CASE OF KALINICHENKO v. RUSSIA
Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property
Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
4. The applicant was born in 1979 and lives in Ryazan. 5. He is a former military serviceman. From 22 August 2000 to 15 October 2001 he served in the Russian peacekeeping contingent in Bosnia and Herzegovina, the former Republic of Yugoslavia. 6. Upon his return, the applicant brought proceedings against the head of his military unit to secure payment of his daily allowance for his service abroad. 7. On 25 July 2003 the Military Court of the Ryazan Garrison granted the applicant’s claim and ordered the military unit to pay the applicant 400,164.75 Russian roubles (RUB) in remuneration and RUB 1,000 in expenses for legal advice. 8. The military unit did not lodge an ordinary appeal, and on 22 August 2003 the judgment became binding and enforceable. 9. However, following the respondent’s request, on 19 November 2003 the Presidium of the Military Court of the Moscow Command quashed the judgment of 25 July 2003 by way of supervisory review and dismissed the applicant’s claims in full. The reason given for the quashing of the judgment was the “wrongful application of substantive law by the first-instance court”. 10. The Code of Civil Procedure of the Russian Federation provides as follows: “1. The grounds on which appeal courts may quash or alter judicial decisions are: ... (4) a violation or incorrect application of substantive or procedural law.” “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 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 fresh examination, if the substantive law has been erroneously applied or interpreted.”