CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 11 juin 2015

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .s99A63BFE { margin-top:0pt; margin-bottom:0pt; text-align:left; font-size:11pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s4ACA9207 { page-break-before:always; clear:both; mso-break-type:section-break } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sB9D5CABB { width:28.35pt; display:inline-block } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s79DE5897 { margin-top:18pt; margin-left:17.85pt; margin-bottom:12pt; text-indent:-17.85pt; page-break-inside:avoid; page-break-after:avoid } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .sFFDB3684 { margin-top:18pt; margin-left:14.2pt; margin-bottom:12pt; text-indent:-14.2pt; page-break-inside:avoid; page-break-after:avoid } .sC422C878 { margin-top:0pt; margin-bottom:0pt; text-indent:17.85pt } .sE5273FBD { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:center; font-size:10pt } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .s7ED160F0 { text-decoration:none } .sC36A6361 { font-family:Arial; color:#000000 } .sAB0FFF87 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; page-break-after:avoid } .sBB355983 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s583D00FA { margin-top:0pt; margin-left:17pt; margin-bottom:0pt; text-indent:-17pt } .s26FF04E7 { margin-top:0pt; margin-left:17.3pt; margin-bottom:0pt } .s64E792FA { margin-top:0pt; margin-left:39.7pt; margin-bottom:0pt } .s4B243ECC { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .sF7A4323 { margin-top:36pt; margin-bottom:0pt; text-align:left } .s4DFDBCC7 { width:188.96pt; display:inline-block } .sA2E62387 { width:204.97pt; display:inline-block }       FIRST SECTION               CASE OF KOBERNIK v. RUSSIA   (Application no. 30711/03)                   JUDGMENT         STRASBOURG   11 June 2015           This judgment is final but it may be subject to editorial revision.   In the case of Kobernik v. Russia, The European Court of Human Rights (First Section), sitting as a Committee composed of:   Khanlar Hajiyev, President,   Julia Laffranque,   Erik Møse, judges, and André Wampach, Deputy Section Registrar, Having deliberated in private on 19 May 2015, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 30711/03) 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, Mr Viktor Vasilyevich Kobernik (“the applicant”), on 27 August 2003. 2.     The Russian Government (“the Government”) were represented by Ms V. Milinchuk, former Representative of the Russian Federation at the European Court of Human Rights, and subsequently by Mr   G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights. 3.     On 20 September 2007 the application was communicated to the Government. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 4.     The applicant was born in 1946 and lives in Bataysk, Rostov Region. 5.     In 1987 the applicant took part in emergency operations at the site of the Chernobyl nuclear plant disaster. As a result the applicant suffered from extensive exposure to radioactive emissions. 6.     In 1993 due to that fact he was granted status of a disabled person and awarded a monthly compensation, to be adjusted once a year in line with the minimum subsistence amount ( величина прожиточного минимума ). A.     First round of court proceedings 7.     In 2002 the applicant brought proceedings against the Bataysk Social Security Office ( Отдел социальной защиты населения г. Батайска ) seeking indexation of the compensation amount and payment of the respective arrears for the previous years. 8 .     On 21 January 2003 the Bataysk Town Court rendered a judgment ordering the increase of the monthly allowances due to the applicant in line with the increase of the minimal subsistence amount in the Rostov Region. In re-calculating the amount of the applicant’s allowances the court applied the multiplier of 1.92 based on the data provided by the regional committee on statistics. As a result, the monthly allowance increased up to 4,800   Russian roubles (RUB), and monthly food allowance increased up to RUB 576. The court ordered the defendant to pay the applicant the recalculated amount as from 1 January 2002 less the sums already paid. On 16 April 2003 the judgment was upheld on appeal by the Rostov Regional Court and entered into force. B.     Supervisory review proceedings 9.     On an unspecified date the Bataysk Social Security Office appealed to the Rostov Regional Court by way of supervisory review seeking to quash the judgment of 21   January 2003. On 30   June   2003 the judge-rapporteur refused to initiate the supervisory review proceedings. 10.     On an unspecified date the Bataysk Social Security Office lodged a new supervisory review complaint, now with the President of the Rostov Regional Court. The President granted the application. On 24   October   2003 the case was transferred to the Presidium of the Rostov Regional Court for the examination on the merits. 11 .     On 4 December 2003 the Presidium of the Rostov Regional Court quashed the judgment of 21 January 2003 stating that the first instance court’s calculation of the compensation amount had not been supported by evidence and that the first instance court had misinterpreted the domestic law. The case was remitted to the Bataysk Town Court for a fresh examination. C.     Second round of court proceedings 12 .     On 25 December 2003 the Bataysk Town Court reduced the multiplier to 1.25, recalculated the compensation amount and reduced it to RUB 3,125. In this set of proceedings the applicant amended his claims and dropped the food allowance claim.   The applicant did not appeal against this judgment. D.     Other court proceedings 13 .     On 20 January 2010 the Bataysk Town Court had awarded the applicant pecuniary damages in the amount of RUB 76,061.40 for the period from 1 July 2000 to 4 December 2007, which were paid to the applicant in July 2010. There is no information as to the grounds for the claim of the damages. Nor related documents were provided. II.     RELEVANT DOMESTIC LAW 14.     The relevant domestic law concerning supervisory review in force in the material time is summed up in the Court’s judgment in the case of Gavrilenko v. Russia , no. 30674/03, §§ 23-24, 15 February 2007. 15.     The relevant domestic law concerning enforcement proceedings in force at the material time is summed up in the Court’s judgment in the case of Pridatchenko and Others v. Russia , nos.   2191/03 et al., §§   33-39, 21   June 2007. THE LAW I.     ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1 ON ACCOUNT OF THE SUPERVISORY REVIEW 16 .     The applicant complained that the quashing of the judgment of 21   January 2003 in his favour, as upheld on appeal, violated his rights under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1, which, insofar as relevant, provide as follows: Article 6 § 1 “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... 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 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.” A.     Admissibility 17.     The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.     Arguments of the parties 18.     The Government brought the same arguments as in previous cases based on the similar facts which had been examined by the Court (see Boris Vasilyev v. Russia , no. 30671/03, § 24, 15 February 2007, and Gavrilenko , cited above, §§ 26-29). 19.     The Government also submitted that the State authority challenged the judgment in supervisory review only after its attempts to challenge that judgment on appeal turned to be unsuccessful and that the State authority was consistent in its arguments about application of the misinterpretation of the domestic law on the appeal level and supervisory review level. 20.     The applicant maintained his complaints. C.     The Court’s assessment 21.     The Court reiterates that for the sake of legal certainty, a principle which is enshrined in Article 6 of the Convention, final judgments should in principle 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). 22.     The Court has previously addressed the arguments of the Government and dismissed them, having found a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 in similar circumstances (see Gavrilenko, cited above, §§   35-42, and Boris Vasilyev , cited above, §§   31-39). The Court considers that there is no reason to depart from those findings in the present case. Even though, as pointed out by the Government, the State authority only brought the supervisory-review proceedings after having made use of the ordinary appeal procedure, the Court notes that, in any event, the final judgment in the applicant’s favour was set aside solely on the ground that the lower courts had incorrectly interpreted the substantive domestic law, that ground not constituting a fundamental defect within the meaning of the Court’s case ‑ law (ibid.). 23.     There has, accordingly, been a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1. II.     ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1 ON ACCOUNT OF LENGTHY NON-ENFORCEMENT 24.     The applicant complained of lengthy non-enforcement of the judgment of 21 January 2003 under Article 6 of the Convention and Article   1 of Protocol No. 1, both cited in paragraph 16 above. 25.     The Government claimed that the application in the part concerning the complaints of non-enforcement was inadmissible, since the applicant had not exhausted domestic remedies, such as a negligence complaint against the respondent authorities or bailiffs, and that in any event the enforcement period did not exceed one year. 26.     The Court has found on many occasions that the remedies suggested by the Government did not satisfy the requirements of Article 35 § 1 of the Convention (see, for example, Plotnikovy v. Russia , no. 43883/02, §§   13-18, 24 February 2005). It follows that the complaint cannot be rejected for non ‑ exhaustion of domestic remedies. 27.     The Court notes that the applicant’s complaint is not manifestly ill ‑ founded within the meaning of Article 35 § 3 of the Convention and it is not inadmissible on any other grounds. It must therefore be declared admissible. 28.     The Court further observes that in the present case the judgment of 21   January 2003 was enforceable until the date of its quashing. Having regard to its finding of violation of Article 6 of the Convention and Article 1 of Protocol No. 1 on account of the quashing of this judgment in supervisory-review proceedings, the Court finds that it is not necessary in these circumstances to examine separately the issue of its non-enforcement by the authorities (see Boris Vasilyev , cited above, §§   41-42, and Sobelin and Others v. Russia , nos.   30672/03 et al., §§   67-68, 3 May 2007). III.     APPLICATION OF ARTICLE 41 OF THE CONVENTION 29.     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 30.     The applicant claimed 771,124.18 Russian roubles in respect of pecuniary damage, that amount representing the difference between the sum awarded by the judgment of 21 January 2003 (see paragraph 8 above) and the sum awarded by the new judgment of 25 December 2003 (see paragraph 12 above), as adjusted to minimum wage and multiplied by the number of months from 1 June 2000 till 1 August 2010. 31 .     The Government submitted that damage award had been made on domestic level (see paragraph 13 above). However, no further information on the nature of the mentioned damage award was provided. 32.     The Court recalls that in general the most appropriate form of redress in respect of violations found is to put applicants as far as possible in the position they would have been in if the Convention requirements had not been disregarded (see Piersack v. Belgium (Article 50), 26   October 1984, § 12, Series A no. 85; and, mutatis mutandis , Gençel v.   Turkey , no.   53431/99 , § 27, 23 October 2003; and also Dovguchits v. Russia , no.   2999/03, § 48, 7 June 2007). 33.     In the instant case the Court found a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1, in that the judgment in the applicant’s favour had been quashed by way of supervisory review. Insofar as the applicant did not receive the money he had legitimately expected to receive under this final judgment in the period until it was quashed, there is a causal link between the violations found and the applicant’s claims in respect of pecuniary damage. 34.     Although the Government stated that pecuniary damage of the applicant had been compensated (see paragraph 31 above), they failed to provide information about the nature of such compensation or to submit the related documents. On this basis, the Court cannot accept the argument that the applicant’s pecuniary damage has been compensated by the State authorities. 35.     As regards the applicant’s claim in respect of his future pecuniary loss, the Court recalls that after the final judgment was quashed it ceased to exist under domestic law; the Court can neither restore the power of this judgment, nor assume the role of the national authorities in awarding social benefits for the future (see Tarnopolskaya and Others v. Russia , nos.   11093/07 et al., § 51, 7 July 2009, with further references). The Court can only therefore award the sums which should have been paid until the date on which a new judgment was rendered after the quashing by way of supervisory review. Consequently, no pecuniary awards can be made for the period after that decision was taken. Having regard to this the Court awards the applicant 1,370 euros (EUR) in respect of pecuniary damage. 36.     The Court furthermore finds that the applicant has suffered non ‑ pecuniary damage as a result of the violations found which cannot be compensated by the mere finding of a violation. Having regard to the circumstances of the case and making its assessment on an equitable basis, the Court awards to the applicant the sum of EUR 2,000 in respect of non ‑ pecuniary damage, plus any tax that may be chargeable on that amount and rejects the remainder of the claim under this head. B.     Costs and expenses 37.     The applicant did not claim any costs or expenses. Accordingly, the Court does not make any award under this head. C.     Default interest 38.     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.     Declares the application admissible;   2.     Holds that there has been a violation of Article 6 of the Convention and Article 1 of Protocol No. 1 on account of the quashing of the judgment of 21 January 2003 in favour of the applicant;   3.     Holds that there is no need to examine the complaint under Article 6 of the Convention and Article 1 of Protocol No. 1 on account of lengthy non-enforcement of the judgment of 21 January 2003;   4.     Holds (a)     that the respondent State is to pay the applicant, 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: (i)     EUR 1,370 (one thousand three hundred and seventy euros), plus any tax that may be chargeable, in respect of pecuniary damage; (ii)     EUR 2,000 (two thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (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;   5.     Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 11 June 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. André Wampach   Khanlar Hajiyev Deputy Registrar   President