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Подборка материалов "Обзоры постановлений Европейского суда по правам человека"


8 декабря 2015 года ЕСПЧ (в составе 3 судей - упрощенный порядок) принял постановление по жалобам Кулик и других пенсионеров, в котором признал нарушение статьи 6 и ст 1 протокола первого в связи с отменой в надзоре решения суда о взыскании пенсии. Кулик присудили 5000 ЕВро компенсации + судебные расходы на сумму 2,067 рублей. Постановление вступило в силу.

 

15.01.2016

 

                               THIRD SECTION

                    CASE OF KULYUK AND OTHERS v. RUSSIA

        (Applications nos. 47032/06, 6415/07, 39249/08 and 39251/08)

                                  JUDGMENT

                                 STRASBOURG

                              8 December 2015

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

   In the case of Kulyuk and Others v. Russia,

   The  European  Court  of  Human  Rights  (Third Section), sitting as a
   Committee composed of:

   Helena Jaederblom, President,
   Dmitry Dedov,
   Branko Lubarda, judges,
   and Marialena Tsirli, Deputy Section Registrar,

   Having deliberated in private on 17 November 2015,

   Delivers the following judgment, which was adopted on that date:

   PROCEDURE

   1.  The  case originated in four applications (nos. 47032/06, 6415/07,
   39249/08  and 39251/08) 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 four Russian
   nationals  ("the  applicants"). The applicants' names and the dates of
   their applications to the Court appear in the Appendix.

   2.  The  Russian  Government  ("the  Government")  were represented by
   Mr G.  Matyushkin,  Representative  of  the  Russian Federation at the
   European Court of Human Rights.

   3.  The  applicants  complained  inter alia of the quashing of binding
   and enforceable judgments by way of supervisory review in 2003-2008.

   4.  On  various  dates  these  complaints  were  communicated  to  the
   respondent Government.

   THE FACTS

   I.  THE CIRCUMSTANCES OF THE CASE

   5.  The  applicants are pensioners. On various dates they successfully
   sued  the  authorities  for  miscalculating  and  adjustment  of their
   pensions. The judgments became final.

   6.  On  various  dates  the Presidia of Regional Courts or the Supreme
   Court   of  Russian  Federation  allowed  the  defendant  authorities'
   applications   for   supervisory  review  and  quashed  the  judgments
   delivered in the applicants' favour, considering that the lower courts
   misapplied the material law.

   7.  Some  of  the  judgments remained unenforced or partially enforced
   until the date of their quashing or were enforced with delay.

   II.  RELEVANT DOMESTIC LAW

   8.  The   relevant  domestic  law  governing  the  supervisory  review
   procedure  from  2003 is summed up in the Court's judgment in the case
   of Kot v. Russia (no. 20887/03, S: 17, 18 January 2007).

   THE LAW

   I.  JOINDER OF THE APPLICATIONS

   9.  Given  that  these  four  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.,
   S: 15, 14 January 2010).

   II.  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

   10.  All  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
   further  complained  of  a violation of Article 1 of Protocol No. 1 to
   the  Convention in relation to the same facts. The Court will consider
   all  cases in the light of both provisions, which insofar as relevant,
   read as follows:

                      Article 6 S: 1 of the Convention

   "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 to the Convention

   "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 ..."

   A.  Admissibility

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

   B.  Merits

   12.  The  Government  argued  that  the supervisory review proceedings
   resulting   in   the  quashing  of  the  judgments  delivered  in  the
   applicants'  favour  were lawful: they were initiated by the defendant
   authorities  within  the time-limits provided for by domestic law. The
   supervisory review courts quashed lower courts' judgments based on the
   wrong   application  of  substantive  law,  thus  correcting  flagrant
   injustice and erasing dangerous precedents.

   13.  The applicants reiterated their complaints.

   14.  The  Court  recalls 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,  S: 29). Some of these violations were found in similar and, on
   certain   occasions,   virtually  identical  circumstances  concerning
   quashing  of  final domestic judgments awarding pension arrears and/or
   adjustment  of  the  pension  (see  Khotuleva v. Russia, no. 27114/04,
   30 July 2009, and Senchenko and Others and 35 other "Yakut pensioners"
   cases v. Russia, nos. 32865/06 et al., 28 May 2009).

   15.  Turning  to  the  present  cases,  the  Court  observes  that the
   domestic  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
   applicants'  claim  (see  Dovguchits  v. Russia,  no. 2999/03,  S: 30,
   7 June  2007, and Kot, cited above, S: 29). The Government did not put
   forward any argument which would enable the Court to reach a different
   conclusion in the present cases.

   16.  The  Court accordingly concludes that the quashing of the binding
   and  enforceable  judgments  in  the  applicants'  favour  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.

   III.  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

   17.  Relying  on  Article 6  S: 1  of  the Convention and Article 1 of
   Protocol No. 1  to  the  Convention,  both cited above, the applicants
   further complained about non-enforcement or delayed enforcement of the
   same  judgments  prior  to  their  quashing. In the case of Dronov the
   applicant   complained   about   non-enforcement  of  other  judgments
   delivered in the applicant's favour (see the details in the Appendix).

   A.  Admissibility

   18.  In  the  Dronov  case  the Government submitted that the delay in
   execution  of  the  judgments of 8 December 2000 (final on 19 December
   2000)  and  12 April  2006  (final on 24 April 2006) was less than one
   year,  such  delay  was  found  by the Court to be consistent with the
   reasonable-time   requirement   (see   Grishchenko  v. Russia  (dec.),
   no. 75907/01,   8 July   2004,   and   Inozemtsev   v. Russia  (dec.),
   no. 874/03,  31 August  2006).  In  certain other cases the Government
   argued that the relevant judgments could not be executed on account of
   their quashing by way of supervisory review procedure.

   19.  The applicants maintained their claims. They pointed out that the
   judgments  should have been executed immediately and that they had not
   been at fault as regards the delayed execution of the court awards.

   20.  As  regards  delays  in execution, the Court observes that in the
   Dronov  case  the  judgment  of 8 July 2003, became binding on 21 July
   2003, remained unexecuted for almost five months. Having regard to its
   case-law,  the  Court  agrees with the Government that this delay does
   not  appear to be unreasonable (see Zasurtsev v. Russia, no. 67051/01,
   S: 59,  27 April  2006,  with  further references). Consequently, this
   complaint should be declared inadmissible.

   21.  As  regards  the other cases and the three other judgments in the
   Dronov  case, the Court observes that the domestic judgments delivered
   in  the  applicants' favour remained unexecuted for more than one year
   (see  Kozodoyev  and  Others  v.  Russia,  nos. 2701/04 et al., S: 11,
   15 January  2009).  The  Court considers that these complaints are not
   manifestly  ill-founded  within  the meaning of Article 35 S: 3 of the
   Convention.  It  further  notes  that they are not inadmissible on any
   other grounds. They must therefore be declared admissible.

   B.  Merits

   22.  In the cases of Shapiyev and Samedov the Government accepted that
   there  was  violation  of  Article  6  of the Convention in respect of
   non-enforcement  of  final  and  binding  judgments in the applicants'
   favour  prior to the quashing of those judgments by way of supervisory
   review.

   23.  The applicants maintained their claims.

   24.  The  Court  reiterates  that  an  unreasonably  long delay in the
   enforcement  of a final and binding judgment may breach the Convention
   (see Burdov v. Russia, no. 59498/00, ECHR 2002-III).

   25.  Turning  to  the  present  cases,  the Court observes that in the
   cases   of   Shapiyev  and  Samedov  the  domestic  judgments  in  the
   applicants'  favour  had  never  been  enforced.  In  other cases, the
   domestic  judgments  were  enforced within the periods longer than one
   year  (see  for  more  details  the  Appendix).  Having  regard to its
   case-law,  the Court finds that such delays were incompatible with the
   reasonable  time requirement (see, among others, Kozodoyev and Others,
   cited above, S: 11).

   26.  As  regards  the  Government's  arguments  referred to above, the
   Court reiterates its established case-law that the subsequent quashing
   of  final  and  enforceable  domestic  judgments does not constitute a
   valid reason for the prolonged non-enforcement of these judgments (see
   Velskaya  v. Russia,  no. 21769/03, S: 18, 5 October 2006). It sees no
   reasons to hold otherwise in the present cases.

   27.  There has, accordingly, been a violation of Article 6 S: 1 of the
   Convention  and  Article  1 of Protocol No. 1 to the Convention in the
   present four cases.

   IV.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION

   28.  Lastly,  in  the  cases  of  Kulyuk  and Dronov the applicants in
   addition  complained  under  Articles  6, 13 and 14 of the Convention,
   Article 1 of Protocol No. 1 to the Convention, Protocols Nos. 4, 6 and
   7  to the Convention about other different violations, such as lack of
   fair   hearing,   lack   of   an  effective  domestic  remedy  against
   non-enforcement and/or quashing.

   29.  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 S:S: 3 and 4 of the Convention.

   V.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

   30.  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

   31.  The  Court  notes  at  the  outset that in the case of Dronov the
   applicant submitted no claims for just satisfaction. Consequently, the
   Court makes no award in this case.

   32.  Other applicants submitted, as far as their admissible complaints
   are  concerned,  claims  in  respect of pecuniary and/or non-pecuniary
   damage  ranging  from  2,000  euros  (EUR) to EUR 30,200 together with
   their calculations based on various adjustment rates.

   33.  The Government disputed the applicants' methods of calculation as
   regards  pecuniary damage, without however suggesting any alternative.
   They  considered  that  the  sums  claimed in respect of non-pecuniary
   damage were excessive and unreasonable.

   34.  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 remain aggregated and that no disparity in the level of the
   awards  will  have  a  divisive  effect  on  them  (see, for instance,
   Moskalenko  and  Others  v. Ukraine  [Committee], nos. 1270/12 et al.,
   S: 23,   18 July   2013,   and   Goncharova  and  Others  and 68 other
   "Privileged   Pensioners"   cases  v. Russia,  nos. 23113/08  et  al.,
   S:S: 22-24, 15 October 2009).

   35.  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 a global
   assessment  (see  Comingersoll  S.A.  v.  Portugal [GC], no. 35382/97,
   S: 29, ECHR 2000-IV).

   36.  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
   Mrs Kulyuk,  Mr  Shapiyev and Mr Samedov a total of EUR 5,000 to cover
   all heads of damage.

   B.  Costs and expenses

   37.  The applicant in the case of Kulyuk also claimed 2,067.35 Russian
   roubles (RUB) for the costs and expenses.

   38.  The Government did not contest these claims.

   39.  Having  regard  to  the  materials  in  its possession, the Court
   decides to grant the applicant's claim.

   C.  Default interest

   40.  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,

   1.  Decides to join the applications;

   2.  Declares,  in  respect  of  all applications, the complaints under
   Article  6  of  the  Convention and Article 1 of Protocol No. 1 to the
   Convention  concerning  quashing  by  way  of  supervisory  review and
   non-enforcement of domestic final judgments in the applicants' favour,
   except  in  the  Dronov  case  (the  judgment of 8 July 2003, final on
   21 July  2003),  admissible  and  the  remainder  of  the applications
   inadmissible;

   3.  Holds  in  respect  of  all  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;

   4.  Holds  in  respect  of  all  applicants,  that  there  has  been a
   violation  of  Article  6  of the Convention and Article 1 of Protocol
   No. 1  to  the  Convention  on account of the non-execution or delayed
   execution of the judgments in the applicants' favour;

   5.  Holds

   (a)  that  the respondent State is to pay the applicants, within three
   months, the following amounts:

   (i)  EUR 5,000   (five   thousand   euros)  each  to  Kulyuk  Nadezhda
   Georgiyevna,   Shapiyev   Abdula  Shapiyevich,  Samedov  Magomedsultan
   Magomedmirzayevich 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, in respect of both pecuniary and non-pecuniary
   damage;

   (ii)  RUB 2,067  (two  thousand  and  sixty-seven  Russian roubles) to
   Kulyuk Nadezhda Georgiyevna 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;

   6.  Dismisses   the  remainder  of  the  applicants'  claim  for  just
   satisfaction.

   Done  in English, and notified in writing on 8 December 2015, pursuant
   to Rule 77 S:S: 2 and 3 of the Rules of Court.

   Marialena Tsirli Helena Jaederblom
   Deputy Registrar President

                                  APPENDIX

                                     No

                                Application

                        no. and date of introduction

                               Applicant name

                               Date of birth

                             Place of residence

                                Nationality

                               Represented by

                          Final domestic judgment

                                  Award(s)

                 Enforcement status (prior to the quashing)

                                  Quashing

    Length of non-enforcement prior to the quashing (separate complaint)

    1.

   47032/06

   14/09/2006

   Nadezhda Georgiyevna KULYUK

   25/04/1934

   Novouralsk

   Russian

   Sergey Ivanovich BELYAYEV

   Novouralsk City Court of
   Sverdlovsk District
   26/10/2004
   25/01/2005

   Recalculation of
   pension

   Partially enforced in May 2005

   Presidium of Sverdlovskiy
   District Court
   22/03/2006

   13 months 27 days

    2.

   6415/07

   23/11/2006

   Aleksandr Anatolyevich DRONOV

   10/03/1960

   Sosny

   Russian

   1) Belokalitvinskiy Town Court
   25/10/1999
   08/11/1999
   The Agency of Social Security of Population of Belaya Kalitva

   2) Belokalitvinskiy Town Court
   08/12/2000
   19/12/2000
   The Agency of Social Security of
   Population of Belaya Kalitva

   3) Belokalitvinskiy Town Court
   08/07/2003
   21/07/2003
   The Agency of Social Security of Population of Belaya Kalitva
   4) Belokalitvinskiy Town Court
   12/04/2006
   24/04/2006
   The Agency of Social Security of Population of Belaya Kalitva

   1)  RUB  11,077.29  (lump  sum)  + RUB 2,693.63  (monthly  payment  of
   pension) from 01/10/1999 to 01/07/2000
   2) RUB 4,258.62 (monthly payment of pension with further indexation)
   since 01/07/2000

   3)  RUB 10,752.3 (lump sum) + RUB 5,082.47 (monthly payment of pension
   with further indexation) since 01/07/2003

   4)  RUB 303,408.08 (lump sum for arrears) + 12,966.23 (monthly payment
   of pension with further indexation) since 01/01/2006

   1) Lump sum was paid on
   02/04/2002;
   monthly payments were made from 01/01/2000 to 31/05/2001

   2)  Lump sum for arrears was paid on 28/06/2002; pension was paid from
   01/07/2002 to 31/03/2003 (without indexation)
   3)  Lump  sum  was  paid  on  15/12/2003;  pension has been paid since
   01/01/2004 (without indexation)

   4) The judgment remained unenforced in part of lump sum

   2) Presidium of the Rostov Regional Court
   16/01/2003

   1) 28 months 24 days (lump sum)

   2) 24 months

   3) 4 months 24 days (lump sum);

   5 months 10 days (pension);

   up to now (indexation)

   4) up to now

    3.

   39249/08

   15/03/2008

   Abdula Shapiyevich SHAPIYEV

   22/12/1939

   Makhachkala

   Russian

   Sovetskiy District Court of Makhachkala
   27/02/2006
   09/03/2006
   The Ministry of Labour and Social Development

   RUB 23,775.5
   (monthly payment of pension)

   Remained unenforced

   Supreme Court of Russian Federation
   08/02/2008

   22 months 29 days

    4.

   39251/08

   13/03/2008

   Magomedsultan Magomedmirzayevich SAMEDOV

   01/05/1938

   Makhachkala

   Russian

   Sovetskiy District Court of Makhachkala
   02/03/2006
   12/03/2006
   The Ministry of Labour and Social Development

   RUB 23,775.5
   (monthly payment of pension)

   Remained unenforced

   Supreme Court of Russian Federation
   08/02/2008

   22 months 26 days

   0 KULYUK AND OTHERS v. RUSSIA JUDGMENT

   KULYUK AND OTHERS v. RUSSIA JUDGMENT 0

   0 KULYUK AND OTHERS v. RUSSIA JUDGMENT

   KULYUK AND OTHERS v. RUSSIA JUDGMENT 0


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Комментарии:

1. Anonymous - 26.01.2016 04:30:16

А есть еще одно постановление ЕСПЧ от 08.12.2015 Коваленко и другие против России

https://yadi.sk/d/EFQGMuBnnb63k

 

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