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FIRST
SECTION
CASE OF BORODKIN v. RUSSIA
(Application
no. 42234/04)
JUDGMENT
STRASBOURG
17
September 2009
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 Borodkin v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis,
President,
Anatoly Kovler,
Elisabeth
Steiner,
Dean Spielmann,
Sverre Erik
Jebens,
Giorgio Malinverni,
George Nicolaou,
judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 27 August 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 42234/04) 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 Nikolay Dmitriyevich
Borodkin (“the applicant”), on 19 October 2004.
- The
Russian Government (“the Government”) were represented by
Mr G. Matyushkin, their Representative at the European Court of Human
Rights.
- On
29 April 2008 the President of the First Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1949 and lives in Deputatskiy, the Republic of
Sakha (Yakutiya).
- In
the 1990s the applicant subscribed to a State savings scheme which
would entitle him to receive a VAZ car in 1993. He paid the car's
full value but never received the car.
- On
13 February 2003 he received a partial compensation in the amount of
18,538.20 Russian roubles (RUB) equal to 13.35% of the car value.
- The
applicant brought the court action against the authorities, seeking
to recover the monetary value of the State promissory notes for
purchasing of a car.
- On
30 June 2003 the Ust-Yanskiy District Court of the Sakha Republic
(Yakutiya) allowed the applicant's action against the Government and
awarded him RUB 120,428.80 as the full car value less the amount
already paid in February 2003. The award was to be paid at the
expense of the Federal Treasury.
- On
28 July 2003 the Supreme Court of the Sakha (Yakutiya) Republic
upheld the judgment and it became final. The award remained
unenforced.
- On
19 September 2003 the Ministry lodged a request for supervisory
review of the case with the Presidium of the Supreme Court of the
Sakha (Yakutiya) Republic.
- On
15 July 2004 the Presidium quashed the judgment of 30 June 2003 and
the appeal decision of 28 July 2003 on the ground of a violation of
the substantive law and delivered a new judgment in which it
dismissed the applicant's claim in full.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE
CONVENTION
- The
applicant complained under Article 1 of Protocol No. 1 to the
Convention about the quashing of the judgment in his favour on
supervisory review. This Article, in so far as relevant, reads as
follows:
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
Government argued that the supervisory review
of the judgment had not breached the Convention. It had been
initiated by a party to the proceedings within less than one year
from the judgment's entry into force. The quashing had been justified
because the judgment had been based on a misapplication of law and
hence had contained a fundamental defect. Annulment of the binding
judgment had been legitimate in a democratic society. Civil procedure
of other countries, for example Germany, had also allowed for the
annulment of final judgments. Besides, the Council of Europe had been
satisfied with reforms of the supervisory-review procedure in Russia.
Furthermore, the Presidium had found that the applicant's claim had
been unfounded and therefore he had not had a “possession”
within the meaning of Article 1 of Protocol No. 1. In February 2003
the applicant received compensation from the Ministry of Finance in
the amount established by the domestic law.
- The
applicant maintained his claim arguing that he had been entitled to
obtain the full monetary value of the car, but had never received
that sum.
A. Admissibility
- The
Court notes 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
- The
Court reiterates that the existence of a debt confirmed by a binding
and enforceable judgment constitutes the beneficiary's “possession”
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 v. Romania [GC], no. 28342/95, § 74,
ECHR 1999 VII, and Androsov v. Russia, no. 63973/00,
§ 69, 6 October 2005).
- The
Court observes that the applicant obtained a binding and enforceable
judgment in his favour, by the terms of which the State was to pay
him a substantial amount of money at the expense of the Federal
Treasury. He was prevented from receiving the award through no fault
of his own. 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, even assuming that the
interference was lawful and pursued a legitimate aim, the Court
considers that the quashing of the enforceable judgment in the
applicant's favour by way of supervisory review placed an excessive
burden on the applicant and was incompatible with Article 1 of the
Protocol No. 1.
- There
has therefore been a violation of that Article.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant complained under Articles 13 and 17 of the Convention that
he had no effective remedy against the quashing of his final judgment
on supervisory review and under Article 1 of Protocol No. 1 about the
State's failure to comply with its obligation to provide a car.
- The
Court has examined these complaints as submitted by the applicant.
However, having regard to all the material in its possession, it
finds that these complaints do not disclose any appearance of a
violation of the rights and freedoms set out in the Convention or its
Protocols. It follows that this part of the application must be
rejected as being manifestly ill-founded, pursuant to Article 35 §§
3 and 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.”
A. Damage
- The
applicant claimed 90,000 United States dollars (USD) in respect of
pecuniary damage and USD 50,000 in respect of non-pecuniary damage.
- The
Government submitted that no award should be made under Article 41
since the applicant's rights had not been violated. They challenged
the claim in respect of pecuniary damage as unfounded and reiterated
that in 2003 the applicant had already received 18,538.20 Russian
roubles (RUB). They submitted that the claim for non-pecuniary damage
was excessive.
- With
regard to pecuniary damage, the Court considers that the violation
found is best redressed by putting the applicant in the position he
would have been if the Convention had been respected. It is therefore
appropriate to award the applicant the equivalent in euros of the sum
that he would have received if the judgment of 30 June 2003 had not
been quashed (see Bolyukh v. Russia, no. 19134/05, § 39,
31 July 2007). The Court awards EUR 3,382 under this head, plus any
tax that may be chargeable.
- The
Court further considers that the applicant suffered distress and
frustration because of the supervisory review of the judgment. Making
its assessment on an equitable basis, it awards the applicant 2,000
euros (EUR) in respect of non-pecuniary damage and dismisses the
remainder of the applicant's claims for just satisfaction.
B. Costs and expenses
- The
applicant did not claim costs or expenses and there is accordingly no
call to make an award under this head.
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 complaint under Article 1 of
Protocol No. 1 concerning the quashing of the final judgment in the
applicant's favour admissible and the remainder of the application
inadmissible;
- Holds that there has been a violation of Article
1 of Protocol No. 1 to the Convention;
- 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, the following
amounts, to be converted into Russian roubles at the rate applicable
at the date of settlement:
(i) EUR
3,382 (three thousand three hundred and eighty-two euros), plus any
tax that may be chargeable, in respect of pecuniary damage;
(ii)
EUR 2,000 (two thousand euros), plus any tax that may be chargeable,
in respect of non-pecuniary damage;
(b) 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 unanimously the remainder of the
applicant's claim for just satisfaction.
Done in English, and notified in writing on 17 September 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
