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THIRD
SECTION
CASE OF
ARSHINCHIKOVA v. RUSSIA
(Application
no. 73043/01)
JUDGMENT
STRASBOURG
29 March
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 Arshinchikova v. Russia,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Mr B.M. Zupančič,
President,
Mr J. Hedigan,
Mr A. Kovler,
Mrs A.
Gyulumyan,
Mr E. Myjer,
Mr David Thór
Björgvinsson,
Mrs I. Berro-Lefèvre, judges,
and
Mr S. Quesada, Section Registrar,
Having
deliberated in private on 8 March 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 73043/01) 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 Zinaida Pavlovna
Arshinchikova (“the applicant”), on 15 January 2001.
- The
Russian Government (“the Government”) were represented by
their Agent, Mr P. Laptev, Representative of the Russian
Federation at the European Court of Human Rights.
- The
applicant alleged, in particular, that the quashing of the judgment
in her favour by way of supervisory review violated her property
rights and her right to a fair trial.
- By
a decision of 5 April 2005 the Court declared the application partly
admissible.
- The
Government, but not the applicant, filed further written observations
(Rule 59 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1940 and lives in Saratov.
She is the head and legal representative of the farming enterprise
“Katyusha” (“the farm”) located in the
Saratov Region.
- On
15 March 1991 the applicant on behalf of the farm entered into a
lease purchase option agreement with the State road maintenance
company “Saratovavtrodor” (“the road company”)
in respect of certain constructions, including a twelve-flat house
(“the constructions”). The agreement provided, in
particular, that the purchase option was to be exercised upon payment
of rent equal to the book value of the property.
- On
1 July 1993 the lease purchase option agreement was amended: the
Property Management Committee of the Saratov Region (“the
property committee”) replaced the original lessor as a party to
the agreement. The other terms and conditions of the agreement were
not affected.
- On
19 August 1993 the farm credited the required amount to the bank
account of the property committee. It thus exercised the purchase
option under the lease agreement.
- On
6 July 1999 the property committee brought a civil action against the
farm. The committee claimed that the agreement of 1 July 1993 was
void ab initio because it had been entered into in breach of
the law. The committee sought a judicial declaration of the nullity
of the 1993 agreement.
- On
27 September 1999 the Saratov Regional Commercial Court allowed the
committee's action against the farm. The court ordered the farm to
return all proceeds from the 1993 agreement to the property committee
and bear one half of the court fees.
- On
15 December 1999 the Appellate Collegium of the Saratov Regional
Commercial Court upheld the judgment of 27 September 1999.
- On
12 January 2000 the applicant's representative filed an appeal on
points of law.
- On
15 February 2000 the Federal Commercial Court of the Volga Circuit
quashed the judgments of 27 September and 15 December 1999 and made a
new determination of the claim. The court ruled that the agreement of
1 July 1993 had not been a new transaction, but rather a novation of
the agreement of 16 March 1991 involving the substitution of the
lessor. As to the 1991 agreement, it had been concluded before the
regulations, on which the first-instance and appeal courts based
their judgments, came into force. The Federal Commercial Court
dismissed the claim of the property committee.
- The
judgment became final and no ordinary appeal lay against it.
- On
13 June 2000 Judge Arifullin, a Deputy President of the Supreme
Commercial Court of the Russian Federation, lodged an application for
supervisory review (протест
в порядке надзора)
against the judgment of 15 February 2000. The application was based
on the arguments originally advanced by the property committee in
support of its claim and repeated verbatim the judgment of the appeal
court of 15 December 1999.
- On
5 September 2000 the Presidium of the Supreme Commercial Court of the
Russian Federation quashed, by way of supervisory review, the
judgment of 15 February 2000 and reinstated the judgments of
27 September and 15 December 1999.
- On
4 December 2000 the bailiffs' service commenced the enforcement
proceedings.
- On
an unspecified date the applicant applied for State registration of
her title to the house which formed a constituent part of the
disputed constructions.
- On
9 October 2000 the Saratov Regional Registration Chamber issued an
official certificate formalising the applicant's title to the house
acquired under the 1993 lease purchase option agreement.
- On
4 March 2002 the property committee filed a civil action against the
Saratov Regional Registration Chamber and the farm. The property
committee claimed that the registration of the applicant's title to
the house of 9 October 2000 should be declared void because it had
been grounded on the already invalidated agreement.
- After
several adjournments of the proceedings, on 18 November 2002
the property committee withdrew its claim. On 2 December 2002
the Commercial Court of the Saratov Region discontinued the
proceedings.
- On
21 November 2002 a court bailiff of the Tatishchevo District
discontinued the enforcement proceedings under the judgment of
27 September 1999 and returned the writ of execution to the
property committee.
II. RELEVANT DOMESTIC LAW
- Section 1 of the Farming Enterprises Act (Law no.
348-I of 22 November 1990, in force at the material time
(“the Law”)) defines a farming enterprise as an
independent business entity represented by an individual, a family or
a group of persons who manufacture, process and sell agricultural
products using the property to which they have title or a right in
rem. Under Article 257 of the Civil Code of the Russian
Federation, title to the property of a farming enterprise is held
jointly by its members unless otherwise agreed. Relations of the farm
with enterprises, organisations, individuals and State authorities
are exercised by the head of the farm (Section 1 § 4 of the
Law).
- The Code of Commercial Procedure (no. 70-FZ of 5 May
1995, in force at the material time) established that final judgments
and decisions of commercial courts were amenable to supervisory
review initiated on an application by the President of the Supreme
Commercial Court or his deputy or by the Prosecutor General of the
Russian Federation or his deputy (Articles 180 and 181). The Code did
not list the grounds for lodging an application for supervisory
review, it only specified that it could be lodged “also in
connection with a request by a party to the proceedings”
(Article 185 § 1). Summoning of parties to the hearing
before the Presidium of the Supreme Commercial Court was a
discretionary right of the Presidium (Article 186 § 2).
THE LAW
I. THE GOVERNMENT'S PRELIMINARY OBJECTION
- The
Government submitted in their further observations of 14 July 2005
that the applicant was not entitled to bring the application before
the Court because the complaints related to the proceedings, to which
the farm, but not the applicant, had been a party.
- The Court notes that no plea of inadmissibility
concerning lack of jurisdiction ratione personae was made by
the Government at the admissibility stage in accordance with Article
55 of the Rules of Court, and there are no exceptional circumstances
which would have absolved the Government from the obligation to raise
their preliminary objection before the Court's decision as to the
admissibility of the application on 5 April 2005.
- In
any event, the Court observes that under Russian law an agricultural
farm does not have legal entity status and it is represented for all
legal purposes by its head, that is the applicant in the present
case. Therefore, the applicant may claim to be directly affected by
alleged violations.
- The
Government's objection must therefore be dismissed.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1
- The
applicant complained that the quashing of the judgment of
15 February 2000 by way of supervisory-review proceedings
had violated her “right to a court” under Article 6 § 1
of the Convention and her 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. Article 6 § 1 of the Convention
- The
Government contended that the application for supervisory review had
been introduced in accordance with Russian law, and that the
supervisory-review proceedings had met the requirements of the
Convention for a fair trial by an impartial tribunal. The
Government claimed that in the Russian legal system, especially in
commercial litigation, judicial decisions became binding and
enforceable only upon completion of the supervisory-review
proceedings. In the instant case there existed continuity of the
proceedings because the application for supervisory review was made
in June 2000, that is four months after the Federal Commercial Court
of the Volga Region had issued its judgment. The Government also
pointed out that the applicant had been duly informed of the hearing.
- The
applicant claimed that the domestic courts and, in particular, the
Presidium of the Supreme Commercial Court had misdirected themselves
in law. She submitted that the judgment of the Federal Commercial
Court had clearly stated that it was not amenable to further appeal
and she could not have reasonably foreseen the institution of
supervisory-review proceedings. In any event, her observations on the
supervisory-review application had not been examined and she had
not been informed of the hearing date before
the Presidium. She considered that her right to a fair trial was
breached.
- 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 [GC], no. 28342/95, § 61,
ECHR 1999 VII).
- The Court has frequently found a violation of an
applicant's “right to a court” guaranteed by Article 6 §
1 of the Convention in cases in which a judicial decision in a civil
case that had become binding and enforceable, was subsequently
quashed by a higher court on an application by a State official whose
power to intervene was not subject to any time-limit (see Roseltrans
v. Russia, no. 60974/00, §§ 27-28, 21 July
2005; Volkova v. Russia, no. 48758/99,
§§ 34-36, 5 April 2005; and Ryabykh v.
Russia, no. 52854/99, §§ 51-56, ECHR
2003 IX).
- The
Court notes that the above-mentioned cases concerned civil
proceedings before the courts of general jurisdiction, whereas the
instant case was examined by commercial courts in proceedings
governed by
the Code of Commercial
Procedure of 1995 (in force at the material time). The Code of
Commercial Procedure granted the power to intervene by way of
supervisory review to the President and Deputy President of the
Supreme Commercial Court (Articles 180 and 181 of the Code, see
paragraph 25 above) in the same way as the Code of Civil Procedure
gave the power to intervene in civil proceedings to the president and
deputy presidents of higher courts. Neither the Code of Civil
Procedure nor the Code of Commercial Procedure set any time-limit for
exercise of that power, so that final judgments were liable to
challenge indefinitely. It follows that the problem of legal
certainty raised in the instant case is structurally identical to
that which has been found by the Court to amount to a violation of
the principle of legal certainty in civil proceedings (see the
authorities cited above).
- Having
examined the material submitted to it, the Court notes that the
Government have not put forward any fact or argument capable of
persuading it to depart from the established case-law.
The Court finds that the quashing of the judgment of 15
February 2000 by way of supervisory-review proceedings instituted on
the initiative of the Deputy President of the Supreme Commercial
Court, who was not a party to the case, violated the principle of
legal certainty and the applicant's “right to a court”
guaranteed under Article 6 § 1 of the Convention.
- There
has accordingly been a violation of Article 6 § 1 of the
Convention.
B. Article 1 of Protocol No. 1
- The
Court notes that on 9 October 2000 the applicant's title to the
disputed constructions was officially registered, that on 18 November
2002 the property committee decided not to pursue its claim
contesting the applicant's title, and that three days later the
enforcement of the judgments reinstated by the Presidium's decision
was discontinued. The applicant's right to the disputed constructions
had thus remained unaffected (see, mutatis mutandis, Zasurtsev
v. Russia, no. 67051/01, §§ 53-55,
27 April 2006).
- In
these circumstances, the Court does not consider it necessary to rule
on the question where there has been a violation of Article 1 of
Protocol No. 1.
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.”
A. Damage
- The
applicant claimed 30,000 euros (EUR) in respect of pecuniary and
non-pecuniary damage. She submitted a medical certificate and
statements by witnesses attesting to the poor state of her health in
1998-2005.
- The
Government submitted that there was no causal link between the
alleged violations and the alleged pecuniary damage. They
also contended that the finding of a violation would constitute an
adequate just satisfaction for the non pecuniary damage in the
present case.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects the
applicant's claim for pecuniary damage. However, having
regard to the nature of the breach in this case, the two years of
uncertainty following the quashing of the judgment in the applicant's
favour and making its assessment on an equitable basis, the Court
awards EUR 2,000 for the non pecuniary
damage sustained by the applicant.
B. Costs and expenses
- The
applicant did not seek reimbursement of costs and expenses relating
to the proceedings before the domestic courts or the Convention
organs and this is not a matter which the Court has to examine of its
own motion (see Motière v. France, no. 39615/98, § 26,
5 December 2000).
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
- Dismisses the Government's preliminary
objection;
- Holds that there has been a violation of
Article 6 § 1 of the Convention;
- Holds that there is no need to examine
separately the complaint under Article 1 of Protocol No. 1;
- Holds
(a) 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, EUR 2,000 (two
thousand euros) in respect of non-pecuniary damage,
to be converted into Russian roubles at the rate applicable at the
date of settlement, plus any tax that may be
chargeable;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount 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 29 March 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Boštjan M. Zupančič
Registrar President
