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ПОСТАНОВЛЕНИЕ ЕВРОПЕЙСКОГО СУДА ПО ПРАВАМ ЧЕЛОВЕКА ОТ 01.12.2005 ДЕЛО СМАРЫГИН (SMARYGIN) ПРОТИВ РОССИИ [АНГЛ.]

(по состоянию на 20 октября 2006 года)

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                    EUROPEAN COURT OF HUMAN RIGHTS
                                   
                             FIRST SECTION
                                   
                      CASE OF SMARYGIN v. RUSSIA
                      (Application No. 73203/01)
                                   
                             JUDGMENT <*>
                                   
                       (Strasbourg, 1.XII.2005)
                                   
   --------------------------------
       <*>  This  judgment will become final in the circumstances  set
   out  in  Article  44 з 2 of the Convention. It may  be  subject  to
   editorial revision.
   
       In the case of Smarygin v. Russia,
       The European Court of Human Rights (First Section), sitting  as
   a Chamber composed of:
       Mr C.L. Rozakis, President,
       Mrs {N. Vajic} <*>,
   --------------------------------
       <*> Здесь и далее по тексту слова на национальном языке набраны
   латинским шрифтом и выделены фигурными скобками.
   
       Mrs S. Botoucharova,
       Mr A. Kovler,
       Mrs E. Steiner,
       Mr D. Spielmann,
       Mr S.E. Jebens, judges,
       and Mr S. Nielsen, Section Registrar,
       Having deliberated in private on 10 November 2005,
       Delivers  the  following judgment, which was  adopted  on  that
   date:
                                   
                               PROCEDURE
                                   
       1. The case originated in an application (No. 73203/01) 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,  Mr   Oleg
   Trofimovich Smarygin ("the applicant"), on 26 January 2001.
       2.  The  Russian Government ("the Government") were represented
   by  their  Agent, Mr P. Laptev, the Representative of  the  Russian
   Federation at the European Court of Human Rights.
       3.  The applicant alleged, in particular, that the judgment  of
   21  September  1999  by the Chernyshevskiy District  Court  in  his
   favour was later quashed by way of supervisory review.
       4.  The  application was allocated to the First Section of  the
   Court  (Rule  52 з 1 of the Rules of Court). Within  that  Section,
   the  Chamber that would consider the case (Article 27 з  1  of  the
   Convention) was constituted as provided in Rule 26 з 1.
       5.  By  a decision of 2 September 2004, the Court declared  the
   application admissible.
       6. The applicant, but not the Government, filed observations on
   the merits (Rule 59 з 1).
       7.  On 1 November 2004 the Court changed the composition of its
   Sections  (Rule  25  з  1). This case was  assigned  to  the  newly
   composed First Section (Rule 52 з 1).
                                   
                               THE FACTS
                                   
                   I. The circumstances of the case
                                   
       8.  The  applicant in was born in 1931 and lives in  the  Chita
   Region.
       9. In 1973 the applicant, then a miner, was injured at work. In
   1999 the applicant filed with the Chernyshevskiy District Court  of
   the  Chita  Region  two  actions against  his  former  employer,  a
   private  company. He claimed compensation for non-pecuniary  damage
   (вoзмещение  морального вреда) caused to him  by  the  injury,  and
   payment  of  a "lump-sum allowance" (единовременное пособие).  This
   allowance pertained to victims of industrial accidents.
       10.  On  21  September 1999 the Chernyshevskiy  District  Court
   delivered  two  judgments  in  the applicant's  favour.  The  Court
   granted  RUR 11,582.80 for non-pecuniary damage and RUR  30,000  as
   the  lump-sum  allowance. The judgments were not  appealed  against
   and  became  final. Bailiffs instituted enforcement proceedings  in
   this respect.
       11.  On  an  unspecified  date the  defendant  applied  to  the
   President  of the Chita Regional Court for "supervisory review"  of
   the case (see the "Relevant Domestic Law" part below).
       12.  On 13 July 2000 the President of the Chita Regional  Court
   lodged  with the Regional Court an extraordinary appeal (протест  в
   порядке  надзора)  against the judgments of 21  September  1999.  A
   copy  of the appeal was sent to the applicant. The President stated
   that  the  relevant  provisions concerning  compensation  for  non-
   pecuniary damage and payment of a "lump-sum allowance" had  entered
   into  force in 1992, while the injury had been inflicted  in  1973.
   The  President  concluded  that the  lower  court  had  erroneously
   applied the legislation retroactively.
       13. On 10 August 2000 the Presidium of the Chita Regional Court
   examined  the appeal under the presidency of the Court's President.
   The  applicant,  who was not present, submitted his  objections  in
   writing.
       14.  The Presidium found that the Chernyshevskiy District Court
   of  the  Chita  Region had erroneously applied the  legislation  of
   1992  to  the facts which had taken place in 1973. As a result  the
   Presidium  quashed  the  two judgments of  21  September  1999  and
   adopted  two  new judgments, dismissing the applicant's  claims  in
   full.
                                   
                       II. Relevant domestic law
                                   
       15.  Article 11 of the Code of Civil Procedure of 1964 then  in
   force   provided  that  regional  and  higher  courts  may  conduct
   "supervisory  review" of the decisions of the  lower  courts.  This
   means,  according  to  Articles 319, 320  and  327,  that  specific
   senior  judicial  officers may, at any time, on the  request  by  a
   party  or  of  their  own  motion, lodge with  a  higher  court  an
   "extraordinary appeal" (протест) against the final decision on  all
   questions of fact and law. If an "extraordinary appeal" is  lodged,
   the  proceedings recommence and execution of the final judgment may
   be  adjourned (Article 323). The "supervisory review" procedure  is
   separate  from  proceedings for review on the basis  of  new  facts
   (Articles 333 - 337).
       16.  For  further  details concerning  the  supervisory  review
   proceedings see the case Ryabykh v. Russia, No. 52854/99, зз  31  -
   42, ECHR 2003-IX.
                                   
                                THE LAW
                                   
        I. Alleged violation of Article 6 з 1 of the Convention
           and Article 1 of Protocol No. 1 to the Convention
                                   
       17.  The applicant complains that the award made in his  favour
   was  subsequently  quashed by way of supervisory  review  upon  the
   appeal  of  the  President  of  the  Chita  Regional  Court.   This
   complaint  falls to be examined under Article 6 and  Article  1  of
   Protocol No. 1 to the Convention.
       Article 6 of the Convention, in so far as relevant, provides as
   follows:
       "1. In the determination of his civil rights and obligations...
   everyone  is  entitled  to  a  fair and  public  hearing...  by  an
   impartial tribunal..."
       Article  1  of  Protocol  No. 1 to the Convention  provides  as
   follows:
       "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  preceding provisions shall not, however, in any way impair
   the right of a State to enforce such laws as it deems necessary  to
   control  the  use  of  property  in  accordance  with  the  general
   interest  or  to secure the payment of taxes or other contributions
   or penalties."
       18. The Government alleged that the judgment in the applicant's
   favour  had  been  quashed by the Presidium of the  Chita  Regional
   Court  with  a view to correcting a judicial error. The  Government
   referred  to the fact that the applicant had been injured in  1973.
   The  legislation then in force did not provide for the compensation
   sought by the applicant. The legal provisions applied by the  first
   instance  court had entered into force only in 1992 and  could  not
   be  applied retrospectively. The Government further maintained that
   the  supervisory proceedings had complied with the  Code  of  Civil
   Procedure,  and  therefore the quashing of the subordinate  court's
   judgments could not be said to have violated the applicant's  right
   to  fair  trial. In the Government's opinion, the participation  of
   the  President  of  the  Regional Court in the  supervisory  review
   proceedings  "made  no difference" because the  rapporteur  at  the
   supervisory  review hearing was a different judge.  As  to  whether
   the  applicant's property rights have been violated, the Government
   contended  that the applicant had not acquired property  since  the
   judgments  which  conferred the title on him  were  unlawful.  They
   conclude  that  neither Article 6 з 1 nor Article 1 of  Protocol  1
   has been violated by the quashing of the judgments in question.
       19.  The  applicant contested the Government's  allegation  and
   maintains his complaints.
                                   
               A. Supervisory review: substantive issues
                                   
       20.  The  Court  reiterates that the right to  a  fair  hearing
   before  a tribunal as guaranteed by Article 6 з 1 of the Convention
   must   be  interpreted  in  the  light  of  the  Preamble  to   the
   Convention, which, in its relevant part, declares 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 {Brumarescu} v. Romania [GC], No.
   28342/95, з 61, ECHR 1999-VII).
       21.  The Court has found a violation of the above principle  of
   legal  certainty and of the right to a court in the case of Ryabykh
   v.  Russia,  where a final and binding judgment in the  applicant's
   favour  was  set aside, on the ground of misinterpretation  of  the
   law,  by a higher court in supervisory review proceedings following
   an  application by a president of a regional court, whose power  to
   make  such applications was not subject to any time-limit, so  that
   judgments  were  liable to challenge indefinitely (see  Ryabykh  v.
   Russia,  cited  above,  зз  51  -  58).  This  approach  was  later
   confirmed  in  several Russian and Ukrainian cases  concerning  the
   supervisory  review system, almost identical in two countries  (see
   Volkova  v.  Russia,  No.  48758/99, 5 April  2005;  Tregubenko  v.
   Ukraine, No. 61333/00, 2 November 2004).
       22.  The Court further reiterates that a judgment debt  may  be
   regarded  as  a  "possession" for the  purposes  of  Article  1  of
   Protocol  No.  1 (see, among other authorities, Burdov  v.  Russia,
   No.  59498/00, з 40, ECHR 2002-III). Quashing such a judgment after
   it   has   become   final  and  unappealable  will  constitute   an
   interference with the judgment beneficiary's right to the  peaceful
   enjoyment  of  that possession (see {Brumarescu},  cited  above,  з
   74).  In  the  case  Tregubenko  (see  above)  the  Court  found  a
   violation of Article 1 of Protocol No. 1 to the Convention in  that
   the  quashing  of  a  final  judgment of pecuniary  nature  in  the
   applicant's  favour  constituted  a  disproportionate  interference
   with  his  right to the peaceful enjoyment of his possessions.  The
   Court  dismissed  the Government's argument that the  quashing  was
   justified  by the need to correct a judicial error committed  by  a
   lower court (зз 54 - 55).
       23.  Turning to the circumstances of the present case the Court
   observes  that, by allowing the application lodged by the President
   of  the  Chita Regional Court, the Presidium of the Chita  Regional
   Court  set at naught an entire judicial process which had ended  in
   a  final and binding judicial decision of 21 September 1999 by  the
   Chernyshevskiy  District  Court and thus res  judicata.  The  Court
   finds  no reason to depart from its reasoning in the aforementioned
   Ryabykh  and  follow-up cases. It concludes that the setting  aside
   of  the  judgment  of  21  September  1999  in  supervisory  review
   proceedings  for the sake of correcting an alleged  judicial  error
   violated the principle of legal certainty enshrined in Article 6  з
   1  of  the  Convention and constituted an unjustified  interference
   with the applicant's possessions, protected by virtue of Article  1
   of Protocol No. 1 to the Convention.
       24. There has accordingly been a violation of Article 6 з 1  of
   the Convention and Article 1 of Protocol No. 1 to the Convention.
                                   
               B. Supervisory review: procedural issues
                                   
       25.  The Court finds that, having concluded that there has been
   an  infringement of the applicant's "right to a court" by the  very
   use  of  the  supervisory review procedure, it is not necessary  to
   consider separately whether the procedural guarantees of Article  6
   of  the  Convention  were respected during those  proceedings  (see
   Ryabykh v. Russia, No. 52854/99, з 59, 24 July 2003).
                                   
            II. Application of Article 41 of the Convention
                                   
       26. 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."
       27.  The  applicant  claimed  RUR 40,000  (approximately  1,130
   euros)  for  pecuniary  damage and RUR 60,000 (approximately  1,700
   euros)  for  non-pecuniary  damage suffered  as  a  result  of  the
   quashing of the final judgment favourable to him.
       28.  The  Government disagreed with the amount claimed  by  the
   applicant,  arguing  that in the present  case  the  mere  fact  of
   finding  a  violation  could be considered to  be  sufficient  just
   satisfaction.
       29. As regards the pecuniary damage, allegedly sustained by the
   applicant,  the  Court  notes  the  following.  The  applicant  was
   awarded RUR 41,582, to be recovered from a private company. As  the
   Court  has already found (see above) this judgment debt constituted
   his  "possessions" within the meaning of Article 1 of Protocol  No.
   1  to the Convention. The Government produced no information as  to
   whether  this judgment debt was recoverable in practice. Therefore,
   the  Court  is of the view that the applicant should be compensated
   for the money that he would have received if the final judgment  in
   his  favour had been fully enforced (see Poltorachenko v.  Ukraine,
   No.  77317/01, з 50, 18 January 2005). The Court notes, at the same
   time,  that the applicant claimed only RUR 40,000 under this  head.
   It  therefore awards him RUR 40,000 in pecuniary damages, plus  any
   tax that may be chargeable to that amount.
       30.  As  to the non-pecuniary damage, the Court considers  that
   the  applicant  must have suffered a certain amount of  stress  and
   frustration  as a result of the quashing of the final  judgment  of
   21  September 1999. On an equitable basis it awards him  EUR  1,000
   for  non-pecuniary damage, plus any tax that may be  chargeable  on
   that amount.
                                   
                          C. Default interest
                                   
                                   
       31.  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
                                   
       1.  Holds that there has been a violation of Article 6 з  1  of
   the Convention and Article 1 of Protocol No. 1 to the Convention;
       2. 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  з 2 of the  Convention,  RUR  40,000
   (fourty  thousand Russian roubles) in respect of pecuniary  damage,
   and  EUR  1,000  (one 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;
       3.  Dismisses the remainder of the applicant's claim  for  just
   satisfaction.
   
       Done  in  English, and notified in writing on 1 December  2005,
   pursuant to Rule 77 зз 2 and 3 of the Rules of Court.
   
                                                      Christos ROZAKIS
                                                             President
                                                                      
                                                       {Soren} NIELSEN
                                                             Registrar
   
   

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