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KEREFOV v. RUSSIA

Doc ref: 28480/13, 28481/13, 28494/13, 28506/13, 58068/13, 58078/13, 58425/13, 58429/13, 58433/13, 58441/13, ... • ECHR ID: 001-147585

Document date: October 1, 2014

  • Inbound citations: 0
  • Cited paragraphs: 0
  • Outbound citations: 17

KEREFOV v. RUSSIA

Doc ref: 28480/13, 28481/13, 28494/13, 28506/13, 58068/13, 58078/13, 58425/13, 58429/13, 58433/13, 58441/13, ... • ECHR ID: 001-147585

Document date: October 1, 2014

Cited paragraphs only

Communicated on 1 October 2014

FIRST SECTION

Application no. 28480/13 Aslan Betalovich KEREFOV against Russia and 13 other applications (see list appended)

STATEMENT OF FACTS

T he appli cants are 28 Russian nationals listed in Appendix 1 . The y are residents of various tow ns in the Republic of Kabardino ‑ Balkaria and are represented before the Court by Mr Z. Geshev and Mr M. Abubakarov , lawyers practicing in Baksan and Nalchik .

The sixteenth applicant, Ms Lidiya Vasilyevna Agibalova , is the widow of Mr Viktor Ivanovich Shvetsov , who died on 24 November 2011 . She lodged the application before the Court after the death of her husband on 26 August 2013.

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

A. The circumstances of the case s

The applicants were clean-up workers at the site of the Chernobyl nuclear plant accident. As a result they suffered from extensive exposure to radioactive emissions which later led to their disability.

In late 2010 the sixteenth applicant ’ s deceased husband, Mr Shvetsov , and the remaining applicants (for the sake of convenience referred to below as “the applicants”) lodged a complaint with the Nalchik Town Court of the Republic of Kabardino-Balkaria (“the Town Court”) against the Russian Ministry of Finance seeking compensation of non ‑ pecuniary damage in the above connection.

In the period between February and April 2011 (see Appendix 2 , column no. 2) t he Town Court allowed the claims in part and awarded the claimants compensation in amounts ranging between 1, 2 00,000 and 1,600,000 Russian roubles (RUB) (approximately 30, 000 - 37 ,000 euros ) (see Appendix 3 ).

The judgments above have not been appealed against and became final and enforceable (Appendix 2 , column no. 2).

In early June 2011 the Department of the Federal Treasury Fund in the Republic of Kabardino-Balkaria (“the FTF”) on behalf of the Russian Ministry of Finance lodged through the Town Court an appeal with the Supreme Court of Kabardino-Balkaria against the final judgment s in the applicants ’ favour . They also r equested that the statutory ten ‑ day time ‑ limit for lodging such an appeal against the judgment s be restored.

T he Town Court refused to restore the time-limit for appealing against the main judgments , finding that the FTF had provided no valid reasons for having exceeded it (Appendix 2 , column no. 3) . The latter decision s were not appealed against and became final.

In the m eantime most of the applicants received the awarded amounts while the others were waiting (see Appendix 3 ) .

In the period between October and November 2012 the FTF lodged an appeal with the Town Court against the previous refusals (Appendix 2 , column no. 3). They also requested that the ten ‑ day statutory time- limit for appealing against those decision s be restored on the ground s that their copies had not been forwarded to the FTF .

In the same period (Appendix 2 , column no. 4), the Town Court ordered that the time ‑ limit for appeal be extended, on the grounds that the re was no evidence that the FTF had received the refusals in due course.

In November 2012 the applicants and Mr Shvetsov appealed against the latter decisions before the Supreme Court on the grounds that according to the domestic law the court should forward a copy of its decision only to those parties, who were not present at the court hearings. However, according to the applicants, since the FTF ’ s representative participated in the proceedings, the court had not been required to forward them a copy of the decision.

On 26 and 27 December 2012 (Appendix 2, column no. 4) the Supreme Court of Kabardino- Balkaria found that the Town Court had lawfully extended the time-limit for appeals but held that the grounds for the extensions were incorrect. The Supreme Court in particular held that the Russian Ministry of Finance could not be said to have been duly represented in those proceedings as the relevant hearing transcript did not provide the details regarding the power of attorney of Ms B., who had acted as a representative of the Russian Ministry of Finance. I n such circumstances the Town Court should have forwarded a copy of the decision to the respondent but it had failed to do so. Accordingly , the Supreme Court held that the Russian Ministry of Finance had a valid excuse in missing the statutory time-limit for appealing against the Town Court ’ s decision s taken in June 2011 (Appendix 2, column no. 3).

On 27 and 28 February 2013 (Appendix 2, column no. 5) the Supreme Court quashed the Town Court ’ s refusals (Appendix 2, column no. 3) and restored the time-limit for appealing against the main judgment s (Appendix 2, column no. 2) . It noted, in particular , as follows :

“... As it transpires from the case materials the defendant [the Russian Ministry of Finance] was represented by Ms B. ... who participated in the first instance court hearing on examination of the case on the merits and, accordingly, was aware of the delivered judgment [Town Court ’ s judgment in the applicants ’ favour ].

Therefore the submission of an appeal against that judgment [Town Court] within the time-limit provided by Article 338 of the Russian Code of Civil Procedure depended on the representative ’ s good faith ... Accordingly, the failure to comply with the time- limit by the respondent evidently was a consequence of improper fulfillment of the obligations by the representative , which obviously led to a substantial violation of the Russian Federation ’ s rights in supporting its position before the court of appeal.”

On 27 and 28 February 2013 (Appendix 2, column no. 6) the Supreme Court quashed the Town Court ’ s main judgment and dismissed the applicants ’ claims in full. It noted that the domestic law concerning compensation for non- pecuniary damage had been introduced on 31 May 1991 after the Chernoby l nuclear accident had occurred; therefore the claimants had not been entitled to any compensation. The Supreme Court further ordered the m to return the money which they had received pursuant to the Town Court ’ s judgment s taken between January and April 2011 (Appendix 2, column no. 2).

In the period between July and October 2013 the Supreme Court upheld its earlier decision in relation to the main findings but quashed the reversal of awards as having been based on an incorrect application of the relevant legal provisions (Appendix 2, column no. 7) .

B. Relevant domestic law and practice

Article 112 of the Russian Code of Civil Procedure (“CCP”) provides that a competent court may extend a time-limit for procedural actions, such as lodging an appeal, if the court finds that a party has a valid excuse for a failure to comply with that time-limit.

Article 227 of the CCP stipulates that a copy of a decision concerning termination of proceedings shall be forwarded to the parties to the proceedings if they were not present at the hearing within three days after its delivery .

Under Article 338 of the CCP , in force before 1 January 2012 , an appeal in a civil case could be lodged within ten days after the delivery of a first ‑ insta nce judgment in its final form. After 1 January 2012 the time ‑ limit for lodging an appeal has been extended to one month under Article 321 of the CCP .

Under Article 392 of the CCP a final judgment in a case may be reviewed, inter alia , on the ground that the European Court of Human Rights found a violation of the Convention on account of the domestic judicial proceedings or decisions taken in t hat case. Articles 393 ‑ 94 set out a procedure for reopening of domestic judicial proceedings in any such case.

Article 1109 § 3 of the CCP stipulates that , if a decision to grant compensations for damages to health to a person in the absence of a bad faith and miscalculations on his or her part is quashed on appeal or by way of supervisory review, the compensation itself cannot be claimed back .

COMPLAINTS

The applicants complain under Article 6 § 1 of the Convention that the restoration of the time-limit for an appeal which had resulted in the quashing of the final judgment , that had previously been rendered in their favour , violated the principle of legal certainty. The applicants further complain under Article 1 of Protocol No. 1 that the reversal of the compensations awards made by the Town Court, which had already been paid to the applicants, violated their right to property.

QUESTIONS TO THE PARTIES

1. Does the second applicant have locus standi , satisfying the requirements of Article 34 of the Convention, to file the application on behalf of Mr Viktor Shvetsov ? If so, does this standing extend to all the complaints raised in the application (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, §§ 97 ‑ 100, 17 July 2014)?

2. In the light of the decisions of the Supreme Cou rt of the Republic of Kabardino- Balkaria listed in column no. 7 of Appendix 2, in so far as they quashed the reversal of the awards, may the applicants still claim to be victims within the meaning of Article 34 of a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 ?

3 . Regard being had to the decisions listed in columns nos. 5 and 6 of Appendix 2, by which the Supreme Cou rt of the Republic of Kabardino ‑ Balkaria restored at the request of the Russian Ministry of Finance the time-limit for appealing against the decisions listed in columns nos. 3 and 2 of Appendix 2 respectively, were the guarantees of Article 6 § 1 of the Convention, and in particular the principle of legal certainty, respected (see Bezrukovy v. Russia , no. 34616/02, §§ 32-36, 10 May 2012)?

4. Have there been any other examples, not stemming from the facts as described in the present cases, where a time-limit for an appeal was restored on similar grounds? The Government are invited to submit their reply with references to domestic practice, if any.

5. Did the quashing of the final judgments that had been delivered in the applicants ’ favour constitute an interference with their right to peaceful enjoyment of their possessions, in the form of a judgment debt? If so, was the interference justified for the purposes of Article 1 of Protocol No. 1?

APPENDIX 1

1. Application no. 28480/13 lodged on 8 April 2013 :

2. Application no. 28481/13 lodged on 8 April 2013 :

3. Application no. 28494/13 lodged on 18 April 2013 :

4. Application no. 28506/13 lodged on 8 April 2013 :

5. Application no. 58068/13 lodged on 27 August 2013 :

6. Application no. 58078/13 lodged on 26 August 2013 :

7. Application no. 58425/13 lodged on 26 August 2013 :

8. Application no. 58429/13 lodged on 26 August 2013 :

9. Application no. 58433/13 lodged on 26 August 2013 :

10. Application no. 58441/13 lodged on 26 August 2013 :

11. Application no. 58490/13 lodged on 26 August 2013 :

12. Application no. 58580/13 lodged on 26 August 2013 :

13. Application no. 58588/13 lodged on 26 August 2013 :

14. Application no. 58606/13 lodged on 26 August 2013 :

Sergey Nikolayevich TSELOVALNIKOV, born on 24/08/1955.

APPENDIX 2

No.

Application no.

Case title

Column no. 1

Main

judgment taken on ( final on )

Column no. 2

Refusal to

restore time-limit for appealing against t he main judgment

Column no. 3

Decision to

grant restoration of time ‑ limit for appealing against refusal to restore time-limit (final on)

Column no. 4

Decision to

grant r estoration of time-limit for appealing against the main judgment

Column no. 5

Decision to

quash main judgment

Column no. 6

Decision to

quash reversal of awards

Column no. 7

1 .

28480/13

KEREFOV v. Russia

18/02/11 (01/03/11)

08/06/11

16/11/12

(26/12/12)

28/02/13

28/02/13

11/07/13

2 .

28481/13

STASHYALIS v. Russia

16/02/11 (01/03/11)

06/06/11

16/11/12

(26/12/12)

28/02/13

28/02/13

11/07/13

3 .

28494/13

MARCHENKO AND SANSHOKOV v. Russia

14/02/11 (01/03/11)

06/06/11

15/11/12

(27/12/12)

28/02/13

28/02/13

11/07/13

4 .

28506/13

KRAVTSOV AND KUMYSHEV v. Russia

05/04/11 (18/04/11)

07/06/11

16/11/12

(27/12/12)

28/02/13

28/02/13

29/08/13

5 .

58068/13

SAMOYLENKO v. Russia

12/04/11 (22/04/11)

07/06/11

15/11/12

(26/12/12)

28/02/13

28/02/13

29/08/13

6 .

58078/13

KUCHMEZOV AND CHECHENOV v. Russia

15/02/11 (28/02/11)

06/06/11

16/11/12

(27/12/12)

28/02/13

28/02/13

29/08/13

7 .

58425/13

KOSTROMSKOY v. Russia

12/04/11 (22/04/11)

06/06/11

16/11/12

(26/12/12)

28/02/13

28/02/13

17/07/13

8 .

58429/13

OVCHAROV v. Russia

14/02/11 (28/02/11)

06/06/11

15/11/12

(27/12/12)

28/02/13

28/02/13

11/07/13

9 .

58433/13

KARPENKO AND BEZRODNOV v. Russia

14/02/11 (28/02/11)

06/06/11

16/11/12

(26/12/12)

27/02/13

27/02/13

26/09/13

10 .

58441/13

PETRENKO AND OTHERS v. Russia

18/02/11 (01/03/11)

08/06/11

16/11/12

(26/12/12)

28/02/13

28/02/13

11/07/13

11 .

58490/13

CHERNOV AND PARTAYEV v. Russia

14/02/11 (28/02/11)

06/06/11

15/11/12

(27/12/12)

28/02/13

28/02/13

11/07/13

12 .

58580/13

VERESOV AND OTHERS v. Russia

14/02/11 (28/02/11)

07/06/11

15/11/12

(27/12/12)

28/02/13

28/02/13

10/10/13

13 .

58588/13

KAZANTSEV AND OTHERS v. Russia

14/02/11 (28/02/11)

06/06/11

15/11/12

(27/12/12)

28/02/13

28/02/13

29/08/13

14 .

58606/13

SIBAROV AND TSELOVALNIKOV v. Russia

05/04/11 (15/04/11)

07/06/11

23/10/12

(27/12/12)

28/02/13

28/02/13

29/08/13

APPENDIX 3

No.

Applicants

Amount of awarded compensation (RUB)

Compensation paid:

 - “yes”

 - “no”

Aslan Betalovich KEREFOV

1,500,000

Algis Kazio STASHYALIS

1,500,000

Aleksandr Nikolayevich MARCHENKO

1,500,000

Viktor Khamusovich SANSHOKOV

1,3 00,000

Anatoliy Aleksandrovich KRAVTSOV

1,500,000

Mukhsin Amdulcherimovich KUMYSHEV

1,500,000

Aleksandr Alekseyevich SAMOYLENKO

1,3 00,000

Ali Alikayevich KUCHMEZOV

1,6 00,000

Marat Borisovich CHECHENOV

1,6 00,000

Viktor Mikhaylovich KOSTROMSKOY

1,3 00,000

Vladimir Nikolayevich OVCHAROV

1,500,000

Aleksandr Fedorovich KARPENKO

1,5 00,000

Mikhail Yakovlevich BEZRODNOV

1,500,000

Viktor Valentinovich PETRENKO

1,2 00,000

Aleksandr Vasilyevich RASTVOROV

1,500,000

Lidiya Vasilyevna AGIBALOVA

1,6 00,000

Anatoliy Petrovich CHERNOV

1,500,000

Aleksandr Ivanovich PARTAYEV

1,500,000

Aleksey Sergeyevich VERESOV

1,500,000

Viktor Viktorovich VOLOTSKIY

1,500,000

Sergey Pavlovich NIKITENKO

1,3 00,000

Aleksandr Vasilyevich ZAICHENKO

1,3 00,000

Georgiy Vasilyevich KAZANTSEV

1,500,000

Viktor Pavlovich BABENKO

1,500,000

Vyacheslav Sergeyevich KOVALENKO

1,500,000

Aleksandr Petrovich CHEKAN

1,500,000

Viktor Nikolayevich SIBAROV

1,500,000

Sergey Nikolayevich TSELOVALNIKOV

1,500,000

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