Подборка материалов "Обзоры постановлений Европейского суда по правам человека"
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
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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