FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 3404/04 by Vladimir Dmitriyevich BRAZHNIKOV against Russia

The European Court of Human Rights (First Section), sitting on 5 June 2008 as a Chamber composed of:

Nina Vaji ć , President, Anatoly Kovler, Elisabeth Steiner, Khan lar Hajiyev, Dean Spielmann, Sverre Erik Jebens, Giorgio Malinverni, judges,

and Søren Nielsen, Section Registrar ,

Having regard to the above application lodged on 28 November 2003,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together ,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Vladimir Dmitriyevich Brazhnikov, is a Russian national who was born in 1946 and lives in Rostov-On-Don. The Russian Government (“the Government”) were represented by Ms V. Milinchuk , Representative of the Russian Federation at the European Court of Human Rights .

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

In 1986 the applicant took part in the emergency operations at the site of the Chernobyl nuclear plant accident. In March 1995 a medical board found that, as a result of exposure to radioactive emissions, he had a “category 2” disability.

1. Awarding of compensation

The applicant brought proceedings against the Military Service Commission of the Rostov Region ( Военный Комиссариат Ростовской области – “the Commission”) seeking to obtain compensation for damage to his health.

On 28 January 2000 the Oktyabrskiy District Court of Rostov-on-Don granted the applicant ’ s claim and obliged the Commission to pay him 368,028.76 Russian roubles (RUB) in respect of arrears for the period from 1 February 1997 to 1 February 2000, and RUB 10,223.02 in respect of monthly compensation for health damage as from 1 February 2000, subject to further indexation.

The Commission did not lodge an ordinary appeal against the above judgment, and it became binding and enforceable ten days later.

2. Recalculation of the compensation

In June 2002 the applicant brought proceedings before the court seeking to have his monthly compensation recalculated to take account of inflation.

On 29 July 2002 the Oktyabrskiy District Court of Rostov-on-Don granted the applicant ’ s claim and obliged the Commission to pay him RUB 327,551.43 in respect of arrears for the period from 1 July 2000 to 1 August 2002, and RUB 27,473.65 in respect of monthly compensation for health damage as from 1 August 2002, subject to further indexation.

The judgment was not appealed against and became binding and enforceable on 8 August 2002.

3. Review of the judgment of 29 July 2002 due to the discovery of new circumstances

On 17 February 2003 the Commission requested the court to reconsider the judgment of 29 July 2002. The request read as follows:

“[The applicant] receives [social benefits] in accordance with the Law on social protection of the victims of the Chernobyl nuclear plant accident.

The Law on social protection of the victims of the Chernobyl nuclear plant accident obliges the welfare authorities to index-link the sums in question in accordance with the law.

In view of the newly discovered circumstances related to indexation of [social benefits] in line with the increase of the minimum cost of living, previously unknown to the Commission, ... , [the Commission] requests the court to quash the judgment of the Oktyabrskiy District Court of 29 July 2002 and reconsider the case due to the discovery of new circumstances.”

On 19 February 2003 the Oktyabrskiy District Court of Rostov-on-Don decided to grant the Commission ’ s request. The court held that when the judgment of 29 July 2002 was pronounced, there was no court practice concerning indexation of sums of compensation for health damage, which had led to an incorrect interpretation of the decision of the Constitutional Court of 19 June 2002. However, in the meantime, on 31 October 2002 the Rostov Regional Court took a decision in another individual case, subsequently upheld on appeal by the Supreme Court of Russia, whereby it determined the mechanism of indexation of social benefits to Chernobyl victims in compliance with the existing legislation. Therefore, in accordance with Articles 392 and 397 of the Code of Civil Procedure, the court quashed the judgment of 29 July 2002 and remitted the case for reconsideration. No appeal lay against this decision.

On 19 February 2003, after the fresh examination of the case, the Oktyabrskiy District Court of Rostov-on-Don partly granted the applicant ’ s claim and determined that his monthly compensation should amount to RUB 24,922.66 as from 1 March 2003.

On 4 June 2003 the Rostov Regional Court upheld the judgment of 19 February 2003 on appeal.

4. Supervisory review of the judgment of 19 February 2003, as upheld on 4 June 2003

On 20 January 2005 the applicant lodged an application for supervisory review of the judgment of 19 February 2003, as upheld on appeal on 4 June 2003.

On 29 December 2005 the Presidium of the Rostov Regional Court granted the applicant ’ s request, quashed the judgment of 19 February 2003, as upheld on appeal on 4 June 2003, by way of supervisory review and remitted the case for a fresh examination. Until the quashing of the judgment of 19 February 2003 the applicant continued to receive his monthly compensation in the amount established by the judgment of 29 July 2002.

5. Subsequent proceedings

As a result of the fresh examination of the case, on 28 August 2006 the Oktyabrskiy District Court of Rostov-on-Don partly granted the applicant ’ s claim and determined that the applicant ’ s monthly compensation should amount to RUB 33,000 as from 1 September 2006.

On 13 November 2006 the Rostov Regional Court quashed the above judgment on appeal and remitted the case for a fresh examination.

On 22 December 2006 the Oktyabrskiy District Court of Rostov-on-Don determined that the applicant ’ s monthly compensation should amount to RUB 54,126.70 as from 1 January 2006. The court also obliged the defendant to pay the applicant RUB 772,454.67 in arrears for the period from 1 January 2002 to 31 December 2005.

On 5 March 2007 the Rostov Regional Court upheld the above judgment on appeal.

B. Relevant domestic law

The Code of Civil Procedure of the Russian Federation (“the CCivP ”), in force as from 1 February 2003, provides as follows:

Article 392. Grounds for reconsideration

“1. [Judgments] which have come into force may be re-considered on the basis of newly discovered circumstances.

2. 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; ...”

Article 394. Lodging of an application

“... [An application for re consideration of a [judgment] due to the discovery of new circumstances] shall be lodged within three months after the discovery of the circumstances.”

Article 395. Calculation of the time-limit for lodging an application

“The time-limit for lodging an application for reconsideration of a [judgment] due to the discovery of new circumstances shall be calculated from the day of the discovery of such circumstances...”

Article 397. Decision on reconsideration of the case

“1. Following the examination of an application for reconsideration of a [judgment] due to the discovery of new circumstances, the court may either grant the application and quash the [judgment], or dismiss the application.

2. The court decision by which an application for reconsideration of a [judgment] due to the discovery of new circumstances is granted shall not be subject to appeal.

3. Provided that a [judgment] is quashed, the case shall be examined in accordance with the rules of this Code.”

COMPLAINTS

1. The applicant complained under Article 6 of the Convention and Article 1 of Protocol No. 1 that the decision of the Oktyabrskiy District Court of Rostov-on-Don of 19 February 2003 to quash the judgment of 29 July 2002 and reconsider the case due to the discovery of new circumstances had violated his “right to a court” and deprived him of the fruits of the litigation.

2. He complained under Article 6 § 1 of the Convention that the proceedings by which the judgment of 29 July 2002 was quashed due to the discovery of new circumstances had been procedurally flawed .

3. The applicant further complained that during the fresh examination of his case on 19 February 2003 the Oktyabrskiy District Court of Rostov-on-Don had misapplied the domestic law and that he had had no remedy available in this respect.

4. Finally, the applicant complained under Article 14 of the Convention that he had been discriminated against in comparison to other persons who suffer a work-related disability and receive a higher amount of compensation.

THE LAW

1. The applicant complained that the decision of the Oktyabrskiy District Court of Rostov-on-Don of 19 February 2003 to quash the judgment of 29 July 2002 and reconsider the case due to the discovery of new circumstances had violated his “right to a court” and deprived him of the fruits of the litigation. He further complained that the proceedings by which the judgment of 29 July 2002 was quashed due to the discovery of new circumstances had been procedurally flawed . The applicant relied on Article 6 § 1 of the Convention and Article 1 of Protocol No. 1, the relevant parts of which provide as follows:

Article 6 § 1

“ In the determination of his civil rights and obligations... everyone is entitled to a fair... hearing ... by [a] ... tribunal established by law...”

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 Government submitted that the reopening of the case had not infringed the principle of legal certainty as guaranteed by Article 6 § 1, nor had it interfered with the applicant ’ s property rights as guaranteed by Article 1 of Protocol No. 1. The applicant disagreed with the Government, and maintained his complaints.

The Court recalls that the right to a fair hearing before a tribunal as guaranteed by Article 6 § 1 of the Convention must be interpreted in the light of the Preamble to the Convention, which declares, in its relevant part, the rule of law to be part of the common heritage of the Contracting States. One of the fundamental aspects of the rule of law is the principle of legal certainty, which requires, among other things, that where the courts have finally determined an issue, their ruling should not be called into question (see Brumărescu v. Romania , judgment of 28 October 1999, Reports of Judgments and Decisions 1999-VII, § 61).

It is not necessary, however, to determine whether in the present case the quashing of the final judgment of 29 July 2002 due to the discovery of new circumstances was in violation of the principle of legal certainty for the following reasons.

The Court recalls that the quashing of a final judgment is an instantaneous act, which does not create a continuing situation, even if it entails a reopening of the proceedings as in the present case (see Sardin v. Russia (dec.), no. 69582/01, 12 February 2004 ; Sitokhova v. Russia (dec.), no. 55609/00, 2 September 2004; Khanyan v. Armenia (dec.), no. 19065/05, 5 July 2007; and Tyuriny v. Russia (dec.), no. 16909/02, 23 October 2007).

The Court further recalls that, in accordance with Article 35 § 1 of the Convention, it may only examine complaints in respect of which domestic remedies have been exhausted and which have been submitted within six months from the date of the “final” domestic decision. If there is no adequate remedy against a particular act, which is alleged to be in breach of the Convention, the date when that act takes place is taken to be “final” for the purposes of the six months ’ rule (see, for example, Valašinas v. Lithuania (dec.), no. 44558/98, 14 March 2000).

The Court notes that at the material time the Russian law of civil procedure did not provide for any appeal against a decision to quash a final judgment due to discovery of new circumstances. In the absence of an effective remedy the Court concludes that it was the very act of quashing of the judgment of 29 July 2002 on the ground of newly-discovered circumstances that triggered the start of the six-month time-limit for lodging the present application with the Court (see Sardin , cited above). The judgment was quashed in the presence of the applicant on 19 February 2003 and the application was introduced on 28 November 2003 .

It follows that this part of the application has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

2. The applicant further complained that during the fresh examination of his case on 19 February 2003 the Oktyabrskiy District Court of Rostov-on-Don had misapplied the domestic law and that he had had no remedy available in this respect.

The Court observes that, following the applicant ’ s request, on 29 December 2005 the Presidium of the Rostov Regional Court quashed the above judgment by way of supervisory review. The applicant, therefore, can no longer be considered a victim of the alleged violation.

It follows that this complaint must be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

3. Finally, the applicant complained under Article 14 of the Convention that he had been discriminated against in comparison to other persons who suffer a work-related disability and receive a higher amount of compensation.

The Court finds nothing in the complaint to support the allegation of discrimination. In particular, there is nothing to suggest that the applicant was indeed subject to a difference in treatment from others in a comparable position in the enjoyment of a right guaranteed by the Convention.

It follows that this complaint is also manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

In view of the above, it is appropriate to discontinue the application of Article 29 § 3 of the Convention and to reject the application.

For these reasons, the Cou rt unanimously

Declares the application inadmissible.

Søren Nielsen Nina Vajić Registrar President