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FIRST
SECTION
CASE OF
PETROV v. RUSSIA
(Application
no. 7061/02)
JUDGMENT
STRASBOURG
21
December 2006
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 Petrov v. Russia,
The
European Court of Human Rights (First Section),
sitting as a Chamber composed of:
Mr C.L. Rozakis, President,
Mr L.
Loucaides,
Mrs F. Tulkens,
Mrs N. Vajić,
Mr A.
Kovler,
Mrs E. Steiner,
Mr K. Hajiyev, judges,
and
Mr S. Nielsen, Section Registrar,
Having
deliberated in private on 30 November 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 7061/02)
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 Vitaliy Sergeyevich Petrov (“the
applicant”), on 9 August 2001.
- The
applicant, who had been granted legal aid, was represented by Mr S.
Kiryukhin, a lawyer practising in Orsk. The Russian Government
(“the Government”) were represented by Mr P. Laptev, the
Representative of the Russian Federation at the European Court of
Human Rights.
- The
applicant alleged , in particular, that the
decision of the regional court to quash the judgment in his favour
and remit the case frustrated his right to a fair trial and deprived
him of the fruits of the litigation.
4. By
a decision of 10 November 2005 the Court declared the application
partly admissible.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant was born in 1948 and lives
in Orsk, Orenburg Region. He is a private
entrepreneur.
- In
July 1998 the applicant purchased a flat on the ground floor of an
apartment building with a view to opening there a shop. In August
1998 he started construction works there with a view of tailoring the
flat to commercial needs. On several occasions in 1998-1999 the local
administration fined the applicant for unauthorised construction. In
1999 the police instituted criminal proceedings against him in this
respect, but in 2000 the court acquitted him. The court found that
the applicant had carried out works without a relevant permission.
However, in the court's opinion, it did not amount to a criminal
offence.
- The
flat bought by the applicant belonged to the category of “living
premises”, and could not be used for other purposes than
providing housing. In order to function as a shop, the flat had to be
officially re-classified as “non-residential premises”.
With that view the applicant addressed the Orsk Town Administration
(the local executive authority) with a request for re-classification
of the flat. On 23 March 2000 that request was rejected.
- The
applicant challenged the refusal in court. On 8 September 2000
the Orsk Town Leninskiy District Court held in the applicant's favour
ordering the local administration to re-classify the applicant's real
estate. No appeal followed, and ten days later the judgment became
final. On 23 September 2000 enforcement proceedings were
instituted.
- On
16 October 2000 the Town Administration issued an order allowing
commercial use of the applicant's flat. Following that decision on
4 November 2000 the bailiffs' service discontinued the execution
proceedings. However, the applicant was still unable to start his
business because certain other formalities were not observed and
additional permits were needed. In particular, the local authority
had refused to provide the applicant with a certified plan of his
flat claiming that the order of 16 October 2000 was not
sufficiently clear. The applicant appealed to a court. On 25 May
2001 the Leninskiy District Court rejected his claim, stating that
the judgment of 8 September 2000 had been duly executed,
and that the bailiff's decision to discontinue the execution
proceedings had been lawful. This judgment was upheld by the Orenburg
Regional Court on 28 June 2001.
- On
18 October 2001 a prosecutor lodged a supervisory review appeal
against the judgment of 8 September 2000. On 10 December 2001
the Presidium of the Orenburg Regional Court quashed the above
judgment. The Presidium held in particular that pursuant to Article 9
of the Housing Code a decision to turn a flat into a commercial
facility could only been taken at the regional level, the Town
Administration having no authority in that respect. The Presidium
also held that the lower court had not examined the opinion of other
residents of the apartment building where the applicant's flat was
situated. Moreover, the Town Administration had failed to assess
possible environmental impact of the functioning of the shop and had
not obtained a report from a competent authority. The case was
remitted to the first instance court for a fresh examination.
- In
the meantime, on 24 October 2001 the Orsk Town Council (Орский
городской совет
депутатов)
adopted a new regulation concerning non-residential facilities.
Pursuant to that regulation the permission to re-arrange a flat for
commercial purposes must be issued by the Town Council instead of the
Town Administration. On 28 March 2002 the applicant revoked his
initial action against the Town Administration, pending before the
Leninskiy District Court and re-submitted his request for
re-classification of the property to the Town Council. On
24 April 2002 this body dismissed his request on the ground
that a number of the applicant's immediate neighbours objected to a
shop being established in the building.
- The
applicant brought an action against the Town Council. On 11 June
2002 the Leninskiy District Court rejected it on the ground that the
neighbours of the applicant strongly opposed to his plan to open the
shop. On 16 July 2002 the Orenburg Regional Court upheld
that decision.
II. RELEVANT DOMESTIC LAW
- Article 11
of the Code of Civil Procedure of 1964, as in force at the material
time, provided that regional and higher courts could conduct
“supervisory review” of the decisions of the lower
courts. This meant, according to Articles 319, 320 and 327, that
specific senior judicial and prosecution officers could, at any time,
at the request of a party or of their own motion, lodge with a higher
court an “extraordinary appeal” against the final
decision on all questions of fact and law. If an “extraordinary
appeal” was lodged, the proceedings recommenced and execution
of the final judgment would be adjourned (Article 323). For
further details concerning the supervisory review proceedings see the
case Ryabykh v. Russia, no. 52854/99, §§31-42,
ECHR 2003 IX.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the decision of the Presidium of the
Orenburg Regional Court of 10 December 2001 to quash the
judgment of 8 September 2000 and remit the case frustrated his
right to a fair trial. His complaint falls to be examined under
Article 6 § 1 of the Convention, which reads, insofar as
relevant, as follows:
Article 6
“In the determination of his civil rights
and obligations... everyone is entitled to a fair... hearing ... by
[a]... tribunal established by law...”
A. The parties' submissions
- The
Government submitted that the decision of the Presidium of the
Orenburg Regional Court, complained of by the applicant, was aimed at
correcting a judicial error of the lower court. In particular, the
lower court failed to take into account legitimate interests of other
residents of the building, where the applicant intended to open a
shop. Therefore, the quashing of the judgment of 8 September
2000 was not against the principle of “legal certainty”
enshrined in Article 6 § 1 of the Convention (Ryabykh v.
Russia, no. 52854/99, §§ 52, 24 July
2003).
- The
applicant maintained his initial complaint.
B. The Court's assessment
- The
Court recalls its constant case-law to the effect that the quashing
by way of supervisory review of a judicial decision which had become
final and binding may render the litigant's right to a court illusory
and infringe the principle of legal certainty (see Brumărescu
v. Romania [GC], no. 28342/95, § 62, ECHR
1999-VII; Ryabykh v. Russia, no. 52854/99, §§ 56-58,
24 July 2003; Roseltrans v. Russia, no. 60974/00,
§§ 27-28, 21 July 2005). Indeed, in certain
circumstances a final and binding judgment may be revised, but the
power of review should not be used in an arbitrary manner (see
Ryabykh v. Russia, mentioned above, § 52; see also,
mutatis mutandis, Nikitin v. Russia, no. 50178/99,
§§ 57 and 59, ECHR 2004 VIII). The question
arises whether the reasons for quashing forwarded by the authorities
in the present case could have justified it.
- The
Government referred to the failure of the lower court to take into
account interests of the neighbours of the applicant. Besides, the
Presidium of the Regional Court referred to the fact that the local
administration had not been competent to allow commercial use of the
flat. However, in the opinion of the Court, even against that
background the authorities have abused their power to initiate the
review of an allegedly faulty judgment.
- First,
the Court notes that the extraordinary appeal was lodged by the
prosecutor, who was not a party to the proceedings, and that the
exercise of his power to re-open the case was not subject to any
time-limit (see the Ryabykh judgment mentioned above, §
54). In the present case the review took place almost fifteen months
after the judgment became enforceable. Second, the judgment at issue
was not challenged by an ordinary way, that was through the court of
appeal. The Government did not point to any exceptional circumstances
that would have prevented the local administration from making use of
an ordinary appeal in good time. Third, the judgment was executed and
the execution proceedings were subjected to the judicial control at
two instances, including in the Regional Court, before the case was
transmitted to the Presidium of that court for re-consideration on
the merits. In sum, even though the interests of the applicant's
neighbours were an important consideration, the authorities failed to
protect them in an appropriate manner.
-
Having regard to the circumstances, the Court does not find any
reason for departing from its aforementioned case-law and considers
that there has been a violation of Article 6 § 1 in respect of
the quashing of the final and binding judgment given in the
applicant's case.
II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1
- The
applicant further complained that the decision of the Presidium of
the Orenburg Regional Court of 10 December 2001 to quash
the judgment of 8 September 2000 and remit the case deprived him
of the fruits of the litigation. This complaint falls to be examined
under Article 1 of Protocol No. 1 which 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.”
- The
Government argued that the applicant's “possession”
within the meaning of Article 1 of Protocol No. 1 was his flat. The
restriction on the right to use his flat, namely the prohibition to
use it for any other purpose than housing was inherent to that kind
of property. The applicant kept his right to the flat and, therefore,
his “possessions” were not interfered with.
- The
applicant in reply maintained his arguments.
- In
the present circumstances, in view of its finding under Article 6
§ 1, the Court considers that it has given the answer to
the question at the heart of the applicant's grievances. Therefore,
it finds that it is not necessary to examine separately the facts
complained of also under of Article 1 of Protocol No. 1 to the
Convention.
III. 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.”
- The
applicant claimed that if he used his flat as a shop, his net income
by 2005 would be 67,038 EUR. He based his calculations on the amount
of the “imputed income” which the tax authority applied
to small enterprises like the shop that he had been planning to open.
- The
Government submitted that the applicant's calculations of just
satisfaction had been based on the lost income that he could have
received by using his apartment for commercial needs. However, these
calculations were purely theoretical and could not serve as a ground
for awarding him the amount sought.
- The
Court notes that even though the re-classification of the premises
was an important step in furthering the applicant's business plan, it
was not the sole precondition for starting the intended commercial
activity. In other words, the opening of the shop depended on many
factors out of the applicant's control, such as, for example, the
authorisation to reconstruct the flat for commercial purposes (see
paragraph 6 above). Therefore, there is no direct causal link between
the quashing of the court's decision allowing commercial use of the
applicant's flat and the lost income claimed by the applicant on the
basis of an assumption that his business plan would succeed. The
Court concludes therefore that the applicant's claim should be
rejected.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Holds that there has been a violation of
Article 6 § 1 of the Convention on account of the quashing,
by way of supervisory review, of a final judgment in the applicant's
favour;
2. Holds that there is no need to examine the above complaint
under Article 1 of Protocol No. 1 to the Convention;
- Dismisses the applicant's
claim for just satisfaction.
Done in English, and notified in writing on 21 December 2006,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos
Rozakis
Registrar President
