EUROPEAN COURT OF HUMAN RIGHTS
SECOND SECTION
CASE OF KUTEPOV AND ANIKEYENKO v. RUSSIA
(Application No. 68029/01)
JUDGMENT <*>
(Strasbourg, 25.X.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 Kutepov and Anikeyenko v. Russia,
The European Court of Human Rights (Second Section), sitting as
a Chamber composed of:
Mr J.-P. Costa, President,
Mr A.B. Baka,
Mr I. Cabral Barreto,
Mr {R. Turmen} <*>,
--------------------------------
<*> Здесь и далее по тексту слова на национальном языке набраны
латинским шрифтом и выделены фигурными скобками.
Mr V. Butkevych,
Mr A. Kovler,
Ms {D. Jociene}, judges,
and Mrs {S. Dolle}, Section Registrar,
Having deliberated in private on 4 October 2005,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
1. The case originated in an application (No. 68029/01) 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 two Russian nationals, Mr Petr
Prokhorovich Kutepov and Mr Mikhail Ivanovich Anikeyenko, on 9
February 2001.
2. The Russian Government ("the Government") were represented
by Mr P. Laptev, Representative of the Russian Federation at the
European Court of Human Rights.
3. On 31 August 2004 the Court decided to communicate the
complaint concerning the quashing of the judgment of 23 September
1999 to the Government. Under the provisions of Article 29 з 3 of
the Convention, it decided to examine the merits of the
application at the same time as its admissibility.
4. On 4 October 2005 the Court decided that a hearing in the
case was unnecessary (Rule 59 з 3 of the Rules of Court).
THE FACTS
I. The circumstances of the case
5. The applicants were born in 1928 and 1930 respectively. The
second applicant lives in Belgorod.
6. The applicants received old-age pensions.
1. Original court proceedings
7. In 1999 the applicants sued the Pension Fund Agency of
Belgorod ("the Agency") alleging that their pensions had been
calculated in breach of a scheme for the calculation of retirement
benefits - the "Individual Pensioner Coefficient" ("IPC") -
introduced by the Pensions Law of 1997. The applicants maintained
that they were entitled to an IPC of 0.7, whilst the Agency only
applied an IPC of 0.525.
8. On 27 May 1999 the Oktyabrskiy District Court of Belgorod
("the Oktyabrskiy District Court") dismissed the applicants'
claims as unfounded.
9. On 27 July 1999 the Civil Section of the Belgorod Regional
Court ("the Belgorod Regional Court") set aside the above judgment
on appeal and remitted the case for a new examination.
10. On 23 September 1999 the Oktyabrskiy District Court found
in the applicants' favour. It held that the Agency had
misinterpreted the Pensions Law and that the IPC to be applied in
the applicants' case should be 0.7. The court ordered the Agency
to increase the applicants' pension by RUR 642.84 and awarded them
arrears of RUR 3,222.6.
11. On 16 November 1999 the Belgorod Regional Court dismissed
the defendant's appeal, and the judgment of 23 September 1999
became final.
2. Enforcement proceedings
12. On 3 December 1999 enforcement proceedings commenced.
13. On 13 January 2000 the Agency requested the court to
suspend the enforcement pending the outcome of the proceedings
before the Supreme Court of Russia concerning similar pension
cases.
14. On 14 February 2000 the Western Circuit Court of Belgorod
(Федеральный суд Западного округа г. Белгорода, "the Western
Circuit Court") dismissed the request, having established no
grounds for suspending the enforcement.
15. On an unspecified date the Agency filed a new request to
postpone the execution of the judgment of 23 September 1999. On 17
March 2000 the Western Circuit Court granted the request.
16. On 18 April 2000, upon the order of the same court, the
enforcement proceedings were resumed.
17. On an unspecified date the Agency again applied for a stay
of the enforcement, referring to the lack of funds. On 19 June
2000 the Western Circuit Court rejected this request as
groundless.
18. On 29 June 2000 the acting President of the Belgorod
Regional Court ordered a stay of enforcement, as on an unspecified
date an extraordinary appeal had been brought against the judgment
of 23 September 1999.
19. On 29 September 2000 the President of the Belgorod Regional
Court set aside the above order, following the withdrawal of the
extraordinary appeal. The enforcement proceedings re-commenced.
3. Proceedings for review due to the discovery
of new circumstances
20. On 19 May 2000 the Agency filed an application to re-
consider the judgment of 23 September 1999 on account of newly-
discovered circumstances. It stated that on 29 December 1999 the
Ministry of Labour had passed an instruction clarifying the
application of the Pensions Law which had gone against the
interpretation of that law by the courts in the applicants' case.
The Agency maintained that it had been unaware of these
circumstances when the judgment of 23 September 1999 had been
given and, therefore, the judgment should be re-considered.
21. On 15 June 2000 the Western Circuit Court of Belgorod
disallowed the Agency's application, having noted that the
instruction in question was not newly-discovered evidence within
the meaning of the domestic law.
22. On 10 October 2000 the Belgorod Regional Court overturned
the decision of 15 June 2000 on appeal and remitted the case for a
new consideration.
23. On 2 November 2000 the Presidium of the Belgorod Regional
Court set aside the decision of 10 October 2000, referring to a
number of procedural irregularities and remitted the case to the
appeal instance.
24. During a new examination, on 21 November 2000, the Belgorod
Regional Court again quashed the decision of 15 June 2000 and
ordered the first instance to consider the case afresh.
4. Supervisory review proceedings
25. On an unspecified date the President of the Belgorod
Regional Court lodged an extraordinary appeal against the decision
of 27 July 1999, the judgment of 23 September 1999, the decision
of 16 November 1999 and the decision of 21 November 2000.
26. On 1 February 2001 the Presidium of the Belgorod Regional
Court, having examined the extraordinary appeal in the supervisory
review proceedings, quashed the aforementioned decisions and
judgment and upheld the judgment of 27 May 1999 and the decision
of 15 June 2000, thus reinstating the applicants' IPC at 0.525 and
annulling the previously awarded increase as well as the arrears.
5. Proceedings against the bailiffs
27. On an unspecified date the applicants filed a claim against
the Belgorod Regional Department of the Ministry of Justice,
seeking compensation for pecuniary and non-pecuniary damage for
the bailiffs' failure to enforce the judgment of 23 September 1999
within a reasonable time.
28. On 5 April 2001 the Eastern Circuit Court of Belgorod
(Федеральный суд Восточного округа г. Белгорода) rejected the
action. The court found that the delays in the enforcement
proceedings had not been imputable to the bailiffs.
29. On 5 June 2001 the Belgorod Regional Court upheld this
judgment on appeal.
II. Relevant domestic law
30. Under the Code of Civil Procedure of 1964, which was in
force at the material time, judgments became final as follows:
Article 208. Coming into force of judgments
"Court judgments shall become legally binding on the expiration
of the time-limit for lodging a cassation appeal if no such appeal
has been lodged. If the judgment is not quashed following a
cassation appeal, it shall become legally binding when the higher
court delivers its decision..."
31. The only further means of recourse was the special
supervisory-review procedure that enabled courts to reopen final
judgments:
Article 319. Judgments, decisions and rulings amenable to
supervisory review
"Final judgments, decisions and rulings of all Russian courts
shall be amenable to supervisory review on an application lodged
by the officials listed in Article 320 of the Code."
32. The power of officials to lodge an application (protest)
depended on their rank and territorial jurisdiction:
Article 320. Officials who may initiate supervisory review
"Applications may be lodged by:
1. The Prosecutor General - against judgments, decisions and
rulings of any court;
2. The President of the Supreme Court - against rulings of the
Presidium of the Supreme Court and judgments and decisions of the
Civil Chamber of the Supreme Court acting as a court of first
instance;
3. Deputy Prosecutors General - against judgments, decisions
and rulings of any court other than rulings of the Presidium of
the Supreme Court;
4. Vice-Presidents of the Supreme Court - against judgments and
decisions of the Civil Chamber of the Supreme Court acting as a
court of first instance;
5. The Prosecutor General, Deputy Prosecutor General, the
President and Vice-Presidents of the Supreme Court - against
judgments, decisions and rulings of any court other than rulings
of the Presidium of the Supreme Court;
6. The President of the Supreme Court of an autonomous
republic, regional court, city court, court of an autonomous
region or court of an autonomous district, the Public Prosecutor
of an autonomous republic, region, city, autonomous region or an
autonomous district - against judgments and decisions of district
(city) people's courts and against decisions of civil chambers of,
respectively, the Supreme Court of an autonomous republic,
regional court, city court, court of an autonomous region or court
of an autonomous district that examined the case on appeal."
33. The power to lodge such applications was discretionary,
that is to say it was solely for the official concerned to decide
whether or not a particular case warranted supervisory review.
34. Under Article 322 officials listed in Article 320 who
considered that a case deserved closer examination could, in
certain circumstances, obtain the case file in order to establish
whether good grounds for lodging an application existed.
35. Article 323 of the Code empowered the relevant officials to
stay the execution of the judgment, decision or ruling in question
until the supervisory review proceedings had been completed.
36. Courts hearing applications for supervisory review had
extensive jurisdiction in respect of final judgments:
Article 329. Powers of supervisory-review court
"The court that examines an application for supervisory review
may:
1. Uphold the judgment, decision or ruling and dismiss the
application;
2. Quash all or part of the judgment, decision or ruling and
order a fresh examination of the case at first or cassation
instance;
3. Quash all or part of the judgment, decision or ruling and
terminate the proceedings or leave the claim undecided;
4. Uphold any of the previous judgments, decisions or rulings
in the case;
5. Quash or vary the judgment of the court of first or
cassation instance or of a court that has carried out supervisory
review and deliver a new judgment without remitting the case for
re-examination if substantive laws have been erroneously construed
and applied."
41. The grounds for setting aside final judgments were as
follows:
Article 330. Grounds for setting aside judgments on supervisory
review
"...
1. wrongful application or interpretation of substantive laws;
2. significant breach of procedural rules which led to delivery
of unlawful judgment, decision or ruling..."
37. There was no time-limit for lodging an application for
supervisory review, and, in principle, such applications could be
lodged at any time after a judgment had become final.
THE LAW
I. Striking out of the list
38. On 11 November 2004 the second applicant informed the Court
that the first applicant had died in a car accident in 2003.
39. Regard being had to the absence of any heirs who wish to
pursue the first applicant's application or any reasons which
would require a continuation of the examination of the case (see,
by way of contrast, Karner v. Austria, judgment of 24 July 2003,
Reports of Judgments and Decisions 2003-IX, з 28), the Court, in
so far as the first applicant's complaint is concerned, strikes
the application out of its list, in accordance with Article 37 з 1
(c) of the Convention.
II. Alleged violation of Article 6 of the Convention
and Article 1 of Protocol No. 1 to the Convention
40. The second applicant complained about the quashing of a
final judgment in his favour. The Court will examine this
complaint under Article 6 of the Convention and Article 1 of
Protocol No. 1 to the Convention. These provisions read as
follows:
Article 6 з 1
"In the determination of his civil rights and obligations...,
everyone is entitled to a fair... hearing... by [a]...
tribunal..."
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 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."
A. Admissibility
41. The Government contested the admissibility of the
application as being incompatible ratione materiae with the
provisions of the Convention. They referred to the cases of
Schouten and Meldrum v. Netherlands (dec., Nos. 19005/91 and
19006/91, 9 December 1994) and Finkelberg v. Latvia (dec., No.
55091/00, 18 October 2001) and argued that the second applicant's
pension dispute had involved the interpretation of pension
legislation rather than the determination of his right to pension
benefits, and that the manner of the calculation of an old-age
pension belonged to the public law domain.
42. The second applicant disagreed with the Government and
maintained his complaint.
43. The Court firstly notes that a dispute as to the amount of
an applicant's pension entitlement is of a pecuniary nature and
undeniably concerns a civil right within the meaning of Article 6
з 1 (see Schuler-Zgraggen v. Switzerland, judgment of 24 June
1993, Series A No. 263, p. 17, з 46; Massa v. Italy, judgment of
24 August 1993, Series A No. 265-B, p. 20, з 26; {Sussmann} v.
Germany, judgment of 16 September 1996, Reports of Judgments and
Decisions 1996-IV, p. 1170, з 42 and, as a recent authority,
{Trickovic} v. Slovenia, No. 39914/98, з 40, 12 June 2001). As
regards the case-law cited by the Government, it is not directly
relevant to the case at issue as the Finkelberg case concerned tax
and not pension matters, whilst Schouten and Meldrum related to
the applicability of Article 6 з 1 to disputes over employers'
contributions under social-security schemes, as distinct from
entitlement to benefits under such schemes.
44. On the facts, the Court observes that when having brought
the proceedings against the pension authority, the second
applicant sought the increase in his old-age pension and did not
attempt to challenge, as such, any legislative provision. This
being so, the Court concludes that the second applicant's dispute
was of a pecuniary nature and determined his civil rights within
the meaning of Article 6 з 1. It also finds that the second
applicant's "possessions", within the meaning of Article 1 of
Protocol No. 1, were engaged. Accordingly, the Government's
objection must be dismissed.
45. The Court notes that this complaint is not manifestly ill-
founded within the meaning of Article 35 з 3 of the Convention. It
further notes that it is not inadmissible on any other grounds. It
must therefore be declared admissible.
B. Merits
Article 6 з 1 of the Convention
46. The Government alleged that the judgment in the second
applicant's favour had been quashed by the Presidium of the
Belgorod Regional Court with a view to correcting a judicial
error. The Government referred to the fact that the second
applicant's dispute about his pension increase had been a part of
a complex general problem caused by the vagueness of the Federal
Law on Calculating and Upgrading State Pensions. The ambiguity was
eliminated by an instruction passed on 29 December 1999 by the
Ministry of Labour and Social Development to clarify how this law
should be interpreted and applied. All disputes similar to the
second applicant's one were resolved in accordance with this
instruction thereafter. Furthermore, the lawfulness of the
instruction was later confirmed by the Supreme Court of Russia on
24 April, 25 May and 3 August 2000.
47. The second applicant contested the Government's allegations
and maintained his complaint.
48. The Court observes that the issue in the present case is
whether the supervisory review procedure permitting a final
judgment to be quashed can be considered compatible with Article 6
з 1 and, in particular, whether on the facts of the present case
the principle of legal certainty was respected.
49. The Court finds that this application is similar to the
case of Ryabykh v. Russia (No. 52854/99, ECHR 2003-IX), where it
was said, in so far as relevant for present purposes:
"51. ... 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 declares, in its relevant part, 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...
54. The Court notes that the supervisory review of the
judgment... was set in motion by the President of the Belgorod
Regional Court - who was not party to the proceedings... As with
the situation under Romanian law examined in {Brumarescu}, the
exercise of this power by the President was not subject to any
time-limit, so that judgments were liable to challenge
indefinitely.
55. The Court reiterates that Article 6 з 1 secures to everyone
the right to have any claim relating to his civil rights and
obligations brought before a court or tribunal. In this way it
embodies the "right to a court", of which the right of access,
that is the right to institute proceedings before courts in civil
matters, constitutes one aspect. However, that right would be
illusory if a Contracting State's domestic legal system allowed a
final, binding judicial decision to remain inoperative to the
detriment of one party. It would be inconceivable that Article 6 з
1 should describe in detail procedural guarantees afforded to
litigants - proceedings that are fair, public and expeditious -
without protecting the implementation of judicial decisions; to
construe Article 6 as being concerned exclusively with access to a
court and the conduct of proceedings would be likely to lead to
situations incompatible with the principle of the rule of law
which the Contracting States undertook to respect when they
ratified the Convention (see Hornsby v. Greece, judgment of 19
March 1997, Reports of Judgments and Decisions 1997-II, p. 510, з
40).
56. The Court considers that the right of a litigant to a court
would be equally illusory if a Contracting State's legal system
allowed a judicial decision which had become final and binding to
be quashed by a higher court on an application made by a State
official."
50. Furthermore, the Court has found in this respect in the
Sovtransavto Holding v. Ukraine case (judgment of 25 July 2002,
Reports of Judgments and Decisions 2002-VII, з 77):
"...judicial systems characterised by the objection (protest)
procedure and, therefore, by the risk of final judgments being set
aside repeatedly, as occurred in the instant case, are, as such,
incompatible with the principle of legal certainty that is one of
the fundamental aspects of the rule of law for the purposes of
Article 6 з 1 of the Convention, read in the light of
{Brumarescu}..."
51. The Court notes that in the present case on an unspecified
date the President of the Belgorod Regional Court filed an
extraordinary appeal against the judgment of 23 September 1999
which had become final. On 1 February 2001 the Presidium of the
Belgorod Regional Court quashed that judgment as erroneous and
upheld the judgment of 27 May 1999 by which the second applicant's
claims were dismissed.
52. The Court does not find any reason for departing from its
aforementioned case-law. It considers that there has been a
violation of Article 6 з 1 in respect of the quashing of the final
and binding judgment given in the applicant's case.
Article 1 of Protocol No. 1 to the Convention
53. The Government contended that the second applicant had not
acquired property since the judgment which conferred a title on
him had been unlawful. They concluded that Article 1 of Protocol
No. 1 had not been violated by the quashing of the judgment of 23
September 1999.
54. The applicant disagreed with the Government's arguments and
maintained his complaint.
55. The Court reiterates that the Convention does not
guarantee, as such, the right to an old-age pension or any social
benefit in a particular amount (see, for example, Aunola v.
Finland (dec.), No. 30517/96, 15 March 2001). However a "claim" -
even concerning a pension - can constitute a "possession" within
the meaning of Article 1 of Protocol No. 1 where it has a
sufficient basis in national law, for example where it is
confirmed by a final court judgment (see Pravednaya v. Russia, No.
69529/01, з 38, 18 November 2004, and {Kopecky} v. Slovakia
judgment, [GC], No. 44912/98, з 35, ECHR 2004-...).
56. The judgment of the Oktyabrskiy District Court of 23
September 1999 as upheld by the Belgorod Regional Court on 16
November 1999 provided the second applicant with an enforceable
claim to receive an increased pension with an IPC of 0.7 and
arrears of RUR 3,222.6. It became final and binding after it had
been upheld on appeal, and enforcement proceedings were
instituted. In the Court's view, the applicant therefore had a
"possession" for the purposes of Article 1 of Protocol No. 1.
57. The Court finds that the quashing on 1 February 2001 of the
judgment of 23 September 1999 deprived the second applicant of his
entitlement to the increased pension, and therefore constituted an
interference with the applicant's right to the peaceful enjoyment
of possessions guaranteed by Article 1 of Protocol No. 1 (see
{Brumarescu} v. Romania [GC], No. 28342/95, з 74, ECHR 1999-VII,
and Pravednaya, cited above, з 39).
58. While the Court accepts that this measure was lawful and
pursued the public interest (such as, for example, an efficient
and harmonised State pension scheme), its compliance with the
requirement of proportionality is open to question.
59. It is true that recalculation of a pension and its
subsequent reduction does not, as such, violate Article 1 of
Protocol No. 1 (Skorkiewicz v Poland (dec.), No. 39860/98, 1 June
1998). However, backdating the recalculation with the effect that
the sums due were reduced involved an individual and excessive
burden for the applicant and was incompatible with Article 1 of
the Protocol. In this respect, the Court recalls the
aforementioned Pravednaya judgment where it was said:
"40. ... The "public interest" may admittedly include an
efficient and harmonised State pension scheme, for the sake of
which the State may adjust its legislation.
41. However, the State's possible interest in ensuring a
uniform application of the Pensions Law should not have brought
about the retrospective recalculation of the judicial award
already made. The Court considers that by depriving the applicant
of the right to benefit from the pension in the amount secured in
a final judgment, the State upset a fair balance between the
interests at stake (see, mutatis mutandis, Pressos Compania
Naviera S.A. and Others v. Belgium, judgment of 20 November 1995,
Series A No. 332, з 43)."
60. The Court does not find it necessary to depart from its
conclusions in that judgment and concludes that there has been a
violation of Article 1 of Protocol No. 1 in the present case.
III. Other alleged violations of the Convention
61. The second applicant further relied on Article 2 of the
Convention in that the present amount of his old-age pension was
insufficient to maintain a proper living standard.
62. The Court recalls that the Convention does not guarantee,
as such, the right to a certain living standard. It further notes
that a complaint about a wholly insufficient amount of pension and
the other social benefits may, in principle, raise an issue under
Article 3 of the Convention which prohibits inhuman or degrading
treatment. However, on the basis of the material in its
possession, the Court finds no indication that the amount of the
second applicant's pension has caused such damage to his physical
or mental health capable of attaining the minimum level of
severity falling within the ambit of Article 3 of the Convention,
or that he faces any "real and immediate risk" either to his
physical integrity or his life, which would warrant the
application of Article 2 of the Convention in the present case
(see, in a similar context, Larioshina v. Russia (dec.), No.
56869/00, 23 April 2002 or Volkova v. Russia (dec.), No. 48758/99,
18 November 2003).
63. It follows that this complaint is manifestly ill-founded
and must be rejected in accordance with Article 35 зз 3 and 4 of
the Convention.
IV. Application of Article 41 of the Convention
64. 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."
65. The applicant did not submit any claims for just
satisfaction. Accordingly, the Court considers that there is no
call to award him any sum on that account.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Decides to strike the application out of its list of cases,
in so far as the first applicant's complaint is concerned;
2. Declares the complaint concerning the quashing of the final
judgment in the second applicant's favour admissible and the
remainder of the application inadmissible;
3. Holds that there has been a violation of Article 6 of the
Convention;
4. Holds that there has been a violation of Article 1 of
Protocol No. 1 to the Convention.
Done in English, and notified in writing on 25 October 2005,
pursuant to Rule 77 зз 2 and 3 of the Rules of Court.
J.-P.COSTA
President
{S.DOLLE}
Registrar
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