CASE OF LITVINCHUK v. RUSSIA
Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)
Branko Lubarda;Dmitry Dedov;Luis López Guerra
5. The applicant was born in 1941 and lives in Staryy Oskol, Belgorod Region. 6. On 6 May 2005 the applicant concluded a preliminary sale agreement with Mr N. regarding a plot of land with a small house under construction situated in the Belgorod Region. After the signature of this agreement, the applicant started using the plot of land, she finalised the construction of the house and beautified the plot of land. 7. On 3 July 2006 Mr N. died. 8. On 10 October 2008 the son of the deceased, Mr N. junior, sold the plot of land to another person, who registered her property right. 9. Later, the applicant sought to register her property right over the plot of land and found that it already had another registered owner. She then sued Mr N. junior before courts. 10. On 9 April 2009 the Starooskolskiy Town Court of the Belgorod Region declared the sale contract of 10 October 2008 null and void. Mr N. junior was declared the owner of the plot of land and of the house. 11. On 17 June 2009 the Town Court granted the applicant’s claims against Mr N. junior and awarded her 613,280 Russian roubles (RUB) for unjust enrichment and damages corresponding to different sums invested by the applicant in the plot of land and the house as well as the reimbursement of cost and expenses. 12. On 4 August 2009 the Belgorod Regional Court partly modified this judgment. It decreased the amount of damages to RUB 246,569, notably quashing the part relating to unjust enrichment. 13. On unspecified date the applicant lodged a supervisory review application. 14. On 17 December 2009 the Presidium of the Belgorod Regional Court partly quashed the judgment of 4 August 2009 and sent the case for consideration anew before the second instance court. The Presidium considered that the Belgorod Regional Court misapplied the provisions of the Civil Code on unjust enrichment and miscalculated the amount of damages to which the applicant was entitled to. It concluded that these were significant violations of substantive or procedural law which influenced the outcome of the proceedings and must be corrected in order to restore and protect the applicant’s right to a fair trial as guaranteed by Article 46 § 1 of the Constitution, Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention. 15. On 19 January 2010 the Belgorod Regional Court restored the judgment of 17 June 2009. 16. On 11 May 2010 Mr N.’s son lodged a supervisory review application. 17. On 8 July 2010 the Presidium of the Belgorod Regional Court rejected the supervisory review application lodged by Mr N.’s son, considering that the arguments it contained were limited to a different assessment of evidence. It however quashed the judgment of 19 January 2010 and restored the judgment of 4 August 2009 on its own motion, considering that: “In the interest of lawfulness and taking into account the principle of legal certainty recognised by the Russian Federation the Presidium considers it possible and necessary to go beyond the arguments developed in the supervisory review application. As repeatedly indicated the European Court (Ryabykh v. Russia, no. 52854/99, §§ 5153, ECHR 2003IX, Khotuleva v. Russia, no. 27114/04, 30 July 2009) in order to preserve the aforementioned principle final judgments shall remain unchanged. The mere existence of two points of view on the same matter does not justify the reopening of the case. Legal certainty presupposes that it is not permissible to have a second examination of the once decided case in the absence of fundamental errors. Taking into account the aforementioned principle, the final decision in the present case should be the judgment of the Belgorod Regional Court of 4 August 2009 which granted certain damages to the claimant and rejected her claims for the rest, including as regards unjust enrichment. In the course of the new examination by the cassation court the principles above have not been taken into account, this omission resulted in a violation of the principle of legal certainty provided by Article 6 § 1 of the Convention and undermined the stability of a binding judicial act. The claimant’s argument that the judgment of 19 January 2010 was lawful is not deemed to be sufficient by the Presidium to disregard the aforementioned principles. The fact that the Presidium of the Regional Court disagreed with the aforementioned judicial decision does not constitute in itself a ground for quashing of a final and binding judgment and for reopening of the proceedings. In view of the above, the judgment of 19 January 2010 subject to the present application shall be quashed and the judgment of 4 August 2009 restored.” 18. On 3 November 2010 a single judge at the Supreme Court refused the applicant’s supervisory review application.