CASE OF STRELTSOV AND OTHER "NOVOCHERKASSK MILITARY PENSIONERS" CASES v. RUSSIA

1. The case originated in eighty-seven applications (nos. 8549/06, 17763/06, 18352/06, 18354/06, 18835/06, 18848/06, 18851/06, 18856/06, 18916/06, 18952/06, 19350/06, 19352/06, 19353/06, 20423/06, 20904/06, 20906/06, 20907/06, 21081/06, 21123/06, 21124/06, 21179/06, 21189/06, 24041/06, 24048/06, 24055/06, 24058/06, 24816/06, 25029/06, 25043/06, 25044/06, 25442/06, 25717/06, 25721/06, 25827/06, 25831/06, 25920/06, 25922/06, 25923/06, 26440/06, 26654/06, 26706/06, 26709/06, 26766/06, 26972/06, 26981/06, 26983/06, 27709/06, 27710/06, 27714/06, 27716/06, 27718/06, 27833/06, 27840/06, 28105/06, 28231/06, 28886/06, 28888/06, 30481/06, 30494/06, 31422/06, 31424/06, 31436/06, 31410/06, 31411/06, 31414/06, 31427/06, 31429/06, 31433/06, 31419/06, 31309/06, 31324/06, 31439/06, 32419/06, 32421/06, 34443/06, 40256/06, 41560/06, 42694/06, 42695/06, 42696/06, 42697/06, 42701/06, 5648/07, 6167/07, 6902/07, 7869/07, 39423/07) 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 eighty-seven Russian nationals, (“the applicants”), on various dates listed below.
2. All applicants except for Mr Dvoretskiy were represented by Mr P.V. Sedlyar, a lawyer practising in Novocherkassk. Mr Dvoretskiy was not represented in the proceedings before the Court. The Russian Government (“the Government”) were represented by Ms V. Milinchuk and subsequently by Mr G. Matyushkin, both the Representatives of the Russian Federation at the European Court of Human Rights.
3. On various dates 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 applications at the same time as their admissibility (Article 29 § 1 ).
4. By letter of 15 June 2009 Mrs Tatyana Nikolayevna Melnikova (born on 23 January 1948), Mr N.N. Melnikov's widow, informed the Court that on 15 December 2006 Mr N.N. Melnikov, the applicant in case no. 31419/06, had passed away, and she wished to maintain her late husband's case before the Court.
5. In letter dated 17 December 2009 Mr Vadim Nikolayevich Zakharov (born on 3 May 1979), Mr N.P. Zakharov's son, informed the Court that Mr N.P. Zakharov (application no. 28888/06) had died on 15 November 2009. The son expressed a wish to pursue the application in his stead.
6. For the sake of convenience, the Court will, however, continue to refer to Mr N.P. Zakharov and Mr N.N. Melnikov as “the applicants”.
I. THE CIRCUMSTANCES OF THE CASE
7. The eighty-seven applicants were born on the dates listed in Annex I and live in Novocherkassk, the Rostov Region.
8. The facts of the case, as submitted by the applicants, may be summarised as follows.
A. Initial domestic awards and subsequent enforcement proceedings
9. The applicants, retired military officers, sued the military commissariats of Novocherkassk and the Rostov Region for recalculation of their pensions. One group of the applicants sought adjustment of the pension to the minimum wage and claimed arrears for 1995-1998 in line with the increase in the latter. Another group of the applicants claimed recalculation of their pensions on account of the increase of the monetary compensation paid in respect of the food allowance. Several applicants raised both types of claims before the domestic courts.
10. On the dates listed in Annex I the domestic courts found in the applicants'favour. As regards the case no. 25442/06 by Mr Pavlov, the judgment of 22 September 2004 was issued by the Justice of the Peace of the 6 th Circuit of Novocherkassk. The judgment of 30 August 2004 in favour of Mr Pavlov, as well as all the judgments in favour of the remaining eighty-six applicants, were issued by the Novocherkassk Town Court of the Rostov Region.
11. The court ordered in respect of the first type of the claims that the pensions be adjusted to the minimum wage and that the arrears be paid to the applicants. As concerns the second type of the claims, the court held that the pensions should be increased in line with the increase of the daily food allowance and awarded the applicants the respective lump sums in arrears. The awards were made against the Military Commissariat of the Rostov Region, while the respective claims against the commissariat of Novocherkassk had been dismissed.
12. The representatives of the Military Commissariat of the Rostov Region were present at the court room on 30 August and 15 September 2004.
13. In several cases the respondent authority introduced the grounds of appeal with the Town Court. However, on various dates in 2004 the respondent authority revoked their applications. For example, in case of Mr Turutin (no. 18952/06) the grounds for appeal were revoked on 10 November 2004. As a result, none of the judgments was appealed against. They entered into force ten days later.
14. The applicants took various steps to obtain execution of the judgment. In particular, the Government submitted that in September-October 2004 Mr Sobolev, Mr Sedlyar and 31 other applicants sent the writs of execution to the respondent authority. It follows from the incoming correspondence log of the Rostov Regional Military Commissariat that the latter received the writs.
15. In 2005 the military prosecutor's office started an inquiry into lawfulness of proceedings concerning military pension arrears throughout the Rostov Region and detected several instances of fraud. In particular, they found out that the respondent commissariat on several occasions had made payments against forged writs of execution issued in the similar but unrelated proceedings. On various dates the enforcement proceedings in the cases at hand were suspended pending the region wide inquiry, because the prosecutor's office had to establish authenticity of the writs of execution issued in the applicants'cases. It appears that the investigation did not reveal any evidence of fraud in the present cases.
16. According to the Government, in September 2005 judge A. who had issued the judgments in question was dismissed by the decision of the Judicial Qualification Board of the Rostov Region. At some point several high officials of the Military Commissariat of the Rostov Region had been charged with and convicted of embezzlement.
17. As regards the group of nineteen applicants named in Part A of Annex I, the domestic awards in their favour were fully executed by the respondent authorities on the dates specified in the table. As concerns the remaining applicants whose names are listed in Part B of Annex I, at least one judgment in their favour has remained unenforced.
B. Supervisory review proceedings
18. On various dates in 2005-2007 the respondent commissariat applied for the supervisory review of the judgments.
19. According to the Government's observations, thirty-three requests for review were lodged outside the one-year time-limit from the date of the judgment's entry into force. In such cases, the respondent authority also applied for extension of the time-limit for application for supervisory review arguing that it had not received copies of the respective first instance judgments in time and had only been informed of the judgments in October 2005, when the prosecutor's inquiry had been opened. On various dates the Novocherkassk Town Court allowed these applications. In particular, in case of Mr Turutin (no. 18952/06) the Novocherkassk Town Court on 20 December 2006 accepted the authority's argument that they had been unaware of the judgment, having found, in particular, as follows:
“There is no evidence in the case materials to the effect that a copy of the judgment of 30 August 2004 ... had been sent to the Military Commissariat of the Rostov Region. It follows from the above that the [respondent commissariat] had a real opportunity to avail itself of its right to apply for supervisory review within one year.”
20. The Town Court made similar findings in respect of thirty-two remaining cases.
21. Enforcement of the unexecuted domestic judgments had been suspended pending the supervisory review.
22. On various dates in 2005-2007 the Rostov Regional Court allowed the applications for supervisory review of the judgments lodged by the military commissariat of the Rostov Region and remitted the matter for examination on the merits to the Presidium of the Rostov Regional Court.
23. On the dates specified in Annex I the Presidium of the Rostov Regional Court quashed the judgments in the applicants'favour and remitted the cases for a fresh consideration. In each case the Presidium concluded that the first-instance court had erroneously applied the substantive law. They also found that the Novocherkassk Town Court had lacked territorial jurisdiction to examine the cases. The arrears were awarded against the Military Commissariat of the Rostov Region and thus the cases should have been examined by a court in the Oktiabrskiy District of Rostov-on-Don where the respondent commissariat was located.
24. The cases were considered afresh by the Oktyabrskiy District Court of Rostov-on-Don.
25. According to the Government, Mr Karatayev (application no. 18352/06) modified the scope of his claim in the new round of the proceedings concerning the adjustment of his pension to the increase of the minimum wage. On 6 August 2007 The Oktyabrskiy District Court granted his action in full and ordered that he be paid 32,811.52 Russsian roubles (RUB). The judgment was executed. The parties did not submit copies of the respective statement of claims and judicial decision.
26. As regards the remaining applicants, the court either discontinued the proceedings or dismissed the applicants'claims. The particulars of the respective proceedings are summarised in Annex I below.
A. Supervisory review and military pensions
27. Under Article 376 of the Code of the Civil Procedure of the Russian Federation of 14 November 2002 (in force from 1 February 2003), judicial decisions that have become legally binding, with the exception of judicial decisions by the Presidium of the Supreme Court of the Russian Federation, may be appealed against to a court exercising supervisory review, by parties to the case and by other persons whose rights or legal interests have been adversely affected by the judicial decisions concerned (§ 1). Judicial decisions may be appealed against to a court exercising supervisory review within one year after they became legally binding (§ 2). By its ruling of 5 February 2007, the Constitutional Court interpreted Article 376 § 1 as allowing the above-mentioned persons to apply for supervisory review only after having exhausted all available ordinary appeals
28. For the summary of other applicable provisions of the domestic law, see Murtazin v. Russia, no. 26338/06, § § 14-18, 27 March 2008.
29. Article 28 of the Code of Civil Procedure provides that a civil claim is to be filed with the court with territorial jurisdiction over the defendant's place of residence. A claim against the organisation is to be filed with the court having territorial jurisdiction over the organisation's residence. According to Article 31 § 1 of the Code, where a claim is filed against several defendants having different places of residence, a claim is to be lodged with a court having territorial jurisdiction over one of the defendants, upon the claimant's choice.
30. Succession is regulated by Part 3 of the Civil Code. The succession includes the deceased's property or pecuniary rights or claims but does not include rights or obligations intrinsically linked to the deceased's person, such as alimony or a right to compensation for health damage (Article 1112). An heir should claim and accept succession, as well as obtain a succession certificate from a public notary (Articles 1152, 1162). The right to receive the amounts of salary and payments qualifying as such, pension and other amounts of money provided to the deceased person as means of subsistence which had been payable but had not been received in his lifetime shall belong to the members of the deceased's family who had been residing together with him and also his disabled dependants, irrespective of their having resided with the deceased or not (Article 1183 § 1). In accordance with section 63 of the Federal Law on Pension Welfare of Military Service Personnel (1993 ), as in force at the material time, the amount of pension due to a pensioner but not received in his lifetime shall belong to the members of the deceased's family if they were in charge of his or her funeral, and shall not be included in the succession.
31. Given that the eighty-seven applications at hand concern similar facts and complaints and raise identical issues under the Convention, the Court decides to consider them in a single judgment.
II. LOCUS STANDI AS REGARDS APPLICATIONS Nos. 28888/06 AND 31419/06
32. The Court notes firstly the fact of the death of Mr N.P. Zakharov, one of the applicants, and the wish of Mr V.N. Zakharov, his son, to pursue the proceedings he initiated. Likewise, it is noted that Mrs T.N. Melnikova expressed her wish to maintain the case of her late husband, Mr N.N. Melnikov, applicant in case no. 31419/06.
33. With reference to the case of Belskiy v. Russia ((dec.), no. 23593/03, 26 November 2009) the Government submitted that neither Mr V.N. Zakharov nor Mrs T.N. Melnikova had standing to pursue the cases of their late relatives. The award in the applicants'favour was made in respect of the pension arrears. The pension rights were not transferable. Under the domestic law, the succession included the deceased's property or pecuniary rights or claims but did not include rights or obligations intrinsically linked to the deceased's person. The late applicants'relatives had not inherited the claim in respect of the judgment debt. Furthermore, the judgments had been annulled and thus no judgment debt existed at the moment of the applicants'death. Therefore, the applications should be struck out of the Court's list of cases pursuant to Article 37 § 1 (c) of the Convention.
34. Mrs T.N. Melnikova and Mr V.N. Zakharov maintained their submissions arguing that they were entitled to claim unpaid pension arrears due to their late relatives in accordance with section 63 of the Federal Law on Pension Welfare of Military Service Personnel. Indeed, the pension arrears were awarded to the applicants and thus were payable, but the applicants had not received the respective sums in their lifetime. Mrs T.N. Melnikova and Mr V.N. Zakharov were in charge of the applicants'funeral. Thus, they had title to receive the unpaid pension. The fact that the judgments had been quashed did not have any impact on the standing issue. Accordingly, they had a legitimate interest to maintain the applications in their respective late relatives'stead.
35. Article 37 § 1 of the Convention reads in the relevant part as follows:
“1. The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that ...
(c) for any other reason established by the Court, it is no longer justified to continue the examination of the application.
However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires...”
36. The Court reiterates that in a number of cases in which an applicant has died in the course of the proceedings before the Court it has taken into account the statements of the applicant's heirs or of close family members expressing the wish to pursue the proceedings, or the existence of a legitimate interest claimed by a person wishing to pursue the application (see Léger v. France (striking out) [GC], no. 19324/02, § 43, ECHR 2009 ‑ ..., with further references). The Court interprets the concept of “victim” autonomously and irrespective of domestic concepts such as those concerning an interest or capacity to act ( see Micallef v. Malta [GC], no. 17056/06, § 48, ECHR 2009 ‑ ...; and Sanles Sanles v. Spain (dec.), no. 48335/99, ECHR 2000-XI). In this connection the Court has to consider whether or not the persons wishing to pursue the proceedings were the applicant's close relatives. Moreover, as a second criterion, the Court has to examine whether the rights concerned were transferable (see, mutatis mutandis, Vääri v. Estonia (dec.), no. 8702/04, 8 July 2008, and Stankevich v. Ukraine (dec.), no. 48814/07, 26 May 2009 ). It is for the heir who wishes to pursue the proceedings before the Court to substantiate his or her standing to do so (see, for example, Belskiy (dec.), cited above).
2. Application to the present cases
37. Turning to the two cases at hand, the Court observes first that, unlike in the Belskiy case (cited above), Mr. V.N. Zakharov and Mrs T.N. Melnikova submitted documents confirming that they were the applicants'close relatives. Furthermore, in accordance with the relevant provisions of the domestic law (see paragraph 30 above), they demonstrated that they had been in charge of the late applicants'funeral and could have claimed pension due to a pensioner but not received in his lifetime. In these circumstances, the Court considers that the condition of close kinship is met.
b. Transferability of the rights at stake
38. As regards transferability of the rights, the Court observes that the applicants had raised complaints under Article 6 of the Convention and Article 1 of Protocol No. 1 about non-enforcement and subsequent quashing of the judgments in their favour. In the case of Sobelin and Others v. Russia ( nos. 30672/03 et seq., § § 43-45, 3 May 2007) concerning non-enforcement and subsequent quashing of the court judgments in the applicants'favour, the Court recognised the right of the relatives of the deceased applicant to pursue the application. The rights at stake in the present two cases are very similar to those at the heart of the Sobelin and others case. However, unlike in the aforementioned precedent, in the two cases at hand the Government objected to transferability of the rights at stake. The Court accordingly considers it necessary to examine this issue in more detail.
39. Insofar as the complaints under Article 1 of Protocol No. 1 are concerned, the Court on several occasions continued the examination of cases involving pecuniary claims that were transferable to the deceased applicant's heirs (see, for example, Nerva and Others v. the United Kingdom, no. 42295/98, § 33, ECHR 2002-VIII). The Court has previously noted that the question whether such claims were transferable to the persons seeking to pursue an application was an important criterion, but could not be the only one (see, mutatis mutandis, OAO Neftyanaya Kompaniya YUKOS v. Russia (dec.), no. 1 4902/04, § 441, 29 January 2009 ). In fact, cases before the Court generally also have a moral dimension and persons close to an applicant may have a legitimate interest in seeing that justice is done even after the applicant's death (ibid). There is nothing in the cases at hand to justify a departure from this approach. The Court accordingly finds that Mr V.N. Zakharov and Mrs T.N. Melnikova have standing to pursue the complaint under Article 1 of Protocol No. 1 in place of their late relatives.
40. However, as regards Article 6, the Court does not exclude that the situation might in principle be different. In fact, the Court has previously accepted that the late applicants'close relatives could maintain applications with complaints concerning various aspects of Article 6 of the Convention (see Malhous v. the Czech Republic [GC], no. 33071/96, § 1, 12 July 2001, with further references; Andreyeva v. Russia (dec.), no. 76737/01, 16 October 2003; Shiryayeva v. Russia, no. 21417/04, § 8, 13 July 2006, concerning the non-enforcement of the domestic judgment; see also Horváthová v. Slovakia, no. 74456/01, § 26, 17 May 2005, in the context of the length of proceedings). However, the Court attaches particular weight to the specific aspect of the “right to a court” at stake in the present two cases, namely the alleged impairment of the principle of legal certainty as a result of the annulment of the domestic judgments in the applicants'favour by way of the supervisory review proceedings. The quashing in the instant cases had occurred before the applicants had passed away. The crux of the grievance under Article 6 was, in fact, frustration of the applicants'reliance on the binding judicial decision. The Court reiterates that quashing of a final judgment is an instantaneous act and does not create a continuing situation (see, mutatis mutandis, Sardin v. Russia (dec.), no. 69582/01, ECHR 2004 ‑ II). In these circumstances, the Court may admittedly have difficulties in finding that the applicant's relatives were affected by the quashing and accepts that the legal certainty complaint under Article 6 in the context of the supervisory-review proceedings, if raised separately, might not be automatically considered transferable (compare, mutatis mutandis, Stankevich, cited above; Gorodnichev v. Russia (dec.), no. 32275/03, 15 November 2007; Biç and Others, cited above, § 22; and Georgia Makri and Others v. Greece (dec.), no. 5977/03, 24 March 2005 ).
41. On the other hand, the Court notes that in the present case the supervisory-review complaint is closely related to the non-enforcement grievance under Article 6. It recalls that the principles insisting that a final judicial decision must not be called into question and should be enforced represent two aspects of the same general concept, namely the “right to a court” (see, for instance, Sobelin and Others, cited above, § 67). The Court has been prepared to recognise the standing of a relative as regards the non-enforcement complaints (see, among others, Shiryayeva, cited above ). Furthermore, the supervisory-review complaints under Article 6 and Article 1 of Protocol No. 1 are closely interrelated, and it has already accepted the relatives'standing as regards the complaint under the latter provision of the Convention. In view of the above, the Court does not consider it necessary to draw a distinction between two aspects of the supervisory-review complaint for the purposes of determination of the standing issue. It finds that Mr V.N. Zakharov and Mrs T.N. Melnikova have standing to pursue their late relatives'complaints under Article 6.
42. In view of the above, and having particular regard to the close interrelation of the complaints in the present case, the Court considers that Mr V.N. Zakharov and Mrs T.N. Melnikova have a legitimate interest in pursuing the complaints in place of their late relatives in cases nos. 28888/06 and 31419/06, respectively.
III. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1 ON ACCOUNT OF SUPERVISORY REVIEW
43. The applicants complained under Article 6 of the Convention and Article 1 of Protocol No. 1 that the quashing of the binding judgments in their favour was unjustified, as well as about various defects of the supervisory-review proceedings. Insofar as relevant, these Articles read as follows:
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”
“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.”
44. The Government argued that the quashing had been in accordance with the domestic law of civil procedure. The supervisory review had been justified, because it aimed at remedying a fundamental error in interpretation of the material law by the lower courts. In particular, the Novocherkassk Town Court had wrongly applied the index-linking coefficient for the applicants'pensions and incorrectly determined the amount of the food allowance. Unlike in the case of Maltseva v. Russia ( no. 76676/01, § § 35-36, 19 June 2008 ), where the domestic judgment had been quashed because the lower court incorrectly determined the pension coefficient to be applied, in the present cases the first instance courts manifestly failed to apply the amount of the food allowance specified in the domestic law and thus abused their power. Furthermore, the Novocherkassk Town Court had not had territorial jurisdiction over the applicants'claims. Therefore, the previous proceedings had been tarnished by a fundamental defect (see Luchkina v. Russia, no. 3548/04, § 21, 10 April 2008 ). In Trukhanov (no. 30481/06) they argued that judge A. who had issued the first instance judgments had been dismissed, and so were several officials from the respondent commissariat. Therefore, the authorities had taken all necessary measures to eliminate potential negative consequences “of the malicious actions of the above judge”. They further pointed out that the judge had delivered more than two hundred similar judgments, including those in the applicants'favour, during only two days, 30 August and 15 September 2004. Such important amount of cases examined within a manifestly short period of time, taken alone, was capable of raising doubts as to the fairness of the proceedings at the first instance.
45. Regarding the complaint under Article 1 of Protocol No. 1, they acknowledged that there had been an interference with the applicants'right to property as a result of the quashing, but it was justified, since it was in accordance with law and in the general interest. The initial domestic judgments were delivered in violation of the domestic laws of procedure. A failure to annul such judgments would have undermined the trust to the domestic judicial system and caused social tensions between the individuals whose similar claims were rejected and those whose claims were unlawfully granted.
46. The applicants maintained their complaint. They argued that the first instance court's judgments were lawful and did not contain a fundamental error. The Novocherkassk Town Court did not violate the jurisdiction rules. Some applicants pointed out that the respondent authority had failed to lodge ordinary appeals against the disputed judgments, and proceeded directly with an application for the extraordinary remedy, such as supervisory review, in violation of the applicants'right to a court.
47. As regards the objection raised in the Trukhanov case, and insofar as the Government may be understood as arguing that the applicant in the above case has lost his victim status, the Court notes that they had not submitted any documents related to the grounds of the judge's dismissal. In any event, there is nothing in the case materials to enable a conclusion that the dismissal constituted either acknowledgment or redress of the alleged violation. The objection must accordingly be dismissed.
48. The Court further 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.
i. Supervisory review: legal certainty
49. The Court reiterates that the quashing by way of supervisory review of a judicial decision which has become final and binding may render the litigant's right to a court illusory and infringe the principle of legal certainty (see, among many other authorities, Brumărescu v. Romania [GC], no. 28342/95, § 62, ECHR 1999-VII; Ryabykh v. Russia, no. 52854/99, §§ 56-58, 24 July 2003). In certain circumstances legal certainty can be disturbed in order to correct a “fundamental defect” or a “miscarriage of justice”. Departures from that principle are justified only when made necessary by circumstances of a substantial and compelling character (see Kot v. Russia, no. 20887/03, § 24, 18 January 2007, and Protsenko v. Russia, no. 13151/04, §§ 25-34, 31 July 2008; and Tishkevich v. Russia, no. 2202/05, §§ 25-26, 4 December 2008). In such cases, the Court has to assess, in particular, whether a fair balance was struck between the interests of the applicants and the need to ensure the proper administration of justice, which includes the importance of observing the principle of legal certainty (see, mutatis mutandis, Kurinnyy v. Russia, no. 36495/02, §§ 13, 27-28, 12 June 2008).
50. As regards the Government's argument about an allegedly incorrect application of the substantive law, the Court reiterates its constant approach that in the absence of a fundamental defect in the previous proceedings a party's disagreement with the assessment made by the lower courts is not a circumstance of a substantial and compelling character warranting the quashing of a binding and enforceable judgment and re-opening of the proceedings on the applicant's claim (see Dovguchits v. Russia, no. 2999/03, § 30, 7 June 2007; and Kot, cited above, § 29). As concerns the Government's submission about initial unfairness of the proceedings based on the fact that the absolute majority of the domestic judgments were issued within only two days, nothing suggests that this consideration constituted a ground for the quashing. Such argument was only advanced in the Government's observations. In the absence of any reference to the ground for quashing cited by the Government in the texts of the supervisory ‑ instance rulings, the Court rejects the Government's argument.
51. On the other hand, the Court notes the Government's submission as regards the violation of the jurisdictional rules in the domestic proceedings. As they correctly pointed out, a jurisdictional error or a serious breach of court may, in principle, be regarded as a fundamental defect and therefore justify the quashing (see, among others, Luchkina, cited above ).
52. First, the Court notes the Presidium reasoning that the claims directed against the Military Commissariat of the Rostov Region should have been introduced before a district court in Rostov. At the same time, the Court observes that the initial claims in all cases were, in fact, made against two distinct authorities with different legal addresses, namely the Town and Regional Military Commissariats, and the action against the Town Commissariat had been subsequently rejected as unfounded. It appears that according to Article 31 of the Code of the Civil Procedure, such claim could have been lodged with a court having territorial jurisdiction over one of the defendants, upon the claimant's choice, inter alia, with the Novocherkassk Town Court. The Court reiterates its constant approach to the effect that it is primarily for the domestic courts to interpret and apply the domestic law, including the law of procedure. Nevertheless, the Court observes that the Presidium, when quashing the judgments, did not cite any reason as to why the provisions of Article 31 of the CCP did not apply to the applicants'cases.
53. Second, the Court observes that the purported defects in the present group of similar cases could have been cured in the appeal proceedings. A situation where the final judgments in the applicants'favour was called into question could have been avoided, had the military commissariat lodged an ordinary appeal within the statutory ten-day time-limit (see Borshchevskiy v. Russia, no. 14853/03, § 48, 21 September 2006, and Nelyubin v. Russia, no. 14502/04, § 27, 2 November 2006). The Government did not point to any exceptional circumstances that would have prevented the military commissariat from making use of an ordinary appeal in good time (see, in identical context, Zvezdin v. Russia, no. 25448/06, § § 30-32, 14 June 2007, and Murtazin, cited above, §§ 27-29 ). Furthermore, it appears that in several cases the regional commissariat had timeously appealed against the judgments, but then revoked the grounds of appeal. Moreover, the Court notes that the military commissariat had failed to apply for an extension of the time-limit for lodging of the ordinary appeal against the judgments, but chose to make use of the extraordinary remedy, such as the supervisory review.
54. Third, the Court does not lose sight of the fact that the applications for the supervisory review of more than thirty domestic judgments had been introduced by the respondent authority outside the one-year time-limit set out in the domestic law (see paragraph 19 above). No justification for that had been advanced by the Government. It is true that the domestic courts granted the extension of the respective time-limit on the ground that the respondent commissariat had not been timeously informed of the proceedings against it. Being sensitive to the subsidiary nature of its role, the Court nevertheless is not bound by the findings of domestic courts and may depart from them where this is rendered unavoidable by the circumstances of a particular case (see, for instance, Novikov v. Russia, no. 35989/02, § 38, June 2009, and Khamidov v. Russia, no. 72118/01, § 135 et seq., ECHR 2007- XIII (extracts)). The Court notes, in particular, the Government's observation that in September-October 2004 thirty-three applicants had submitted the writs of execution directly to the respondent authority, and the latter had received them. It also notes, and it is uncontested between the parties, that the authority attempted to appeal against several first instance judgments, but then revoked the respective applications without referring to a specific reason. In these circumstances, the Court is not convinced that the respondent authority was genuinely unaware of the proceedings before the first instance court (see, by contrast, Podrugina and Yedinov v. Russia (dec.), no. 39654/07, 17 February 2009).
55. In view of the above, the Court is not satisfied that a fair balance between the interests of the applicants and the need to ensure the proper administration of justice was ensured. The Court agrees that, as a matter of principle, the rules of jurisdiction should be respected. However, in the specific circumstances of the present eighty-seven cases the Court does not detect a specific reason which would justify the departure from the principle of legal certainty (see, mutatis mutandis, Sutyazhnik v. Russia, no. 8269/02, § 39, 2 3 July 2009 ), in particular, given that the respondent authority did not make use of the ordinary remedy in due time.
56. The Court finds that, by granting the military commissariat's request to set aside the final domestic judgments in the applicants'favour listed in Parts A and B of Annex I, the Presidium of the Rostov Regional Court infringed the principle of legal certainty and the applicants'“right to a court” under Article 6 § 1 of the Convention. There has accordingly been a violation of that Article in the eighty-seven cases at hand.
ii. Supervisory review: procedural issues
57. With regard to the complaint about the procedural defects of the hearing before the Presidium of the Rostov Regional Court, the Court finds that, having concluded that there had been an infringement of the applicants'“right to a court” by the very use of the supervisory review procedure, it is not necessary to consider whether the procedural guarantees of Article 6 of the Convention were available in those proceedings (see, for example, Volkova v. Russia, no. 48758/99, § 39, 5 April 2005).
b. Article 1 of Protocol No. 1 to the Convention
58. The Court reiterates that the existence of a debt confirmed by a binding and enforceable judgment constitutes the beneficiary's “possession” within the meaning of Article 1 of Protocol No. 1 (see, among other authorities, Androsov v. Russia, no. 63973/00, § 69, 6 October 2005).
i. Nineteen applicants named in Part A of Annex I
59. As regards the group of nineteen applicants listed in Part A of Annex I, it is not contested between the parties that all judgments in their favour had been executed in full. There is nothing in the file to suggest that the applicants were obliged to repay the respective judgment debts pursuant to the quashing. In these circumstances the Court does not consider it necessary to rule on the question where there has been a violation of Article 1 of Protocol No. 1 in respect of nineteen applicants named in Part A of Annex I on account of the quashing (see, mutatis mutandis, Zasurtsev v. Russia, no. 67051/01, §§ 53-55, 27 April 2006).
ii. Sixty-eight applicants named in Part B of Annex I
60. Regarding the application by Mr Karatayev (application no. 18352/06) the Court notes the Government's submission that the applicant had modified the scope of his claims in the new proceedings. The Court observes that the core issue before it is the quashing of the final and binding judgment, an instantaneous act. Thus, the eventual outcome of the post-quashing proceedings is not directly relevant for the Court's analysis of the quashing complaint (see Ivanova v. Ukraine, no. 74104/01, §§ 35-38, 13 September 2005), unless, as a result of the subsequent proceedings, the applicant obtained more than he had had before the supervisory review (see Boris Vasilyev v. Russia, no. 30671/03, § 37, 15 February 2007 ). This was clearly not the case. Accordingly, the outcome of the subsequent proceedings will not have impact on the Court's findings regarding Mr Karatayev's complaint under Article 1 of Protocol No. 1.
61. The Court further observes that the quashing of the enforceable judgments frustrated the applicants'reliance on the binding judicial decision and deprived them of an opportunity to receive the money they had legitimately expected to receive (see, among others, Ivanova v. Russia, no. 11697/05, § 23, 24 April 2008, Dmitriyeva v. Russia, no. 27101/04, § 32, 3 April 2008). In each of the sixty-eight cases at hand, at least one domestic judgment had remained unexecuted before the quashing.
62. In these circumstances, even assuming that the interference was lawful and pursued a legitimate aim, the Court considers that the quashing of the enforceable judgments in the applicants'favour by way of supervisory review placed an excessive burden on them and was incompatible with Article 1 of the Protocol No. 1. There has therefore been a violation of that Article in the present sixty-eight cases cited in Part B of Annex I.
IV. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1 ON ACCOUNT OF NON ‑ ENFORCEMENT
63. Relying on Article 6 § 1 of the Convention and Article 1 of Protocol No. 1, both cited above, the applicants complained about non ‑ enforcement or delayed enforcement of the judgments in their favour.
64. In some cases the Government alleged that the applicants had not exhausted the domestic remedies available to them under domestic law. They notably referred to Chapter 25 of the Code of Civil Procedure allowing to complain about the authorities'negligence and to Chapter 59 of the Civil Code opening a way to claim non-pecuniary damage. In the Government's view the latter provision had proven its effectiveness in practice, as shown by several examples of domestic case-law.
65. They further submitted that the delays in execution of the judgments in the applicants'favour exceeded two years and in principle could be said to be incompatible with the provisions of Article 6 of the Convention. However, several delays were attributable to the applicants, since some of them had submitted the enforcement papers to the wrong institutions. The enforcement procedure in respect of the domestic judgments had been reasonably suspended pending the prosecutor's inquiry. Some of the judgments had not been executed because of the supervisory-review proceedings. Contrary to the applicants'submissions, at no point did the authorities refuse to cooperate with them. Thus, the complaints were manifestly ill-founded.
66. The applicants maintained their claims. They pointed out that the judgments should have been executed immediately and that they had not been at fault as regards the delayed execution of the court awards.
67. As regards exhaustion, the Court has already found that the suggested remedies were ineffective (see, among others, Burdov v. Russia (no. 2), no. 33509/04, §§ 103 and 106-116, 15 January 2009, and Moroko v. Russia, no. 20937/07, §§ 25-30, 12 June 2008).
68. The Court further notes that the applicants'non-enforcement complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and is not inadmissible on any other grounds. It must therefore be declared admissible.
69. The Court reiterates that an unreasonably long delay in the enforcement of a binding judgment may breach the Convention (see Burdov v. Russia, no. 59498/00, ECHR 2002-III). In each case the State avoided paying the judgment debt pursuant to at least one domestic judgment in the applicants'favour for more than one year, which is prima facie incompatible with the Convention requirements (see, among others, Kozodoyev and Others v. Russia, nos. 2701/04 et seq ., § 11, 15 January 2009 ).
70. As regards the judgments which had remained unexecuted by the dates of the annulment, the Court reiterates that the quashing of a judgment in a manner which has been found to have been incompatible with the principle of legal certainty and the applicant's “right to a court” cannot be accepted as justification for the failure to enforce that judgment (see Sukhobokov v. Russia, no. 75470/01, § 26, 13 April 2006). In the present cases the judgments in the applicants'favour were enforceable until at least the respective dates of quashing and it was incumbent on the State to abide by their terms (see Velskaya v. Russia, no. 21769/03, § 18, 5 October 2006).
71. As regards the objection concerning some of the applicants'failure to submit the enforcement papers in good time or to a due agency, the Court reiterates that where a judgment is against the State, the State must take the initiative to enforce it (see Akashev v. Russia, no. 30616/05, §§ 21–23, 12 June 2008). The complexity of the domestic enforcement procedure cannot relieve the State of its obligation to enforce a binding judicial decision within a reasonable time (see Burdov (no. 2), cited above, § 70).
72. There has, accordingly, been a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 in the present eighty- seven cases.
V. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
73. The applicants complained under Article 13 of the Convention about the lack of an effective remedy against the non-enforcement and quashing of the initial domestic judgments in their favour.
74. As regards the alleged lack of an effective domestic remedy against the continued non-enforcement of the judgment in the applicants'favour, the Court considers that, having regard to the above findings (see paragraph 34 above), it is not necessary to examine whether there has been a violation of Article 13 in the present eighty- seven cases. Thus, the Court rejects this complaint under Article 35 § 4 of the Convention (see, in the similar context, Murtazin, cited above, §§ 43 -45 ).
75. The applicants may be understood to complain under Article 13 about the lack of an effective domestic remedy against the quashing by way of supervisory review of a judgment in their favour. The Court notes that Article 13 of the Convention does not, as such, guarantee the right to appellate remedies in respect of a decision taken by way of supervisory review, and the mere fact that the judgment of the highest judicial body is not subject to further judicial review does not infringe in itself the said provision (see, in identical context, Murtazin, cited above, § 46).
76. It follows that this part of the complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4 thereof.
VI. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
77. All applicants complained under Articles 6 and 13 of the Convention about the extension of the time-limit for lodging a supervisory-review request and about the overall length of the court proceedings in their cases.
78. The Court reiterates that the reasonableness of the length of the proceedings is to be assessed in the light of the particular circumstances of the case, regard being had to the criteria laid down in the Court's case-law, in particular the complexity of the case, the conduct of the applicant and that of the authorities before which the case was brought (cf. Pélissier and Sassi v. France [GC], no. 25444/94, ECHR 1999-II, § 67).
79. Turning to the present cases, the Court notes that the applicants complain, in essence, about the overall duration of the proceedings in their cases, including the periods when their respective cases had been pending before the supervisory review instance. The Court recalls, however, that it is appropriate to take into account only the periods when the case was actually pending before the courts, that is the periods when there was no effective judgment in the applicant's case (see, mutatis mutandis, Rokhlina v. Russia, no. 54071/00, § 82, 7 April 2005). Having thus deducted the periods between the dates of the initial judgments and the reopening of the respective cases by way of the supervisory review proceedings from the overall duration of the civil proceedings, the Court observes that in no case at hand the length of the domestic proceedings was excessive or unreasonable. It follows that this part of the applications must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
80. Lastly, having regard to all the material in its possession, the Court finds that other complaints raised by the applicants did 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 applications must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
VII. APPLICATION OF ARTICLE 41 OF THE CONVENTION
81. 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.”
82. In respect of pecuniary damage, Mr Trukhanov (case no. 30481/06), Mrs Vechurko (case no. 27833/06) and Mr Pavlov (case no. 25442/06) claimed the respective judgment debts. The remaining applicants'claims may be summarised as follows. If they obtained execution of the judgments, they claimed interest for the period of non-enforcement. If the judgments in their favour had not been executed, they claimed various amounts representing the respective domestic awards plus the interest for the period between the judgments'entry into force and 30 September 2009. In all cases they calculated the interest on the basis of the consumer price index in the Rostov Region in the reference period. All applicants submitted detailed calculation in support of their claims. Some of them provided certificates by the Rostov Regional Department of the Federal Statistics Service specifying the consumer price index in the Rostov Region in the reference period.
83. The Government contested the applicants'method of calculation of the inflationary loss for the following reasons. Firstly, the judgments in the applicants'favour had been quashed in 2005-2007, and the applicants could not claim damages for any period posterior to the respective dates of quashing. Secondly, with reference to the information provided by the Federal Statistics Service, i.e. a table of consumer price index in the Russian Federation for 1991-2008, they argued that all the applicants except for Mr Dvoretskiy referred to incorrect consumer price indexes. Finally, the judgments debts as well as the inflation losses were not subject to reimbursement, since the respective domestic judgments awarding the applicants with respective sums had been issued with serious jurisdictional errors and the first instance court in all the cases at hand abused its power while examining the applicants'claims. Furthermore, some of the judgments had been executed before quashing.
84. The Court recalls that the most appropriate form of redress in respect of the violations found would be to put the applicants as far as possible in the position they would have been if the Convention requirements had not been disregarded (see Piersack v. Belgium (Article 50), 26 October 1984, Series A no. 85, p. 16, § 12, and, mutatis mutandis, Gençel v. Turkey, no. 53431/99, § 27, 23 October 2003). The Court observes that in several cases at hand the judgments in the applicant's favour had been executed before quashing, while in other cases the domestic awards had remained unenforced. Finally, in the case of Mr Karatayev the amount of the initial judgment debt had been reduced in the proceedings posterior to the quashing. The Court will take these circumstances into account when deciding on damages in each individual case, in accordance with the following methods.
i. As regards the judgment debt
85. Where a domestic judgment in an applicant's favour was executed, the Court does not make any award in respect of the initial judgment debt. (The applicants'claims in respect of interest will be examined below).
86. Where a domestic judgment remained unenforced, the Court notes that the applicants were prevented from receiving the amounts they had legitimately expected to receive under at least one binding and enforceable judgment delivered by domestic courts in their favour. Accordingly, the Court considers appropriate to award the applicants the equivalent in euros of the sums that they would have received if the judgments in their favour had not been quashed (see Bolyukh v. Russia, no. 19134/05, § 39, 31 July 2007). The Court accordingly awards the applicants the equivalent in euros of the unenforced judgment debts.
87. As regards the case of Mr Karatayev (no. 18352/06), the Court observes that the applicant was successful in the new round of the court proceedings after the quashing, and the new award in his favour had been timeously enforced. In these circumstances, the Court considers that the Government should pay the applicant the equivalent in euros of the difference between the amounts awarded by the judgment of the Novocherkassk Town Court of 15 September 2004 (no. 2-1879/04) and those awarded to him by the judgment of 6 August 2007 by the Oktyabrskiy District Court.
88. Regarding the cases of Mr Trukhanov (no. 30481/06), Mrs Vechurko (no. 27833/06) and Mr Pavlov (no. 25442/06) the Court notes that these applicants did not claim interest. Accordingly, the Court does not consider it necessary to grant any amount in this respect of its own motion.
89. As regards eighty-four remaining cases, the Court recalls its constant approach that the adequacy of the compensation would be diminished if it were to be paid without reference to various circumstances liable to reduce its value (see, mutatis mutandis, Gizzatova v. Russia, no. 5124/03, § 28, 13 January 2005). The Court accordingly accepts the applicants'claims relating to the loss of value of the domestic awards since the delivery of the judgments in their favour and finds it appropriate to award additional sums in this respect, where they were requested (see Kondrashov and Others v. Russia, nos. 2068/03 et al., § 42, 8 January 2009).
90. Turning to the method of calculation of damage in eighty four cases at hand, the Court notes the Government's submission as regards the applicants'use of the incorrect consumer price index. However, it appears that the Government's argument was based on the comparison of the applicants'calculations with an average consumer prices'index established by the respective statistics authority in respect of the entirety of the Russian Federation. However, the submissions by all applicants were based on a similar index in respect of their specific region, namely that of Rostov. Having studied the certificates by the Rostov Regional Department of Statistics, the Court observes that the indexes for the periods specified in the applicants'claims for just satisfaction were, in fact, correct. It further notes that, while pointing out to allegedly wrongful use of the indexes, the Government did not challenge the method of calculation of the inflation loss chosen by the applicants, nor did they advance any reason for which a national and not regional index of consumer prices was to be used for calculation of the interest. The Court therefore accepts the applicants'method of calculation.
91. As regards the period in respect of which the claims for interest have been made, the Court accepts that after the final judgments were quashed they ceased to exist under domestic law; it cannot restore the power of these judgments (see Tarnopolskaya and Others v. Russia, nos. 11093/07 et seq. § 51, 7 July 2009 ). The Court allows the Government's argument that no interest for the periods posterior to the annulment of the judgments should be granted to the applicants. Therefore, where a domestic judgment in an applicant's favour had not been enforced before quashing, the Court only allows the claims as regards the interest in so far as they are made in respect of the periods preceding the respective date of quashing. Where a domestic judgment had been executed before annulment, the Court awards the interest for the period preceding the date of full enforcement.
92. In view of the above and making its estimate on the basis of the information at its disposal, the Court awards the applicants the amounts listed the “Final Court's Award” section of Annex II to the present judgment, plus any tax that may be chargeable. Where a domestic judgment in an applicant's favour had not been enforced before the quashing, the Court's award includes the equivalent in euros of the initial domestic award and the compensation for loss of value of the awards for the periods preceding the quashing. Where a judgment in an applicant's favour was fully executed before the quashing, the Court's award represents the equivalent in euros of the interest for the period from the domestic judgment's entry into force until the date of its full execution. Where more than one judgment was issued in an applicant's favour, the amount of the Court's award represents a sum of the respective awards calculated in accordance with the method specified above, in respect of each of the quashed domestic judgments.
93. The Court dismisses the remainder of the applicants'claims in respect of pecuniary damage.
94. The applicants claimed sums ranging from 5,000 to 10,000 euros ( EUR ) in respect of non-pecuniary damage.
95. The Government challenged the claims as excessive and ill-founded. The applicants did not furnish any documents evidencing the alleged non-pecuniary damage. The judgments were quashed because of the fundamental defect in the proceedings. Nothing should be awarded to the applicants, since there was no violation of their rights.
96. Having regard to the nature of the breach in this case, making its assessment on an equitable basis, the Court awards to each applicant the sum of EUR 2 ,000 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount.
3. Cases no. 28888/06 and 31419/06
97. The Court decides that the respective awards in case no. 28888/06 should be paid to Mr. V.N. Zakharov and in case no. 31419/06 to Mrs T.N. Melnikova in the place of the deceased applicants.
98. The applicants did not claim costs and expenses, and there is accordingly no need to make an award under this head.
99. 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
1. Decides to join the applications;