Постановление Европейского суда по правам человека от 04.03.2010 «Дело Андреев (Andreyev) против России» [англ.]

elevant domestic law

14. The relevant domestic law governing the supervisory review procedure at the material time is summed up in the Court's judgment in the case of Kot v. Russia (No. 20887/03, § 17, 18 January 2007).

THE LAW

I. Alleged violation of Article 6 § 1 of the Convention
and of Article 1 of Protocol No. 1 on account
of supervisory review

15. The applicant complained under Article 6 of the Convention and under Article 1 of Protocol No. 1 that the final appeal judgment of 28 April 2004 had been quashed via supervisory review. In so far as relevant, these Articles read as follows:
Article 6 § 1
"In the determination of his civil rights and obligations..., everyone is entitled to a fair... hearing... by [a]... tribunal..."
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. [...]"
16. The Government contested that argument. They argued, inter alia, that the supervisory review had been compatible with the Convention as it was aimed to correct a fundamental defect. They referred to a definition of a fundamental defect given in the case of Luchkina as "a jurisdictional error, serious breaches of court procedure or abuses of power" (Luchkina v. Russia, No. 3548/04, § 21, 10 April 2008). In the Government's view, the appeal court ignored that at the date of the infliction of the damage the applicant was still a de jure owner of the flat.

A. Admissibility

17. The Court notes that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

18. The Court reiterates that for the sake of legal certainty implicitly required by Article 6, final judgments should generally be left intact. They may be disturbed only to correct fundamental errors. The mere possibility of there being two views on the subject is not a ground for re-examination (see Ryabykh v. Russia, No. 52854/99, §§ 51 - 52, ECHR 2003-IX).
19. The Court further reiterates that it has frequently found violations of the principle of legal certainty and of the right to a court in the supervisory-review proceedings governed by the Code of Civil Procedure in force since 2003 (see, amongst other authorities, Bodrov v. Russia, No. 17472/04, § 31, 12 February 2009).
20. In the present case the Presidium disagreed with the assessment made by the appeal court which is not, in itself, an exceptional circumstance warranting the quashing of a binding and enforceable judgment (see Kot, cited above, § 29). It was not claimed before the supervisory-review instance that the previous proceedings had been tarnished by a fundamental defect, such as, in particular, a jurisdictional error, serious breaches of court procedure or abuses of power (see, amongst other authorities, Luchkina, cited above, § 21). The court discerns no other fundamental defect to justify the quashing of the final judgment on supervisory review in the present case. Accordingly, there has been a violation of Article 6 § 1 of the Convention.
21. The Court further observes that as a result of supervisory review the applicant was deprived of his possessions (see paragraph 13 above). Accordingly, there has also been a violation of Article 1 of Protocol No. 1.

II. Application of Article 41 of the Convention

22. Article 41 of the Convention provides:
"If the Court finds that there has been a violation of the

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