Постановление ЕСПЧ от 29.10.2015 <Дело Мишура и Гаева (Mishura and Gayeva) против России> (жалобы N 5941/06 и 7946/08) [англ.]

(Applications nos. 5941/06 and 7946/08)

(Strasbourg, 29.X.2015)

<*> This judgment is final but it may be subject to editorial revision.

In the case of Mishura and Gayeva v. Russia,
The European Court of Human Rights (First Section), sitting as a Committee composed of:
Elisabeth Steiner, President,
Mirjana Lazarova Trajkovska,
Paulo Pinto de Albuquerque, judges,
and  Wampach, Deputy Section Registrar,
Having deliberated in private on 6 October 2015,
Delivers the following judgment, which was adopted on that date:

  1. The case originated in two applications (nos. 5941/06 and 7946/08) 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 Aleksandr Fedorovich Mishura (“the first applicant”) and Mrs Gayeva Larisa Ivanovna (“the second applicant”), on 5 December 2005 and 14 January 2008, respectively.
  2. The first applicant was represented by Mr P.L. Sans Tico, a lawyer practising in Barcelona. The second applicant was represented by Ms N. Kutepova, a lawyer practising in the Chelyabinsk Region. The Russian Government (“the Government”) was represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.
  3. On 25 November 2008 and 19 January 2009, respectively, the applications were communicated to the Government.
  4. By the letter of 19 July 2010 the second applicant’s representative informed the Court that she had died and her daughter, Ms Povazhina Yelena Lvovna, wished to pursue the application on her behalf.



  1. The circumstances of the case
  1. Application no. 5941/06 lodged by the first applicant


  1. The first applicant was born in 1945 and lives in Barcelona.
  2. On 25 April 2005 the Justice of the Peace of the 3rd Court Circuit of the Kirovskiy District of Astrakhan dismissed the applicant’s action against the Astrakhan Regional Military Commissariat in which he sought the increase of monthly pension and military-related benefits.
  3. On 29 June 2005 the Kirovskiy District Court of Astrakhan quashed the judgment on appeal and granted the first applicant’s action in part, awarding him a lump sum of 49,215 Russian roubles. The judgment became final.
  4. On 28 February 2006 the Presidium of the Astrakhan Regional Court, by way of supervisory-review proceedings, quashed the judgment of 29 June 2005 on the ground of incorrect application of substantive law by the Kirovskiy District Court and upheld the judgment of 25 April 2005.


  1. Application no. 7946/08 lodged by the second applicant


  1. The second applicant was born in 1939 and lived in Ozersk, Russia. She was the widow of Mr Lev Gayev who died of cancer in 1985.
  2. On 1 June 2005 the Tsentralnyy District Court of Chelyabinsk acknowledged that Mr Gayev had been exposed to radioactive emissions following a nuclear accident at the Mayak power plant in 1957.
  3. In August 2006 the applicant sued the Ozersk Social Security Office for the monthly compensation in connection with the loss of the breadwinner.
  4. On 17 October 2006 the Ozersk Town Court of the Chelyabinsk Region rejected her claim on the ground that she failed to show that she had been financially dependent on her husband on the day of his death.
  5. On 4 December 2006 the Chelyabinsk Regional Court quashed this judgment and partly granted the applicant’s claim. It held that the Ozersk Social Security Office should pay the applicant monthly compensation to be determined in accordance with law.
  6. On 25 July 2007 the Presidium of the Chelyabinsk Regional Court, by way of supervisory review, quashed the appeal judgment of 4 December 2006 and remitted the matter to the appeal court, noting that the lower instance court did not duly examined evidence and made wrong application of the substantive law.
  7. The judgment of 4 December 2006 was executed between 1 March 2007 and 1 August 2007.
  8. On 27 August 2007 the Chelyabinsk Regional Court held a new appeal hearing and rejected the second applicant’s claim.


  1. Relevant domestic law


  1. The relevant domestic law governing the supervisory review procedure after 2003 is summed up in the Court’s judgment in the case of Kot v. Russia (no. 20887/03, § 17, 18 January 2007).



  1. Joinder of the applications


  1. Given that these two applications concern similar facts and complaints and raise almost identical issues under the Convention, the Court decides to consider them in a single judgment (see Kazakevich and 9 other “Army Pensioners” cases v. Russia, nos. 14290/03 et al., § 15, 14 January 2010).


  1. Alleged violation of Article 6 of the Convention

and Article 1 of Protocol No. 1 on account of the quashing

of the judgments in the applicants’ favour


  1. The applicants complained of a violation of Article 6 on account of the quashing of the binding and enforceable judgments in their favour by way of supervisory review. They further complained of a violation of Article 1 of Protocol No. 1 in relation to the same facts. The Court will consider two cases in the light of both provisions, which insofar as relevant, read as follows:

Article 6 § 1

“In the determination of his civil rights and obligations…, everyone is entitled to a fair and public hearing within a reasonable time 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…”


  1. Admissibility


  1. The Court notes that the applicants’ complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It also notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.


  1. Merits


  1. The Government argued that the supervisory review proceedings resulting in the quashing of the judgments at issue were lawful: they were initiated by the parties of the cases within the time-limits provided for by domestic law. The Presidia of Regional Courts quashed lower courts’ judgments based on the wrong application of substantive law and non-duly examination of evidence, thus correcting flagrant injustice and erasing dangerous precedents.
  2. The applicants reiterated their complaints.
  3. The Court reiterates that the quashing by way of supervisory review of a judicial decision which has become final and binding may render the litigant’s right to a court illusory and infringe the principle of legal certainty (see, among many other authorities, Ryabykh v. Russia, no. 52854/99, §§ 56 – 58, ECHR 2003-IX). Departures from that principle are justified only when made necessary by circumstances of a substantial and compelling character (see Kot, cited above, § 24, and Protsenko v. Russia, no. 13151/04, §§ 25 – 34, 31 July 2008).
  4. The Court observes that in the cases at hand both judgments were set aside by way of a supervisory review solely on the ground that the lower courts had incorrectly applied the substantive law. The Court reiterates its constant approach that in the absence of a fundamental defect in the previous proceedings a party’s disagreement with the assessment made by the first-instance and appeal courts is not a circumstance of a substantial and compelling character warranting the quashing of a binding and enforceable judgment and re-opening of the proceedings on the applicant’s claim (see Dovguchits v. Russia, no. 2999/03, § 30, 7 June 2007, and Kot, cited above, § 29). The Government did not put forward any arguments which would enable the Court to reach a different conclusion in the present cases.
  5. The foregoing considerations are sufficient to enable the Court to conclude that in the present cases there were no circumstances justifying a departure from the principle of legal certainty.
  6. The Court further reiterates that the binding and enforceable judgments ordered the relevant authorities to pay the first applicant a lump sum and the second applicant compensation on a monthly basis. The judgments were thus specific enough to create an asset within the meaning of Article 1 of Protocol No. 1 (see Vasilopoulou v. Greece, no. 47541/99, § 22, 21 March 2002, and Malinovskiy v. Russia, no. 41302/02, § 43, ECHR 2005-VII (extracts)). The quashing of these judgments in breach of the principle of legal certainty frustrated the applicants’ reliance on the binding judicial decisions and deprived them of the opportunity to receive judicial awards they had legitimately expected to receive (see Gorfunkel v. Russia, no. 42974/07, § 36, 19 September 2013). There has accordingly been a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1.


III. Other alleged violations of the Convention


  1. The first applicant also complained under Article 6 that the Kirovskiy District Court had incorrectly applied the law while refusing his claims in part. The second applicant complained under Article 13 about the lack of an effective remedy against quashing of the initial domestic judgment in her favour.
  2. In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that these complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that they are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.


  1. Application of Article 41 of the Convention


  1. 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.”


  1. Damage
  1. The parties’ submissions


  1. The first applicant claimed 281,628.29 Russian roubles (RUB) for pecuniary damage corresponding to the social benefits he would have received should the domestic law have been properly applied by the domestic courts. He also claimed 3,000 euros (EUR) in respect of non-pecuniary damage.
  2. The second applicant claimed RUB 27,472.51 in respect of pecuniary damage, alleging that she did not receive compensation from 1994 onward except during the period between 1 March 2007 and 1 August 2007. As for the non-pecuniary damage the second applicant claimed EUR 5,000.
  3. The Government disagreed and asked the Court to reject the applicants’ claims. As to pecuniary damage, the Government noted that the applicants failed to substantiate their claims for pecuniary damage or made wrong calculations. As to non-pecuniary damage, the Government considered the applicants’ claims to be excessive and unreasonable.


  1. The Court’s assessment


(a) Pecuniary damage

  1. The Court recalls that the most appropriate form of redress in respect of the violations found would be to put the applicants as far as possible in the position they would have been if the Convention requirements had not been disregarded (see Piersack v. Belgium (Article 50), 26 October 1984, p. 16, § 12, Series A no. 85, and, mutatis mutandis, v. Turkey, no. 53431/99, § 27, 23 October 2003). The Court considers that this principle should apply in the present cases as it did in numerous similar ones decided in the past (see Dovguchits, cited above, § 48).
  2. As regards the first applicant, the Court first notes that his claim for pecuniary damage relates to the complaint which was declared inadmissible by the Court (see paragraphs 26 – 27 above). It consequently rejects this claim. In the meantime, the Court observes that on 29 June 2005 the Kirovskiy District Court of Astrakhan awarded the applicant the lump sum of RUB 49,215. This judgment has never been enforced. The Court thus finds it appropriate to award the applicant the unpaid judgment debt in respect of pecuniary damage.
  3. As regards the second applicant, the Court observes that on 4 December 2006 the Chelyabinsk Regional Court ordered the Social Security Office to pay the applicant a monthly compensation to be determined in accordance with the law. This judgment was quashed by the Presidium of the Chelyabinsk Regional Court on 25 July 2007. Even assuming that the judgment of 4 December 2006 had not been fully executed prior to its quashing, the applicant failed to present a detailed claim in this respect. As regards her claims relating to her future pecuniary losses, the Court reiterates that after the quashing, the final judgment ceased to exist under domestic law. The Court cannot restore the power of that judgment nor assume the role of the national authorities in awarding social benefits for the future (see Tarnopolskaya and Others v. Russia, nos. 11093/07 et al., § 51, 7 July 2009; Dokolin v. Russia, no. 28488/04, § 18, 18 September 2008; and Sirotin v. Russia (dec.), no. 38712/03, 14 September 2006). Consequently, it rejects the applicant’s claims.

(b) Non-pecuniary damage

  1. With reference to its established case-law in similar cases the Court finds that the applicants have suffered non-pecuniary damage as a result of the violations found which cannot be compensated by the mere finding of a violation. Having regard to the circumstances of the case and making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards to each applicant a sum of EUR 2,000 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount.


  1. Costs and expenses


  1. The second applicant also claimed EUR 2,169 and 2,066 British pound sterlings (GBP) for the costs and expenses incurred before the domestic authorities and the Court.
  2. The Government contested this claim as being unsubstantiated.
  3. Regard being had to the documents in its possession and to its case-law, the Court considers it reasonable to award the sum of GBP 1,342 covering costs under all heads.


  1. Default interest


  1. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.




  1. Decides to join the applications;
  2. Declares, in respect of both applications, the complaints under Article 6 of the Convention and Article 1 of Protocol No. 1 concerning quashing of the initial judgments in the applicants’ favour admissible and the remainder of the applications inadmissible;
  3. Holds that there has been a violation of Article 6 of the Convention and Article 1 of Protocol No. 1 on account of the quashing by way of the supervisory-review proceedings of the judgments in the applicants’ favour;
  4. Holds

that the respondent State is to pay the applicants, within three months, the following amounts, plus any tax that may be chargeable:

(i) RUB 49,215 (forty-nine thousand two hundred and fifteen roubles) to Mishura Aleksandr Fedorovich in respect of pecuniary damage;

(ii) EUR 2,000 (two thousand euros) to each applicant in respect of non-pecuniary damage plus any tax that may be chargeable on these amounts;

(iii) GBP 1,342 (one thousand three hundred and forty-two pounds) to Povazhina Elena Lvovna in respect of costs and expenses;

  1. Dismisses the remainder of the applicants’ claim for just satisfaction.


Done in English, and notified in writing on 29 October 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Elisabeth STEINER President

 WAMPACH Deputy Registrar

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