Постановление Европейского суда по правам человека от 14.01.2010 «Дело Казакевич и 9 других дел военных пенсионеров (kazakevich and 9 other army pensioners) против России» [англ.]

Город принятия

(Applications Nos. 14290/03, 19089/04, 42059/04, 27800/04,

43505/04, 43538/04, 3614/05, 30906/05, 39901/05 and 524/06)
(Strasbourg, 14.I.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 Kazakevich and 9 other "army pensioners" cases v. Russia,

The European Court of Human Rights (First Section), sitting as a Chamber composed of:

Christos Rozakis, President,

Nina {Vajic}*,

*Здесь и далее по тексту слова на национальном языке набраны латинским шрифтом и выделены фигурными скобками.

Anatoly Kovler,

Elisabeth Steiner,

Khanlar Hajiyev,

Dean Spielmann,

Sverre Erik Jebens, judges,

and {Soren} Nielsen, Section Registrar,

Having deliberated in private on 15 December 2009,

Delivers the following judgment, which was adopted on the last-mentioned date:

1. The case originated in ten applications (Nos. 14290/03, 19089/04, 42059/04, 27800/04, 43505/04, 43538/04, 3614/05, 30906/05, 39901/05 and 524/06) 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 ten Russian nationals ("the applicants"). The applicants' names and the dates of their applications to the Court appear in the table below.

2. The applicant V. Kazakevich was represented by Mr R. Martinovskiy, a lawyer practising in Sebastopol. The applicant V. Zorin was represented by Mr D. Chilikov, a lawyer practising in Vologda. Other applicants were not represented by a lawyer.

3. The Russian Government ("the Government") were represented by Mr P. Laptev and Ms V. Milinchuk, former representatives of the Russian Federation at the Court, and by Mr G. Matyushkin, the Representative of the Russian Federation at the Court.

4. The applicants complained inter alia of the quashing on supervisory-review of binding and enforceable judgments delivered in their favour between 2000 and 2004.

5. On various dates the President of the First Section decided to communicate these complaints to the respondent Government. It was also decided in all cases to examine the merits of the applications at the same time as their admissibility (Article 29 § 3). The Government objected to the joint examination of the admissibility and merits in several cases, but the Court rejected this objection.

I. The circumstances of the cases
6. The applicants' names and other details are indicated in the table below. All the applicants except Ms Odintsova are Russian retired servicemen entitled to payment of pensions by the State. Ms Odintsova is the widow of a colonel who died in the crash of a training aircraft.

7. On various dates the applicants sued the military commissions in their regions and, in case of Kazakevich and Osipov, the Ministry of Defense and the Federal Security Service (FSB) respectively, claiming payment of a pension or increase of pensions on account of their military service and, in the case of Odintsova, on account of her husband's death.

8. The domestic courts granted the applicants' claims (see details of the judgments in the table below). The judgments in cases of Sukchev and Zamakhayev were upheld on appeal; other judgments were not appealed against by the defendant authorities. All the judgments in the applicants' favour thus became binding and enforceable on the dates indicated in the table below.

9. On various dates the Presidiums of higher courts allowed the defendant authorities' applications for supervisory review and quashed the judgments in the applicants' favour, considering that the lower courts misapplied the material law (see details of the judgments in the table below). In the cases of Odintsova and Osipov the Presidiums dismissed the applicants' claims by the same judgments. In the other cases the Presidiums sent the cases back to the first instance courts, which later dismissed the applicants' claims.

10. In five cases (Kazakevich, Odintsova, Osipov, Sukchev and Zamakhayev), the judgments in the applicants' favour were not enforced. In the other five cases (Legkov, Afanasyev, Polyanskiy, Malakhov and Zorin), the judgments in the applicants' favour were enforced as regards the lump sum and/or monthly awards. It appears that the payment of monthly awards was stopped a short time before or after the quashing of the judgments on supervisory review.

11. In the case of Odintsova, the Samarskiy District Court of Samara delivered on 27 May 2003 another judgment in the applicant's favour, granting pension arrears and a sum of 2,500.00 Russian roubles (RUB) as compensation for non-pecuniary damage and costs. The judgment was not appealed against and became enforceable on 6 June 2003. The Government submitted that all awards had been credited to the applicant's bank account on 12 August 2003 and that a separate sum of RUB 2,500.00 had again been credited to the applicant's account on 9 November 2004 as a result of a clerical error. The applicant submitted that the pension arrears awarded by the court had been credited to her account on 3 September 2003 but the remainder award of RUB 2,500.00 had only been credited in November 2004.

12. On 24 December 2001 Ms Odintsova filed a separate lawsuit against the Ministry of Defense, claiming compensation in respect of pecuniary and non-pecuniary damage. On 2 October 2003 the Kirovskiy District Court of Samara rejected her claims. On 11 November 2003 the Samara Regional Court upheld the judgment on appeal.

II. Relevant domestic law
13. 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 al., §§ 33 - 42, 3 May 2007).

14. In 2001 - 2005 judgments delivered against the public authorities were executed in accordance with a special procedure established, inter alia, by the Government's Decree No. 143 of 22 February 2001 and, subsequently, by Decree No. 666 of 22 September 2002, entrusting execution to the Ministry of Finance (see further details in Pridatchenko and Others v. Russia, Nos. 2191/03 et al., §§ 33 - 39, 21 June 2007).

I. Joinder of the applications
15. Given that these ten applications concern similar facts and complaints and raise almost identical issues under the Convention, the Court decides to consider them in a single judgment.

II. Alleged violation of Article 6 and Article 1
of Protocol No. 1 on account of the quashing of
the judgments in the applicants' favour
16. All applicants complained of violations of Article 6 on account of the quashing of the binding and enforceable judgments in their favour by way of supervisory review. Most of them also complained of violations of Article 1 of Protocol No. 1 in relation to the same facts. The Court will consider all the cases in the light of both provisions, which insofar as relevant, read as follows:

Article 6 § 1
"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
"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
1. Alleged abuse of the right to individual petition
in the case of Polyanskiy (No. 43538/04)
17. In his observations on the admissibility and merits of 7 October 2007 the applicant challenged the impartiality of a judge of the Moscow City Court and the good faith of the former Russian Representative at the Court. The Government argued that these provocative statements were unacceptable within the meaning of Article 35 § 3 of the Convention.

18. The Court reiterates that the persistent use of insulting or provocative language may be considered an abuse of the right of application within the meaning of Article 35 § 3 (see Chernitsyn v. Russia, No. 5964/02, § 25, 6 April 2006). However, the Court does not discern any unacceptable statement by the applicant in the present case. While referring to the Government's possible intention to distort the facts and challenging the judge's attitude in his case, the applicant's criticism was neither insulting, nor persistent (see Zhuk v. Russia, No. 42389/02, §§ 18 - 19, 14 November 2008). Accordingly the Court finds no ground to declare the application inadmissible as an abuse of the right of petition. The Government's objection should therefore be dismissed.

2. Applicability of Article 6
19. The Government argued in some cases that Article 6 of the Convention was not applicable to the domestic litigations as they concerned the retired military personnel and could therefore not be qualified as "civil". The Government thus submitted that the complaints were incompatible ratione materiae with the Convention.

20. The applicants disagreed, maintaining that Article 6 was applicable.

21. The Court reiterates that civil servants can only be excluded from the protection embodied in Article 6 if the State in its national law expressly excluded access to a court for the category of staff in question and if this exclusion was justified on objective grounds in the State's interest (see Vilho Eskelinen and Others v. Finland, [GC], No. 63235/00, § 62, ECHR 2007-...). The Court considers that these conditions were not satisfied in the present cases, as all applicants had access to courts in accordance with the domestic law. Accordingly, the Government's objection should be dismissed in line with the Court's decisions in numerous similar cases (see Dovguchits v. Russia, No. 2999/03, §§ 19 - 24, 7 June 2007, and Kulkov and Others v. Russia, Nos. 25114/03 et al., § 19, 8 January 2009).

22. The Court further notes that the applicants' complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It also notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.

B. Merits
23. All applicants argued in substance that the quashing of the binding and enforceable judgments in their favour by way of supervisory review had violated the principle of legal certainty and therefore their right to a court under Article 6. They provided a number of arguments supporting the lawfulness of the domestic courts' awards in their favour and referred to similar judgments delivered by other Russian courts in respect of army pensioners. Most of the applicants thus insisted on their legitimate expectations to receive the court awards at issue, emphasising the fact that the authorities had failed to appeal against the judgments before they became binding and enforceable.

24. The Government argued that the supervisory review proceedings resulting in the quashing of the judgments at issue were lawful: they were initiated by the defendant authorities within the time-limits provided for by domestic law. The regional courts quashed lower courts' unlawful judgments, thus correcting flagrant injustice and erasing dangerous precedents. In the Government's view, no expectation of any benefit could have arisen from such flawed judgments. They provided detailed information on the material law that had allegedly been ignored by the lower courts. The Government specified, in addition, that the first instance court violated the statute of limitations in the case of Osipov (No. 42059/04) and acted beyond its jurisdiction in the case of Afanasyev (No. 43505/04). They pointed out that some of the judgments at issue were nonetheless enforced until their quashing. Finally, the Government referred to the Committee of Ministers' Resolution ResDH (2006)1 of 8 February 2006, which acknowledged positive developments in the supervisory review procedure. They concluded that the supervisory review of the judgments was exercised so as to strike, to the maximum extent possible, a fair balance between the interests of the individual and the need to ensure the proper and uniform administration of justice.

25. The Court reiterates that legal certainty, which is one of the fundamental aspects of the rule of law, presupposes respect for the principle of res judicata, that is the principle of the finality of judgments. A departure from that principle is justified only when made necessary by circumstances of a substantial and compelling character, such as correction of fundamental defects or miscarriage of justice (see {Brumarescu} v. Romania [GC], No. 28342/95, § 61, ECHR 1999-VII; Ryabykh v. Russia, No. 52854/99, § 51 - 52, ECHR 2003-IX).

26. The Court further 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. Some of these violations were found in similar and, on certain occasions, virtually identical circumstances involving retired servicemen (see Sergey Petrov v. Russia, No. 1861/05, 10 May 2007; Parolov v. Russia, No. 44543/04, 14 June 2007, and Kulkov and others, cited above). In those cases the Court found that the quashing of final judgments in the applicants' favour was not justified by circumstances of compelling and exceptional character. The Court finds no reason to come to a different conclusion in the present cases.

27. The arguments submitted by the Government in the present cases were addressed in detail and dismissed in previous similar cases. Misapplication of material law by the first instance courts does not in itself justify the quashing of binding and enforceable judgments on supervisory review, even if the latter was exercised within the one-year time-limit set in domestic law (Kot v. Russia, No. 20887/03, § 29, 18 January 2007). Nor can the Court discern any fundamental defect in the cases of Osipov and Afanasyev arising from the specific grounds put forward by the Government. In both cases, like in all others, the supervisory review was prompted by higher courts' disagreement about the applicants' entitlement to social benefits, which was determined in fair adversarial proceedings at the fist-instance (compare Protsenko v. Russia, No. 13151/04, §§ 30 - 34, 31 July 2008, and Tishkevich