment made by
lower courts (see Kot, cited above, §§
27-30).
- The
Court has found a violation of an applicant’s “right to a
court” guaranteed by Article 6 § 1 of the Convention in
many cases in which a judicial decision that had become final and
binding was subsequently quashed by a higher court with the view of
carrying out a fresh examination (see Dovguchits v. Russia, no.
2999/03, §§ 26-31, 7 June 2007; Kudrina v. Russia,
no. 27790/03, §§ 15-20, 21 June 2007; Sidorenko v.
Russia, no. 3519/05, §§ 12-19, 26 July 2007; and
Kot v. Russia, cited above,
§§ 23-30).
- The
Court has to assess whether in the present case the quashing of the
final judgment in the applicant’s favour by way of supervisory
review was justified by the circumstances and whether a fair balance
between the interests of the applicant and the need to ensure the
proper administration of justice, which includes the interest of the
third party, has been achieved.
- The
Court observes that the judgment of 7 April 2003 in the applicant’s
favour was set aside by way of a supervisory review on the ground
that the District Court had failed to establish all the circumstances
of the case, to identify all the parties to the proceedings and to
invite the owner of the land to participate in the proceedings, with
the result that the rights of the latter were adversely affected by
the above judgment.
- The
Court further observes that the third person knew about the judgment
of 7 April 2003 only after it had become final and that, in any
event, being no party to the proceedings the owner of the land could
not lodge an ordinary appeal against it.
- Therefore,
through no fault of the third person who was not a party to the
proceedings the domestic court rendered a judgment which directly
affected his rights.
- The
Court considers that the circumstances referred to were in their
nature and significance such as to justify the quashing of the final
judgment and that this was not inconsistent with the principle of
legal certainty.
- The
Court finds, therefore, that in the circumstances of this particular
case the quashing of the final judgment of 7 April 2003 by the
Presidium of the Rostov Regional Court by way of supervisory review
did not deprive the applicant of the “right to a court”
under Article 6 § 1 of the Convention. There has been
accordingly no violation of that Article.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
- Holds that there has been no violation of the
applicant’s right to a court as guaranteed by Article 6 §
1 of the Convention.
Done in English, and notified in writing on 31 July 2008, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
