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FIRST
SECTION
CASE OF ZALEVSKAYA v. RUSSIA
(Application
no. 23333/05)
JUDGMENT
STRASBOURG
11
February 2010
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 Zalevskaya v.
Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis,
President,
Anatoly Kovler,
Khanlar Hajiyev,
Dean
Spielmann,
Sverre Erik Jebens,
Giorgio
Malinverni,
George Nicolaou, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 21 January 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 23333/05) 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 a Russian national, Ms Marina Vasilyevna
Zalevskaya (“the applicant”), on 5 June 2005 and on 30
June 2007.
- The
applicant was represented by Mr A. Brykin, a lawyer practising in
Novoaltaysk, the Altai Region. The Russian Government (“the
Government”) were represented by Mr G.
Matyushkin, Representative of the Russian Federation at the European
Court of Human Rights.
- On
20 November 2008 the President of the First Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1977 and lives in Novoaltaysk.
- On
3 July 2003 the Industrialniy District Court of Barnaul granted,
in part, claims brought by a certain Z. against the applicant and,
inter alia, recognised his title to a share in a flat owned by
the applicant.
- On
13 August 2003 the Altai Regional Court quashed the judgment of
3 July 2003 on the applicant’s appeal and dismissed Z.’s
claims. This appeal judgment became final and binding.
- On
9 February 2004 the applicant sold the flat to a third person, S.
- On
27 July 2004 Z. lodged an application for supervisory review of the
case.
- On
5 November 2004 a judge of the Altai Regional Court sent the case to
its Presidium for consideration by way of supervisory review.
- On
7 December 2004 the Presidium of the Altai Regional Court
reassessed the evidence, quashed the appeal judgment of 13 August
2003 and upheld the judgment of 3 July 2003, granting Z.’s
claims in part.
- According
to the applicant, neither she nor her lawyer attended the hearing due
to the authorities’ failure to notify them of its date and
time.
II. RELEVANT DOMESTIC LAW
- The
relevant domestic law governing the supervisory review procedure at
the material time is summed up in the Court’s judgment in the
case of Sobelin and Others
(see Sobelin and Others v. Russia,
nos. 30672/03, et seq., §§ 33-42, 3 May
2007).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION AND OF ARTICLE 1 OF PROTOCOL No. 1 ON ACCOUNT OF
SUPERVISORY REVIEW
- The
applicant complained under Article 6 § 1 of the Convention and
under Article 1 of Protocol No. 1 that the appeal judgment of 13
August 2003 had been quashed by way of supervisory review on 7
December 2004. She also complained under Article 6 § 1 that she
had not been informed about the hearing in the supervisory-review
proceedings. In so far as relevant,
these Articles read as follows:
Article 6 § 1
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing ...
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.[...]”
A. Admissibility
- The Court notes that the complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
1. Article 6 of the Convention
(a) Supervisory review: legal certainty
- The
Government argued that the supervisory review had been compatible
with the Convention since it was aimed to correct a fundamental
error, that the application for supervisory review had been lodged
within the prescribed time-limit, that the Presidium did not reassess
the evidence but only agreed with the assessment made by the court of
first instance and that the applicant had been
properly notified about the time and place of the supervisory-review
hearing. The applicant maintained his
complaint.
- The
Court reiterates that for the sake of legal certainty implicitly
required by Article 6, final judgments should generally be left
intact. They may be disturbed only to correct fundamental errors. The
mere possibility of there being two views on the subject is not a
ground for re examination (see Ryabykh
v. Russia,
no. 52854/99, §§ 51-52,
ECHR 2003 IX).
- The Court reiterates that it has
frequently found violations of the principle of legal certainty and
of the right to a court in the supervisory review proceedings
governed by the Code of Civil Procedure in force since 2003 (see,
among other authorities, Sobelin and
Others, cited above, §§
57-58, and Bodrov v. Russia,
no. 17472/04, § 31, 12 February 2009).
- In the present case the final
and binding appeal judgment was quashed because the Presidium
disagreed with the assessment made by the appeal court,
which is not in itself an exceptional circumstance warranting the
quashing (see Kot v. Russia,
no. 20887/03, § 29, 18 January 2007). Accordingly,
there has been a violation of Article 6 § 1 of the Convention.
(b) Supervisory review: procedural issues
- As
to the alleged violation of the applicant’s procedural rights
in the supervisory review proceedings, the Court considers that given
the finding of a violation by the very use of supervisory review, it
is unnecessary to examine this complaint (see
Ryabykh, cited above,
§ 59).
2. Article 1 of Protocol No. 1
- The
Court further observes that under the final appeal judgment
the applicant maintained her title to the contested part of the flat.
Its quashing in breach of the principle of legal certainty frustrated
the applicant’s reliance on it. Accordingly, there has
also been a violation of Article 1 of Protocol No. 1.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant also complained under Article 6 about the allegedly
unlawful composition of the tribunal.
However,
the applicant did not raise this issue either
in the course of the proceedings at the first level of jurisdiction
or in her points of appeal against the judgment rendered by the
tribunal in question.
- Lastly,
in the application form submitted on
30 June 2007 the applicant complained under Article 8 of
the Convention that the findings of the supervisory-review court had
a negative effect on her family life. Even
assuming that the complaint could raise an issue under Article 8,
the applicant introduced it too late. The proceedings in question
ended on 7 December 2004, whereas the applicant raised the
complaint for the first time in her application form as of 30 June
2007.
- It
follows that these complaints must be rejected as inadmissible in
accordance with Article 35 §§ 1 and 4 of the Convention.
III. 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
applicant claimed 10,000 euros (EUR) in respect of non-pecuniary
damage.
- The
Government contested this claim.
- As
to pecuniary damage, the Court makes no award as there was no
relevant claim made by the applicant.
- As
to non-pecuniary damage, the Court considers that the applicant must
have suffered distress and frustration resulting from the quashing of
the final and binding appeal judgment in her favour. However,
the amount claimed appears excessive. Making its assessment on an
equitable basis, the Court awards the applicant EUR 3,000
in respect of non-pecuniary damage, plus any
tax that may be chargeable.
B. Costs and expenses
- The
applicant also claimed EUR 500.17 for the costs and expenses.
- The
Government contested this claim in part, noting that she submitted
the documents according to which she had spent only EUR 148.87
for representation of her interests before the Court.
- According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum. In the present case, regard being had to
the documents in its possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 484.47 covering costs
under all heads, plus any tax that may be chargeable to the applicant
on this account.
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 complaints concerning the supervisory review proceedings
admissible and the remainder of the application inadmissible;
- Holds
that there has been a violation of Article 6 of the Convention and of
Article 1 of Protocol No. 1 in respect of the quashing by way of
supervisory review of the final appeal judgment in the applicant’s
favour;
- Holds
that there is no need to examine the complaints under Article 6 of
the Convention concerning the alleged violation of the applicant’s
procedural rights in the supervisory review proceedings;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following
amounts, to be converted into Russian roubles at the rate applicable
at the date of settlement:
(i) EUR
3,000 (three thousand euros), plus any tax that
may be chargeable, in respect of non-pecuniary damage;
(ii) EUR
484.47 (four hundred and eighty four euros and forty seven cents),
plus any tax that may be chargeable to the applicant, 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 applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 11 February 2010,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
