Last Updated on November 2, 2021 by LawEuro
THIRD SECTION
CASE OF SHMATOVA AND OTHERS v. RUSSIA
(Application no. 36539/08)
JUDGMENT
(Revision)
STRASBOURG
2 November 2021
This judgment is final but it may be subject to editorial revision.
In the case of Shmatova and Others v. Russia (request for revision of the judgment of 11 February 2020),
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
Alena Poláčková, President,
Dmitry Dedov,
Gilberto Felici, judges,
and Olga Chernishova, Deputy Section Registrar,
Having deliberated in private on 11 February 2020,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 36539/08) 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 (“the applicants”), including the sixth applicant Mr Boyarishchev, on 24 March 2008.
2. In a judgment delivered on 11 February 2020, the Court held, in respect of all applicants, that there had been a violation of Articles 6 § 1 and 13 of the Convention and Article 1 of Protocol No. 1 to the Convention on account of the non‑enforcement of a judgment of 20 August 2007 given against a municipal unitary enterprise and the lack of an effective remedy. The Court also decided to award each of the applicants, including the sixth applicant Mr Boyarishchev, 2,000 euros in respect of non-pecuniary damage, and ordered the State to ensure, by appropriate means, within three months, the enforcement of the judgment of 20 August 2007 in favour of the applicants including Mr Boyarishchev.
3. On 29 April 2020 the Government informed the Court that on 17 March 2020 they had learned from Mrs Galina Nikolayevna Boyarishcheva (born in 1961) that Mr Boyarishchev, her husband, had died on 26 July 2012. They accordingly requested revision of the judgment within the meaning of Rule 80 of the Rules of Court.
4. On 23 June 2020 the Court considered the request for revision and decided to give the applicant’s widow four weeks in which to submit any observations. Those observations were received on 22 July 2020. The Government were invited to submit further comments in reply until 15 September 2020. They did not comment.
THE LAW
THE REQUEST FOR REVISION
5. The Government requested revision of the judgment of 11 February 2020, which they had been unable to execute because Mr Boyarishchev had died before the judgment had been adopted. They noted, first, that the applicant’s widow or any other next of kin had failed to either inform the Court of the applicant’s demise or to provide a plausible explanation for their failure to do so. Secondly, they argued that an inheritance certificate submitted by the widow had not concerned the Court’s award under Article 41 of the Convention. They asked the Court either to strike the application out of the lists in the part concerning Mr Boyarishchev’s complaints or, alternatively, to exclude an award under Article 41 of the Convention in Mr Boyarishchev’s favour from the judgment.
6. Mrs Boyarishcheva submitted in reply that she had not found any documents concerning the case before the Court after his death because all correspondence had been sent by the Court to the first applicant in the case (Ms Shmatova); and that she had expressed her intention to maintain the case once Ms Shmatova had forwarded a copy of the Court’s judgment to her. Mrs Boyarishcheva argued that the finding of a violation made by the Court in respect of her late husband’s Convention rights was also applicable to her, as the unenforced initial judgment concerned heating supply to the living premises in which both the applicant and Mrs Boyarishcheva had lived. She submitted a certificate by a notary attesting to her status as the deceased applicant’s heir. She asked the Court to revise the judgment so that the award in respect of the non-pecuniary damage be allocated to her.
7. The Court notes from the documents submitted to it that Mrs Boyarishcheva was the wife of the deceased applicant Mr Boyarishchev, and that she is his only known legal heir. The Court further notes from the case material that in 2016, after the communication of the application to the Government, all the applicants in the case were invited to provide comments on the Government’s submissions if they so wished. However, no information about the death of Mr Boyarishchev had been received, and no next of kin of that applicant had expressed their wish to maintain the case until 2020. All other applicants provided their comments.
8. Relevant parts of Rule 80 of the Rules of Court read as follows:
“A party may, in the event of the discovery of a fact which might by its nature have a decisive influence and which, when a judgment was delivered, was unknown to the Court and could not reasonably have been known to that party, request the Court … to revise that judgment. …”
9. The Court considers that the applicant’s death constitutes “the discovery of a fact … which when [the] judgment was delivered, was unknown to the Court”. It also constitutes a fact of “decisive influence” on the outcome of the judgment within the meaning of Rule 80 § 1, namely the allocation of the amount awarded under Article 41 of the Convention. The Court accepts that this decisive fact “could not reasonably have been expected to be known” to the Government, which became aware of the applicant’s death in March 2020 (see Manushaqe Puto and Others v. Albania (revision), nos. 604/07 and 3 others, §§ 9-10, 4 November 2014). They filed a request for a revision of the judgment on 29 April 2020, that is, within the time-limit provided for in Rule 80.
10. In these circumstances, the Court considers that the judgment of 11 February 2020 should be revised in the part concerning the complaint by late Mr Boyarishchev pursuant to Rule 80 of the Rules of Court.
11. The Court further recalls that it has been its practice to strike applications out of the list of cases in the absence of any heir or close relative who has expressed in a timely manner a wish to pursue the application, without providing an explanation for such failure (see Cacuci and S.C. Virra & Cont Pad S.R.L. v. Romania (revision), no. 27153/07, §§ 6-11, 13 November 2018; Association of Victims of Romanian Judges and Others v. Romania (revision), no. 47732/06, §§ 9-11, 22 March 2016; and Gabay v. Turkey (revision), no. 70829/01, 27 June 2006). The Court sees no reason to depart from this approach in this case, taking into account that the applicant’s death had occurred eight years before the date of the Court’s judgment, and noting that his widow had failed to provide any valid reason for not being able to inform the Court earlier about the applicant’s death (see, by contrast, Nicolae Augustin Rădulescu v. Romania (revision), no. 17295/10, § 9, 19 May 2015). In particular, the Court is unable to accept her reference to the correspondence arrangements in the case (see paragraph 6 above) as a valid reason. The Court notes that in 2016, when invited to comment on the Government’s submissions, all other applicants in the present case had been able to submit their comments without any impediment. However, no information about Mr Boyarishchev’s death and any of his next of kin’s wish to maintain the case had been submitted to the Court, at that stage or later (see paragraph 7 above). The Court further finds no special circumstances relating to respect for human rights as defined in the Convention and its Protocols which require it to continue the examination of the present application (see Cacuci and S.C. Virra & Cont Pad S.R.L., cited above).
12. Accordingly, the application should be struck out of the Court’s list of cases in accordance with Article 37 § 1 of the Convention in so far as it concerns the complaints by late Mr Boyarishchev.
FOR THESE REASONS, THE COURT
1. Decides to revise its judgment of 11 February 2020;
2. Decides to strike the application out of the list in so far as the complaint by Mr Aleksandr Ivanovich Boyarishchev is concerned.
Done in English, and notified in writing on 2 November 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Olga Chernishova Alena Poláčková
Deputy Registrar President
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