Information Note on the Court’s case-law 205

March 2017

Magomedov and Others v. Russia - 33636/09, 34493/09, 35940/09 et al.

Judgment 28.3.2017 [Section III]

Article 6

Civil proceedings

Article 6-1

Access to court

Fair hearing

Extension, without valid reason, of time-limit for authorities to appeal: violation

Facts – At first instance the applicants were awarded increases in various allowances and additional be nefits to which they were entitled in their capacity as participants in the emergency operations on the site of the Chernobyl nuclear power plant. As the defendant authorities failed to lodge appeals, the judgments became final ten days after delivery and the execution process began.

The authorities subsequently lodged late appeals, accompanied by applications for leave to appeal out of time. These applications were granted by the domestic courts and the late appeals were accepted.

When the applicants’ case s were examined on appeal, the previous judgments, which had been in their favour, were set aside.

Law – Article 6 § 1

(a) Applications nos. 33636/09, 34493/09, 35940/09, 37441/09 and 38237/09 – The Supreme Court had granted leave to appeal out of time and had accepted the late appeals lodged by the social services on the grounds that the interests of the federal budget were at stake and that no other remedy was by that stage open to them.

With regard to the interests of the federal budget and, more specifically, the failure of the federal funding supervisor to participate in the initial proceedings, the State could not rely on the complexity of its internal organisation to draw consequences tha t were detrimental only to the applicants.

With regard to the absence of other remedies available to the social services, the delivery of the contested judgments had coincided with the entry into force of a general reform of remedies in Russia, which had i ntroduced an important new requirement, namely the need to use the ordinary appeal process before lodging an application for supervisory review. However, since they had not lodged an appeal, the social services were deprived of access to the supervisory-re view procedure, which, prior to 2008, constituted an alternative remedy to an appeal, rather than a consecutive one. It had, however, been open to the social services to anticipate the entry into force of this law with regard to pending proceedings. The ri sk of any mistake made by a State authority had to be borne by the State, and errors were not to be remedied at the expense of the individual concerned.

Lastly, the Government argued that the setting aside of the final domestic judgments in favour of the a pplicants had been justified by circumstances of a substantial and compelling character, namely failure to respect the principle of res judicata , as judgments had already been delivered on the same question between the same parties. The Court found however that, even supposing that such considerations were relevant to the examination of a case in the context of ordinary appeal proceedings to which, in principle, the granting of leave to appeal out of time gave rise, neither the social services nor the Supre me Court had explained why those arguments could not have been raised before the first-instance courts in the proceedings which had ended with the judgments in favour of the applicants or within the initial time-limit before the contested judgments themsel ves became final. It was unlikely that the social services had been unaware at that time of the existence of the previous judgments ruling on the method of calculating the same welfare benefits, in which they had themselves been the defendants. Even assumi ng that the need to correct judicial errors could in principle be a legitimate consideration, this was not to be done in an arbitrary manner and, in any event, the authorities were required to strike, so far as it was possible, a fair balance between the i nterests of the applicant and the need to ensure the proper administration of justice.

In view of the foregoing, the grant of leave to appeal out of time and the acceptance of the late appeals lodged by the social services had, in the particular circumstances of the case, been in breach of the principle of legal certainty and the applicants’ right to a court.

Conclusion : violation (unanimously).

(b) Applications nos. 28480/13 and 28506/13 – The Ministry of Finance ought to have found out about the existence of the contested judgments by August 2011 at the latest, when it began to make paymen ts pursuant to the judgments, full copies of which had been provided to it in accordance with the Budget Code. Even supposing that the Ministry had had no knowledge of either the first dismissal, in June 2011, of the application for leave to appeal out of time or of the related proceedings as a whole, there was nothing to explain why it had waited more than a year, that is, until 23 October 2012 – date on which the second application for leave to appeal out of time was lodged – to take action. Irrespective of whether or not the State had been duly represented at the contested hearings, it had been its responsibility to be sufficiently, or even especially, diligent, by lodging the application for leave to appeal out of time as soon as the existence of the con tested judgments was discovered, especially if an important public interest was at stake. Yet the domestic courts had not examined this point when granting the applications for leave to appeal out of time. In other words, they had failed to examine whether the entity applying for leave to appeal out of time and submitting a late appeal had discovered the existence of the contested judgment and, in consequence, whether it had acted with sufficient diligence. The fact that nothing in the applicable domestic l aw at the relevant time indicated that they were required to do so was not such as to dispense them from that obligation from the perspective of the Convention.

In consequence, the granting of leave to appeal out of time and the acceptance of the late appe al had breached the principle of legal certainty and the applicants’ right to a court.

Conclusion : violation (unanimously).

Article 41: Finding of a violation sufficient in itself in respect of non-pecuniary damage; claim in respect of pecuniary damage rej ected.

(See also Trapeznikov and Others v. Russia , 5623/09 et al., 5 April 2016, Information Note 195 , and Samoylenko and Others v. Russia (dec.), 58068/13 et al., 21 March 2017)

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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