CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 11 mai 2021

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RUSSIA (Application no. 1667/11)           JUDGMENT   STRASBOURG 11 May 2021   This judgment is final but it may be subject to editorial revision. In the case of Mutsayeva v. Russia, The European Court of Human Rights (Third Section), sitting as a Committee composed of:   Darian Pavli, President,   Dmitry Dedov,   Peeter Roosma, judges, and Olga Chernishova, Deputy Section Registrar, Having regard to: the application 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 Raisa Abdulovna Mutsayeva (“the applicant”), on 8 December 2010; the decision to give notice to the Russian Government (“the Government”) of the application; the parties’ observations; the decision to reject the Government’s objection to examination of the application by a Committee; Having deliberated in private on 30 March 2021, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The case concerns alleged breaches of Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention on account of the quashing of the final judgment recognising the applicant’s ownership of a house on the grounds of newly discovered circumstances. THE FACTS 2.     The applicant was born in 1956 and lives in Grozny (Chechen Republic). She was represented by Mr I.Y. Timishev, a lawyer. 3.     The Government were represented by Mr   M.   Galperin, Representative of the Russian Federation to the European Court of Human Rights. 4.     The facts of the case, as submitted by the parties, may be summarised as follows. FIRST SET OF PROCEEDINGS 5.     The applicant and a certain O.M. were in dispute regarding a house located in Grozny (“the house”). Two judgments concerning the same house 6 .     On 25   October 2004 the Leninskiy District Court of Grozny (“the District Court”), ruling in special non-contentious proceedings (в особом производстве) on O.M.’s claim, established the fact of the latter’s ownership of the house (“the first judgment”). The applicant was not involved in those proceedings. 7 .     On 1   March 2005 the District Court, ruling in non-contentious proceedings, granted the applicant’s claim and established the fact of her ownership of the same house (“the second judgment”). O.M. was not involved in those proceedings. The judgment was based on the testimony of witnesses H.U. and A.P. Quashing of the two judgments 8 .     On 16   December 2005 the District Court granted O.M.’s request and quashed its second judgment on the grounds of newly discovered circumstances, namely the first judgment. 9 .     On 25   January 2006 the District Court granted the applicant’s request and quashed its first judgment on the grounds of newly discovered circumstances, namely the second judgment. SECOND SET OF PROCEEDINGS 10.     On an unspecified date the applicant lodged a claim in contentious proceedings (в исковом производстве) with the District Court against O.M. seeking to recognise her ownership of the disputed house. O.M. lodged a counterclaim to recognise her ownership of the house. 11.     On 4   May 2006 the District Court found for the applicant and dismissed O.M.’s counterclaim. O.M. did not appeal. After the judgment had been delivered, O.M. asked to quash the judgment, submitting a decision of 3   April 2006 on institution of criminal proceedings against the applicant on the charge for falsification of evidence and fraud. On 23   May 2006 the District Court quashed its judgment of 4   May 2006 on the ground of newly discovered circumstances (institution of the criminal proceedings). 12.     On 26   February 2007 the District Court, having examined the case for the second time, found for the applicant and dismissed O.M.’s counterclaim. On 14   August 2007 the Supreme Court of Chechnya quashed the judgment of 26   February 2007 on cassation, following the appeal of O.M., on the basis of lack of assessment of certain documents by the first ‑ instance court, and remitted the case for fresh examination. 13 .     On 3   April 2008 the District Court again found for the applicant (for the third time), recognised her ownership of the disputed house and dismissed O.M.’s counterclaim. In its judgment the court referred to the testimony of ten witnesses (M.U., A.U., R.U., D.A., T.A., L.D., and A.R. interviewed during the trial and the written testimony of H.U., L.De. and S.M.). 14.     On 29   July 2008 the Supreme Court of Chechnya dismissed O.M.’s appeal and upheld the judgment of 3   April 2008 on cassation; the judgment became final. THIRD SET OF PROCEEDINGS AND THE APPLICANT ’ S CRIMINAL CONVICTION 15 .     On 17 June 2010, the District Court granted O.M.’s request and quashed the judgment of 3   April 2008 (paragraph   13 above) on the ground of newly discovered circumstances, referring to an order of an investigator of 15   September 2008. In that order, the investigator declared the testimony of M.I. and A.V. false, as they had allegedly participated as witnesses in the non ‑ contentious proceedings initiated by the applicant in 2005 (paragraph   7 above). 16 .     On 12 October 2010, as a result of a fresh examination of the case, the District Court found for O.M. and dismissed the applicant’s claim, referring to the same testimony as the judgment of 3   April 2008 (paragraph   13 above), without any references to the criminal proceedings against the applicant or to any false testimony. On 28 December 2010 the Supreme Court of Chechnya upheld the judgment on cassation. 17.     On 31 December 2010 the Zavodskoy District Court of Grozny found the applicant guilty of fraud and falsification of evidence. The court referred to the false testimony of M.I. and A.V. (paragraph 15 above). RELEVANT LEGAL FRAMEWORK 18 .     Article 392 (2) of the Code of Civil Procedure (“CCP”) entitled “Reconsideration of judgments on the grounds of newly discovered circumstances” provides: “The grounds for reconsideration (...) shall be: 1) significant circumstances which were not and could not have been known to the party who applies for reconsideration; (...)” Other relevant provisions of the CCP on reconsideration of judgments on the grounds of newly discovered circumstances are exposed in the judgment of Baturlova v.   Russia (no.   33188/08, §   19, 19   April 2011). THE LAW ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 19.     The applicant complains about the quashing on 17   June 2010 of the final judgment delivered in her favour on 3   April 2008. She refers to Article   6   §   1 of the Convention, which, in so far as relevant, reads as follows: “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 ...” Admissibility 20.     The Court notes that this complaint 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. Merits The parties’ submissions 21.     The Government submitted that M.I. and A.V. had testified during the court hearing held on 1   March 2005, and that the District Court in its judgment of 3   April 2008 referred to the same testimony. It also submitted that the fact of falsification had been established only after the delivery of the aforementioned judgments and thus constituted a newly discovered circumstance within the meaning of domestic legislation. 22.     The applicant argued that the judgment of 3   April 2008 had not been based on the testimony of those two witnesses, nor did the District Court refer to the judgment of 1   March 2005, as it had been already quashed. The Court’s assessment 23 .     The Court reiterates that quashing of judgments because of newly discovered circumstances is not by itself incompatible with the requirement of fair hearing, but the manner of its application may be ( see, mutatis mutandis , Baturlova v.   Russia , no.   33188/08, §   45, 19   April 2011 , with a further reference). The person applying for rescission should show that there was no opportunity to present an item of evidence at the final hearing and that the evidence is decisive ( Pravednaya v.   Russia , no.   69529/01, §   27, 18   November 2004, and also paragraph   18 above). The Court reiterates also that it should not act as a court of fourth instance and will not therefore question under Article 6   §   1 the judgment of the national courts, unless their findings can be regarded as arbitrary or manifestly unreasonable (see, among many other authorities, Bochan v.   Ukraine (no.   2) [GC], no.   22251/08, §   61, ECHR 2015, with further references). In particular, a judgment is manifestly unreasonable if it does not contain any connection between the established facts, the applicable law and the outcome of the proceedings (see Anđelković v.   Serbia , no.   1401/08, §   27, 9   April 2013). 24.     Turning to the present case, the Court observes that the final judgment of 3   April 2008 in the applicant’s favour was quashed two years later, on 17   June 2010 (paragraph   15 above) on the ground that M.I. and A.V. had provided false testimony in support of the applicant’s position. It is conceivable that these circumstances were not known at the material time therefore, the first condition for rescission under Russian law (see paragraphs   18 and 23 above) was respected in the present case. As for the second condition, namely the significant or decisive character of the evidence, the Court notes that the quashed judgment neither referred to the testimony of these two persons nor contained any reference to the already quashed judgment of 1   March 2005 which, in its turn, had not been based on that testimony (paragraphs   7 and 9 above). Therefore, not only did the testimony not appear to be of a decisive or significant character, but it also lacked any evidentiary value and was not related to the case. 25.     In the light of the above, the Court cannot discern a connection between the established facts (false testimony of witnesses who were not mentioned in the judgment) and the grounds for quashing this judgment (see, mutatis mutandis , Anđelković, cited above, §   27, and Adikanko and Basov ‑ Grinev v.   Russia , nos.   2872/09 and 20454/12, §     50, 13   March 2018). 26.     Lastly, the Court notes that in the fresh examination of the case, the District Court in its judgment of 12   October 2010 gave a fundamentally different assessment of the factual background on the basis of the exactly same evidence as the previous set of proceedings, without having envisaged those allegedly “newly discovered circumstances” (paragraph   16 above). 27 .     Under these circumstances, the Court finds that the domestic courts, having quashed the final judgment of 3 April 2008 and subsequently reopened the proceedings which resulted in the opposite outcome to the previous sets of proceedings (see paragraph   13 above), did not give the applicant’s case a fair hearing. There has accordingly been a violation of Article 6   §   1 of the Convention. ALLEGED VIOLATION OF ARTICLE   1 OF PROTOCOL N o .   1 TO THE CONVENTION 28.     The applicant contended that she had been unlawfully deprived of her house as a result of quashing the final judgment in her favour. She relied upon Article   1 of Protocol No.   1, which provides, in so far as relevant, 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 (...)”. 29.     Having regard to its conclusion under Article 6   §   1 of the Convention (see paragraph 27 above), the Court considers that there is no need to examine the admissibility and merits of the complaint submitted by the applicant under Article 1 of Protocol No.   1 separately, because it is closely linked to the complaint under Article 6   §   1 and is based on the same facts (see S.C.   Britanic World S.R.L. v.   Romania , no.   8602/09, §   50, 26   April 2016, and Magomedov and Others v.   Russia , nos.   33636/09 and 9   others, §   103, 28   March 2017). 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.” 31.     The applicant claimed 47,552.16 euros (EUR) in respect of pecuniary damage (the amount allegedly constituting the market price of the house) and EUR   7,500 in respect of non-pecuniary damage. The Government contested this claim as being unsubstantiated. 32.     The Court notes that the applicant did not submit any document or calculation whatsoever demonstrating the market price of the house at the material time, that is when the final judgment in her favour was quashed therefore, it does not make any award under this head. 33.     It further notes that the finding of a violation of the Convention by the Court in the present judgment opens the possibility for the applicant to request the reopening of the proceedings under Article 392 of the Code of Civil Procedure (see Yevdokimov and Others v. Russia , nos.   27236/05 and 10   others, §§ 9 and 59, 16 February 2016, with further references). Consequently, reopening the civil proceedings and a review of the matter in the light of the conclusions reached by the Court in the present case would be the most appropriate means of affording reparation to the injured party. 34.     As regards non-pecuniary damage, the Court, having regard to the documents in its possession and to its case-law, accepting that the breach of Article 6 has caused the applicant non-pecuniary damage which cannot be compensated by the mere finding of a violation, considers it reasonable to award the applicant EUR 2,000, plus any tax that may be chargeable on this amount. 35.     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, Declares the complaint under Article 6   §   1 of the Convention admissible; Holds that there has been a violation of Article 6   §   1 of the Convention; Holds that there is no need to examine separately the admissibility and merits of the complaint lodged under Article   1 of Protocol No.   1 to the Convention; Holds (a)   That the respondent State is to pay the applicant, within three months, EUR 2,000 (two thousand euros) in respect of non-pecuniary damage, 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; (b)   that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount 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 May 2021, pursuant to Rule   77   §§   2 and 3 of the Rules of Court. ature_p_1}   {signature_p_2 Olga Chernishova   Darian Pavli Deputy Registrar   President