EUROPEAN COURT OF HUMAN RIGHTS
FIRST SECTION
CASE OF SMARYGIN v. RUSSIA
(Application No. 73203/01)
JUDGMENT <*>
(Strasbourg, 1.XII.2005)
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<*> 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} <*>,
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<*> 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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