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FIFTH
SECTION
CASE OF BOYCHENKO AND GERSHKOVICH v. RUSSIA
(Application
no. 62866/00)
JUDGMENT
STRASBOURG
28 June
2007
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Boychenko and Gershkovich v. Russia,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Mr P. Lorenzen, President,
Mrs S.
Botoucharova,
Mr K. Jungwiert,
Mr R. Maruste,
Mr A.
Kovler,
Mr J. Borrego Borrego,
Mr M. Villiger, judges,
and
Mrs C. Westerdiek, Section Registrar,
Having
deliberated in private on 5 June 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 62866/00) 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
Aleksandrovich Boychenko and Mr Vladislav Vladimirovich Gershkovich
(“the applicants”), on 27 October 2000.
- The
applicants were represented by Mr A. Kemishev, a lawyer practising in
Moscow. The Russian Government (“the
Government”) were initially represented by Mr P. Laptev,
the former Representative of the Russian Federation at the European
Court of Human Rights, and subsequently by their Representative, Mrs
V. Milinchuk.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicants, Mr Aleksandr Aleksandrovich Boychenko
and Mr Vladislav Vladimirovich Gershkovich, are Russian
nationals, who were born in 1953 and 1971 respectively and live in
Moscow.
- On
14 May 1993 the Ministry of Finance of Russia issued
“Series III” domestic hard currency bonds (облигации
внутреннего
государственного
валютного
займа III
серии).
On 15 January 1999 the first applicant acquired bonds of a total
nominal value 200,000 United States dollars (USD) and the second
applicant acquired bonds of a total nominal value USD 2,010,000.
- On
14 May 1999 the bonds matured and the applicants presented them for
redemption.
- On
11 June 1999 the applicants were informed that Vnesheconombank acting
as the Government's agent refused to redeem the bonds, referring to a
letter of the Ministry of Finance of 14 May 1999 No. 11-02-09
advising the holders of Series III bonds to refrain from presenting
the bonds for redemption for a period of six months in the light of
the unfavourable economic situation in the country. In the same
letter the Ministry undertook to negotiate restructuring of the debt
during this period.
- On
29 November 1999 the Government of Russia issued Order No. 1306
which provided for the existing Series III bonds to be converted into
new bonds of two types with four and eight year maturity periods.
- On
an unspecified date the applicants brought civil proceedings against
the Government, the Ministry of Finance and Vnesheconombank seeking
recovery of the nominal value of the bonds and damages. They also
asked the court to defer the payment of the court fees.
- On
22 March 2000 the Presnenskiy District Court of Moscow awarded the
applicants the nominal value of the bonds and dismissed the claim for
damages. The first applicant was awarded USD 200,000 and the
second applicant was awarded USD 2,010,000.
- On
6 June 2000 the Moscow City Court dismissed the appeal lodged by the
Ministry of Finance and upheld the judgment.
- On
17 July 2000 the applicants submitted writs of execution to
Vneshtorgbank.
- On
20 July 2000 Vneshtorgbank refused to comply with the writs of
execution, referring to an application for supervisory review of the
judgments which was to be lodged by the Prosecutor of Moscow. The
applicants' request to see the application was refused.
- On
10 August 2000 the Prosecutor of Moscow lodged an application for
supervisory review of the judgments.
- On
28 September 2000 the Presidium of the Moscow City Court granted the
application. The Presidium quashed the judgment of 22 March 2000 and
the appeal decision of 6 June 2000 on the grounds that the courts had
erred in interpretation of the law and failed to rule on the issue of
payment of court fees, and remitted the case for a fresh examination.
- On
6 April 2001 the Presnenskiy District Court examined and dismissed
the applicants' claim in full.
- On
22 May 2001 the Presnenskiy District Court delivered an additional
judgment ordering the applicants to pay court fees.
- On
an unspecified date the applicants' appeal against the judgment was
dismissed.
- On
21 November 2002, following a request by the applicants, the
Prosecutor of Moscow lodged an application for supervisory review of
the judgments.
- On
24 December 2002 the Presidium of the Moscow City Court examined the
application and upheld the judgment of 6 April 2001. In the
same proceedings it quashed the judgment of 22 May 2001 concerning
the payment of court fees and remitted it for a fresh examination.
- On
11 August 2003 the Presnenskiy District Court discontinued the
proceedings concerning the court fees.
- On
6 June 2005 the Deputy President of the Supreme Court of the Russian
Federation lodged an application for supervisory review of the
judgment in the applicants' case.
- On
8 August 2005 the Presidium of the Supreme Court decided to adjourn
its examination of the case, apparently pending a ruling from the
Constitutional Court on the matter.
- In
July 2006 the parties informed the Court that the examination of the
case by the Presidium of the Supreme Court was adjourned in
connection with a case pending before the Constitutional Court of the
Russian Federation which concerned a similar issue. Since then the
parties provided no information to the Court about the development of
the case.
II. RELEVANT DOMESTIC LAW
- Section
11 of the Code of Civil Procedure of 1964 (Гражданский
процессуальный
кодекс РСФСР),
as in force at the relevant time, provided that regional and higher
courts could conduct supervisory review of the activities of the
lower courts.
- According
to Sections 319, 320 and 327 of the Code, certain senior judicial
officers could, at any time, at request of the person concerned or on
their own motion, lodge with a higher court an application for
supervisory review of a final decision of a lower court on points of
law and procedure.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicants complained under Article 6 of the Convention about the
decision of 28 September 2000 by which the Presidium of the
Moscow City Court quashed on supervisory review the final judicial
decision in their favour. Article 6, insofar as relevant, reads as
follows:
“1. In the determination of his civil
rights and obligations ... everyone is entitled to a fair and public
hearing...”
- The
Government alleged that the decisions in the applicants' favour had
been erroneous in that the domestic courts wrongly interpreted and
applied the relevant law and that therefore the quashing had been
justified. They contended that the decisions had been reversed with a
view to correct a judicial error. They made no comments concerning
the new supervisory review of the case in 2005, or the subsequent
procedural steps.
- The
applicants contested the Government's submissions and claimed that
their right to the judicial award had not been restored.
A. Admissibility
- 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.
B. Merits
- The
Court reiterates that the right to a fair hearing before a tribunal
as guaranteed by Article 6 § 1 of the Convention must be
interpreted in the light of the Preamble to the Convention, which, in
its relevant part, declares the rule of law to be part of the common
heritage of the Contracting States. One of the fundamental aspects of
the rule of law is the principle of legal certainty, which requires,
among other things, that where the courts have finally determined an
issue, their ruling should not be called into question (see
Brumărescu v. Romania [GC], no. 28342/95, § 61, ECHR
1999-VII).
- The Court has found a violation of the above principle
of legal certainty and of the right to a court in the case of Ryabykh
v. Russia (Ryabykh v. Russia, no. 52854/99,
ECHR 2003 IX) where a final and binding judgment in the
applicant's favour was set aside, on the ground of misinterpretation
of the law, by a higher court in supervisory review proceedings
following an application by a president of a regional court, whose
power to make such applications was not subject to any time-limit, so
that judgments were liable to challenge indefinitely (see Ryabykh,
cited above, §§ 51-58).
- Turning to the circumstances of the present case the
Court observes that, by allowing the application lodged by the
Prosecutor of Moscow, the Presidium of the Moscow City Court set at
naught an entire judicial process which had ended in a final and
binding judicial decision of 22 March 2000, upheld on appeal on 6
June 2000, and was thus res judicata. The Court finds no
reason to depart from its reasoning in the aforementioned Ryabykh
case. It concludes that the setting aside of that decision in
supervisory review proceedings for the sake of correcting an alleged
judicial error violated the principle of legal certainty enshrined in
Article 6 § 1 of the Convention.
- There
has accordingly been a violation of Article 6 § 1 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO
THE CONVENTION
- The
applicants complained under Article 1 of Protocol No. 1 to the
Convention that the quashing on supervisory review of the final
judicial awards in their favour also constituted an unjustified
interference with their right to the peaceful enjoyment of their
possessions. Article 1 of Protocol No. 1 to the Convention reads as
follows:
“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 preceding provisions shall not, however, in any way
impair the right of a State to enforce such laws as it deems
necessary to control the use of property in accordance with the
general interest or to secure the payment of taxes or other
contributions or penalties.”
- The
parties' submissions under this head were the essentially the same as
above.
Admissibility
- In
so far as the applicants' complaints concern the outcome of the civil
proceedings, the Court notes that the examination of their case has
resumed and the proceedings are pending before the domestic courts.
The Court, therefore, considers that it is not called upon to decide
whether the facts alleged by the applicant disclose any appearance of
a violation of Article 1 of Protocol No. 1 to the Convention.
- It follows that therefore this complaint is premature
and this part of the application must be rejected pursuant to Article
35 §§ 1 and 4 of the Convention.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- Lastly,
the applicants complained that the ruling of the Presidium of the
Moscow City Court of 28 September 2000 violated their right to
an effective remedy guaranteed by Article 13 of the Convention, and
that it constituted an abuse of rights prohibited by Article 17 of
the Convention.
- Having
regard to all the material in its possession, and in so far as these
complaints fall within its competence, the Court finds that they do
not disclose any appearance of a violation of the rights and freedoms
set out in the Convention or its Protocols. It follows that this part
of the application must be rejected as being manifestly ill-founded,
pursuant to Article 35 §§ 3 and 4 of the Convention.
IV. 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.”
A. Damage
- The
applicants each claimed a compensation of pecuniary and non-pecuniary
damage. The first applicant's claims in respect of pecuniary damage
included 37,600 United States dollars (USD) representing the nominal
value of the bonds and USD 141,818 of accrued interest, plus
penalties. The second applicant's claims in respect of pecuniary
damage included USD 386,000 representing the nominal value of
the bonds and USD 1,431,807 of accrued interest, plus penalties. In
respect of non-pecuniary damage the applicants each claimed USD
10,000.
- The
Government contested the applicants' claims as excessive and
unfounded.
- The
Court notes that the applicants' claims as regard pecuniary damage
related to the alleged violation of their right to the peaceful
enjoyment of possessions. In view of the above finding that this
complaint is inadmissible, the Court rejects this part of the claims.
As regards non-pecuniary damage, it considers
that the applicants must have suffered frustration and a feeling of
injustice as a consequence of the reversal of the final judicial
decision in their favour. Accordingly, making its assessment on an
equitable basis, it awards the applicants 2,000 euros each for
non-pecuniary damage, plus any tax that may be chargeable on that
amount.
B. Costs and expenses
- The applicants did not make any
claim in respect of the costs and expenses incurred before the
domestic courts or in the proceedings before the Court. Accordingly,
the Court makes no award under this head.
C. Default interest
- 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
- Declares the complaint under Article 6 § 1
concerning the quashing of the judgment by way of supervisory review
admissible and the remainder of the application inadmissible;
- Holds that there has been a violation of
Article 6 § 1 of the Convention on account of the quashing
of the judgment of 22 March 2000, upheld on appeal on 6 June 2000;
- Holds
(a) that
the respondent State is to pay each applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 2,000 (two
thousand euros) in respect of non-pecuniary damage, plus 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;
- Dismisses the remainder of the applicants' claim
for just satisfaction.
Done in English, and notified in writing on 28 June 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
