CASE OF BORSHCHEVSKIY v. RUSSIA
Violation of Art. 6-1 and P1-1 (quashing of final judgment);Violation of Art. 6-1 and P1-1 (enforcement delays);Pecuniary damage - financial award;Non-pecuniary damage - financial award
Christos Rozakis
4. The applicant was born in 1941 and now lives in the Moscow Region. 5. In 1987 the applicant’s employer, the State-owned construction and industrial holding “Mosenergostroy”, seconded him for participation in the clean-up works at the site of the Chernobyl nuclear plant disaster. As a consequence of exposure to radioactive emissions, on 15 September 1989 the applicant was assigned to the second disability category. 6. Until March 1996 the applicant’s former employer had paid him monthly compensation for health damage. In November 1994 the holding was privatised and re-organised into a public company OAO “SPK Mosenergostroy”. 7. Between 2 March 1996 and 1 February 2002 the compensation was paid by the Stupino Department of the Pension Fund (now renamed as Department no. 25 of the Pension Fund, hereinafter “the Stupino Pensions Department”). 8. Since 1 February 2002 the compensation has been paid by the Social Security Committee of the Stupino District Council in the Moscow Region. 9. In 1997 the applicant brought a civil action against his former employer, “Mosenergostroy”, claiming that the amount of the compensation paid had been incorrectly calculated in the period from 1989 to 2 March 1996. 10. On 15 April 1997 the Korenovskiy District Court of the Krasnodar Region granted his claim in part. 11. On 7 July 1997 the Krasnodar Regional Court quashed the judgment of 15 April 1997 and remitted the matter for a new examination on the ground that the obligation to pay compensation for health damage had been transferred to the social security authorities. 12. On 8 September 1997 the Korenovskiy District Court joined the Stupino Pensions Department as a co-defendant to the proceedings. 13. On 18 December 1997 the Korenovskiy District Court of the Krasnodar Region granted the applicant’s claims against his former employer and established that the applicant had been entitled to monthly payments of RUR 15,035. No award against the Stupino Pensions Department was made because the applicant apparently objected to its being joined as a co-defendant. By interim decision (opredelenie) of 9 December 2000, an arithmetical error in the judgment was corrected. 14. In 2002 the applicant asked the Korenovskiy District Court to supplement the operative part of the judgment of 18 December 1997 with a reference to the fact that from 2 March 1996 the Stupino Pensions Department should have been the legal successor to his former employer in respect of payment of compensation for the health damage. The Stupino Pensions Department objected to the applicant’s request, claiming that it had been lodged outside the time-limit and that its granting would determine a matter that fell outside the scope of the judgment of 18 December 1997, namely the issue of its succession to the obligations of the applicant’s former employer. 15. By judgment (reshenie) of 5 April 2002, the Korenovskiy District Court amended the judgment of 18 December 1997. It established that from 2 March 1996 the Stupino Pensions Department should have paid compensation to the applicant in lieu of his applicant’s former employer, in the same amount (RUR 15,035), with subsequent adjustment for increases in the minimum monthly wage. The judgment of 5 April 2002 was not appealed against. 16. It appears that the Stupino Pensions Department continued to underpay the applicant. He asked the Korenovskiy District Court to clarify the procedure for enforcement of the judgment of 5 April 2002 and to issue him with a writ of execution. 17. On 14 October 2002 the Korenovskiy District Court, noting that the defendant had been duly notified of the hearing but failed to appear, found that the Stupino Pensions Department had not complied with the judgment of 5 April 2002 and continued to pay the applicant significantly smaller amounts. By decision (opredelenie) of that date, the court ordered that the Stupino Pensions Department pay the applicant, at the expense of the Treasury, the amounts outstanding for the period from 2 March 1996 to 1 July 2002 to the total of RUR 5,412,251.81 and issued him with a writ of execution. The decision of 14 October 2002 was not appealed against. 18. The applicant submitted the writ to the Ministry of Finance. 19. On 5 February 2003 the Ministry of Finance forwarded the writ to the Ministry of Labour and Social Development, which, in turn, forwarded it to the Moscow Regional Social Security Committee. 20. On 13 February 2003 the Moscow Regional Social Security Committee advised the applicant that his writ of execution had been accepted for enforcement. However, enforcement was only possible “within the funding limits and budgetary constraints” and “in the chronological order as [writs of execution] had been issued by courts”. 21. On 9 June 2003 a court bailiff of the Moscow Regional bailiffs’ service opened enforcement proceedings against the Stupino Pensions Department and invited it to execute the judicial decision within five days. 22. On 13 August 2003 the Korenovskiy District Court heard the application of the Stupino Pensions Department for an amendment of the procedure for enforcement of the judgment of 5 April 2002 and determined as follows: “Having regard to the difficult social situation in the Russian Federation in the current year... the court considers it necessary to recover 5,412,251.81 Russian roubles in [the applicant’s] favour from the Russian Treasury in twenty monthly instalments... It has been established that the deferred instalments shall be guaranteed against inflation in accordance with the Russian laws...” 23. On 1 September 2003 the Korenovskiy District Court clarified its decision of 13 August 2003, indicating that the instalments should be equal and that the decision had immediate effect. 24. According to the Government, on 28 October 2003 the Krasnodar Regional Court quashed the decision of 13 August 2003 and remitted the matter for a new examination. On 10 December 2003 the Korenovskiy District Court refused the application by the Stupino Pensions Department for a change of the debtor and stay of enforcement. Copies of these decisions have not been made available to the Court and their precise contents are not known. 25. On 2 February 2004 the Stupino Pensions Department asked the Moscow Pensions Fund for the resources necessary to pay the debt to the applicant. On 5 February 2004, in response to an inquiry by a bailiff into the progress of the request, the Moscow Pensions Fund replied that they had asked the Ministry of Labour and Social Development to allocate the necessary amount (RUR 5,412,251.81). 26. On 6 February 2004 the Supreme Court of the Russian Federation examined “an application by Pensions Department no. 25 for supervisory review of the Korenovskiy District Court’s judgment of 5 April 2002... which contained a request for a stay of enforcement”. Pursuant to Article 381 §§ 2 (1) and 4 of the Code of Civil Procedure, it decided to obtain the case file and suspended enforcement proceedings. 27. On 20 February 2004 the bailiffs received the Supreme Court’s decision and stayed the enforcement proceedings. 28. On 21 May 2004 the Supreme Court of the Russian Federation examined “an application by the Head of Pensions Department no. 25 Ms L[.] for supervisory review of the case”. The Supreme Court accepted as meritorious Ms L.’s argument that that the Korenovskiy District Court had not been competent to issue the judgment of 5 April 2002. Pursuant to Article 384 of the Code of Civil Procedure, it remitted the supervisory-review application for examination on its merits by the Presidium of the Krasnodar Regional Court. 29. On 22 July 2004 the Presidium of the Krasnodar Regional Court quashed, by way of supervisory review, the judgment of 5 April 2002 and remitted the applicant’s request for supplementing of the operative part of the judgment of 18 December 1997 to the Korenovskiy District Court for a new examination. 30. On 13 September 2004 the Korenovskiy District Court determined that it had issued the judgment of 5 April 2002 in excess of jurisdiction because the Code of Civil Procedure had not provided for issuing of judgments in such situations. 31. A judicial decision became legally binding upon expiry of the time-limit for lodging an appeal if no such appeal had been lodged (Article 208). The time-limit for lodging an appeal was set at ten days (Article 284). 32. A judgment was to be enforced after it had become legally binding, unless it provided for immediate enforcement (Article 209). 33. The Code of Civil Procedure of the Russian Federation (“the new Code”) was enacted on 14 November 2002 and replaced the RSFSR Code of Civil Procedure (“the old Code”) from 1 February 2003. It provides as follows: “1. The grounds for quashing or altering judicial decisions by appeal courts are: ... (4) violation or incorrect application of substantive or procedural legal provisions.” “1. Judicial decisions that have become legally binding, with the exception for judicial decisions by the Presidium of the Supreme Court of the Russian Federation, may be appealed against... to a court exercising supervisory review, by parties to the case and by other persons whose rights or legal interests have been adversely affected by these judicial decisions. 2. Judicial decisions may be appealed against to a court exercising supervisory review within one year after they became legally binding...” “2. Having examined an application for supervisory review, the judge issues a decision on – (1) obtaining the case file if there exist doubts as to the lawfulness of the judicial decision... 4. If a decision to obtain the file has been made, the judge may suspend enforcement of the judicial decision until the supervisory-review proceedings have been completed...” “1. A judicial decision on remitting the case for examination on the merits by a supervisory-review court must contain: (7) a reasoned description of the grounds for remitting the case for examination on the merits...” “Judicial decisions of lower courts may be quashed or altered by way of supervisory review on the grounds of substantial violations of substantive or procedural legal provisions.” “1. Having examined the case by way of supervisory review, the court may... (2) quash the judicial decision issued by a court of first, second or supervisory-review instance in whole or in part and remit the matter for a fresh examination;... (5) quash or alter the judicial decision issued by a court of first, second or supervisory-review instance and issue a new judicial decision, without remitting the matter for a fresh examination, if substantive legal provisions have been erroneously applied or interpreted.” 34. Resolution no. 2 of the Plenary Supreme Court of the Russian Federation of 20 January 2003, “On certain issues arising in connection with adoption and coming into force of the Code of Civil Procedure of the Russian Federation”, provided that – “22. ...The [one-year] time-limit for lodging an application for supervisory review of judicial decisions that became legally binding before 1 February 2003, shall run from 1 February 2003.” 35. In response to question no. 4 concerning calculation of the time-limit for lodging an application for supervisory review of judicial decisions that became legally binding before 1 February 2003, the Presidium of the Supreme Court clarified that the final date for lodging such an application should be 2 February 2004. 36. Once instituted, enforcement proceedings must be completed within two months upon receipt of the writ of execution by the bailiff (Section 13).