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Постановление Европейского суда по правам человека от 12.02.2009 «Дело Бодров (Bodrov) против России» [англ.]





view proceedings and made a general claim in relation to Article 6 of the Convention. The Court therefore finds that it may examine whether the proceedings in question disclose a violation of Article 6 of the Convention (see, mutatis mutandis, C.J.M.E., J.C.D. AND W.A.C.S. v. the Netherlands, Nos. 5100/71 et al, Commission decision of 29 May 1973, and O'Reilly v. Ireland, No. 21624/93, Commission decision of 31 August 1994) and dismisses the objection.
26. As regards the objections concerning applicability of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1, the Court has found in many cases that Article 6 § 1 was applicable to proceedings concerning the calculation of the applicant's pension (see, among others, Bulgakova v. Russia, No. 69524/01, § 28 - 30, 18 January 2007) and that the existence of a debt confirmed by a binding and enforceable judgment constituted the beneficiary's "possession" within the meaning of Article 1 of Protocol No. 1. Quashing of such a judgment amounted 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). The Court sees no reason to depart from those findings in the present case and dismisses the respective objections.
27. Turning to the argument that the applicant himself had asked for further supervisory review of the judgment of 8 December 2003 and cannot claim to be a victim of the alleged breach of the legal certainty principle, the Court notes that, by contrast to the Fadin v. Russia case (cited above), the applicant was not an initiator of the proceedings which resulted into the judgment of 8 December 2003, at issue in the present case. The Court further observes that the applicant's subsequent attempts to challenge the quashing in a new round of the supervisory review proceedings proved unsuccessful, and, in any event, were provoked by the overturning of the final judgment in his favour. Finally, as regards the alleged impact of the recalculation of the pension in March 2007 on the applicant's victim status, the Court notes that the adjustment only concerned the pension the applicant had received as from 1 January 2005, while the quashed judgment awarded him such pension with the effect as from 1 January 2001, and the amount he had to repay represented arrears in respect of 2001 - 2003. The alleged violation was not recognised and no redress was afforded. Thus, the pension increase as from 2005 did not have any impact on his victim status. The objection in this respect should be dismissed.
28. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and it is not inadmissible on any other grounds. It must therefore be declared admissible.

2. Merits

a. Article 6 of the Convention
29. The Court reiterates its constant case-law to the effect that the quashing by way of supervisory review of a judicial decision which has become final and binding may render the litigant's right to a court illusory and infringe the principle of legal certainty (see, among many other authorities, {Brumarescu} v. Romania [GC], No. 28342/95, § 62, ECHR 1999-VII; Ryabykh v. Russia, No. 52854/99, §§ 56 - 58, 24 July 2003). Departures from that principle are justified only when made necessary by circumstances of a substantial and compelling character (see, mutatis mutandis, Ryabykh v. Russia, cited above, § 52).
30. Turning to the present case, the Court observes, first, that the Commissariat did not challenge the judgment of 12 May 2003 before the court of appeal. The Court reiterates that it has found a violation of an applicant's "right to a court" in many Russian cases in which a judicial decision that had become final and binding, was subsequently quashed by a higher court on an application by a State



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