BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
FIRST
SECTION
CASE OF KUCHEROV AND FROLOVA v. RUSSIA
(Application
no. 14390/05)
JUDGMENT
STRASBOURG
11
February 2010
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 Kucherov and
Frolova v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis,
President,
Anatoly Kovler,
Khanlar Hajiyev,
Dean
Spielmann,
Sverre Erik Jebens,
Giorgio
Malinverni,
George Nicolaou, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 21 January 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 14390/05) 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 two Russian nationals, Mr Yengeniy Ivanovich
Kucherov and Mrs Marina Vasilyevna Frolova (“the applicants”),
on 28 February 2005.
- The
applicants were represented by Mr A. Maysak, a lawyer practising in
Belgorod. The Russian Government (“the Government”) were
represented by Ms V. Milinchuk, former
Representative of the Russian Federation at the European Court of
Human Rights.
- On
19 February 2007 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
applicants were born in 1959 and 1967 respectively and live in
Belgorod.
- On
16 November 2002 the applicants’ minor son died in a building
site accident.
A. Proceedings for non-pecuniary damage.
- Considering that the private construction company
working on the site was responsible for the accident, the applicants
sued the company for non pecuniary damage.
- On 26 December 2003 the Sverdlovskiy District Court of
Belgorod granted their claim in part and ordered the company to pay
the applicants 400,000 Russian roubles (RUB) for non-pecuniary damage
and RUB 5,000 for legal assistance costs.
- On
24 February 2004 the Belgorod Regional Court, acting on appeal,
reduced the award to RUB 300,000.
- In
March 2004 the enforcement proceedings were stayed as the respondent
had applied for supervisory review of the case.
- On
29 April 2004 the Presidium of the Belgorod
Regional Court quashed the judgment of 26 December 2003 and the
appeal judgment of 24 February 2004 and remitted the case for
fresh consideration.
- On
8 June 2004 the Sverdlovskiy District Court granted the
applicants’ claims in part and awarded them RUB 100,000 for
non pecuniary damage.
- On
3 August 2004 the Belgorod Regional Court,
acting on appeal, amended the judgment increasing the sum to RUB
200,000. The appeal judgment became enforceable on the same day.
- In
September 2004 the enforcement proceedings were stayed as the
respondent had again applied for supervisory review of the case.
- On
7 October 2004 the Presidium of the Belgorod
Regional Court reassessed the evidence, quashed the appeal judgment
of 3 August 2004 and remitted the case for fresh consideration on
appeal.
- On
26 October 2004 the Belgorod Regional Court upheld the
judgment of 8 June 2004 on appeal. The award to be paid to the
applicants was, accordingly, RUB 100,000.
- In
November 2004 the judgment was enforced.
B. Proceedings for pecuniary damage
- On
an unspecified date one of the applicants, Mr Kucherov, sued the
construction company for pecuniary damage.
- On
11 February 2004 the Sverdlovskiy District Court granted the claim in
part and awarded him RUB 59,273.
- On
13 April 2004 the Belgorod Regional Court quashed the judgment and
remitted the case for fresh consideration.
- On
6 July 2004 the Sverdlovskiy District Court awarded Mr Kucherov
RUB 94,468.
- On 17 August 2004 the Belgorod Regional Court upheld
the judgment with minor changes, having reduced the award due to
RUB 86,326. The judgment became final and binding on the same
day.
- Following
an application for supervisory review lodged by the defendant, on 20
October 2004 a judge of the Belgorod Regional Court referred the case
to its Presidium for consideration on the merits.
- On
28 October 2004 the Presidium of the Belgorod Regional Court
reassessed the evidence, quashed the judgment of the Sverdlovskiy
District Court of 6 July 2004 and the appeal
judgment of the Belgorod Regional Court of 17 August 2004 and
remitted the case for fresh consideration.
- On
28 December 2004 the Sverdlovskiy District Court awarded Mr Kucherov
RUB 19,068 for burial expenses and RUB 10,000 for legal assistance
costs.
- On
15 March 2005 the Belgorod Regional Court quashed the judgment and
remitted the case for new consideration.
- On
27 April 2005 the Sverdlovskiy District Court awarded Mr Kucherov
RUB 19,068 for burial expenses and dismissed the remainder of the
claim.
- On
21 June 2005 the Belgorod Regional Court upheld the judgment on
appeal.
II. RELEVANT DOMESTIC LAW
- The
relevant domestic law governing the supervisory review procedure at
the material time is summed up in the Court’s judgment in the
case of Sobelin and Others
(see Sobelin and Others v. Russia,
nos. 30672/03, et seq., §§ 33-42, 3 May
2007).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicants complained under Article 6 of the Convention that the
final appeal judgment of 3 August 2004 had been quashed by way of
supervisory review on 7 October 2004. Mr Kucherov also complained
that the judgment of 6 July 2004 and the appeal
judgment of 17 August 2004 were quashed via supervisory review
on 28 October 2004. In so far as relevant, this Article reads as
follows:
Article 6 § 1
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing ...
by [a] ... tribunal...”
- The
Government contested that argument. They argued, inter alia,
that the supervisory review had been compatible with the Convention
as the inferior courts wrongly assessed the evidence;
as the application for supervisory review had been lodged by a party
to the proceedings; and as it had been lodged and the case reviewed
within a very short period of time.
A. Admissibility
- The Court notes that the complaints are 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 for the sake of legal certainty implicitly
required by Article 6, final judgments should generally be left
intact. They may be disturbed only to correct fundamental errors. The
mere possibility of there being two views on the subject is not a
ground for re examination (see Ryabykh
v. Russia,
no. 52854/99, §§ 51-52,
ECHR 2003 IX).
- The Court reiterates that it has
frequently found violations of the principle of legal certainty and
of the right to a court in the supervisory review proceedings
governed by the Code of Civil Procedure in force since 2003 (see,
among other authorities, Sobelin and
Others, cited above, §§ 57 58,
and Bodrov v. Russia,
no. 17472/04, § 31, 12 February 2009).
- In the present case the final
and binding judgments were quashed because the Presidium disagreed
with the assessment made by the inferior courts,
which is not in itself an exceptional circumstance warranting the
quashing (see Kot v. Russia,
no. 20887/03, § 29, 18 January 2007). Accordingly,
there has been a violation of Article 6 § 1 of
the Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The applicants also
lodged several other complaints concerning the above proceedings,
referring to Articles 6, 8 and 9 of the Convention.
- However, in the light of all the
material in its possession, and in so far as the matters complained
of are within its competence, the Court finds that they do not
disclose any appearance of a violation of the rights and freedoms set
out in the aforementioned provisions. It follows that this part of
the application is manifestly ill-founded and must be rejected in
accordance with 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
- In
respect of compensation for the pecuniary damage, one of the
applicants, Mr Kucherov, claimed 3,351 euros (EUR). In respect of
non-pecuniary damage each applicant claimed EUR 160,000.
- The
Government contested the claims.
- The
Court recalls that in general the most appropriate form of redress in
respect of violations found is to put applicants as far as possible
in the position they would have been in if the Convention
requirements had not been disregarded (see, amongst other
authorities, Piersack v. Belgium (Article 50), judgment
of 26 October 1984, § 12, Series A no. 85,
p. 16, § 12, and Dovguchits v. Russia, no.
2999/03, § 48, 7 June 2007).
- In the present case insofar as
Mr Kucherov did not receive the money he had legitimately expected to
receive under the quashed final judgments, there is a causal link
between the violations found and the claim in respect of pecuniary
damage. Therefore the Court awards Mr Kucherov EUR 3,335.
- The Court furthermore finds that
the applicants have suffered non pecuniary damage as a result of
the violation found which cannot be compensated by the mere finding
of a violation. Making its assessment on an equitable basis, the
Court awards each of the applicants EUR 3,000 in respect
of non-pecuniary damage, plus any tax that may be chargeable.
B. Costs and expenses
- The
applicants also claimed EUR 2,131 for Mr Kucherov and EUR 639
for Mrs Frolova for the costs and expenses incurred.
- The
Government contested the claim.
- According
to the Court’s case-law, applicants are entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum. In the present case, regard being had to
the documents in its possession and the above criteria, the Court
considers it reasonable to grant the claims in full and awards Mr
Kucherov EUR 2,131 and Mrs Frolova EUR 639.
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 complaints concerning the supervisory review proceedings
admissible and the remainder of the application inadmissible;
- Holds that there has been a violation of Article
6 of the Convention on account of the quashing of the judgments in
the applicants’ favour via supervisory review;
- Holds
(a) that
the respondent State is to pay, 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
3,335 (three thousand three hundred and thirty five euros)
to Mr Kucherov, in respect of
pecuniary damage;
(ii) EUR
3,000 (three thousand euros) each applicant, in respect of
non-pecuniary damage;
(iii)
EUR 2,131 (two thousand one hundred and thirty one euros) to
Mr Kucherov and EUR 639 (six hundred and
thirty nine euros) to Mrs Frolova, in respect of costs and
expenses;
(iv) any
tax that may be chargeable to the applicants on the above amounts;
(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 the remainder of the applicants’
claim for just satisfaction.
Done in English, and notified in writing on 11 February 2010,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
