THIRD SECTION

CASE OF KULYUK AND OTHERS v. RUSSIA

( Applications nos. 47032/06 , 6415/07, 39249/08 and 39251/08 )

JUDGMENT

This judgment was revised in accordance with Rule 80 of the Rules of Court in a judgment of 17 January 2017

STRASBOURG

8 December 2015

This judgment is final but it may be subject to editorial revision.

In the case of Kulyuk and Others v. Russia ,

The European Court of Human Rights ( Third Section ), sitting as a Committee composed of:

Helena Jäderblom , President, Dmitry Dedov , Branko Lubarda , judges, and Marialena Tsirli , Deputy Section Registrar ,

Having deliberated in private on 17 November 2015 ,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1 . The case originated in f our applications (nos. 47032/06 , 6415/07, 39249/08 and 39251/08 ) 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 f our Russian nationals (“the applicants”) . The applicants ’ names and the dates of their applications to the Court appear in the Appendix .

2 . The Russian Government (“the Government”) were represented by Mr G. Matyushkin , Representative of the Russian Federation at the European Court of Human Rights.

3 . The applicants complained inter alia of the quashing of binding and enforceable judgments by way of supervisory review in 200 3 -200 8 .

4 . On various dates these complaints were communicated to the respondent Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5 . The applicants are pensioners. On various dates they successfully sued the authorities for miscalculating and adjustment of their pensions. The judgments became final.

6 . On various dates the Presidia of Regional Courts or the Supreme Court of Russian Federation allowed the defendant authorities ’ applications for supervisory review and quashed the judgments delivered in the applicants ’ favour , considering that the lower courts misapplied the material law .

7 . Some of the judgments remained unenforced or partially enforced until the date of their quashing or were enforced with delay.

II. RELEVANT DOMESTIC LAW

8 . The relevant domestic law governing the supervisory review procedure from 2003 is summed up in the Court ’ s judgment in the case of Kot v. Russia (no. 20887/03, § 17, 18 January 2007).

THE LAW

I. JOINDER OF THE APPLICATIONS

9 . Given that these four applications concern similar facts and complaints and raise almost identical issues under the Convention, the Court decides to consider them in a single judgment (see Kazakevich and 9 other “Army Pensioners” cases v. Russia , nos. 14290/03 et al., § 15, 14 January 2010).

II . ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION ON ACCOUNT OF THE QUASHING OF THE JUDGMENTS IN THE APPLICANTS ’ FAVOUR

10 . All applicants complained of a violation of Article 6 of the Convention on account of the quashing of the binding and enforceable judgments in their favour by way of supervisory review. The applicants further complained of a violation of Article 1 of Protocol No. 1 to the Convention in relation to the same facts. The Court will consider all cases in the light of both provisions, which insofar as relevant, read as follows:

Article 6 § 1 of the Convention

“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 to the Convention

“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

11 . The Court notes that the applicants ’ complaints are not manifestly ill-founde d 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

12 . The Government argued that the supervisory review proceedings resulting in the quashing of the judgments delivered in the applicants ’ favour were lawful: they were initiated by the defendant authorities within the time-limits provided for by domestic law. The supervisory review courts quashed lower courts ’ judgments based on the wrong application of substantive law, thus correcting flagrant injustice and erasing dangerous precedents.

13 . The applicants reiterated their complaints.

14 . The Court 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 (see Kot , cited above, § 29). Some of these violations were found in similar and, on certain occasions, virtually identical circumstances concerning quashing of fi nal domestic judgments awarding pension arrears and/or adjustment of the pension (see Khotuleva v. Russia , no. 27114 /0 4 , 30 July 200 9 , and Senchenko and Others and 35 other “Yakut pensioners” cases v. Russia , no s . 32865 /0 6 et al ., 2 8 May 2009).

15 . Turning to the present cases, t he Court observes that the domestic judgments were set aside by way of a supervisory review solely on the ground that the lower courts had incorrectly applied 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 first-instance and appeal 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 applicants ’ claim (see Dovguchits v. Russia , no. 2999/03, § 30, 7 June 2007, and Kot , cited above, § 29). The Government did not put forward any argument which would enable the Court to reach a different conclusion in the present cases.

16 . The Court accordingly concludes that the quashing of the binding and enforceable judgments in the applicants ’ favour by way of supervisory review amount s to a breach of the principle of legal certainty in vio lation of Article 6 o f the Convention and of Article 1 of Protocol No. 1 to the Convention .

III . ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION ON ACCOUNT OF NON ‑ ENFORCEMENT OR DELAYED ENFORCEMENT

17 . Relying on Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention , both cited above , the applicants further complained about non ‑ enforcement or delayed enforcement of the same judgments prior to their quashing . In the case of Dronov the applicant complained about non ‑ enforcement of other judgments delivered in the applicant ’ s favour (see the details in the Appendix).

A. Admissibility

18 . In the Dronov case the Government submitted that the delay in execution of the judgments of 8 December 2000 (final on 19 December 2000) and 12 April 2006 (final on 24 April 2006) was less than one year, such delay was found by the Court to be consistent with the reasonable-time requirement (see Grishchenko v. Russia ( dec. ), no. 75907/01, 8 July 2004, and Inozemtsev v. Russia ( dec. ), no. 874/03, 31 August 2006 ). In certain other cases the Government argued that the relevant judgments could not be executed on account of their quashing by way of supervisory review procedure.

19 . 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.

20 . As regards delays in execution, the Court observes that in the Dronov case the judgment of 8 July 200 3 , became binding on 21 July 200 3 , remained unexecuted for almost five months . Having regard to its case-law, the Court agrees with the Government that this delay does not appear to be unreasonable (see Zasurtsev v. Russia , no. 67051/01, § 59, 27 April 2006, with further references ). Consequently, th is complaint should be declared inadmissible.

21 . As regards the other cases and the three other judgments in the Dronov case , the Court observes that the domestic judgments delivered in the applicants ’ favour remained unexecuted for more than one year (see Kozodoyev and Others v. Russia , nos. 2701/04 et al. , § 11 , 15 January 2009 ). The Court considers that these co mplaints are not manifestly ill ‑ founded within the meaning of Article 35 § 3 of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.

B. Merits

22 . In the cases of Shapiyev and Samedov the Government accept ed that there was violation of Article 6 of the Convention in r espect of non ‑ enforcement of final and bind ing judgments in the applicants ’ favour prior to the quashing of those judgments by way of supervisory review.

23 . The applicants maintained their claims.

24 . The Court reiterates that an unreasonably long delay in the enforcement of a final and binding judgment may breach the Convention (see Burdov v. Russia , no. 59498/00, ECHR 2002-III).

25 . Turning to the present cases, the Court observes that in the cases of Shapiyev and Samedov the domestic judgments in the applicants ’ favour had never been enforced. In other cases, the domestic judgments were enforced within the periods longer than one year (se e for more details the Appendix ). Having regard to its case-law, the Court finds that such delays were incompatible with the reasonable time requirement (see, among others, Kozodoyev and Others , cited above, § 11).

26 . As regards the Government ’ s arguments referred to above, the Court reiterates its established case-law that the subsequent quashing of final and enforceable domestic judgments does not constitute a valid reason for the prolonge d non-enforcement of these judgments (see Velskaya v. Russia , no. 21769/03, § 18, 5 October 2006). It sees no reasons to hold otherwise in the present cases.

27 . There has, accordingly, been a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention in the present four cases.

IV . OTHER ALLEGED VIOLATIONS OF THE CONVENTION

28 . Lastly, in the cases of Kulyuk and Dronov the applicants in addition complained under Articles 6, 13 and 14 of the Convention, Article 1 of Protocol No. 1 to the Convention , Protocol s No s . 4, 6 and 7 to the Convention about other different violations, such as lack of fair hearing, lack of an effective domestic remedy against non-enforcement and/or quashing.

29 . In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that these complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that they are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

V . APPLICATION OF ARTICLE 41 OF THE CONVENTION

30 . Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

31 . The Court notes at the outset that in the case of Dron ov the applicant submitted no claims for just satisfaction. Consequently, the Court makes no award in this case.

32 . Other applicant s submitted, as far as their admissible complaints are concerned, claims in respect of pecuniary and/or non ‑ pecuniary damage ranging from 2,000 euros (EUR) to EUR 30 , 2 00 together with their calculations based on various adjustment rates.

33 . The Government disputed the applicants ’ methods of calculation as regards pecuniary damage, without however suggesting any alternative. They considered that the sums claimed in respect of non-pecuniary damage were excessive and unreasonable.

34 . The Court notes that the present cases are similar to numerous other Russian cases that concern the same issues it has already addressed in numerous other judgments finding violations of the Convention on account of the quashing of final judgments by way of the supervisory review procedure and non-enforcement of domestic judicial decisions. In cases involving many similarly situated victims a unified approach may be called for. This approach will ensure that the applicants remain aggregated and that no disparity in the level of the awards will have a divisive effect on them ( see, for instance, Moskalenko and Others v. Ukraine [Committee], nos. 1270/12 et al., § 23, 18 July 2013, and Goncharova and Others and 68 other “Privileged Pensioners” cases v. Russi a, nos. 23113/08 et al., §§ 22 ‑ 24, 15 October 2009).

35 . In addition, if one or more heads of damage cannot be calculated precisely or if the distinction between pecuniary and non-pecuniary damage proves difficult, the Court may decide to make a global assessment (see Comingersoll S.A. v. Portugal [GC], no. 35382/97, § 29, ECHR 2000 ‑ IV).

36 . In these circumstances and having regard to the principles developed in its case-law on determination of compensation in similar cases, the Court considers it reasonable and equitable to award Mr s Kulyuk , Mr Shapiyev and Mr Samedov a total of EUR 5,000 to cover all heads of damage.

B. Costs and expenses

37 . The applicant in the case of Kulyuk also claimed 2,067.35 R ussian roubles (RUB) for the costs and expenses.

38 . The Government did not contest these claims.

39 . Having regard to the materials in its possession, the Court decides to grant the applicant ’ s claim.

C. Default interest

40 . The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT , UNANIMOUSLY,

1. Decides to join the applications;

2 . Declares , in respect of all applications, the complaints under Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention concerning quashing by way of supervisory review and non-enforcement of domestic final judgments in the applicants ’ favour , except in the Dronov case (the judgment of 8 July 2003 , final on 21 July 2003 ), admissible and the remainder of the applications inadmissible;

3 . Holds in respect of all applicants, that there has been a violation of Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention in respect of the quashing of the judgments in the applicants ’ favour by way of supervisory review proceedings;

4 . Holds in respect of all applicants , that there has been a violation of Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention on account of the non-execution or delayed execution of the judgments in the applicants ’ favour ;

5 . Holds

(a) that the respondent State is to pay the applicants, within three months, the following amounts:

( i ) EUR 5,000 (five thousand euros) each to Kuly uk Na dezhda Geo r giyevna , Shapiyev Abdula Shapiyevich , Samedov Magomedsultan Magomedmirzayevich t o be converted into the currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable, in respect of both pecuniary and non-pecuniary damage;

(ii) RUB 2,067 ( two thousand and sixty-seven Russian roubles) to Kulyuk Na dezhda Geo r giyevna in respect of costs and expenses;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

6 . Dismisses the remainder of the applicant s ’ claim for just satisfaction.

Done in English, and notified in writing on 8 December 2015 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Marialena Tsirli Helena Jäderblom Deputy Registrar President

A PPENDI X

No

Application

no. and date of introduction

Applicant name

Date of birth

Place of residence

Nationality

Represented by

Final domestic judgment

Award(s)

Enforcement status (prior to the quashing)

Quashing

Length of non-enforcement prior to the quashing (separate complaint)

47032/06

14/09/2006

Nadezhda Georgiyevna KULYUK

25/04/1934

Novouralsk

Russian

Sergey Ivanovich BELYAYEV

Novouralsk City Court of Sverdlovsk District 26/10/2004 25/01/2005

Recalculation of pension

Partially enforced in May 2005

Presidium of Sverdlovskiy District Court 22/03/2006

13 months 27 days

6415/07

23/11/2006

Aleksandr Anatolyevich DRONOV

10/03/1960

Sosny

Russian

1) Belokalitvinskiy Town Court 25/10/1999 08/11/1999 The Agency of Social Security of Population of Belaya Kalitva

2) Belokalitvinskiy Town Court 08/12/2000 19/12/2000 The Agency of Social Security of Population of Belaya Kalitva

3) Belokalitvinskiy Town Court 08/07 / 2003 21/07/2003 The Agency of Social Security of Population of Belaya Kalitva 4) Belokalitvinskiy Town Court 12/04/2006 24/04/2006 The Agency of Social Security of Population of Belaya Kalitva

1) RUB 11,077 . 29 (lump sum) + RUB 2,693.63 (monthly payment of pension) from 01/10/1999 to 01/07/2000 2) RUB 4,258 . 62 (monthly payment of pension with further indexation) since 01/07/2000

3) RUB 10,752.3 (lump sum) + RUB 5,082.47 (monthly payment of pension with further indexation) since 01/07/2003

4) RUB 303,408 . 08 (lump sum for arrears) + 12,966 . 23 (monthly payment of pension with further indexation) since 01/01/2006

1) L ump sum was paid on 02/04/2002; monthly payments were made from 01/01/2000 to 31/05/2001

2) L ump sum for arrears was paid on 28/06/2002; pension was paid from 01/07/2002 to 31/03/2003 (without indexation) 3) L ump sum was paid on 15/12/2003; pension has been paid since 01/01/2004 (without indexation)

4) T he judgment remained unenforced in part of lump sum

2) Presidium of the Rostov Regional Court 16/01/2003

1) 28 months 24 days (lump sum)

2) 24 months

3) 4 months 24 days (lump sum);

5 months 10 days (pension);

up to now (indexation)

4) up to now

39249/08

15/03/2008

Abdula Shapiyevich SHAPIYEV

22/12/1939

Makhachkala

Russian

Sovetskiy District Court of Makhachkala 27/02/2006 09/03/2006 The Ministry of Labour and Social Development

RUB 23,775.5 (monthly payment of pension)

R emained unenforced

Supreme Court of Russian Federation 08/02/2008

22 months 29 days

39251/08

13/03/2008

Magomedsultan Magomedmirzayevich SAMEDOV

01/05/1938

Makhachkala

Russian

Sovetskiy District Court of Makhachkala 02/03/2006 12/03/2006 The Ministry of Labour and Social Development

RUB 23,775.5 (monthly payment of pension)

R emained unenforced

Supreme Court of Russian Federation 08/02/2008

22 months 26 days