FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 16909/02 by Yevgeniy Pavlovich and N adezhda Alekseyevna TYURINY against Russia

The European Court of Human Rights (First Section), sitting on 23 October 2007 as a Chamber composed of:

Mr L. Loucaides , President, Mrs N. Vajić , Mr A. Kovler , Mrs E. Steiner , Mr K. Hajiyev , Mr D. Spielmann , Mr G. Malinverni , judges, and Mr S. Nielsen , Section Registrar ,

Having regard to the above application lodged on 13 June 2001 ,

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

Having deliberated, decides as follows:

THE FACTS

The applicants, Mr Yevgeniy Pavlovich and Mrs Nadezhda Alekseyevna Tyuriny are Russian nationals who were born in 1932 and 1943 respectively and live in Novosibirsk . They are rep resented before the Court by Mr I.V. Novikov, a lawyer practising in Novosibirsk . The Russian Government (“the Government”) were represented by Mr P. Laptev, 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.

The applicants are spouses. They receive old-age pension s .

On 1 February 1998 the Law on the Calculation and Adjustment of State Pensions (“the Pensions Act”) introduced a new method of calculation of retirement benefits based on so-called “individual pensioner coefficient” (“the IPC”). The IPC was the ratio between an individual ’ s wages at the moment of retirement and the national average rate and was meant to maintain a link between a person ’ s pension and previous earnings.

The authority in char ge of the applicants ’ pensions – the Pension Fund Agency of the Zayeltsovskiy Dist rict of Novosibirsk (“the Fund ”) – decided that the IPC to be applied to them should be 0.525. The applicants considered that this decision was arbitrary as it conflicted, in thei r opinion, with the Pensions Act . They brought a court action against the Fund for an increase of their pensions in accordance with Pensions Act .

On 7 October 1999 the Zayeltsovskiy District Court of Novosibirsk (“the District Court”) found for the applicant s. It held that since the defendant had misinterpreted the Pensions Law, the applicants ’ pensions should be increased in line with an IPC of 0.7. The court also recovered the pension arrears in the amount of 1,242.10 Russian roubles (RUB) and indexation in the amount of RUB 2,670.25 in favour of the first applicant, RUB 1,169.75 and 2,529.5 respectively, in favour of the second applicant.

On 7 December 1999 the Novosibirsk Regional Court (“the Regional Court ”) rejected an appeal by the defendant. On the same date the judgment of 7 October 1999 acquired legal force.

On 21 January 2000 the Fund requested the District Court to re-consider its judgment of 7 October 1999 due to discovery of new circumstances. The Fund submitted that on 29 December 1999 the Ministry of Labour a nd Social Development had issued an Instruction on the Application of Limitations established by the Pensions Law (“the Instruction”). The instruction clarified how the Pensions Act should be applied. The Fund contended that s ince it had been unaware of that instruction at the moment when the judgment was passed, the judgment would have to be reconsidered. The Fund claimed that it had learned about the Instructio n on 12 January 2000 and requested the District Court to postpone the enforcement proceedings of the judgment of 7 October 1999 until the examination of the request to re- consider the judg ment.

On 27 January 2000 the Di strict Court rejected the defendant ’ s request to postpone the enf orcement proceedings. The Regional Court upheld the decision on appeal on 30 March 2001.

On 21 August 2000 the Fund sub mitted a new application for re ‑ consideration of the judgment of 7 October 1999 due to discovery of new cir cumstances. This time the Fund claimed that on 24 April 2000 the Supreme Court of the Russian Federation had dismissed the complaint by a group of individuals challenging the Instruction. The Supreme Court found that the Ministry of Labour had acted within its competence when it had issued the Instruction, and that the Ministry ’ s interpretation of the Pension Act had been correct. The Fund contended that since it had been unaware of the decision of 24 April 2000 at the time of the judgment of 7 October 1999, the judgment would have to be reconsidered.

On 22 September 2000 the D istrict Court granted the Fund ’ s application. The Court applied Article 333 of the Code of Civil Procedure according to which judgments could be re-considered in case of discovery of significant circumstances which were not and could not haven been known to the party concerned. The court found that the Instruction, as upheld by the Supreme Court, could serve as such a circumstance. No appeal lay against this decision. The court quashed the judgment of 7 October 1999 , as upheld on 7 December 1999, and remitted the case for a new examination to the first instance court. The first applicant was present at the hearing.

After a fresh examination on 14 February 2001 the District Court dismissed the applicants ’ claims in full having applied the Instruction. On 13 March 2001 the Regional Cour t rejected the applicants ’ appeal against the judgment.

In the meantime, the applicants filed a new court action against the Pension Agency for wrong calculation of their retirement pension. On 1 February 2001 the District Court rejected their claims. By a decision of 15 March 2001 the Regional Court upheld the judgment.

B. Relevant domestic law

Article 333 of the RSFSR Code of Civil Procedure of 1964 (in force at the material time) provided for grounds for reconsideration of final judgments on the basis of “newly-discovered circumstances”. Such grounds included, inter alia, significant circumstances which were not and could not have been known to the party which applied for reconsideration, and invalidation of a court ruling or another authority ’ s decision which had served as a legal basis for the judgment in question.

Article 334 required that an application for reconsideration of a judgment owing to the discovery of new circumstances should be lodged within three months after the discovery of the circumstances.

Pursuant to Article 337 a court, after having examined an application for reconsideration of a final judgment on the basis of newly-discovered circumstances, should either grant such an application and quash the final judgment or dismiss the application. Such a decision was not amenable to appeal.

COMPLAINTS

1. The applicants complained under Article 6 of the Convention that the judgment of 7 October 1999 had been quashed due to newly ‑ discovered circumstances.

2. The applicants also complained under Article 1 of Protocol No. 1 about the outcome of the proceedings which ended on 13 March 2001, under Article 6 about unfairness of the proceedings which ended on 15 March 2001 and under Article 14 about discrimination against them.

THE LAW

1. The applicants complained under Article 6 about the quashing of the judgment of 7 October 1999 on the ground of newly ‑ discovered circumstances. This complaint falls to be examined under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 (see Pravednaya v. Russia , no. 69529/01, §§ 19-42 , 18 November 2004 ) . These provisions, as far as relevant, read as follows:

Article 6 § 1

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

Article 1 of Protocol No. 1

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

The Government argued in the first place, that the applicants had failed to comply with the six-month time-limit, since the final decision in the case was made on 22 September 2000, when the District Court quashed the decision of 7 October 1999 on the ground of newly ‑ discovered circumstances, and the application was lodged on 13 June 2001. They referred in this respect to the Court ’ s decision in Sitokhova v. Russia (no. 55609/00, 2 September 2004).

The Government further submitted that the judgment of 7 October 1999 had not determined any definite amount, but had rather established how pensions should be calculated. They maintained that the dispute in the present case concerned legislation on pensions and it did not determine the applicants ’ “civil rights and obligations”. The Government further contested that the amounts awarded to the applicants by the judgment of 7 October 1999 constituted their “possessions” within the meaning of Article 1 of Protocol No. 1.

The applicants maintained their claims and replied that they had lodged the application on time. They submitted that in the Sitokhova case a judgment had been quashed by way of supervisory review, whereas in their case the final judgment had been quashed by means of a different procedure, namely, on the ground of newly- discovered circumstances. They contested that the decision of 22 September 2000 had been a final one, as it did not resolve the dispute on the merits. The applicants claimed that the final decision in their case was made on 15 March 2001, after a fresh examination of the case.

The Court recalls that t he right to a fair hearing before a tr ibunal 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). This principle insists that no party is entitled to seek a review of a final and binding judgment merely for the purpose of a rehearing and a fresh decision of the case. Higher courts ’ power of review should be exercised for correction of judicial mistakes, miscarriages of justice, and not to substitute a review. The review cannot be treated as an appeal in disguise, and the mere possibility of two views on the subject is not a ground for re-examination. Departures from that principle are justified only when made necessary by circumstances of a substantial and compelling character (see Ryabykh v. Russia , no. 52854/99, § 52, ECHR 2003- X).

The Court should be especially mindful of the dangers inherent in the use of retrospective legislation which has the effect of influencing the judicial determination of a dispute to which the State is a party. Respect for the rule of law and the notion of a fair trial require that any reasons adduced to justify such measures be treated with the greatest possible degree of circumspection (see The National & Provincial Building Society, the Leeds Permanent Building Society and the Yorkshire Building Society v. the United Kingdom , judgment of 23 October 1997, Reports 1997-VII, § 112 ; Zielinski and Pradal & Gonzalez and Others v. France [GC], nos. 24846 /94 and 34165/96 to 34173/96, § 57, ECHR 1999- VII ; and Pravednaya v Russia , no. 69529/01, § 26 , 18 November 2004 ).

It is not necessary, however, to determine whether in the present case the quashing of the final judgment of 7 October 1999 due to newly ‑ discovered 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, mutatis mutandis , Voloshchuk v. Ukraine (dec.), no. 51394/99, 14 October 2003; Sardin v. Russia (dec.), no. 69582/01, 12 February 2004; Stanca v. Romania (dec.), no. 59028/00, 27 April 2004; Frunze v. Moldova (dec.), no. 4 2308/02, 14 September 2004; Gargali v. Bulgaria (dec.), no. 67670/01, 5 June 2006 ; and Khanyan v. Armenia (dec.), no. 19065/05, 5 July 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 a ppeal against a decision to quash a final judgment d ue to newly- discovered circumstances. In absence of an effective remedy the Court concludes that it was the very act of quashing of the judgment of 7 October 1999 , as upheld on 7 December 1999, on the ground of newly- discovered circumstances that triggered the start of the six-month time-limit for lodging the pre sent application with the Court (see, mutatis mutandis , Sardin , cited above). The judgment was quashed in the presence of the first applicant on 22 September 2000 and the application was introduced on 13 June 2001.

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 applicants also complained under Article 1 of Protocol No. 1 that as a result of proceedings which followed the re-opening of the case, their claims were dismissed in full, under Article 6 that the proceedings which ended on 15 March 2001 had been unfair and under Article 14 about discrimination against them. However, having regard to all the material in its possession, and in so far as these complaints fall within its competence, the Court finds that they do 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 application must be rejected as being manifestly ill ‑ founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Cou rt unanimously

Declares the application inadmissible.

Søren Nielsen Loukis Loucaides Registrar President