EHRM, 29-01-2009, nr. 28730/03

The Court reiterates that 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 declares, in its relevant part, 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, judgment of 28 October 1999, Reports of Judgments and Decisions 1999-VII, § 61).

This principle insists that no party is entitled to seek reopening of proceedings merely for the purpose of a rehearing and a fresh decision on the case. The mere possibility of there being two views on the subject is not a ground for re-examination.

Departures from that principle are justified only when made necessary by circumstances of a substantial and compelling character (see, mutatis mutandis, Ryabykh v. Russia, no. 52854/99, § 52, ECHR 2003-X, and Pravednaya v. Russia, no. 69529/01, § 25, 18 November 2004). Higher courts' powers to quash or alter binding and enforceable judicial decisions should be exercised for correction of fundamental defects. That power must be exercised so as to strike, to the maximum extent possible, a fair balance between the interests of an individual and the need to ensure the effectiveness of the system of justice (see, mutatis mutandis, Nikitin v. Russia, no. 50178/99, §§ 54–61, ECHR 2004-VIII).

The relevant considerations to be taken into account in this connection include, in particular, the effect of the reopening and any subsequent proceedings on the applicant's individual situation and whether the reopening resulted from the applicant's own request; the grounds on which the domestic authorities revoked the finality of the judgment in the applicant's case; the compliance of the procedure at issue with the requirements of domestic law; the existence and operation of procedural safeguards in the domestic legal system capable of preventing abuses of this procedure by the domestic authorities; and other pertinent circumstances of the case (see Nikitin, cited above, § 60; Bratyakin v. Russia (dec.), no. 72776/01, 9 March 2006; Fadin v. Russia, no. 58079/00, § 34, 27 July 2006; and Savinskiy v. Ukraine, no. 6965/02, §§ 24–26, 28 February 2006). In addition, the review must afford all the procedural safeguards of Article 6 § 1 and must ensure the overall fairness of the proceedings (see Vanyan v. Russia, no. 53203/99, §§ 63–68, 15 December 2005).

In a number of cases the Court, while addressing the notion of ‘a fundamental defect’, stressed that the mere consideration that the investigation in the applicant's case was ‘incomplete and one-sided’ or led to an ‘erroneous’ acquittal cannot in itself, in the absence of jurisdictional errors or serious breaches of court procedure, abuses of power, manifest errors in the application of substantive law or any other weighty reasons stemming from the interests of justice, indicate the presence of a fundamental defect in the previous proceedings (see Radchikov v. Russia, no. 65582/01, § 48, 24 May 2007).

The Court further reiterates its findings in the case of Protsenko v. Russia (no. 13151/04, 31 July 2008). In that case the final judgment in the applicant's favour was quashed by way of a supervisory review, on the ground that the first-instance court ‘had failed to establish all the circumstances of the case, to identify all the parties to the proceedings and to invite the owner of the land to participate in the proceedings, with the result that the rights of the latter [had been] adversely affected’. While concluding that there had been no breach of Article 6 § 1 of the Convention in that case, the Court held (§§ 31 et seq.) as follows:

Having regard to the above-mentioned principles, the Court has to ascertain whether on 11 December 2002 the Presidium of the Tomsk Regional Court reopened the proceedings and quashed the enforceable judgment of 15 July 2002, as amended on 12 September 2002, with a view to correcting a fundamental judicial error, and, if so, whether the actual manner in which the Presidium exercised that power undermined the overall fairness of the proceedings at issue.

As regards the purpose of the quashing performed by the Presidium of the Regional Court on 11 December 2002, the Court observes that the Presidium found that the district and regional courts had failed to indicate the constituent element of a criminal offence, in that they had not established that the assault had in fact taken place. The courts had also violated the former husband's right to be presumed innocent because in the absence of sufficient evidence they had concluded that he had assaulted the applicant. The Presidium considered that the former husband's guilt had not been proven, and acquitted him. Having regard to that finding, the Presidium held that there was no ground for accepting the applicant's tort action against her former husband and dismissed the compensation claims in full.

The Court considers that in such circumstances the Presidium's decision to quash the judgments, flawed as they were with such defects, does not appear unreasonable or arbitrary (see Bratyakin v. Russia (dec.), no. 72776/01, 9 March 2006). After examination of the entire case, including the evidence, the Presidium declared that the lower courts had committed a miscarriage of justice by having subjected the applicant's former husband to an unmerited conviction and by issuing decisions which were prejudicial to and inconsistent with the substantial rights of the convicted person. The Presidium concluded that the District and Regional courts had taken the mistaken judgments as to the existence and effect of matters of fact and the application of the law which had led to the conviction of an innocent person and the imposition on him of the obligation to pay compensation for damage, although it was not proven that he had caused that damage. The Presidium noted the lower courts' ignorance of the important substantive evidence, such as witnesses' statements corroborating the defendant's alibi, their selective and grossly inconsistent approach to the assessment of the circumstantial evidence, the overestimation of the evidential value of the victim's testimony and the defective understanding of the medical reports. The judicial errors committed by the district and regional courts went to the merits of the criminal case and the applicant's cause of action. Those errors vitiated the proceedings and were so grave that, if not rectified, would have resulted in a denial of a fair trial to the applicant's former husband.

In this connection, the Court once again reiterates that the Convention in principle permits the reopening of a final judgment to enable the State to correct miscarriages of criminal justice. A verdict ignoring key evidence may well constitute such a miscarriage (see Vedernikova v. Russia, no. 25580/02, § 25, 12 July 2007).

The Court observes that the errors committed by the District and Regional courts were sufficient in nature and effect to warrant the reopening of the proceedings. Leaving such errors uncorrected would seriously affect the fairness, integrity and public reputation of the judicial proceedings. The Court also attributes particular weight to the fact that those judicial errors could not be neutralised or corrected by any other means, save by the quashing of the judgments of 15 July and 12 September 2002. In such circumstances, the Presidium could not utterly disregard the plight of the innocent victim of the unjust conviction. The quashing of the final judgment was a means of indemnifying the convicted person for mistakes in the administration of the criminal law.

The Court is satisfied that the Presidium reopened the proceedings for the purpose of correcting a fundamental judicial error. The considerations of ‘legal certainty’ should not discourage the State from correcting particularly egregious errors committed in the administration of justice and thus, in the circumstances of the present case, should not prevent the Presidium of the Tomsk Regional Court from reviewing the final judgment which was grossly prejudicial to the convicted person, that is the applicant's former husband.

Having established that the interests of justice required the reopening of the proceedings and the quashing of the judgment of 15 July 2002, as amended on 12 September 2002, the Court has now to consider whether the procedural guarantees of Article 6 of the Convention were available in those supervisory review proceedings.

The Court finds that there is nothing to indicate that the Presidium's evaluation of the facts and evidence presented in the case was contrary to Article 6 of the Convention. The Court observes that the applicant was provided with ample opportunities to present her arguments and to challenge the submissions of the adversary in the proceedings. She submitted detailed written arguments in reply to the supervisory review application. Furthermore, she and her representative attended the supervisory review hearing and made oral submissions. The Court considers that the Presidium gave the applicant's arguments due consideration. In the light of the foregoing consideration, the Court finds that the reasons on which the Presidium based its conclusions are sufficient to exclude any doubt that the way in which it established and assessed the evidence in the applicant's case was unfair or arbitrary. Therefore the Court considers that the proceedings before the Presidium of the Tomsk Regional Court afforded the applicant all the procedural safeguards of Article 6 § 1 of the Convention.

Having regard to the foregoing, the Court is of the opinion that in the circumstances of this particular case the Presidium rightfully balanced the competing interests of finality and justice. The Court finds that the quashing of the judgment of 15 July 2002, as amended on 12 September 2002, by the Presidium of the Tomsk Regional Court did not deprive the applicant of the ‘right to a court’ under Article 6 § 1 of the Convention. There has been accordingly no violation of that Article.

The Court reiterates that the existence of a debt confirmed by a binding and enforceable judgment furnishes the judgment beneficiary with a ‘legitimate expectation’ that the debt would be paid, and constitutes the beneficiary's ‘possessions’ within the meaning of Article 1 of Protocol No. 1. Quashing such a judgment amounts to an interference with his or her right to peaceful enjoyment of possessions (see, among other authorities, Brumărescu v. Romania, cited above, § 74, ECHR, and Androsov v. Russia, no. 63973/00, § 69, 6 October 2005). An interference with the peaceful enjoyment of possessions must strike a fair balance between the demands of the general interests of the community and the requirements of the protection of the individual's fundamental rights (see, among other authorities, Sporrong and Lönnroth v. Sweden, judgment of 23 September 1982, Series A no. 52, p. 26, § 69). In particular, there must be a reasonable relationship of proportionality between the means employed and the aim sought to be realised by any measure depriving a person of his possessions (see Pressos Compania Naviera S.A. and Others, cited above, p. 23, § 38).

Turning to the facts of the present case, the Court observes that by virtue of the judgment of 15 July 2002, as amended on 12 September 2002, the applicant's former husband was to pay her a certain sum of money in compensation for damage caused as the result of the assault. By operation of law and as pronounced by the judgments of 15 July and 12 September 2002 the payment of the compensation was conditional on the former husband's conviction of the assault. Following the quashing of the judgments and the acquittal of the former husband, the applicant's claim in respect of the money awarded under those judgments ceased to exist.

Having regard to the Court's findings under Article 6 of the Convention, the Court concludes that the special circumstances of the present case can be regarded as exceptional grounds justifying the quashing of the judgments of 5 July and 12 September 2002 and the dismissal of the applicant's claim for compensation.

The Court therefore considers that the quashing in the present case did not amount to an unjustified interference with her property rights as guaranteed by Article 1 of Protocol No. 1. There has, therefore, been no violation of that Convention provision.