CASE OF LEVOCHKINA v. RUSSIA
Preliminary objections dismissed;Violation of Art. 6-1;Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings
Christos Rozakis
6. The applicant was born in 1941 and lives in Novosibirsk. 7. The applicant receives an old-age pension. The Law of 21 July 1997 on the Calculation and Upgrading of State Pensions (“the Pensions Act”) introduced, from 1 February 1998 onwards, a new method for calculating pensions. The idea behind this method, based on what is known as an “individual pensioner coefficient”, was to link the pension to the pensioner's previous earnings. 8. The authority in charge of the applicant's pension, the Pension Fund Agency of the Kirovskiy District of Novosibirsk (“the Agency”), fixed the applicant's coefficient at 0.525. The applicant challenged the Agency's decision in the Kirovskiy District Court of Novosibirsk. She argued that her coefficient should be 0.7. 9. On 31 August 1999 the District Court found for the applicant, considering that the Agency had misinterpreted the Pensions Act. In particular, it held as follows: “... Article 4 [of the 1997 Pensions Act] fixes an individual pensioner coefficient at the maximum rate of 0.7. This rate is subject to changes hereafter by a federal law at the adoption of a federal law on the budget of the RF PF [Pension Fund] for a next financial year.” The District Court decided that the Agency was to recalculate the applicant's pension using a coefficient of 0.7 from 1 February 1998 “until a change in the legislation”. 10. The Agency appealed against the judgment. On 7 October 1999 the Novosibirsk Regional Court upheld the judgment, which became enforceable on the same day. The judgment was never executed. 11. On 29 December 1999 the Ministry of Labour and Social Development (“the Ministry”) issued an Instruction on the “Application of Limitations” established by the Pensions Act (“the Instruction”). The Instruction clarified how to apply the Pensions Act. 12. On 23 August 2000 the Agency lodged an application with the District Court for the reconsideration of the applicant's case owing to newly discovered circumstances. They asked the court to take account of the Instruction, which supported their arguments that had been rejected by the court during the initial examination of the case. 13. Some time thereafter a group of individuals challenged the Instruction before the Supreme Court of the Russian Federation. On 24 April 2000 the Supreme Court dismissed the complaint. It found that, contrary to what the complainants had suggested, the Ministry of Labour had not acted ultra vires in issuing the Instruction, and that the Ministry's interpretation of the Pensions Act had been correct. On 25 May 2000 the Cassation Division of the Supreme Court upheld this judgment on appeal. 14. On 16 January 2001 the District Court examined the Agency's request. The District Court noted that by virtue of Article 333 of the Code of Civil Procedure enforceable judgments may be reconsidered owing to newly discovered circumstances which could not have been known at the time when the judgment had been delivered. The court further noted that the Instruction had been upheld by the Supreme Court which, therefore, had found it lawful to interpret article 4 of the Pensions Act so that the rate of 0.7 should not apply to an “individual pensioner coefficient”. 15. In a decision of 16 January 2001 the District Court granted the Agency's application, under Article 337 of the Code of Civil Procedure, quashed the judgment of 31 August 1999, as upheld on 7 October 1999, and ordered a fresh examination of the case. It stated that its decision was not subject to appeal. 16. As a result of the fresh examination of the case the District Court delivered a judgment of 31 January 2001 in which it rejected the applicant's claims in full. The applicant appealed. On 13 March 2001 the Novosibirsk Regional Court dismissed the applicant's appeal and upheld the judgment of 31 January 2001. 17. From 1 May 2001, following changes to the pension regulations, the applicant's pension was calculated based on a coefficient of 0.84. 18. The Code of Civil Procedure of 1964 (“CCivP”), in force at the material time, provided as follows: “[Judgments] which have come into force may be reconsidered on the basis of newly discovered circumstances. The grounds for reconsideration ... shall be as follows: 1. significant circumstances which were not and could not have been known to the party who applies for reconsideration; ... 4. cancellation of a court [judgment] or of another authority's decision which served as legal basis for the [judgment] in question.” “... [An application for reconsideration of a [judgment] owing to newly discovered circumstances] shall be lodged within three months after the discovery of the circumstances.” “After examination of an application for reconsideration of a [judgment] owing to newly discovered circumstances, the court may either grant the application and quash the [judgment], or dismiss the application. The court decision by which an application for reconsideration of a [judgment] owing to newly discovered circumstances is granted shall not be subject to appeal. ...” 19. On 2 February 1996 the Constitutional Court of the Russian Federation adopted a ruling concerning certain provisions of the Code of Criminal Procedure (“CCrP”). In that ruling the Constitutional Court decided that Article 384 of the CCrP (“Grounds for reconsideration of a [criminal] case on the basis of newly discovered circumstances”, which was in many respects similar to Article 333 of the CCivP) was unconstitutional in that it limited the grounds for the reopening of a criminal case to situations of “newly discovered circumstances”. In that ruling the Constitutional Court suggested that this provision of the CCrP prevented rectification of judicial errors and miscarriages of justice. In its ruling of 3 February 1998 the Constitutional Court came to the conclusion that Article 192 § 2 of the Code of Commercial Procedure was unconstitutional in so far as it had served as a basis for the dismissal of applications for reconsideration of judgments of the Presidium of the Supreme Commercial Court, where the judgment had been delivered as a result of a judicial error which had not been and could not have been established earlier. 20. The Instruction of the Ministry of Labour and Social Development of 29 December 1999 on the “Application of Limitations” established by the Pensions Act was registered by the Ministry of Justice on 31 December 1999 and became binding in February 2000, ten days after its official publication.