CASE OF KOT v. RUSSIA
Violation of Art. 6-1;Violation of P1-1;Remainder inadmissible;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings
Christos Rozakis
5. The applicant, Mr Anatoliy Yefimovich Kot was born in 1937 and lives in Tambov. In 1987 he took part in the emergency operations at the site of the Chernobyl nuclear plant accident. On 3 November 2000 he was diagnosed with after-effects of radioactive emissions and granted monthly compensation for the damage to his health. 6. On 30 November 2000 the applicant sued the Military Service Commission of the Tambov Region (Военный комиссариат Тамбовской области, hereinafter the “Commission”) for an increase of the compensation to take account of the inflation. 7. On 21 February 2001 and 5 March 2001 the Oktyabrskiy District Court of Tambov granted his claim and ordered the Commission to increase the future monthly payments to 12,051.48 Russian roubles (“RUR”) and also to pay him RUR 31,579.74 in respect of the previous period. 8. On 4 June 2001 the Tambov Regional Court quashed those judgments on appeal, finding that the first-instance court had not taken account of the changes introduced into the Chernobyl Victims Act by the Federal Law № 5 of 12 February 2001. The claim was remitted for a fresh examination. 9. The Oktyabrskiy District Court pronounced a new judgment on 13 August 2001. It assessed future monthly payments at RUR 10,000 and the lump sum in respect of the previous period at RUR 60,365. 10. On 10 September 2001 the Tambov Regional Court quashed that judgment on appeal on the ground that the first-instance court had incorrectly applied the substantive law and remitted the case for a fresh examination. 11. By judgment of 27 November 2002, the Oktyabrskiy District Court awarded the applicant RUR 18,077.21 in monthly payments as from 1 December 2002 and RUR 281,437.32 in respect of the previous period. 12. On 20 January 2003 the Tambov Regional Court upheld that judgment on appeal, and the judgment became enforceable. 13. On 23 January 2003 the Commission filed an application for supervisory review. It claimed that the first-instance and appeal courts had erroneously applied civil-law provisions relating to calculation of the minimal wages for the purposes of adjusting the applicant's compensation in line with inflation. 14. On 28 January 2003 the President of the Tambov Regional Court stayed the execution of the judgment of 27 November 2002. 15. On 26 June 2003 the Presidium of the Tambov Regional Court held a supervisory-review hearing. It determined that the lower courts had erred in applying the substantive law by not having taken into account the amendments introduced into the Chernobyl Victims Act by the Federal Law № 5 of 12 February 2001. On that ground it quashed the judgment of 27 November 2002, as upheld on 20 January 2003, and remitted the matter for a fresh examination. 16. On 7 August 2003 the Oktyabrskiy District Court issued a new judgment, by which the applicant was awarded RUR 6,327.35 in future monthly payments and RUR 18,578.34 in respect of the preceding period. The judgment was not appealed against and became final on 18 August 2003. 17. The Code of Civil Procedure of the Russian Federation was enacted on 14 November 2002 and replaced the RSFSR Code of Civil Procedure from 1 February 2003. It provides as follows: “1. The grounds for quashing or altering judicial decisions by appeal courts are: ... (4) a violation or incorrect application of substantive or procedural law.” “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...” “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 the substantive law has been erroneously applied or interpreted.” 18. Interim Resolution ResDH (2006) concerning the violations of the principle of legal certainty through the supervisory review procedure (“nadzor”) in civil proceedings in the Russian Federation, adopted by the Committee of Ministers on 8 February 2006, reads, in its relevant parts, as follows: “The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention... Welcoming the reforms of the supervisory review (“nadzor”) procedure introduced by the new Code of Civil Procedure entered into force on 1 February 2003; Noting with satisfaction, in particular, that some of the problems at the basis of the violations found in these cases have thus been remedied... Expressing, however, particular concern at the fact that at the regional level it is often the same court which acts consecutively as a cassation and “nadzor” instance in the same case and stressing that the court should be enabled to rectify all shortcomings of lower courts' judgments in a single set of proceedings so that subsequent recourse to “nadzor” becomes truly exceptional, if necessary at all; Stressing that a binding and enforceable judgment should be only altered in exceptional circumstances, while under the current “nadzor” procedure such a judgment may be quashed for any material or procedural violation; Emphasising that in an efficient judicial system, errors and shortcomings in court decisions should primarily be addressed through ordinary appeal and/or cassation proceedings before the judgment becomes binding and enforceable, thus avoiding the subsequent risk of frustrating parties' right to rely on binding judicial decisions; Considering therefore that restricting the supervisory review of binding and enforceable judgments to exceptional circumstances must go hand-in-hand with improvement of the court structure and of the quality of justice, so as to limit the need for correcting judicial errors currently achieved through the “nadzor” procedure... CALLS UPON the Russian authorities to give priority to the reform of civil procedure with a view to ensuring full respect for the principle of legal certainty established in the Convention, as interpreted by the Court's judgments; ENCOURAGES the authorities to ensure through this reform that judicial errors are corrected in the course of the ordinary appeal and/or cassation proceedings before judgments become final... ENCOURAGES the authorities, pending the adoption of this comprehensive reform, to consider adoption of interim measures limiting as far as possible the risk of new violations of the Convention of the same kind, and in particular: - continue to restrict progressively the use of the “nadzor” procedure, in particular through stricter time-limits for nadzor applications and limitation of permissible grounds for this procedure so as to encompass only the most serious violations of the law... - to limit as much as possible the number of successive applications for supervisory review that may be lodged in the same case; - to discourage frivolous and abusive applications for supervisory review which amount to a further disguised appeal motivated by a disagreement with the assessment made by the lower courts within their competences and in accordance with the law; - to adopt measures inducing the parties adequately to use, as much as possible, the presently available cassation appeal to ensure rectification of judicial errors before judgments become final and enforceable...”