FIRST SECTION

CASE OF KUMKIN AND OTHERS v. RUSSIA

(Application no. 73294/01)

JUDGMENT

STRASBOURG

5 July 2007

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Kumkin and Others v. Russia,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
	Mr	C.L.  President,
	Mr	L. 
	Mrs	N. 
	Mr	A. 
	Mr	K. 
	Mr	S.E. 
	Mr	G.  judges,
and Mr  , Section Registrar,
Having deliberated in private on 14 June 2007,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 73294/01) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by twelve Russian nationals whose names are listed in the schedule appended hereto, on 26 April 2001.
2.  The Russian Government (“the Government”) were represented by Mr P. Laptev, the Representative of the Russian Federation at the European Court of Human Rights.
3.  On 11 October 2005 the Court decided to give notice of the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility.
THE FACTS
I.  THE CIRCUMSTANCES OF THE CASE
4.  The applicants are Russian nationals who live in the town of Lytkarino in the Moscow Region. They receive old-age pensions.
5.  On 1 February 1998 the Law on the Calculation and Adjustment of State Pensions (hereafter “the Pensions Act”) introduced a new method of calculation of retirement benefits based on what is known as the “individual pensioner coefficient” (“the IPC”). The IPC was the ratio between an individual's wages at the time of retirement and the national average wage. The IPC was meant to maintain a link between pensions and previous earnings.
6.  The applicants considered that the Lyuberetskiy District Division of the Pension Fund (hereafter “the Fund”) had incorrectly calculated their pensions and they sued the Fund for an increase of their pensions in accordance with the Pensions Act.
7.  On 12 April 2000 the Lytkarino Town Court found in the applicants' favour. The Town Court held that the Fund had misconstrued the law and that the applicants' pensions should be recalculated and increased in line with an IPC of 0.7 starting from 1 February 1998. On 30 May 2000 the Moscow Regional Court upheld the judgment on appeal.
8.  On 31 May 2000 the Fund requested the Lytkarino Town Court to reopen the case owing to a newly-discovered circumstance. The Fund claimed that on 29 December 1999 the Ministry of Labour and Social Development had issued an Instruction on the Application of Limitations established by the Pensions Act. The Instruction clarified how the Pensions Act should be applied. The Fund further indicated that on 24 April 2000 the Supreme Court of the Russian Federation had dismissed the complaint by a group of individuals challenging the Instruction. The Supreme Court found that the Ministry of Labour had acted within its competence when it had issued the Instruction, and that the Ministry's interpretation of the Pensions Act had been correct. The Fund contended that since it had been unaware of the Supreme Court's decision of 24 April 2000 at the time of the judgment of 12 April 2000, the judgment would have to be reconsidered.
9.  On 16 October 2000 and 5 February 2001 the Lytkarino Town Court dismissed the Fund's request. The Town Court held as follows:
“The Supreme Court's judgment [of 24 April 2000] did not invalidate any other decision which had served as a basis for the judgment of the Lytkarino Town Court of 12 April 2000. By that judgment the Supreme Court held that the Instruction of the Ministry of Labour complied with the requirements of the law. But that Instruction existed and was in force at the time the Town Court examined the case and issued the judgment in question. The fact that the Supreme Court gave a detailed analysis of the Instruction, and that it could have been taken into consideration by the Lytkarino Town Court when it issued the judgment, does not lead to the conclusion that the disputed judgment [of 12 April 2000] should be quashed. The Lytkarino Town Court was competent to review the disputed actions of [the Fund] in compliance with the law.”
Both decisions were quashed by the Moscow Regional Court on 8 November 2000 and 26 February 2001, respectively, and the case was remitted for a fresh examination.
10.  On 18 April 2001 the Lytkarino Town Court granted the Fund's request and reopened the proceedings. The Town Court applied Article 333 of the RSFSR Code of Civil Procedure according to which judgments could be reconsidered in the event of discovery of significant circumstances which were not, and could not have been, known to the party concerned. The Town Court found that the Instruction could serve as such a circumstance. The decision of 18 April 2001 was final and not amenable to appeal.
11.  On the same day the Town Court, after the fresh examination of the case, dismissed the applicants' action in full, having applied the Instruction.
II.  RELEVANT DOMESTIC LAW
12.  Article 333 of the RSFSR Code of Civil Procedure of 1964 (in force at the material time) provided for grounds for reconsideration of final judgments on the basis of “newly-discovered circumstances”. Such grounds included, inter alia, significant circumstances which were not and could not have been known to the party which applied for reconsideration, and invalidation of a court ruling or another authority's decision which had served as a legal basis for the judgment in question.
Article 334 required that an application for reconsideration of a judgment owing to the discovery of new circumstances should be lodged within three months after the discovery of the circumstances.
Pursuant to Article 337 a court, after having examined an application for reconsideration of a final judgment on the basis of newly-discovered circumstances, should either grant such an application and quash the final judgment or dismiss the application. Such a decision was not amenable to appeal.
13.  On 2 February 1996 the Constitutional Court of the Russian Federation adopted a ruling concerning certain provisions of the Code of Criminal Procedure (CCrP). In that ruling the Constitutional Court decided that Article 384 of the CCrP (“Grounds for reconsideration of a [criminal] case on the basis of newly discovered circumstances”, which was in many respects similar to Article 333 of the Code of Civil Procedure) was unconstitutional in that it limited the grounds for the reopening of a criminal case to situations of “newly discovered circumstances”. In that ruling the Constitutional Court suggested that this provision of the CCrP prevented rectification of judicial errors and miscarriages of justice.
THE LAW
I.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL NO. 1
14.  The applicants complained that the decision of the Lytkarino Town Court of 18 April 2001 to quash the judgment of 12 April 2000 and reconsider the case had violated their “right to a court” and deprived them of the fruits of the litigation. The Court considers that this complaint falls to be examined under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 (see Pravednaya v. Russia, no. 69529/01, §§ 19-42, 18 November 2004). The relevant parts of these provisions provide as follows:
Article 6 § 1
 “In the determination of his civil rights and obligations... everyone is entitled to a fair... hearing ... by [a]... tribunal established by law...”
Article 1 of Protocol No. 1
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law...”
A.  The parties' submissions
15.  The Government submitted that the judgment of 12 April 2000 had not determined any definite amount, but had rather established how pensions should be calculated. In this connection they recalled the Court's findings in the case of  ((dec.), no. 42212/02, 9 December 2004) and maintained that the dispute in the present case concerned legislation on pensions which fell outside the area of “civil rights and obligations”. In support of this assertion the Government also referred to  (judgment of 9 December 1994, Series A no. 304) and , ((dec.), no. 40772/98, 28 October 1999), alleging that “the determination of the order of calculation of pensions belongs to the realm of public law”.
16.  The Government further contested that the pensions awarded to the applicants by virtue of the judgment of 12 April 2000 constituted their “possession” within the meaning of Article 1 of Protocol No. 1. They noted that in the case of  (no. 69529/01, 18 November 2004) the Court had regarded a judicial award of that type as the applicant's “possession”. However, in the Government's view, such an approach created confusion. If the sum awarded by a court was a pensioner's “possession”, it should not be affected by any subsequent increase in pension rates. Therefore, in  the applicant would have had to return the money she had already received from the Pension Fund by virtue of the more recent changes in the legislation on State pensions. They concluded that in order to avoid such situations the Court should not regard the pension amounts awarded by the domestic courts as claimants' “possessions” within the meaning of Article 1 of Protocol No. 1.
17.  The Government also claimed that the Town Court had not reopened the case capriciously, but because of the decision of the Supreme Court which had confirmed the lawfulness of the Instruction. The case was reopened with a view to correcting a judicial error. In their request for reopening, the Fund referred to the decision of the Supreme Court of 24 April 2000. This was a major difference in relation to the  case where the request for reopening had been made without reference to that decision of the Supreme Court.
18.  The Government invited the Court to conclude that the complaint was incompatible with the Convention , or, alternatively, that there had been no breach of Article 6 § 1 or Article 1 of Protocol No. 1 on account of the reopening of the case concerning the applicants' pensions.
19.  The applicants maintained their complaints.
B.  The Court's assessment
1.  Admissibility
20.  As regards the Government's objection that the applicants' complaint under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 was incompatible ratione materiae, the Court notes that the Russian Government have raised an identical objection in many cases concerning the reopening of proceedings in pension disputes owing to so-called “newly discovered circumstances”. The Court has examined that objection in detail and dismissed it.
21.  In particular, in the case of Bulgakova v. Russia (no. 69524/01, 18 January 2007) the Court held that Article 6 § 1 of the Convention was applicable to proceedings concerning the calculation of the applicant's pension on the basis of the IPC because “even if the indication of the precise amount was missing from the judgment, the proceedings at issue established a particular pecuniary obligation of the State vis-à-vis the applicant” and because “beyond doubt the pension and the related benefits, which are purely economic in nature, are 'civil' rights within the meaning of Article 6 § 1” (see Bulgakova, cited above, §§ 28-30).
22.  Furthermore, the Court also found that a “legitimate” expectation to receive a pension by virtue of a final court judgment, as in the present case, attracted the protection of Article 1 of Protocol No. 1, and that the annulment of a sufficiently clear and specific judgment constituted an interference with the applicant's “possessions” within the meaning of Article 1 of Protocol No. 1 (ibid. § 31).
23.  The Court sees no reason to depart from those findings in the present case and dismisses the Government's objection that the applicants' complaint is incompatible ratione materiae with the Convention provisions.
24.  The Court further notes that the present complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and is not inadmissible on any other grounds. It must therefore be declared admissible.
2.  Merits
(a)  Article 6 § 1 of the Convention
(i)  General principles
25.  The right to a fair hearing before a tribunal as guaranteed by Article 6 § 1 of the Convention must be interpreted in the light of the Preamble to the Convention, which, in its relevant part, declares the rule of law to be part of the common heritage of the Contracting States. One of the fundamental aspects of the rule of law is the principle of legal certainty, which requires, among other things, that where the courts have finally determined an issue, their ruling should not be called into question (see Brumărescu v. Romania [GC], no. 28342/95, § 61, ECHR 1999‑VII). This principle underlines that no party is entitled to seek a review of a final and binding judgment merely for the purpose of obtaining a rehearing and a fresh determination of the case.
26.  Indeed, the Convention in principle tolerates the reopening of final judgments if new circumstances are discovered. For example, Article 4 of Protocol no. 7 expressly permits the State to correct miscarriages of criminal justice. A verdict ignoring key evidence may well constitute such a miscarriage. However, the power of review should be exercised to correct judicial errors and miscarriages of justice, and not treated just as an “appeal in disguise” (see Ryabykh v. Russia, no. 52854/99, § 52, ECHR 2003‑IX).
27.  The Court recalls its findings in the  case, cited above, where it held (§§ 28 et seq.) as follows:
“The procedure for quashing of a final judgment presupposes that there is evidence not previously available through the exercise of due diligence that would lead to a different outcome of the proceedings. The person applying for rescission should show that there was no opportunity to present the item of evidence at the final hearing and that the evidence is decisive. Such a procedure is defined in Article 333 of the CCivP and is common to the legal systems of many member States.”
However, this procedure may be misused, as in the  case. In that case the relevant pension agency, referring to the same Instruction as in the present case, had obtained the reopening of the proceedings and the quashing of the initial judgment with retroactive effect. The Court concluded that this had constituted a breach of Article 6 § 1 and Article 1 of Protocol No. 1.
(ii)  Application to the present case
28.  The Government argued that the present case should be distinguished from the case of Pravednaya (cited above) because in the instant case the Town Court's decision to reopen the proceedings had been based on the “newly discovered circumstance” constituted by the Supreme Court's judgment of 24 April 2000, whilst in the Pravednaya case it had been the Instruction which served as the ground for the reopening. The Court agrees that the main difference between the two cases lies in the legal instruments on which the domestic courts relied to justify the quashing of the final judgments and the reopening of the proceedings. However, the Court is not convinced that this difference warrants a departure from the conclusion reached in the case of Pravednaya.
29.  The Court observes that on 12 April 2000 the applicants obtained a judgment by which the Fund, a State body, was to recalculate and increase their pensions in compliance with the requirements of the new Pensions Act. Before giving judgment the Town Court had examined and applied various legal instruments, including the Instruction, regulating the calculation and payment of pensions. This conclusion is supported by the findings made by the Town Court in its decisions of 16 October 2000 and 5 February 2001 (see paragraph 9 above). The Town Court's interpretation and application of the domestic law led to the judgment in favour of the applicants. On 24 April 2000, while the appeal proceedings against the Town Court's judgment were pending, the Supreme Court adopted a judgment confirming the lawfulness of the Instruction which supported the Fund's reading of the Pensions Act. On 30 May 2000 the Regional Court upheld the judgment of the Town Court. On the following day the Fund applied for a reopening of the proceedings, referring to the Supreme Court's judgment. Following the two refusals, on 18 April 2001 the Town Court accepted the request, reopened the proceedings and dismissed the applicants' claims, applying the Instruction.
30.  The Court has to ascertain whether the Supreme Court's judgment of 24 April 2000 may count as a “newly discovered circumstance”, as it was found to be by the Town Court, and whether the quashing of the final judgment of 12 April 2000, as upheld on 30 May 2000, was justified in the circumstances of the case.
31.  The Court reiterates that circumstances which concern a case and which already existed during the trial, but remained hidden from the judge and became known only after the trial, are “newly discovered”. Circumstances which concern the case but arise only after the trial are “new” (cf. Bulgakova, cited above, § 39). Furthermore, for evidence to be considered a “newly discovered circumstance” it has to have been previously unobtainable through the exercise of due diligence. A person applying for a judgment to be set aside should show that it was impossible to present the item of evidence at the final hearing and that the evidence is decisive (see Pravednaya, cited above, § 31).
32.  T he Court notes that the Supreme Court's ruling was made after the Town Court's judgment of 12 April 2000. Thus, it did not exist while the proceedings were pending before the Town Court. However, the Supreme Court's judgment was given more than a month before the appeal judgment of 30 May 2000 of the Regional Court. The Fund could have invoked the Supreme Court's ruling at the appeal proceedings before the Regional Court, but it did not do so. Instead, on the day after the Regional Court had given the final judgment, the Fund applied for a reopening of the case relying on the Supreme Court's ruling. It did not provide any explanation as to its inability to invoke the Supreme Court's judgment during the appeal proceedings.
33.  Having regard to the fact that the Supreme Court's judgment of 24 April 2000 was adopted while the appeal proceedings were still pending and that it was open to the Fund, through the exercise of due diligence, to rely on that judgment before the Regional Court, the Court cannot accept that the Supreme Court's judgment of 24 April 2000 could be construed as a “newly discovered circumstance”.
34.  The Court also does not lose sight of the fact that on two occasions the Town Court refused to accept the Supreme Court's ruling as a “newly discovered circumstance”, because it had merely given an interpretation of the Instruction which had already been examined by the Town Court (see paragraph 9 above). In this connection, the Court reiterates that the fact that a higher-instance court disagreed with the interpretation of the domestic law given by the courts below, cannot, in itself, serve as an exceptional circumstance warranting the quashing of a binding and enforceable judgment and reopening of the proceedings on the applicant's claim (see Kot v. Russia, no. 20887/03, § 29, 18 January 2007).
35.  The Court considers that the Fund's request of 31 May 2000 to reopen the case owing to the discovery of new circumstances was in essence an attempt to re-argue the case on points which the Fund could have, but apparently failed, to raise on appeal. That being so, the Court considers the Fund's request to be an “appeal in disguise” rather than a conscientious effort to make good a miscarriage of justice (cf. Pravednaya, cited above, §§ 31-33).
36.   The Court therefore concludes that by granting the Fund's request to set aside the final judgment of 12 April 2000, as upheld on appeal on 30 May 2000, the domestic authorities infringed the principle of legal certainty and the applicants' “right to a court” under Article 6 § 1 of the Convention.
37.  There has accordingly been a violation of that Article.

(b)  Article 1 of Protocol No. 1
38.  The Court reiterates that the existence of a debt confirmed by a binding and enforceable judgment constitutes the judgment beneficiary's “possession” within the meaning of Article 1 of Protocol No. 1. Quashing of such a judgment amounts to an interference with his or her right to peaceful enjoyment of possessions (see, among other authorities, Androsov v. Russia, no. 63973/00, § 69, 6 October 2005).
39.  The Court observes that the final and enforceable judgment of 12 April 2000, as upheld on 30 May 2000, by which the applicants had been awarded increased pensions in accordance with the provisions of the new Pensions Act, was quashed on 18 April 2001. The Town Court re-examined the matter and dismissed the applicants' claims. Thus, the applicants, through no fault of their own, were prevented from receiving the initial judgment award.
40.  To justify that interference the Government claimed that it had been lawful and pursued a legitimate aim, namely to correct a judicial error.
41the State's possible interest in ensuring a uniform application of the Pensions Law should not have brought about the retrospective recalculation of the judicial award already made” (§ 41). The backdating of the recalculation, with the effect that the sums due were reduced, frustrated the applicants' reliance on the binding judicial decision and deprived them of an opportunity to receive the money they had legitimately expected to receive (cf. Bulgakova, cited above, § 47). In these circumstances, the Court considers that the quashing of the enforceable judgment of 12 April 2000, as upheld on 30 May 2000, placed an excessive burden on the applicants and was incompatible with Article 1 of Protocol No. 1.
42.  There has therefore been a violation of that Convention provision.
II.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
43.  Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
A.  Damage
44.  As regards pecuniary damage, the applicants claimed the sums listed in the schedule. These sums represent the difference between the pensions to which they were entitled in accordance with the judgment of 12 April 2000 and the pensions actually paid. They calculated those sums on the basis of an IPC of 0.7 and in respect of a period lasting until the date when the IPC was increased by virtue of amendments to the Pensions Act and they started to receive pensions based on an increased IPC. They further claimed indexing of those sums to take account of inflation. The applicants claimed 1,000,000 Russian roubles to be paid to each of them in respect of non-pecuniary damage.
45.  The Government, using the same method of calculation for the applicants' pensions, argued that the applicants were entitled to lower sums than they had claimed and that certain applicants would even have to return money to the Pension Fund if the Court were to find a breach of their rights owing to the quashing of a final judgment in their favour.
46.  As regards the applicants' claims in respect of the difference in pension payments, the Court observes that in the present case it has found a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 in that the applicants had been unable to receive increased pensions as a result of the reopening of the proceedings and the quashing of the final judgment in their favour. The Court notes that the most appropriate form of redress in respect of a violation of Article 6 is to ensure that the applicant as far as possible is put in the position he would have been in had the requirements of Article 6 not been disregarded (see  (Article 50), judgment of 26 October 1984, Series A no. 85, p. 16, § 12, and, , , no. 53431/99, § 27, 23 October 2003). The Court finds that this principle applies as well in the present case, having regard to the violations found (cf. Poznakhirina v. Russia, no. 25964/02, § 33, 24 February 2005). The applicants were prevented from receiving money they had legitimately expected to receive under the judgment of 12 April 2000.
47.  The Court notes that the parties used the same method for the calculation of the applicants' pensions. The only difference was the date until which the parties applied the recalculation based on an IPC of 0.7. The applicants alleged that they had been entitled to pensions with an IPC of 0.7 until the date when the IPC was once again increased and they had started to receive pensions with an IPC of more than 0.7. The Government made the recalculation with an IPC of 0.7 until 1 January 2002, when the IPC was abolished. In this connection the Court notes that the Government did not dispute that the applicants had been entitled to pensions with an IPC of more than 0.7 when the IPC was increased. Moreover, it appears that when the IPC was increased in 2001 the applicants started to receive pensions calculated on the basis of the increased IPC. Further increases of the IPC also affected the applicants' pensions. It follows that in accordance with the judgment of 12 April 2000, as upheld on 30 May 2000, the applicants were entitled to pensions calculated with an IPC of 0.7 until an increased IPC was introduced under the Russian pension legislation.
48.  The Court therefore accepts the applicants' calculation of the pensions to which they were entitled in accordance with the judgment of 12 April 2000 and awards the sums thus claimed in full (as listed in the schedule), plus any tax that may be chargeable on those amounts.
49.  As to the claim in respect of inflation-related losses, the Court notes that the applicants did not indicate the amounts of those losses and did not offer an explanation as to the method of their calculation. They did not submit any document showing the inflation rates in their region during the period under consideration. The Court therefore dismisses this claim.
50.   The Court further considers that the applicants suffered distress and frustration resulting from the quashing of the judgment of 12 April 2000, as upheld on 30 May 2000. Making its assessment on an equitable basis, the Court awards each of the applicants 2,000 euros (EUR) in respect of non-pecuniary damage, plus any tax that may be chargeable on those amounts.
B.  Costs and expenses
51.  The applicants also claimed unspecified sums for the costs and expenses incurred in proceedings before the domestic courts and the Court.
52.  The Government argued that the applicants had not substantiated their claims.
53.  According to the Court's case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, the Court rejects the claim for costs and expenses because the applicants did not indicate the sums claimed and did not submit any receipts or other vouchers in support of their claims.
C.  Default interest
54.  The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1.  Declares the application admissible;

2.  Holds that there has been a violation of Article 6 of the Convention and Article 1 of Protocol No. 1;

3.  Holds
(a)  that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the sums listed in the schedule in respect of pecuniary damage, plus any tax that may be chargeable;
(b) that the respondent State is to pay each of the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 2,000 (two thousand euros) in respect of non-pecuniary damage, to be converted into Russian roubles at the rate applicable at the date of the settlement, plus any tax that may be chargeable;
(c)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4.  Dismisses the remainder of the applicants' claim for just satisfaction.
Done in English, and notified in writing on 5 July 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Søren Christos 
	Registrar	President

SCHEDULE

APPLICANT'S NAME	YEAR OF BIRTH	SUM CLAIMED IN RESPECT OF PECUNIARY DAMAGE (in RUR)	
Viktor Alekseyevich Kumkin	not specified	4,662	
Galina Aleksandrovna Medvedeva	1934	4,662	
Nelli Nikolayevna Chernyavskaya	1936	5,472	
Raisa Vladimirovna Bibikova	1931	4,020	
Aleksandra Vasilyevna Grishayeva	1927	4,503	
Lidiya Pavlovna Gavrilova	1939	4,341	
Valentina Pavlovna Grishina	1935	4,503	
Mariya Pavlovna Matyushkina	1943	4,503	
Anna Vladimirovna Zvereva	1938	4,020	
Mariya Stepanovna Sudarkova	1927	4,020	
Valentina Yemilyanovna Mironova	1930	5,622	
Irina Ivanovna Shadrina	1938	4,020