EUROPEAN COURT OF HUMAN RIGHTS
SECOND SECTION
CASE OF YURIY ROMANOV v. RUSSIA
(Application No. 69341/01)
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 Romanov 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. 69341/01) 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 Yuriy
Petrovich Romanov, on 30 March 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 about the quashing of the final judgment in the
applicant's favour in the supervisory review proceedings 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 applicant was born in 1932 and lives in Moscow.
6. On 1 April 1996 the applicant retired from the position as a
consultant at the Ministry of Finance of Russia.
7. In 1996 - 1997 he repeatedly applied to the Ministry of
Labour for additional retirement benefits due to former State
employees. By decision of 3 October 1997 a deputy Minister granted
the applicant's request and increased his pension as of 9
September 1997.
8. Thereafter the applicant sued the Ministry of Labour seeking
arrears for the period between 1 April 1996 and 8 September 1997.
9. On 19 December 1997 the Basmanny District Court of Moscow
dismissed his claims, stating that the applicant had only become
eligible for a higher pension as of 9 September 1997 and therefore
he had no right to arrears.
10. On 14 April 1998 the Moscow City Court set aside the first
instance judgment and remitted the case for a fresh examination.
11. On 15 September 1999 the Basmanny District Court ruled in
the applicant's favour confirming his entitlement to additional
retirement benefits as of 1 April 1996 and ordered the Ministry of
Labour to re-calculate his pension.
12. No appeal was lodged, and on an unspecified date the
judgment of 15 September 1999 became final.
13. On 25 November 1999 enforcement proceedings commenced.
14. On 26 October 2000 a deputy Prosecutor General lodged an
extraordinary appeal against the judgment of 15 September 1999.
15. On 16 November 2000 the Presidium of the Moscow City Court
examined and rejected the extraordinary appeal in supervisory
review proceedings, thus upholding the judgment of 15 September
1999.
16. On 2 February 2001 a deputy Prosecutor General filed
another extraordinary appeal against the judgment of 15 September
1999 and the decision of 16 November 2000.
17. On 23 February 2001 the Civil Section of the Supreme Court
of Russia, by way of supervisory review, quashed the judgment of
15 September 1999 and the decision of 16 November 2000, and
remitted the case to the first instance court. It is not clear
whether the applicant has pursued the proceedings.
18. In 2001 - 2003 the applicant unsuccessfully applied for
supervisory review of the decision of 23 February 2001.
19. During the fresh examination, on 27 February 2003, the
Basmanny District Court dismissed the applicant's claims.
20. On 30 July 2003 the applicant appealed against the above
judgment.
21. By decision of 29 August 2003 the Basmanny District Court
refused to examine the applicant's appeal brief as having been
lodged outside the statutory time-limit of ten days.
II. Relevant domestic law
22. 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..."
23. 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."
24. 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."
25. 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.
26. 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.
27. 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.
28. 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..."
29. 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. Alleged violation of Article 6 of the Convention
and Article 1 of Protocol No. 1 to the Convention
30. The applicant complained about the quashing of a final
judgment in his favour and various procedural irregularities in
the proceedings before the Supreme Court. The Court will examine
these complaints under Article 6 of the Convention and Article 1
of Protocol No. 1. 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
31. The Government contested the admissibility of the
application as being incompatible ratione materiae with the
provisions of the Convention by reference to the case of Pellegrin
v. France.
32. The applicant disagreed with the Government and maintained
his complaints.
33. The Court recalls that the pension disputes of former State
employees come within the ambit of Article 6 of the Convention
because on retirement employees break the special bond between
themselves and the authorities. They then find themselves in a
situation exactly comparable to that of employees under private
law in that the special relationship of trust and loyalty binding
them to the State has ceased to exist and the employee can no
longer wield a portion of the State's sovereign power (see
Pellegrin v. France [GC], No. 28541/95, з 67, ECHR 1999-VIII).
This being so, the Court considers that the dispute in the present
case was of a pecuniary nature and undeniably concerned the
applicant's civil rights within the meaning of Article 6 з 1. The
Court also finds that the applicant's "possessions", within the
meaning of Article 1 of Protocol No. 1, were engaged. Accordingly,
the Government's objection must be dismissed.
34. 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
(a) Supervisory-review procedure: substantive issues
35. The Government submitted that the judgment of 15 September
1999 had been erroneous in that, under national law, the applicant
had not been eligible for a higher pension since, at the moment of
his retirement, his post had not pertained to a certain category
of State employees, and therefore the quashing of the said
judgment by way of supervisory review could not be said to have
violated the applicant's rights under Article 6 з 1.
36. The applicant contested the Government's allegations and
maintained his complaint.
37. The Court observes that the issue of 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.
38. 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."
39. 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}..."
40. The Court notes that in the present case in February 2001 a
deputy Prosecutor General lodged an extraordinary appeal against
the judgment of 15 September 1999 which had become final. On 23
February 2001 the Supreme Court of Russia quashed that judgment as
erroneous and during a fresh examination in 2003 the applicant's
claim was rejected.
41. 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.
(b) Supervisory review procedure: procedural issues
42. With regard to the complaint about the procedural defects
of the hearing before the Supreme Court, the Court finds that,
having concluded that there has been an infringement of the
applicant's "right to court" by the very use of the supervisory
review procedure, it is not necessary to consider whether the
procedural guarantees of Article 6 of the Convention were
available in those proceedings (see Ryabykh, cited above, з 59).
Article 1 of Protocol No. 1 to the Convention
43. The Government contended that the 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 15
September 1999.
44. The applicant disagreed with the Government's arguments and
maintained his complaint.
45. The Court reiterates that the Convention does not
guarantee, as such, the right to an old-age pension or any social
benefit of 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-..).
46. The judgment of the Basmanny District Court of 15 September
1999 provided the applicant with an enforceable claim to receive
an increased pension, it became final and binding, as no further
ordinary appeal was lodged against it, 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.
47. The Court finds that the quashing on 23 February 2001 of
the judgment of 15 September 1999 deprived the 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).
48. While the Court accepts that this measure was lawful and
pursued the public interest (such as, for example, the correction
of a judicial error), its compliance with the requirement of
proportionality is open to question.
49. 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)."
50. 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.
II. Other alleged violations of the Convention
51. The applicant further complained that, as a result of the
repeated refusal by the Ministry of Labour of his requests for
retirement benefits in 1996 - 1997, the ensuing civil proceedings
and the quashing of the judgment in his favour, he suffered severe
anguish and distress which amounted to inhuman and degrading
treatment, contrary to Article 3 of the Convention.
52. The Court considers that while the applicant's situation
may be a source of considerable distress, no material has been
submitted which would indicate that the applicant suffered damage
capable of attaining the minimum level of severity falling within
the ambit of Article 3 of the Convention (see Larioshina v. Russia
(dec.), No. 56869/00, 23 April 2002 or Volkova v. Russia (dec.),
No. 48758/99, 18 November 2003).
53. It follows that the applicant's complaint under Article 3
of the Convention is manifestly ill-founded and must be rejected
in accordance with Article 35 зз 3 and 4 of the Convention.
54. Lastly, the applicant complained under Article 13 of the
Convention that he had no effective remedies in respect of the
decision of the Supreme Court of Russia dated 23 February 2001 to
quash, on supervisory review, the final judgment of 15 September
1999.
55. The Court notes that Article 13 of the Convention does not,
as such, guarantee the right to appellate remedies in respect of a
decision taken by way of supervisory review, and the mere fact
that the judgment of the highest judicial body is not subject to
further judicial review does not infringe in itself the said
provision (see Tregubenko v. Ukraine (dec.), No. 61333/00, 21
October 2003, and Sitkov v. Russia (dec.), No. 55531/00, 9
November 2004).
56. It follows that the applicant's complaint under Article 13
of the Convention is incompatible ratione materiae with the
provisions of the Convention within the meaning of Article 35 з 3
and must be rejected in accordance with Article 35 з 4 thereof.
III. Application of Article 41 of the Convention
57. 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
58. The applicant claimed 980,000 euros (EUR) in respect of
pecuniary and non-pecuniary damage.
59. The Government contested these claims as unsubstantiated
and excessive. They considered that a token amount would
constitute equitable compensation for the non-pecuniary damage
suffered by the applicant.
60. The Court does not discern any causal link between the
violation of Article 6 and the pecuniary damage alleged. However,
in respect of the violation of Article 1 of Protocol No. 1 and
having regard to the nature of the violation found, the Court
considers it appropriate to award the applicant EUR 160
representing the sum the applicant would have received had the
judgment of 15 September 1999 not been quashed.
61. As to non-pecuniary damage, the Court considers that the
applicant must have suffered distress and frustration resulting
from the State authorities' failure to enforce a judgment in his
favour, which cannot sufficiently be compensated by the finding of
a violation. Making its assessment on an equitable basis, it
awards the applicant EUR 500 in respect of non-pecuniary damage.
B. Costs and expenses
62. The applicant did not make any claims for the costs and
expenses incurred before the domestic courts or the Court.
Accordingly, the Court does not make any award under this head.
C. Default interest
63. 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. Declares the complaints concerning the quashing of a final
judgment in the applicant's favour admissible and the remainder of
the application inadmissible;
2. Holds that there has been a violation of Article 6 of the
Convention;
3. Holds that there has been a violation of Article 1 of
Protocol No. 1 to the Convention;
4. 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:
(i) EUR 160 (one hundred and sixty euros) in respect of
pecuniary damage;
(ii) EUR 500 (five hundred euros) in respect of non-pecuniary
damage;
(iii) any tax that may be chargeable on the above amounts;
(iv) these amounts are to be converted into the national
currency of the respondent State at the rate applicable at the
date of settlement;
(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;
5. Dismisses the remainder of the applicant's claim for just
satisfaction.
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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