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Законодательство Российской Федерации

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(по состоянию на 20 октября 2006 года)

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                             FIRST SECTION
                     CASE OF CHERNITSYN v. RUSSIA
                       (Application No. 5964/02)
                             JUDGMENT <*>
                        (Strasbourg, 6.IV.2006)
       <*>  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 Chernitsyn v. Russia,
       The European Court of Human Rights (First Section), sitting  as
   a Chamber composed of:
       Mr C.L. Rozakis, President,
       Mr L. Loucaides,
       Mrs F. Tulkens,
       Mr P. Lorenzen,
       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, judges,
       and Mr S. Nielsen, Section Registrar,
       Having deliberated in private on 16 March 2006,
       Delivers  the  following judgment, which was  adopted  on  that
       1.  The case originated in an application (No. 5964/02) 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   Ivan
   Petrovich Chernitsyn, on 18 January 2002.
       2.  The  Russian Government ("the Government") were represented
   by  their  Agent,  Mr  P.  Laptev, Representative  of  the  Russian
   Federation at the European Court of Human Rights.
       3.  The  applicant alleged, in particular, a violation  of  his
   right  of  a fair trial under Article 6 of the Convention  in  that
   the  final  judicial  decisions in his case  were  quashed  in  the
   supervisory-review procedure.
       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  8  July 2004 the  Court  declared  the
   application partly admissible.
       6.  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).
       7.  The applicant and the Government each filed observations on
   the  merits  (Rule 59 з 1). They further commented on each  other's
                               THE FACTS
                   I. The circumstances of the case
       8. The applicant was born in 1931 and lives in Krasnodar.
                        A. Domestic proceedings
       9.  In  1993 the applicant sued his former employer, the public
   company  "KAPRSM",  for  unpaid  compensation  for  a  work-related
   injury, caused by a lorry owned by another company, "KTS".
       10.  On 21 April 1997 the Takhtamukayskiy District Court  found
   for  the applicant and awarded him a lump sum and life-long monthly
   payments.  The  lump  sum  was made up  of  the  principal  amount,
   interest thereon and a penalty for belated payments.
       11.  On  3 June 1997 the Supreme Court of the Adygheya Republic
   set  aside  the  judgment  in the part  concerning  the  claim  for
   penalty  and remitted that claim for a new examination.  It  upheld
   the   remainder  of  the  judgment.  The  claim  for  penalty   was
   subsequently  examined by courts of various  levels.  As  of  March
   2002 the claim was pending before the District Court.
       12.   On   15   March   2002  the  acting  President   of   the
   Takhtamukayskiy    District    Court    lodged    an    application
   (представление) with the Supreme Court of the Adygheya Republic  to
   quash the judgment of 21 April 1997 and all other judgments in  the
   case,  because the defendant in the applicant's action should  have
   been  KTS that had owned the lorry rather than KAPRSM that had been
   the applicant's employer.
       13.  According to the Government, on 15 August 2002 the Supreme
   Court  informed the applicant that the above application  would  be
   examined at a hearing on 27 August 2002.
       14. On 27 August 2002 the Presidium of the Supreme Court of the
   Adygheya  Republic granted the application and quashed the previous
   judgments,  including those of 21 April and 3 June 1997.  It  found
   that  those  judgments had been unlawful because the  lower  courts
   had  failed  to  determine  the proper defendant.  The  applicant's
   claims were remitted for a new examination.
       15.   In   the  resumed  proceedings,  on  12  May   2003   the
   Takhtamukayskiy District Court established that the  applicant  had
   been  informed of the possibility to substitute the legal successor
   of  the  KTS  company  as  the proper defendant  and  to  join  the
   regional  branch of the Social Security Fund as a third party,  but
   he  had  not  agreed to the substitution. His claim  was  therefore
   dismissed as being directed against an improper defendant.
                    B. Proceedings before the Court
       16.  In his observations on the admissibility and merits of the
   case  of  25  November  2003, the applicant made  certain  abrasive
   remarks  which  prompted  the respondent's  Government  request  to
   declare  the application inadmissible as an abuse of the  right  of
       17.  In  its admissibility decision of 8 July 2004,  the  Court
   rejected the Government's request for the reason that they had  not
   identified  the  allegedly abusive expressions or passages  in  the
   applicant's  submissions  and  as  the  application  had  not  been
   knowingly  based  on  untrue facts. The Court noted,  nevertheless,
   that  some  of  the applicant's statements had been irrelevant  and
   excessively emotional.
       18.  In  September 2004 the applicant and the Government  filed
   their  observations on the merits of the application.  The  Section
   President  set  11  November 2004 as the time-limit  by  which  the
   parties  could  submit written comments in reply  to  each  other's
       19. In a letter of 19 October 2004, the applicant commented  on
   the Government's observations in the same abrasive manner.
       20. In their observations on the merits of the case and letters
   of  14  December  2004 and 18 January 2005, the Government  invited
   the  Court to declare the application inadmissible as an  abuse  of
   the  right  of petition. Drawing a parallel between the conduct  of
   Mr  L.  R.  (see L. R. v. Austria, No. 2424/65, Commission decision
   of  24  May 1966) and that of the applicant, they claimed that  the
   expressions  used  by the applicant were even more  insulting  than
   those  used by Mr L. R. against the representatives of the Austrian
   Government.  The  Government reproached the Court  for  not  having
   invited  the  applicant  to  withdraw or  amend  the  objectionable
   statements.  They  submitted  that the  applicant's  letter  of  19
   October 2004 was a further evidence of his abusive attitude to  the
   proceedings before the Court.
       21.  On 29 September 2005 the Court considered the Government's
   request to declare the application inadmissible in connection  with
   the  applicant's persistent use of offensive language  and  invited
   the applicant to withdraw his inappropriate remarks and to offer  a
   formal apology.
       22.  By  letter of 3 November 2005, the applicant informed  the
   Court as follows (translated from Russian):
       "I  formally withdraw my rough remarks about the Government and
   about   the  Government's  representative  Mr  Laptev  which   were
   considered  offensive.  I  also offer my  sincere  apology  to  the
   Court,  to the Government and to Mr Laptev. It was not my intention
   to offend anyone..."
       23. In their comments on the applicant's letter, the Government
   asked the applicant to identify the expressions he apologised for.
                                THE LAW
        I. The Government's request to declare the application
           inadmissible as an abuse of the right of petition
       24.  The Court will examine the Government's request to declare
   the  application  inadmissible from the standpoint  of  Article  35
   which provides, in the relevant parts, as follows:
       "3.   The  Court  shall  declare  inadmissible  any  individual
   application...  which  it considers... an abuse  of  the  right  of
       4.  The  Court shall reject any application which it  considers
   inadmissible under this Article. It may do so at any stage  of  the
       25. The Court reiterates that, in principle, an application may
   only  be  rejected as abusive under Article 35 зз 3 and  4  of  the
   Convention  if it was knowingly based on untrue facts, even  if  it
   uses  offensive language (see {Rehak} v. the Czech Republic (dec.),
   No.  67208/01,  18  May  2004; Varbanov  v.  Bulgaria,  judgment  5
   October  2000, No. 31365/96, з 36, ECHR 2000-X; Akdivar and  Others
   v.  Turkey, judgment of 16 September 1996, Reports of Judgments and
   Decisions  1996-IV,  зз 53 - 54). However, the  persistent  use  of
   insulting   or  provocative  language  by  an  applicant   may   be
   considered an abuse of the right of application within the  meaning
   of  Article  35 з 3 of the Convention (see Manoussos v.  the  Czech
   Republic  and  Germany (dec.), No. 46468/99, 9 July 2002;  Duringer
   and   Others   v.  France  (dec.),  Nos.  61164/00  and   18589/02;
   Stamoulakatos  v.  the  United Kingdom,  No.  27567/95,  Commission
   decision of 9 April 1997).
       26. The Court observes that both the applicant's memorandum  of
   25  November 2003 and his letter of 19 October 2004, to  which  the
   respondent    Government   made   reference,   contained    serious
   accusations   against   politicians,  judges  and   law-enforcement
   officials  of  the respondent State. The applicant  questioned  the
   integrity  of  the representative of the Russian Federation  before
   the Court and alleged that he acted in bad faith. Having regard  to
   the  principles  established in its case-law, the  Court  considers
   that  these  statements did not amount to a legitimate exercise  of
   the  right  to freedom of expression (cf. Stamoulakatos v.  Greece,
   No. 32857/96, Commission decision of 3 December 1997).
       27.   Nevertheless,  the  Court  is  satisfied  that   in   his
   observations  on  the  merits of the application,  of  4  September
   2004,  the  applicant refrained from using provocative or offensive
   language. Furthermore, following the Court's formal warning,  on  3
   November  2005  the  applicant withdrew his offensive  remarks  and
   offered  an  apology  to the Court, the respondent  Government  and
   their   representative   in   the  proceedings.   The   applicant's
   objectionable  statements  may thus  be  considered  to  have  been
       28.  In  these circumstances, the Court finds that the  grounds
   which  might  have  led  to a decision on  inadmissibility  of  the
   application  as an abuse of the right of petition, have  ceased  to
   exist.  Accordingly,  it  dismisses  the  Government's  request  to
   declare the application inadmissible.
       II. Alleged violation of Article 6 з 1 of the Convention
       29.  The  applicant  complained under Article  6  з  1  of  the
   Convention  that  on  27  August 2002  the  Supreme  Court  of  the
   Adygheya  Republic quashed the final judgment of 21 April  1997  by
   way of supervisory review. Article 6 з 1 reads as follows:
       "In  the  determination of his civil rights and obligations...,
   everyone  is entitled to a... hearing within a reasonable  time  by
   [a]... tribunal..."
                     A. Submissions by the parties
       30. The applicant pointed out that a first judgment against the
   allegedly  improper defendant had been made as long ago  as  on  17
   May  1993.  That  "mistake" had been perpetuated in the  subsequent
   judgments  of  the District and Supreme Courts, all  of  which  had
   been  issued  against  the same defendant. The applicant  submitted
   that  the  fault had not been his, but that of the domestic  courts
   who  had  accepted  and  entertained a  civil  action  against  the
   "wrong"  defendant.  It was not until eight years  later  that  the
   defendant's identity had been for the first time questioned by  the
   Presidium of the Supreme Court.
       31.  The  Government  claimed that the  Supreme  Court  of  the
   Adygheya  Republic  had decided to re-open the proceedings  with  a
   view  to  correcting  a  miscarriage of  justice.  The  applicant's
   former  employer,  the KAPRSM company, was to be replaced,  as  the
   defendant,  with  the  KTS company that had  owned  the  "hazardous
   device"  and  had therefore strict liability for the injury  caused
   to  the  applicant. The Government alleged that the  re-opening  of
   the  proceedings had been necessary to remedy substantial  breaches
   of substantive and procedural law.
                       B. The Court's assessment
       32.  The Court notes that the issue to be determined is whether
   the applicant's "right to a court" has been respected in so far  as
   the  final  judgment  in  his favour had been  quashed  by  way  of
   supervisory review.
       33.  The  Court has already found a violation of an applicant's
   "right  to  a court" guaranteed by Article 6 з 1 of the  Convention
   in  many  cases in which a judicial decision that had become  final
   and  binding,  was  subsequently quashed by a higher  court  on  an
   application  by a State official whose power to intervene  was  not
   subject  to any time-limit (see Roseltrans v. Russia, No. 60974/00,
   зз 27 - 28, 21 July 2005; Volkova v. Russia, No. 48758/99, зз 34  -
   36,  5  April 2005; Ryabykh v. Russia, No. 52854/99, зз  51  -  56,
   ECHR 2003-IX, with further references).
       34.  Turning to the instant case, the Court notes  that  on  21
   April   1997   the  Takhtamukayskiy  District  Court  awarded   the
   applicant  a fixed amount and monthly payments for future  periods.
   On  3  June 1997 the Supreme Court of the Adygheya Republic  upheld
   that  judgment  in its essential aspects, excepting the  claim  for
   penalty.  The judgment thus became final. On 27 August  2002,  that
   is  more  than  five years later, the judgment was quashed  in  the
   framework  of  the  supervisory-review procedure initiated  by  the
   acting  president  of the district court who was a  State  official
   and not a party to the proceedings (see paragraph 12 above).
       35. In the light of the above circumstances, the Court does not
   find  any  reason for departing from its aforementioned  judgments.
   The  developments in the proceedings that followed on,  are  of  no
   relevance  as  there  existed  no  domestic  remedies  capable   of
   remedying  the  impairment  of  the principle  of  legal  certainty
   brought  about by the use of the supervisory-review procedure  (see
   Sardin  v.  Russia (dec.), No. 69582/01, ECHR 2004-II;  Ryabykh  v.
   Russia (dec.), No. 52854/99, 21 February 2002).
       There  has therefore been a violation of Article 6 з 1  of  the
   Convention  on account of quashing of the final judgment  given  in
   the applicant's case.
           III. Application of Article 41 of the Convention
       36. 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
       37.  The  applicant claimed 65,000 euros (EUR)  in  respect  of
   compensation for non-pecuniary damage. As to compensation  for  the
   pecuniary  damage,  the applicant claimed 198,733  Russian  roubles
   (RUR)  representing  the penalty which would have  accrued  to  him
   under  the  judgment of 21 April 1997 during the period from  April
   1997  to  August  2004, adjusted for inflation, and an  unspecified
   amount as a "fine" for having set aside his claim for penalty.
       38.  The  Government considered that the finding of a violation
   would  constitute  a  sufficient just  satisfaction  for  the  non-
   pecuniary  damage sustained by the applicant. No award  in  respect
   of  the  pecuniary damage should be made because  the  judgment  in
   question had been set aside on appeal.
       39.  As  regards the claim for the pecuniary damage, the  Court
   notes  that  the  part of the judgment of 21 April 1997  concerning
   the  claim for penalty had been set aside on an ordinary appeal  on
   3  June 1997 (see paragraph 11 above). It follows that there is  no
   causal  link between the violation found in the present case,  that
   is quashing of the judgment of 21 April 1997 by way of supervisory-
   review  proceedings in 2002, and the pecuniary  damage  claimed  by
   the applicant. As the applicant did not claim that the quashing  of
   that  judgment  in 2002 had caused him any other pecuniary  damage,
   the  Court  finds  no  cause to make an award  in  respect  of  the
   pecuniary damage.
       40.  As  regards  the claim for the non-pecuniary  damage,  the
   Court  finds the amount claimed by the applicant excessive.  Making
   its  assessment  on an equitable basis, it awards  him  EUR  2,000,
   plus any tax that may be chargeable on that amount.
                         B. Costs and expenses
       41.  The  applicant claimed RUR 8,685 for postage  and  copying
   expenses,   RUR   25,400  for  legal  expenses  in   the   domestic
   proceedings,  EUR  3,000  for  legal  expenses  in  the  Strasbourg
   proceedings,  RUR 12,350 for domestic transport expenses,  and  RUR
   76,400 for medical treatment.
       42.  The  Government pointed out that the medical expenses,  as
   well   as   the  legal  and  transport  expenses  in  the  domestic
   proceedings,  were not related to the present application.  Of  the
   expenses   incurred  in  the  Strasbourg  proceedings,  documentary
   evidence was submitted only in respect of the amount of RUR 1,085.
       43. According to the Court's case-law, an applicant is entitled
   to  reimbursement of his 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. The Court rejects  the
   applicant's claim in so far as it related to the costs incurred  in
   the  domestic  proceedings because there is no causal link  between
   the  violation found and those expenses. As regards the  Strasbourg
   proceedings,  the  case-file contains a copy of  a  legal  services
   agreement  between  the  applicant  and  a  certain  Mr  Kolomiets.
   However,  it  does  not  appear that  Mr  Kolomiets  has  made  any
   submissions on the applicant's behalf. In the present case,  regard
   being  had  to  the  information in its possession  and  the  above
   criteria,  the Court considers it reasonable to award  the  sum  of
   EUR 200, plus any tax that may be chargeable.
                          C. Default interest
       44.  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
       1.  Holds that there has been a violation of Article 6 з  1  of
   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,  the  following
   amounts,  to  be  converted  into  Russian  roubles  at  the   rate
   applicable at the date of settlement:
       (i)  EUR 2,000 (two thousand euros) in respect of non-pecuniary
       (ii)  EUR  200  (two  hundred euros) in respect  of  costs  and
       (iii) 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
   amounts  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
       Done  in  English,  and notified in writing on  6  April  2006,
   pursuant to Rule 77 зз 2 and 3 of the Rules of Court.
                                                      Christos ROZAKIS
                                                       {Soren} NIELSEN

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