EUROPEAN COURT OF HUMAN RIGHTS
CASE OF BARANOV AND OTHERS v. RUSSIA
(Applications nos. 24130/04, 24916/04, 38108/04, 43535/04, 1711/05, 13825/06, 14070/06, 14101/06, 17664/06, 25722/06, 25798/06, 45413/06, 19942/07, 39661/07, 47465/07, 8295/08, 52271/08 and 55432/08)
<*> This judgment is final but it may be subject to editorial revision.
In the case of Baranov and Others v. Russia,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
Helena , President,
Branko Lubarda, judges,
and Marialena Tsirli, Deputy Section Registrar,
Having deliberated in private on 19 January 2016,
Delivers the following judgment, which was adopted on that date:
- The case originated in eighteen applications (nos. 24130/04, 24916/04, 38108/04, 43535/04, 1711/05, 13825/06, 14070/06, 14101/06, 17664/06, 25722/06, 25798/06, 45413/06, 19942/07, 39661/07, 47465/07, 8295/08, 52271/08 and 55432/08) 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 thirty-four Russian nationals (“the applicants”). The applicants’ names and the dates of their applications to the Court appear in the Appendix.
- The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights.
- The applicants complained of, inter alia, the quashing of binding and enforceable judgments by way of supervisory review procedure in force between 2003 and 2008.
- On various dates these complaints were communicated to the respondent Government.
- By a letter of 20 December 2010 the widow of Mr Oleg Anatolyevich Kozlovskiy, Mrs Tatyana Yuryevna Kozlovskaya, informed the Court that her husband had died on 27 September 2007 and that she wished to pursue the application on his behalf.
- The circumstances of the cases
- In all cases the applicants brought civil proceedings before Russian courts of general jurisdiction, claiming various monetary sums (unpaid salaries, pensions, compensation payments and/or other benefits) in relation to their military or police service.
- On various dates the domestic courts found for the applicants and these judgments became final and enforceable (for more details see the Appendix).
- The defendant authorities applied for supervisory review of those judgments. On the dates indicated in the Appendix, the supervisory review courts allowed the authorities’ applications and quashed the final judgments in the applicants’ favour. Their claims were dismissed either by the same judgments of the supervisory review courts or by lower courts in subsequent proceedings, except in the two cases of Mr Bochkarev and Mr Umanets, whose claims were partially granted.
- In the Baranov case, on 8 June 1998 the applicant brought proceedings against the local military authority. The proceedings were concluded on 22 September 2004, when the Amur Regional Court upheld the judgment of 17 June 2004 in which the Svobodnyy Town Court of the Amur Region had dismissed all the applicant’s claims. During this period, the case was examined nine times by the domestic courts (four times by the first-instance court, four times by the appeal court and once by the supervisory review court).
- In some of the cases (Zaytsev, Kudryavtsev, Polusmyak, Russkikh, Stepanov and Others, Mochalov, Barkov, Kozlovskiy and Martynov) the authorities complied with the judgments fully or partially prior to their quashing. In the rest of the cases (Baranov, Sitnikov, Belyasov, Umanets, Bochkarev (the judgment of 15 March 2004), Kuzmin, Korchagin, Gafarova and Others and Dudov) the judgments in the applicants’ favour were never complied with.
- In the Bochkarev case, the judgment of 1 June 2006, delivered as a result of a new round of proceedings conducted after the supervisory review, became binding on 25 October 2006. On 30 August 2007 the authorities complied with this judgment by putting the applicant’s family on the priority housing list.
- In the Kudryavtsev case the pension paid to the applicant following the quashed judgments was recovered from him after the supervisory review.
- Relevant domestic law
- The relevant domestic law governing the supervisory review procedure in force between 2003 and 2008 is summed up in the Court’s judgment in the case of Kot v. Russia (no. 20887/03, § 17, 18 January 2007).
- Locus standi as regards application No. 39661/07
- The Court notes that in the Kozlovskiy case the applicant passed away on 27 September 2007 and that his widow expressed her wish to continue the proceedings before the Court (see paragraph 5 above). She claimed that in accordance with the judgment of 3 February 2006 her husband should have received monthly payments until his death, not only until 1 February 2007.
- The Government noted that on 3 February 2006 the Oktyabrskiy District Court had specifically indicated in its judgment that the monthly payments had been due to the applicant until 1 February 2007, that is to say until his next medical examination. They further submitted that in any event under Russian legislation the claims at issue had been personal to the applicant and consequently could not be transferred to his heirs (see Belskiy v. Russia (dec.), no. 23593/03, 26 November 2009).
- The Court reiterates that the quashing of a final judgment is an instantaneous act and does not create a continuing situation (see, mutatis mutandis, Sardin v. Russia (dec.), no. 69582/01, ECHR 2004-II). The decision to quash in the instant case occurred on 3 February 2006, that is to say before the applicant, the only party to the domestic proceedings complained of, passed away; unlike in other similar cases, he had not additionally complained about the non-enforcement of the judgment in his favour prior to its quashing (see, by contrast, Streltsov and other “Novocherkassk military pensioners” v. Russia, nos. 8549/06 et al., § 41, 29 July 2010). Moreover, it appears that no outstanding judgment debt existed at the moment the present application was lodged. All payments due to the applicant under the judgment of 3 February 2006 had been made prior to its quashing on 1 February 2007. There is no indication that he or his heirs had to repay them after this judgment had been set aside. The Court further notes that unlike in many other similar cases concerning quashing of domestic judgments ordering regular payments in the applicants’ favour, the judgment of 3 February 2006 of the Oktyabrskiy District Court specifically indicated that these payments were due to the applicant until 1 February 2007, that is to say until his next medical examination. The Court cannot then speculate on what might have happened after that date.
- In view of the above, the Court is not convinced that Ms T.Y. Kozlovskaya has a legitimate interest in pursuing the proceedings before the Court in the applicant’s stead.
- The Court does not consider that “respect for human rights as defined in the Convention and the Protocols” requires the examination of this application, despite the applicant’s death.
- In these circumstances the Court considers that it is no longer justified to continue the examination of the application and concludes, under Article 37 § 1 (c) of the Convention, that it should be struck out of its list of cases.
- Joinder of the applications
- Given that the remaining seventeen applications concern similar facts and complaints and raise almost identical issues under the Convention, the Court will 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).
III. Alleged violation of Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention on account of the quashing of the judgments in the applicants’ favour
- All the applicants complained of a violation of Article 6 of the Convention on account of the quashing of the binding and enforceable judgments in their favour by way of supervisory review. The applicants, in substance, further complained of a violation of Article 1 of Protocol No. 1 to the Convention in relation to these same facts. The Court will consider all these 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…”
- The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.
- The Government argued that the supervisory review proceedings resulting in the quashing of the judgments at issue had been lawful: they had been initiated by the defendant authorities within the time-limits provided for by domestic law. The supervisory review courts had quashed lower courts’ judgments that had been based on an incorrect application of the substantive law, thus correcting flagrant injustices and eliminating dangerous precedents.
- The applicants reiterated their complaints.
- The Court observes that it has already found numerous violations of the Convention on account of the quashing of binding and enforceable judgments by way of supervisory review under the Code of Civil Procedure as in force at the material time (see Kot, cited above, § 29). Some of these violations were found in similar circumstances and similarly concerned the quashing of final domestic judgments awarding various benefits to retired military servicemen (see Zelenkevich and Others v. Russia, [Committee], no. 14805/02, 20 June 2013).
- Turning to the present cases, the Court observes that the domestic judgments were set aside by way of supervisory review solely on the grounds that the lower courts had incorrectly applied the substantive legislation. The Court reiterates its consistent 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 the reopening of the proceedings on the applicant’s claim (see, among many other authorities, Dovguchits v. Russia, no. 2999/03, § 30, 7 June 2007). The Government did not put forward any arguments which would enable the Court to reach a different conclusion in the present cases.
- The Court accordingly concludes that the quashing of the binding and enforceable judgments in the applicants’ favour in all cases by way of supervisory review amounts to a breach of the principle of legal certainty in violation of Article 6 of the Convention and of Article 1 of Protocol No. 1 to the Convention.
- Alleged violation of Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention on account of non-enforcement or delayed enforcement
- Relying on Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention, the applicants in the cases of Bochkarev (as regards the judgment of 1 June 2006, upheld on 25 October 2006 and the judgment of 15 March 2004, which became final on 26 March 2004), Belyasov, Umanets and Barkov also complained about non-enforcement or delayed enforcement of the judgments delivered in their favour (for more details see the Appendix).
- As regards the Bochkarev case the Government argued that the delay in enforcement of the judgment of 1 June 2006, upheld on 25 October 2006, had been reasonable and that if there had been a delay, it had only been attributable to the applicant, who had failed to submit the necessary documents promptly. They further argued that this complaint was in any event inadmissible ratione materiae because the applicant had been a military officer.
- The applicant maintained his claim. He pointed out that the judgment should have been executed immediately and that he had not been at fault for the delayed execution of the court awards.
- The Court considers that there is no need to address all the Government’s arguments because the present complaint is in any event inadmissible for the following reasons. The Court observes that the judgment of 1 June 2006, upheld on 25 October 2006, remained unexecuted for ten months and three days. Having regard to its case-law, the Court agrees with the Government that this delay does not appear to be unreasonable (see, in identical circumstances, Nikolenko v. Russia, no. 38103/04, § 28, 26 March 2009 where the Court found a one-year delay compatible with the Convention). It must therefore declare this complaint inadmissible.
- The Court notes that the remaining complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.
- As regards the non-enforcement of the rest of the domestic judgments complained of, the Court reiterates that the principles insisting that a final judicial decision must not be called into question and should be enforced represent two aspects of the same general concept, namely the right to a court. Having regard to its finding of a violation of Article 6 of the Convention on account of the quashing of these judgments in supervisory-review proceedings, the Court does not consider it necessary to examine separately the issue of their non-enforcement since their quashing took place within a relatively short time after they had become binding and enforceable (see Kulkov and Others v. Russia, nos. 25114/03 et al., § 35, 8 January 2009, with further references).
- Alleged violation of Article 6 § 1 of the Convention in respect of the excessive length of the proceedings
- Mr Baranov further complained that the length of the proceedings concerning his claim for damages against the local military authority had exceeded the reasonable-time requirement. He relied on Article 6 § 1 of the Convention, cited above.
- The Government submitted that the overall length of the civil proceedings in the applicant’s case had not been unreasonable given their complexity and the fact that the applicant had amended his claims fourteen times.
- The applicant maintained his claim.
- The Court notes that the proceedings in the applicant’s case lasted for five years and seven months, that is to say between 8 June 1998, when he brought his action against the military authority, and 22 September 2004, when the Amur Regional Court issued a final judgment, with the exception of the period when the case was examined in supervisory review and was not pending before the domestic courts. The length of the proceedings was due to the fact that the case was re-examined several times, including following reopening by way of a supervisory review (see paragraph 9 above).
- The Court reiterates that the Convention and its Protocols must be interpreted as guaranteeing rights which are practical and effective as opposed to theoretical and illusory. The right to have one’s claim examined within a reasonable time would be devoid of all sense if domestic courts examined a case endlessly, even if in the end the length of proceedings at each instance did not appear particularly excessive (see, mutatis mutandis, Svetlana Orlova v. Russia, no. 4487/04, § 47, 30 July 2009).
- Although the Court is not in a position to analyse the juridical quality of the domestic courts’ decisions, it considers that the multiple repetition of re-examination orders within the same set of proceedings may disclose a deficiency in the judicial system (see Falimonov v. Russia, no. 11549/02, § 58, 25 March 2008). It has already found several violations of the reasonable-time requirement in civil proceedings on account of repeated referrals of the case to the first-instance courts, this practice significantly contributing to the delays (see Palacheva v. Russia, [Committee], no. 39814/04, § 69, 25 March 2008, and Vershinin v. Russia, [Committee], no. 9311/05, § 41, 11 April 2013), and sees no reasons to reach a different conclusion in the present case.
- In these circumstances, the Court considers that there is no need to examine whether there were different periods of inactivity and whether the applicant contributed to the delays in the examination of his case.
- There has accordingly been a violation of Article 6 § 1 of the Convention on account of the unreasonable length of proceedings in Mr Baranov’s case.
- Other alleged violations of the Convention
- Lastly, some applicants complained, under Articles 6, 13, 14 and 17, of other different violations of the Convention, such as the length of proceedings and the lack of an effective domestic remedy against non-enforcement and/or quashing.
- 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.
VII. Application of Article 41 of the Convention
- 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.”
- The Court notes at the outset that in the cases of Polusmyak, Russkikh, Stepanov and Others and Martynov the applicants submitted no claims for just satisfaction. Consequently, the Court makes no awards in these four cases.
- As regards the other applicants, they submitted, as far as their admissible complaints were concerned, claims in respect of pecuniary and/or non-pecuniary damage ranging from 960 euros (EUR) to EUR 600,236, together with their calculations based on various adjustment rates.
- In all cases, save for the Baranov case, the Government contested the applicants’ methods of calculation as regards pecuniary damage, without however suggesting any alternative. They further contended that the sums claimed in respect of non-pecuniary damage were excessive and unreasonable.
- The Court notes that the present cases are similar to numerous other Russian cases that concern the same issues it has already addressed in numerous other judgments finding violations of the Convention on account of the quashing of final judgments by way of the supervisory review procedure and non-enforcement of domestic judicial decisions. In cases involving many similarly situated victims a unified approach may be called for. This approach will ensure that the applicants are treated as a group and that there are no disparities in the level of the awards, thus avoiding the possibility of a divisive effect on them (see, for instance, Moskalenko and Others v. Ukraine, [Committee], nos. 1270/12 et al., § 23, 18 July 2013, and Goncharova and Others and 68 other “Privileged Pensioners” cases v. Russia, nos. 23113/08 et al., §§ 22 – 24, 15 October 2009).
- In addition, if one or more heads of damage cannot be calculated precisely or if the distinction between pecuniary and non-pecuniary damage proves difficult, the Court may decide to make an overall assessment (see Comingersoll S.A. v. Portugal [GC], no. 35382/97, § 29, ECHR 2000-IV).
- In these circumstances and having regard to the principles developed in its case-law on determination of compensation in similar cases, the Court considers it reasonable and equitable to award each of the applicants who submitted a claim for just satisfaction a lump sum of EUR 5,000 in respect of all heads of damage.
- Costs and expenses
- In a number of cases the applicants claimed different sums for costs and expenses ranging from EUR 4 to EUR 2,580.
- In all cases, save for the Barkov and Dudov cases, the Government fully or partially contested the amounts claimed as being excessive and/or unsubstantiated.
- Regard being had to the documents in its possession and to its case-law, the Court considers it reasonable to award each applicant in the cases of Sitnikov, Kuzmin, Belyasov, Umanets and Korchagin EUR 300 (see, for a similar approach, Ryabov and 151 other “Privileged pensioners” cases v. Russia, nos. 4563/07 et al, §§ 20 – 23, 17 December 2009). As for the Bochkarev, Kudryavtsev, Barkov and Dudov cases, the Court awards the amounts for costs and expenses as claimed by the applicants.
- Default interest
- 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.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
- Decides to strike the application of Mr Oleg Anatolyevich Kozlovskiy out of its list of cases;
- Decides to join the rest of the applications;
- Declares, in respect of all the applications, the complaints under Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention concerning the quashing by way of supervisory review of final domestic judgments in the applicants’ favour, in the cases of Belyasov, Umanets, Barkov and Bochkarev (as regards the judgment of 15 March 2004, upheld on 26 March 2004) the non-enforcement of final domestic judgments in the applicants’ favour, and in the case of Baranov the excessive length of the proceedings, admissible and the remainder of the applications inadmissible;
- Holds, in respect of all the applicants, that there has been a violation of Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention in respect of the quashing of the judgments in the applicants’ favour by way of supervisory review proceedings;
- Holds, in respect of the Belyasov, Umanets, Barkov and Bochkarev (as regards the judgment of 15 March 2004, upheld on 26 March 2004) cases, that there is no need to examine separately the applicants’ complaints relating to the non-enforcement of these judgments;
- Holds, in respect of the Baranov case, that there has been a violation of Article 6 of the Convention on account of the excessive length of the proceedings;
(a) that the respondent State is to pay, within three months the following amounts to be converted into the currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable:
(i) to each applicant who submitted a just satisfaction claim (see “Just satisfaction granted” in the Appendix) EUR 5,000 (five thousand euros), in respect of all heads of damage;
(ii) to each applicant in the Sitnikov, Kuzmin, Belyasov, Umanets and Korchagin cases (see “Just satisfaction granted” in the Appendix) EUR 300 (three hundred euros), and to each applicant in the Bochkarev, Kudryavtsev, Barkov and Dudov cases the amounts as claimed, in respect of costs and expenses;
(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;
- Dismisses the remainder of the applicants’ claim for just satisfaction.
Done in English, and notified in writing on 9 February 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.