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FIRST
SECTION
CASE OF CHEKUSHKIN v. RUSSIA
(Application
no. 30714/03)
JUDGMENT
STRASBOURG
15
February 2007
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 Chekushkin v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Mr L. Loucaides, President,
Mr A.
Kovler,
Mrs E. Steiner,
Mr K. Hajiyev,
Mr D.
Spielmann,
Mr S.E. Jebens,
Mr G. Malinverni, judges,
and
Mr S. Nielsen, Section Registrar,
Having
deliberated in private on 25 January 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 30714/03) 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 Aleksandr Ivanovich
Chekushkin (“the applicant”), on 27 August 2003.
- The
applicant was represented by Mrs O. Suprunova, a lawyer practising in
Bataysk. The Russian Government (“the Government”) were
represented by Mr P. Laptev, Representative of the Russian Federation
at the European Court of Human Rights.
- Relying
on Article 6 § 1 of the Convention and Article 1 of Protocol No.
1, the applicant complained about the quashing of the judgment in his
favour by way of supervisory review and the non-enforcement of that
judgment.
- On
10 February 2004 the Court decided to communicate 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
applicant and the Government each filed observations on the
admissibility and merits (Rule 54A § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
1. Background
- The
applicant was born in 1947 and lives in the town of Bataysk of the
Rostov Region.
- In
1986 the applicant took part in the emergency operation at the
Chernobyl nuclear plant. As a result he suffered from extensive
exposure to radioactive emissions. The applicant underwent medical
examinations which established the link between his poor health and
his involvement in the Chernobyl events. He was consequently granted
status of a disabled person and awarded a monthly pension and a
special allowance from the State, to be adjusted once a year in line
with the minimum subsistence amount (величина
прожиточного
минимума).
- At
a certain moment in 2001 the social security authorities ceased to
increase regularly the amounts of pension and allowance, paid to the
applicant in connection with his disability. Instead, he started to
receive his pension in a fixed amount (2,800 Roubles), which was less
than he expected. Presuming that this practice was illegal, the
applicant brought proceedings against the regional social security
office (“the defendant”) claiming the increase of the
monthly allowance and pension in line with the increase of the
minimum subsistence amount during the relevant period.
2. First round of court proceedings
- On
21 January 2003 the Bataysk Town Court of the Rostov Region (“the
Town Court”) rendered a judgment ordering the increase of the
monthly allowance due to the applicant in line with the increase of
the minimal subsistence amount in the Rostov region. In
re-calculating the amount of the applicant's pension the court
applied the multiplier of 1.92 based on the data provided by the
regional committee on statistics. As a result, the monthly pension of
the applicant increased to 5,376 Roubles. The court ordered the
defendant to pay the applicant the recalculated amount as from 1
January 2002 less the sums already paid.
- The
defendant appealed challenging, among other things, the multiplier of
1.92 applied by the first-instance court.
- On
16 April 2003 the Rostov Regional Court (“the Regional Court”)
upheld the judgment of 21 January 2003 in full. The enforcement
proceedings were opened.
3. Supervisory review proceedings
- On 13 May 2003 the defendant appealed to the Regional
Court by way of supervisory review seeking to quash the judgment of
21 January 2003, as upheld on 16 Aril 2003.
- On
30 June 2003 the judge rapporteur refused to initiate the supervisory
review proceedings and to remit the case for examination on the
merits to the Presidium of the Rostov Regional Court (“the
Presidium”).
- On
14 July 2003 the defendant complained to the President of the
Regional Court about the judgment of 21 January 2003, as upheld on
appeal, and the judge rapporteur's decision of 30 June 2003 rejecting
their previous application for supervisory review. They also
requested that the enforcement proceedings be suspended pending the
examination of the new supervisory review appeal.
- On
6 August 2003 a judge of the Regional Court requested the case-file
from the court of first instance. On 24 October 2003 judge B. of
the Regional Court initiated the review of the judgment of 21 January
2003, as upheld on 16 April 2003. The decision of 24 October 2003
referred in detail to the arguments adduced by the defendant but
offered no explanation as to the grounds for overruling the judge
rapporteur's decision of 30 June 2003. The case was transferred to
the Presidium for the examination on the merits.
- On
4 November 2003 the applicant was informed about the date and venue
of the hearing of his case by the Presidium.
- On
4 December 2003 the Presidium quashed the judgment of 21 January
2003, as upheld on appeal, stating that the first instance court's
calculation of the minimum subsistence amount, based on the
multiplier of 1.92, had been insufficiently supported by evidence.
The Presidium also noted that the first instance court had
misinterpreted the domestic law. The case was remitted to the first
instance court for a fresh examination.
4. Second round of court proceedings
- On
25 December 2003 the Bataysk Town Court examined the case anew. In
the course of the proceedings the court established that the
allowance should have been multiplied by 1.25 in 2002 and by 1.26 for
2003. The applicant maintained that he accepted this multiplier.
- As
a result, the court held that the amount of pension due to the
applicant for 2002 was 3,125 Roubles per month. In 2003 the pension
of the applicant should have amounted to 3,937.5 Roubles per
month. The court ordered the social security authorities to
compensate the applicant for previous underpayments and, starting
from January 2004, pay him 3,937.5 Roubles monthly, with
subsequent indexation.
- On
14 January 2004 the Bataysk Town Court rendered an additional
decision in the above case aimed at correction of an arithmetic error
in the calculation of the amount awarded to the applicant.
- The
above decisions of the Town Court were not appealed against and
became final.
II. RELEVANT DOMESTIC LAW
- On
1 February 2003 the Code of Civil Procedure of the Russian Federation
(“the CCivP”) entered into force introducing, in
particular, an amended system of supervisory review.
- The
CCivP, in the relevant part, provides as follows:
Article 376. Right to apply to a court exercising
supervisory review
“1. Judicial decisions that have become legally
binding ... may be appealed against... to a court exercising
supervisory review by parties to the case and by other persons whose
rights and legal interests had 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 379. Proceedings in a supervisory review
court after an application for supervisory review was lodged
“A President or Deputy President of the respective
court transfers the application for supervisory review ... to a judge
of this court for examination.”
Article 381. Examination of an application for
supervisory review
“2. Having examined an application for supervisory
review, the judge issues an interim decision on –
(1) obtaining the case file if there exist
doubts as to the lawfulness of the judicial decision;
(2) refusing to obtain the case file if the
arguments in the application for supervisory review may not, in
accordance with the federal law, result in quashing of the judicial
decision.
...
6. The President of the...regional...court...
may disagree with the judge's decision refusing to obtain the case
file. In such case the President issues his own decision on obtaining
the case file.”
Article 382. Examination of case files obtained
by the supervisory review court
“2. Having examined the case file
obtained by the supervisory review court, the judge issues an interim
decision on –
– refusing to remit the case for examination on
the merits by the supervisory review court;
– remitting the case for examination of the
application for supervisory review on the merits by the supervisory
review court.”
Article 383. Interim decision refusing to
remit the case for examination
on the merits by the supervisory
review court
“2. The President of
the...regional...court...may disagree with the judge's decision
refusing to remit the case for examination on the merits by the
supervisory-review court. In such case the President issues his own
decision on remitting the case for examination on the merits by the
supervisory review court.”
Article 387. Grounds for quashing or varying judicial
decisions
by way of supervisory review
“The grounds for quashing or varying the judicial
decisions of the lower courts by way of supervisory review are
serious violations of the substantive and procedural laws”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 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 21 January
2003 in his favour, as upheld on appeal, violated his rights under
Article 6 § 1 of the Convention and Article 1 of Protocol No. 1,
which, insofar as relevant, provide as follows:
Article 6 § 1
“In the determination of his civil rights and
obligations ..., everyone is entitled to a ... 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.
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 new system of supervisory review,
introduced by the CCivP of 2003, differed from the old one. In
particular, it was a judge who decided whether to obtain the
case-file following a supervisory review complaint and to remit the
case to the supervisory review court. They considered that the
time-limits for examination of applications for supervisory review
represented an additional safeguard of the applicant's rights. They
further submitted that supervisory review of the judgment in the
applicant's favour had been initiated and carried out in full
compliance with the applicable procedure. The Government emphasised
that the Presidium had reversed the judgment in the applicant's
favour because of serious violations of substantive and procedural
laws. In particular, the case-file contained no evidence to support
the first instance court findings about the multiplier of 1.92 which
was, moreover, never provided for by either local or regional
legislation. Furthermore, the mentioned multiplier was overestimated
and did not correspond to the level of inflation. According to the
Government, the Town Court in its judgment of 22 April 2004 referred
to correct multipliers of 1.25 and 1.26 for the years 2001 and 2002
respectively and reached lawful, just and reasoned conclusions.
Accordingly, the Government submitted that a balance between the
State interests and the legal requirements on the one hand and the
applicant's interests on the other hand had been preserved.
- The
Government finally stressed that the applicant's acceptance of the
multiplier in the new proceedings before the Town Court and the fact
that he had chosen not to appeal against the judgment of 25 December
2003 showed that he himself considered the initial multiplier
incorrect.
- The
applicant maintained his complaints and submitted that the Town Court
in its judgment of 25 December 2003 had applied underestimated
multipliers which he had to accept in order to obtain at least some
increase in his pension.
A. Admissibility
- The
Court considers, in the light of the parties' submissions, that the
complaint raises serious issues of fact and law under the Convention,
the determination of which requires an examination of the merits. The
Court concludes therefore that this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. No other ground for declaring it inadmissible has been
established.
B. Merits
1. Alleged violation of Article 6 § 1 of the Convention
- 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 not be called
into question (see Brumărescu v. Romania, judgment of 28
October 1999, Reports of Judgments and Decisions 1999-VII, §
61).
-
In a number of previous cases the Court examined the Russian system
of supervisory review under the “old” Code of Civil
Procedure. That system allowed a final and binding judicial decision
to be quashed by a higher court on an application made by a State
official whose power to lodge such an application was not
subject to any time-limit, with the result that the judgments were
liable to challenge indefinitely (see, among other authorities, see
Ryabykh v. Russia, no. 52854/99, § 52, ECHR 2003-X,
§§ 54-56; see also Roseltrans v. Russia,
no. 60974/00, §§ 27-28, 21 July 2005; Volkova
v. Russia, no. 48758/99, §§ 34-36, 5
April 2005). In the opinion of the Court, such system was
incompatible with the “legal certainty” principle and the
applicant's “right to a court” enshrined in Article 6 §
1.
- The
Court also stressed in the above cases that the “old”
supervisory review mechanism was used for the purpose of obtaining a
rehearing of a settled judicial dispute (see
Ryabykh v. Russia, mentioned above; see also, mutatis
mutandis, Pravednaya v. Russia,
no. 69529/01, § 25, 18 November 2004). However,
the mere possibility of two views on the subject is not a
ground for re-examination. Higher courts' power to quash or alter
binding and enforceable judicial decisions should be exercised only
for correction of fundamental defects.
- In
2003 the “old” system of supervisory review was replaced
with the “new” one (see the “Relevant domestic law”
part above). In the opinion of the Government, the new system
guarantees better stability of court judgments. The Court observes
that the supervisory review of the judgment in the applicant's favour
was made under the new rules, so the Court has now to determine on
the facts of the case whether or not the review was compatible with
Article 6 § 1.
- The
Court does not find sustainable the Government's argument that the
applicant's rights had been adequately secured by the time-limits set
in the new Code of Civil Procedure. It is true that the new CCivP
established a one-year time-limit for introducing a supervisory
review appeal. However, under the new CCivP the president's
power to overrule decisions of other judges refusing to initiate
supervisory-review proceedings is not subject to any time-limits (see
Denisov v. Russia (dec.), no. 33408/03, 6 May 2004).
Furthermore, it is unclear on what grounds the president may decide
to overrule the decision of the judge rapporteur (see the “Relevant
domestic law” part above).
- In
the present case the Court notes that on 30 June 2003 the judge
rapporteur of the Regional Court examined the defendant's first
application for supervisory review of the final judgment in the
applicant's favour and refused to initiate the supervisory-review
proceedings. Dissatisfied with the refusal, the defendant lodged a
repeated supervisory review complaint, now with the President of the
Regional Court, challenging the final judgment of 21 January 2003, as
upheld on appeal, and the judge rapporteur's decision of 30 June
2003. Four months later, judge B. of the Regional Court, apparently
acting within the President's powers provided by Article 383 of the
CCivP (on behalf of the President), overruled the decision of 30 June
2003 and remitted the case to the Presidium for the examination on
the merits. Thus, having disagreed with the judge rapporteur's
previous decision and without giving any reasons for his
disagreement, the President made use of his unfettered discretion to
launch supervisory review proceedings.
- The
Court further notes that the judgment of 21 January 2003 in the
applicant's favour, as upheld on 16 April 2003, was set aside because
the first-instance and appeal courts' findings had been
insufficiently supported by evidence and they had misinterpreted the
law. In other words, the reason for quashing the final judgment in
the applicant's favour was the Presidium's disagreement with the way
in which the lower courts had assessed the evidence before them and
had applied the domestic law. Examining the Government's argument
that the mentioned shortcomings constituted “serious violations
of substantive and procedural laws”, the Court is nevertheless
unable to conclude that they amounted to fundamental defects or
circumstances of a substantial and compelling character which could
have required departure from the principle of legal certainty secured
by the Convention (see mutatis mutandis, Ryabykh v. Russia,
cited above, and Pravednaya v. Russia,
cited above).
- Thus,
the Court considers that the quashing of the judgment of 21 January
2003 in the applicant's favour, as upheld on appeal on 16 April 2003,
by way of supervisory review proceedings infringed the principle of
legal certainty and the applicant's “right to a court”.
There has been, accordingly, a violation of Article 6 § 1 of the
Convention.
2. Alleged violation of Article 1 of Protocol No. 1
- The
Court reiterates that the existence of a debt confirmed by a binding
and enforceable judgment furnishes the judgment beneficiary with a
“legitimate expectation” that the debt would be paid and
constitutes the beneficiary's “possessions” within the
meaning of Article 1 of Protocol No. 1. 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).
- Insofar
as the Government submitted that the applicant had failed to appeal
against the Town Court judgment of 25 December 2003, the Court
observes that the core issue before it is the quashing of the final
and binding judgment given in the applicant's favour, an
instantaneous act (see Sitokhova v. Russia (dec.), no.
55609/00, 2 September 2004). Thus, the eventual outcome of the
post-quashing proceedings is not directly relevant for the Court's
analysis of the complaint about the annulment of the judgment in the
applicant's favour (see Ivanova v. Ukraine, no. 74104/01,
§§ 35-38, 13 September 2005), unless, as a result of
the subsequent proceedings, the applicant obtained more than he had
had before the supervisory review which is clearly not the case.
- Having
regard to its case-law (see §§ 78-80 in the Brumărescu
judgment cited above) and the conclusions under Article 6 above, the
Court considers that the quashing of the judgment by way of
supervisory review, even though it pursued a legitimate aim, imposed
a disproportionate and excessive burden on the applicant and was
therefore incompatible with Article 1 of Protocol No. 1 to the
Convention.
- There
has accordingly been a violation of that Article.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 AND ARTICLE 1
OF PROTOCOL NO. 1 ON ACCOUNT OF THE NON-ENFORCEMENT
- The
applicant also complained about the non-enforcement of the judgment
of 21 January 2003, as upheld on 16 April 2003. He relied on Article
6 § 1 of the Convention and Article 1 of Protocol No. 1, both
cited above.
- The
Court observes that the principles insisting that a final judicial
decision must not be called into question and should be enforced
represent two aspects of the same general concept, namely the “right
to a court” (see Ryabykh v. Russia, cited above,
§§ 55-57; Burdov v. Russia, no. 59498/00, § 34,
ECHR 2002 III).
- In
the present case the prolonged non-enforcement was due, to a large
extent, to the fact that the judgment to be enforced was twice
challenged by the defendant by way of supervisory review and then
quashed by the Presidium in course of the supervisory review
proceedings. Having regard to this consideration and its findings
above concerning violation of the applicant's rights on account of
the quashing of the judgment in his favour, the Court does not
consider it necessary, in the circumstances of the case, to examine
the applicant's complaint concerning the non-enforcement of that
judgment separately and therefore rejects this part of the
application under Article 35 § 4 of 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
Court points out that under Rule 60 of the Rules of Court any claim
for just satisfaction must be itemised and submitted in writing
together with the relevant supporting documents or vouchers, “failing
which the Chamber may reject the claim in whole or in part”.
- In
the instant case the applicant was invited to submit, by 31 May 2006,
his claims for just satisfaction but failed to do so within the
required time-limits.
- In
these circumstances, the Court makes no award under Article 41 of the
Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning the quashing
of the judgment of 21 January 2003, as upheld on appeal on 16
April 2003, by way of supervisory review admissible and the remainder
of the application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention and Article 1 of Protocol No. 1 on
account of the quashing of the judgment of 21 January 2003, as upheld
on appeal on 16 April 2003, by way of supervisory review;
- Decides to make no award under Article 41.
Done in English, and notified in writing on 15 February 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren
Nielsen Loukis Loucaides
Registrar President
