CASE OF KHRYKIN v. RUSSIA
Violations of Art. 6-1;Violation of P1-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
Anatoly Kovler;Elisabeth Steiner;George Nicolaou;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska
5. The applicant was born in 1934 and lives in Elektrostal, the Moscow Region. 6. He had been receiving a retirement pension since 1984. In November 2005 he asked a pension authority to up-rate his pension on the basis of the fact that he had worked in hazardous industries. The latter disagreed and the applicant appealed to the Elektrostal Town Court (“Town Court”). 7. By judgment of 20 July 2006 the Town Court chaired by Judge T. ordered the pension authority to up-rate the applicant's pension starting from 1 December 2005. The court based its findings on the Law on Labour Pensions of 2001 (“Pension Law”). The judgment was not appealed against and on 5 August 2006 became final. 8. On 4 June 2007 the Chief Department of the Pension Fund no. 19 of Moscow and Moscow Region (“Pension Fund”) lodged with the Moscow Regional Court (“Regional Court”) an application for supervisory review of the judgment of 20 July 2006. This application was never examined. However, on 14 August 2007 the President of the Regional Court wrote a letter to the first-instance court which stated as follows: “The Moscow Regional Court sends a statement of complaint by the GU UPF RF no. 19 of Moscow and Moscow Region against the judgment of the Elektrostal Town Court of 20 July 2006 in the case of Khrykin I.S. v. GU GUPF RF no. 19 of Moscow and Moscow Region... [The Town] Court examined the scope of the pension rights of the plaintiff... [The principles] of the examination of the scope of the pension rights ... have been set out in the Ruling of the Plenum of the Supreme Court of the Russian Federation no. 25 of 20 December 2005 ... and the Judgment of the Supreme Court of the Russian Federation of 2 March 2007 in the case of Nitsievskaya v. State Agency - Chief Department of the Pension Fund no. 5 of Moscow and the Moscow Region. Delivering a judgment ... at variance with the Ruling of the Plenum of the Supreme Court of the Russian Federation no. 25 of 20 December 2005 and the Judgment of the Supreme Court of the Russian Federation of 2 March 2007 discloses a judicial error, such judgment cannot be regarded lawful. With the purpose of securing consistency in the case-law ... the statement of complaint by the GU UPF RF no. 19 of Moscow and Moscow Region ... against the above said judgment in the case of Khrykin I.S. v. GU GUPF RF no. 19 of Moscow and Moscow Region is being sent for reconsideration on the ground of newly discovered circumstances.” 9. On 27 September 2007 the Pension Fund lodged with the Town Court an application for quashing of the judgment of 20 July 2006 and re-opening of the applicant's case on the ground of newly discovered circumstances. It stated that the Supreme Court's judgment of 2 March 2007 in the Nitsievskaya case, which gave a different interpretation of the Pension Law, had been a circumstance warranting the re-opening of the Khrykin case. The applicant argued that the application had been introduced outside the three-month time-limit. 10. By decision (определение) of 23 October 2007, the Town Court presided over by the same judge who examined the applicant's case in 2006 granted the application. It held as follows: “[T]he method of the assessment of pension rights ... has been set out in paragraph 13 of the Ruling of the Plenum of the Supreme Court of the Russian Federation no. 25 of 20 December 2005... and in the Judgment of the Supreme Court of the Russian Federation of 2 March 2007 in the case of Nitsievskaya v. State Agency - Chief Department of the Pension Fund no. 5 of Moscow and the Moscow Region... ... [T]he court finds that reconsideration of such a judgment [as in the applicant's case] can be done by way of additional proceedings on the ground of newly discovered circumstances... which allow to remedy a judicial error...that resulted in a violation of the rights of the defendant [the Pension Fund]... [T]he arguments by the applicant and his representative that the reconsideration ... of the judgment of 20 July 2006 is impossible and that the time-limit for lodging such a request was missed are to be dismissed on the ground that the Judgment of the Supreme Court ..., which entails legal consequences, was rendered on 2 March 2007 and became known [to the Pension Fund] in April 2007. The defendant had applied, to the competent judicial authorities, for reconsideration of the judgment [of 20 June 2006] on 4 June 2007, that is to say before the three-month time-limit ... expired. In the light of the foregoing ... the court DECIDED: The judgment of 20 July 2006 ... is to be quashed. The re-examination of the merits of the dispute is to be scheduled on 23 October 2007 at 12.30 p.m.” 11. By judgment (решение) of the same day, the Town Court held that the applicant's claim for a higher pension was to be dismissed in full. Its findings were based on the Law on Labour Pensions and the Ruling of the Plenum of the Supreme Court no. 25 of 20 December 2005. On 6 December 2007, the Moscow Regional Court upheld the first-instance court's judgment on appeal. 12. The Constitution of the Russian Federation provides: Article 120 “1. In the administration of justice, judges shall be independent and subject only to the Constitution of the Russian Federation and the federal law...” Article 121 “...2. A judge cannot be transferred, suspended or removed from office unless it is provided for by the federal law.” 13. The Code of Civil Procedure provides: Article 8. Independence of judges “...2. Judges shall examine civil disputes in the conditions that exclude outside influence. Any interference with the exercise of their judicial powers shall be forbidden and shall be punishable under the law...” 14. Law of 26 June 1992 “On the Status of Judges in the Russian Federation” provides that the independence of a judge is to be secured, in particular by the prohibition of interference with the administration of justice, the manner of their appointment and termination of their office, judges' inviolability and by the system of judicial self-government (Section 9). A judge is not obliged to give any comments on a decided, or a pending, case (Section 10). 15. Law “On the Status of Judges in the Russian Federation” provides: Section 12.1 Judges' liability for disciplinary offences “1. A judge who has committed a disciplinary offence (a breach of this Law and of the Code of Judicial Ethics to be adopted by the All-Russian Judicial Congress) may, with the exception of the judges of the Constitutional Court of the Russian Federation, receive a disciplinary penalty in the form of: – a warning; [or] – early termination of judicial office. The decision to impose a disciplinary penalty must be taken by the judicial qualification board that has competence to examine the question of termination of office of a particular judge at the time of that decision...” 16. Law of 4 July 2003 “On Bodies of the Judicial Society” provides that a body which is empowered to impose a disciplinary penalty on judges (including presidents of district courts) are, in particular, regional judicial qualification boards (Section 19 § 2 (7)). An application for holding a judge liable for having committed a disciplinary offence can be lodged by the president of the relevant court or the president of a higher court (Section 22 § 1). 17. The Constitutional Court of the Russian Federation in its Ruling No.3-П of 28 February 2008 held that the power of the presidents of the relevant, or higher, courts to apply for holding a judge liable, as well as the powers of the presidents to examine complaints against judges and to participate in hearings of judicial qualification boards and to make their submissions, were not incompatible with the Constitution of the Russian Federation. 18. The Code of Civil Procedure provides: Article 376. Right to apply to a court exercising supervisory review “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...” Article 380-1. Actions of the supervisory review court after an application for supervisory review is submitted “An application for supervisory review proceedings shall be examined: (1) by the President of the Court, or [his/her] Deputy, or, at their request, by a judge of this court...” Article 381. Examination of an application for supervisory review “2. Having examined an application for supervisory review, the judge issues a decision on – (1) refusal to remit the application for examination on merits by a supervisory court in a court hearing if the grounds for [quashing or altering judicial decisions] do not exist... (2). remitting the application for examination on merits by a supervisory court in a court hearing...” Article 387. Grounds for quashing or altering judicial decisions by way of supervisory review “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.” Article 390. Competence of the supervisory-review court “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.” 19. The Code of Civil Procedure provides: “1. [Judgments] which have become final may be re-considered on the basis of newly discovered circumstances. 2. The grounds for reconsideration ... shall be: 1) significant circumstances which were not and could not have been known to the party who applies for reconsideration; ...” “... [An application for reconsideration of a [judgment] due to the discovery of new circumstances] shall be lodged within three months after the discovery of the circumstances.” “The time-limit for lodging an application for reconsideration of a [judgment] due to the discovery of new circumstances shall be calculated from the day of the discovery of such circumstances ...” “1. Following the examination of an application for reconsideration of a [judgment] due to the discovery of new circumstances, the court may either grant the application and quash the [judgment], or dismiss the application. 2. The court decision by which an application for reconsideration of a [judgment] due to the discovery of new circumstances is granted shall not be subject to appeal. 3. Provided that a [judgment] is quashed, the case shall be examined in accordance with the rules of this Code.” 20. By a judgment of 8 February 2006, the Supreme Court upheld the decision of the judicial qualification board of the Sverdlovsk Region to terminate office of judge V. for a breach of the procedural law. She argued that her actions had not constituted a disciplinary offence but to no avail. Ms V. had been a president of a district court. 21. By a judgment of 14 May 2008, the Supreme Court upheld the decision of the judicial qualification board of the Rostov Region to terminate office of judge S. for a “blatantly erroneous breach of the procedural law”. The Judge S.'s arguments that it had been an erroneous interpretation of the legislation rather than “an intentional breach of law” were dismissed. Ms S. had been Justice of the Peace of a Court Circuit. The proceedings before the judicial qualification board had been brought by the president of the town court. 22. By a judgment of 3 June 2009, the Supreme Court upheld the decision of a regional judicial qualification board to terminate office of judge Z. for “blatant and repeated breaches of the procedural law”. Judge S. 'unsuccessfully argued that she had misinterpreted the law and that she could not be held liable given that her judicial decisions had not been quashed by a higher court and had become final. Ms Z. had been a judge of a district court. The proceedings before the judicial qualification board had been brought by the president of the town court.