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FIRST
SECTION
CASE OF PANASENKO v. RUSSIA
(Application
no. 9549/05)
JUDGMENT
STRASBOURG
1
April 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 Panasenko v.
Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis, President,
Nina
Vajić,
Anatoly Kovler,
Elisabeth
Steiner,
Khanlar Hajiyev,
Giorgio
Malinverni,
George Nicolaou, judges,
and André
Wampach, Deputy Section Registrar,
Having
deliberated in private on 11 March 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 9549/05) 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 a Russian national, Mr Grigoriy Fedorovich
Panasenko (“the applicant”), on 7 February 2005.
- The
Russian Government (“the Government”) were represented by
Mr G. Matyushkin, the Representative of the Russian Federation at the
European Court of Human Rights.
- On
15 May 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 Shakhty, the Rostov Region.
- In
the 1990s the applicant subscribed to a State savings scheme which
would entitle him to receive a passenger car in 1993. He paid the
car's full value but never received the car.
- On
17 July 2002 the applicant received 31,375.48 Russian roubles (RUB)
of compensation in accordance with the State
Programme for the redemption of the State internal debt (see
paragraphs 20-22 below). This amount equalled to 33.41% of the
car value.
- The
applicant brought the court action against the authorities, claiming
the full monetary value of the promissory notes for purchasing of a
car.
- On
1 April 2003 the Ust-Yanskiy District Court of the Sakha Republic
(Yakutiya) allowed the applicant's action, having found that the
State had failed in its obligation to grant the applicant a car and
had only provided a partial compensation instead. The court further
held that a unilateral change of the conditions of the redemption of
the commodity bonds by the State in accordance with the Federal Law
of 2 June 2000 and the respective State
Programme (see below) did not “comply with the
constitutional principles and principles of the civil law”,
because a partial payment of a car's value did not constitute a
sufficient remedy of the damage caused to the bond holders. The court
awarded the applicant RUB 66,693.35, that is the full car price less
the amount already paid to him in July 2002, to be paid at the
expense of the Federal Treasury.
- On
30 April 2003 the Supreme Court of the Sakha (Yakutiya) Republic
upheld the judgment and it became final. The award remained
unenforced.
- In
June 2004 the respondent authority lodged a request for
supervisory review of the case with the Presidium of the Supreme
Court of the Sakha (Yakutiya) Republic.
- On
14 October 2004 the Presidium reviewed the lower courts' judgments by
way of the supervisory review proceedings and established, in
particular, that the lower courts had failed to take into account the
provisions of the amended State Commodity Bonds' Act and the
Government's Resolution no. 1006. The Presidium ruled as follows:
“Having regard to the substantive violation of the
material law, the judicial decisions taken in the case under
consideration cannot be held lawful and well-founded and should be
quashed [...].”
- The
Presidium annulled the judgment of 1 April 2003 and the appeal
decision of 30 April 2003 and delivered a new judgment in which it
dismissed the applicant's claim in full.
II. RELEVANT DOMESTIC LAW
A. Review of the compliance of the federal laws with
the Constitution
- According
to Article 15 § 1 of the Constitution of the Russian Federation,
the Constitution has the supreme juridical force, direct action and
shall be used on the whole territory of the Russian Federation. Laws
and other legal acts adopted in the Russian Federation shall not
contradict the Constitution.
- In
accordance with Article 125 § 4 of the Constitution, the
Constitutional Court of the Russian Federation reviews
constitutionality of the law applied or due to be applied in a
specific case in accordance with procedures established by federal
law, upon requests of the courts.
- By
the Ruling no. 19-П of 17 June 1998
the Constitutional Court of the Russian Federation held that it had
exclusive competence to decide whether federal or regional laws
violated the Constitution of the Russian Federation. Ordinary courts
were not entitled to rule on the constitutionality of federal laws.
In case of doubt as to whether a law complied with the Constitution,
they should direct an inquiry to the Constitutional Court.
B. Redemption of the State commodity bonds
- The State Commodity Bonds Act
(federal law no. 86-FZ of 1 June 1995) provided that the
State commodity bonds, including special-purpose settlement orders,
were to be recognised as the State internal debt (section 1).
They were to be enforced in accordance with the general principles of
the Civil Code (section 2). The relevant parts of section 3 read as
follows:
“The Government of the Russian Federation shall
draft the State Programme for the redemption of the State internal
debt... The Programme shall provide for the terms of redemption of
State commodity bonds that would be convenient for citizens,
including, of their choice: provision of goods indicated in ...
special-purpose bonds for the purchase of passenger cars ...;
redemption of State commodity bonds at consumer prices prevailing at
the moment of the redemption...”
- On 2 June 2000, section 3 of the
Act was amended to read, in the relevant parts, as follows:
“To establish that the repayment of the State
internal debt of the Russian Federation under State commodity bonds
... is carried out in 2001-2004 in accordance with the State
Programme...
To set, in the above-mentioned
Programme, the following sequence and terms of redemption of State
commodity bonds:
- [...] in respect of bearers of
special-purpose settlement orders that gave the right to purchase
passenger cars in 1993-1995 – payment of monetary compensation
equal to a part of the value of the car described in the order, as
determined on account of the percentage of the part of the full value
of car paid by the owner by 1 January 1992 (in accordance with the
price scales in force until 1 January 1992), as well as the price of
the cars determined in co-ordination with car manufacturers at the
moment of redemption”
- On 27 December 2000 the
Government approved, by Resolution no. 1006, the State Programme
for the redemption of the State internal debt of the Russian
Federation arising from State commodity bonds in the period of
2001-2004. Paragraph 2 of the Programme set out that the State
commodity bonds were to be redeemed by way of payment of pecuniary
compensation.
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 judgments of 1 and
30 April 2003 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 had not breached the
Convention. It had been initiated by a party to the proceedings
within less than one year from the judgments' entry into force. The
supervisory review had aimed at remedying a fundamental defect of the
first instance and appeal proceedings. The
lower courts were not competent to rule on compliance of the
provisions of the Federal Law of 2 June 2000 with the Constitution of
the Russian Federation. Instead, they should have introduced a
request for review of the constitutionality of the Federal Law in
question with the Constitutional Court and suspend the proceedings
pending delivery of the relevant ruling. However, they failed to make
such request, and no suspension of the proceedings took place.
Therefore, the examination of the applicants' cases before the lower
courts was tarnished by a fundamental defect, namely abuse of power
by the courts and jurisdictional error. In these circumstances, the
quashing was the only available way to rectify the fundamental defect
and to restore legal certainty in the present cases. The
Government further reiterated that in July 2002 the applicant
received compensation from the Ministry of Finance in the amount
established by the domestic law. In their view, his subsequent claim
in respect of the full monetary value of the car had been unfounded
and therefore he had not had a “possession” within the
meaning of Article 1 of Protocol No. 1.
- 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 the 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).
- At
the outset the Court notes that in the Government's view the
annulment of the judgments on supervisory review was required by the
need to rectify a fundamental defect in the initial domestic
proceedings. The Court
reiterates its constant approach that a jurisdictional error, a
serious breach of court procedure or abuses of power may, in
principle, be regarded as a fundamental defect and therefore justify
the quashing (see, mutatis
mutandis, Luchkina
v. Russia, no. 3548/04,
§ 21, 10 April 2008).
However, nothing in the text of the Presidium's ruling of 14 October
2004 enables the Court to conclude that the lower courts' judgments
were indeed quashed because these courts had
ruled on the constitutionality of the federal law in excess of their
jurisdiction. Neither the alleged jurisdictional error nor
abuse of competence was cited by the Presidium as a ground for the
annulment of the judgments of 1 and 30 April 2003. On the contrary,
it clearly follows from the wording of the supervisory instance
ruling that the sole ground for the quashing was the
misinterpretation and incorrect application of the provisions of the
State Commodity Bonds Act by the courts. Furthermore,
it was not claimed before the supervisory-review instance by the
respondent authority that the previous proceedings had been tarnished
by a fundamental defect, such as, in particular, a jurisdictional
error, serious breaches of court procedure or abuses of power (see
Luchkina,
cited above). Such argument
was only advanced in the Government's observations. In the
absence of any reference to the ground for quashing cited by the
Government in the texts of the supervisory-instance ruling of 14
October 2004, the Court is unable to conclude that the quashing was
caused, and even less justified by the substantive jurisdictional
error by the lower courts. It therefore rejects the Government's
argument.
- The
Court further 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. The Court further 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 (see, among other authorities, Androsov,
cited above, § 69). However, 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 Article 13 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 100,000 United States dollars
(USD) in respect of non-pecuniary damage.
- The
Government challenged the claim as unsubstantiated and manifestly
excessive.
- Having
regard to the nature of the breach in this case, making its
assessment on an equitable basis, the Court awards the applicant
3,000 euros (EUR) in respect of non-pecuniary damage, plus any tax
that may be chargeable, and dismisses the remainder of his 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, EUR 3,000
(three thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage, to be converted into Russian roubles
at the rate applicable at the date of settlement;
(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 1 April 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Christos Rozakis
Deputy Registrar President
