EUROPEAN COURT OF HUMAN RIGHTS
FIRST SECTION
CASE OF CHERNITSYN v. RUSSIA
(Application No. 5964/02)
JUDGMENT <*>
(Strasbourg, 6.IV.2006)
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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 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
date:
PROCEDURE
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
observations.
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
petition.
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
observations.
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
application.
4. The Court shall reject any application which it considers
inadmissible under this Article. It may do so at any stage of the
proceedings."
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
withdrawn.
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
points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
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
damage;
(ii) EUR 200 (two hundred euros) in respect of costs and
expenses;
(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
satisfaction.
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
President
{Soren} NIELSEN
Registrar
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