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FIRST
SECTION
CASE OF
SHCHUROV v. RUSSIA
(Application
no. 40713/04)
JUDGMENT
STRASBOURG
29 March
2011
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 Shchurov v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina
Vajić,
President,
Anatoly
Kovler,
Peer
Lorenzen,
Khanlar
Hajiyev,
George
Nicolaou,
Mirjana
Lazarova Trajkovska,
Julia
Laffranque,
judges,
and
Søren Nielsen,
Section Registrar,
Having
deliberated in private on 8 March 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 40713/04) 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 Nikonorovich Shchurov (“the applicant”), on 20
September 2004.
- The
Russian Government (“the Government”) were represented by
Mr P. Laptev, their former Representative at the European Court of
Human Rights.
- The
applicant alleged, in particular, that his right to a court had been
violated.
- On
11 January 2006 the President of the First Section decided to give
notice of the application to the Government. It was also decided to
rule on the admissibility and merits of the application at the same
time.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant was born in 1933 and lives in Volgograd.
He is a retiree.
A. The judgment in the applicant's favour
- On
13 May 2003 the Kirovskiy District Court of Volgograd (“the District
Court”) allowed the applicant's claim against his former
employer and regional health care authority. It ruled that the
applicant's illnesses should be considered occupational diseases.
That finding entitled the applicant to receive additional social
security payments.
- The
judgment of 13 May 2003 was not appealed against and became final and
enforceable ten days after its delivery.
B. Quashing by way of supervisory review
- The
health care authority lodged an application for supervisory review of
the judgment of 13 May 2003 with the Volgograd Regional Court
(“the Regional Court”).
- On
3 September 2004 the Presidium of the Regional Court
(“the Presidium”) examined the case by way of
supervisory review and set aside the judgment of 13 May 2003.
- The
Presidium noted that the District Court had erred in finding for the
applicant as recognition of a certain illness as occupational disease
was within “the prerogative” of the competent health care
authorities. The case was remitted back to the District Court.
- Following
determination de novo, the applicant's claim was dismissed in
the final instance by the Regional Court on 17 March 2005.
II. RELEVANT DOMESTIC LAW
- Relevant
domestic law on supervisory review is summarized in Denisov v.
Russia (dec.), no. 33408/03, 6 May 2004.
- Under
Russian law on civil procedure all decisions and acts of State bodies
and officials allegedly infringing upon citizens' rights and freedoms
are subject to judicial review upon an interested person's complaint
to a competent court, that is generally a district court (Article 254
of the Russian Code of Civil Procedure).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained, primarily, about violation of his right to a
court through setting aside of the final and enforceable judgment in
his favour by way of supervisory review.
- Article
6 § 1 of the Convention, in so far as relevant, reads as
following:
“In the determination of his civil rights and
obligations ... everyone is entitled to a fair ... hearing ... by [a]
... tribunal ...”
- The
Government averred that the setting aside of the judgment of 13 May
2003 by way of supervisory review had been necessary in view of “a
mistake” committed by the District Court in the applicant's
case.
- The
Court considers 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.
- 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 its Preamble which declares the rule of
law to be part of the common heritage of the Contracting States.
Principles of the rule of law must be accepted by every member of the
Council of Europe pursuant to Article 3 of its Statute which has been
ratified by all High Contracting Parties to the Convention. One of
the aspects of the rule of law is the principle of legal certainty
which presupposes respect for the principle of res judicata.
This principle underlines that no party is entitled to seek a review
of a final and binding judgment merely for the purpose of obtaining a
rehearing and a fresh determination of the case. The review should
not be treated as an appeal in disguise, and 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 further notes that departures from the above-described
principle of res judicata are justified only when made
necessary by circumstances of a substantial and compelling character
(see Kot v. Russia, no. 20887/03, § 24, 18 January 2007).
In particular, higher courts' power to quash binding and enforceable
judicial decisions should be used only for correction of fundamental
defects committed by the lower courts (see Protsenko v. Russia,
no. 13151/04, § 26, 31 July 2008).
- In
particular, the Court concluded that there had been a “fundamental
defect” justifying supervisory review if the impugned judgments
had affected the rights and legal interests of a person which had not
been a party to the proceedings in question (see Protsenko v.
Russia, cited above, §§ 29-34) or which had been unable
to participate in them effectively (see Tishkevich v. Russia,
no. 2202/05, §§ 25-27, 4 December 2008, and
Tolstobrov v. Russia, no. 11612/05, §§ 18-20,
4 March 2010).
- Legitimate
setting aside of a final and binding judgment by way of supervisory
review entails departure from the principle of legal certainty. That
departure would be compatible with requirements of Article 6 § 1
of the Convention only if it is justified by the considerations of a
pressing social need as opposed to merely legal purism (see
Sutyazhnik v. Russia, no. 8269/02, § 38, 23 July
2009). In other words, the judgment in question shall be quashed
exclusively in order to rectify an error of truly fundamental
importance to the judicial system (ibid.).
- Turning
to the present case, the Court observes that the Government did not
advance any argument to the effect that the District Court's judgment
of 13 May 2003 had been based on the fundamental defect rather than
on a trivial mistake. The Court does not find that the proceedings in
question had been tarnished by a fundamental defect; the judgment in
the applicant's favour was set aside merely on the ground that the
District Court had incorrectly applied the pertinent substantive
domestic law on occupational diseases, that ground not constituting a
fundamental defect within the meaning of the Court's case-law (see
Luchkina v. Russia, no. 3548/04, § 21, 10 April
2008). There was, further, no pressing social need shown for setting
aside the judgment in question.
- The
Presidium's argument as to the exclusive “prerogative” of
the health care authorities in so far as occupational diseases are
concerned is untenable as under domestic law (see paragraph 13 above)
decisions and acts of all State bodies, including health care
authorities, are reviewable by courts.
- The
Court is therefore of opinion that departure from the principle of
legal certainty was unjustified in the case sub judice.
- Furthermore,
the Court sees no reason why the alleged mistake could not have been
corrected by ordinary means, in particular, by the Regional Court
acting as an appellate court which was not even seized by the health
care authority which nonetheless decided, one year later, to lodge an
application for supervisory review, thus frustrating the applicant's
legitimate reliance on res judicata (see Kulkov and Others
v. Russia, nos. 25114/03, 11512/03, 9794/05, 37403/05,
13110/06, 19469/06, 42608/06, 44928/06, 44972/06 and 45022/06, §
27, 8 January 2009).
- Having
regard to the above considerations, the Court finds that by quashing
the judgment of 13 May 2003 by way of supervisory review the
Presidium infringed the principle of legal certainty and the
applicant's “right to a court” within the meaning of
Article 6 § 1 of the Convention.
- There
has accordingly been a violation of that Article.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant also raised a number of auxiliary complaints under various
provisions of the Convention. 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 Convention
and must be declared inadmissible pursuant to 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.”
A. Damage
- The
applicant claimed compensation of approximately 3,500 euros (EUR) in
social security payments that he had not received after setting aside
of the judgment of 13 May 2003 by way of supervisory review. He
further claimed EUR 500,000 in compensation of non-pecuniary damage
allegedly suffered.
- The
Government responded that they had seen no legal basis for granting
the applicant any compensation.
- As
regards the claim of pecuniary damage, the Court observes that the
applicant failed to substantiate it. In particular, he failed to
furnish any evidence justifying his entitlement to any social
security payment on the basis of his occupational diseases, less
their amount. Accordingly, the Court decides to make no award under
this head.
- The
Court further considers that the applicant suffered distress and
frustration resulting from the setting aside of the final and binding
judicial decision in his favour by way of supervisory review.
However, it finds the amount claimed by the applicant excessive.
Making its assessment on an equitable basis, the Court awards the
applicant EUR 3,000 in respect of non-pecuniary damage, plus any tax
that may be chargeable on this amount.
B. Costs and expenses
- The
applicant requested compensation of his costs and expenses without
any further elaboration. The Government did not comment on this
point. In absence of any supporting documents the Court sees no
reason to grant the applicant's request for award of the costs and
expenses pursuant to Rule 60 of the Rules of Court (see Paksas v.
Lithuania [GC], no. 34932/04, § 122, 6 January 2011).
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 concerning the setting
aside of the judgment of 13 May 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;
- 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) 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 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Nina Vajić
Registrar President
