CASE OF MALMBERG AND OTHERS v. RUSSIA
(Applications nos. 23045/05, 21236/09, 17759/10 and 48402/10)
15 January 2015
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 Malmberg and Others v. Russia,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
Mirjana Lazarova Trajkovska,
Paulo Pinto de Albuquerque,
Dmitry Dedov, judges,
and Søren Nielsen, Section Registrar,
Having deliberated in private on 9 December 2014,
Delivers the following judgment, which was adopted on that date:
1. The case originated in four applications (nos. 23045/05, 21236/09, 17759/10 and 48402/10) 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 four Russian nationals, Ms Mariya Gennadyevna Shelkova, Mr Mikhaydar Ayseyevich Tazikov, Ms Olga Ivanovna Shevchenok and Ms Marina Fedorovna Surkova (“the applicants”), on 3 May 2005, 2 April 2009, 17 February 2010 and 27 July 2010 respectively. On 26 March 2009 the first applicant informed the Court that she had changed her name to Mariya Gennadyevna Malmberg.
2. Ms Malmberg and Ms Surkova were represented respectively by Mr A.L. Lifshits, a lawyer practising in St Petersburg, and Mr I.V. Starov, a lawyer practising in Moscow. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.
3. The applicants each alleged that the judgments in their civil cases had not been pronounced publicly as required by Article 6 § 1 of the Convention.
4. On 13 January 2012 the applications were communicated to the Government.
I. THE CIRCUMSTANCES OF THE CASE
A. Application of Ms Malmberg
5. The applicant was born in 1957 and lives in St Petersburg.
6. She had a dispute with private individuals over a contract of sale for a flat, concluded in 1998, in which the applicant was the purchaser. According to the contract, she was to pay the equivalent of 26,500 US dollars (USD) in two instalments: half of the price on signing the contract, and the rest before 2 January 1999. The sellers were to vacate the flat before the same date. The applicant paid a sum equal to USD 13,250 on signing the contract and a further sum equal to USD 6,155 in 2001, but never paid the remaining sum. The sellers were evicted from the flat in 2004. The applicant claimed interest on the amounts paid by her for the period up to the time at which she had taken possession of the flat.
7. At a public hearing on 17 March 2004, in the presence of the applicant’s representative and the defendants, the Vasileostrovskiy District Court of St Petersburg partially found for the applicant, awarding her interest on the amount of USD 13,250 at an annual rate of 12% for the period from 2 January 1999 until the day on which she had taken possession of the flat, and dismissed the remainder of her claims. It read out the operative part of its judgment.
8. At a public hearing on 21 December 2004 the St Petersburg City Court examined the case on appeal in the presence of the applicant’s representative and the defendants. It quashed the part of the judgment in which the District Court had found for the applicant, and dismissed the applicant’s claims in view of her own failure to pay the price of the flat in full. It upheld the remainder of the judgment. The applicant’s claims were thus dismissed in their entirety.
9. At the close of the hearing the City Court read out the operative part of its judgment.
10. On 17 January 2005 the applicant’s representative received a copy of the City Court’s reasoned judgment.
B. Application of Mr Tazikov
11. The applicant was born in 1957 and lives in Ulyanovsk.
12. A private individual brought proceedings against the applicant seeking recovery of a debt in the amount of 1,116,619 Russian roubles (RUB).
13. At a public hearing on 13 October 2008 the Leninskiy District Court of Ulyanovsk examined the case in the presence of the claimant and the applicant’s representative. It ordered that the applicant pay the amount of the debt in full, as well as interest in the amount of RUB 10,000 and the court fee in the amount of RUB 2,861.19.
14. At the close of the hearing the District Court read out the operative part of its judgment.
15. On 16 October 2008 a copy of the District Court’s reasoned judgment was sent to the applicant by post.
16. At an open hearing on 25 November 2008 the Ulyanovsk Regional Court examined the case on appeal in the presence of the parties’ representatives. It dismissed the applicant’s appeal and upheld the judgment. At the close of the hearing the Regional Court read out the operative part of its judgment.
17. On 9 December 2008 the applicant’s representative received a copy of the Regional Court’s reasoned judgment.
C. Application of Ms Shevchenok
18. The applicant was born in 1958 and lives in Tyumen.
19. The Tavda Town Administration brought proceedings against the applicant for recovery of “unjust enrichment” in the amount of RUB 175,276.40 resulting from the use of a plot of urban land for a period of two years and interest in the amount of RUB 17,704.57.
20. At a public hearing on 26 June 2009 the Tavda Town Court of the Sverdlovsk Region examined the case in the presence of the claimant’s representative and the applicant. It found for the claimant and ordered that the applicant repay the sum gained through unjust enrichment and interest as claimed, as well as the court fee in the amount of RUB 3,529.80.
21. At the close of the hearing the Town Court read out the operative part of its judgment.
22. On 2 July 2009 the applicant received the Town Court’s reasoned judgment.
23. The applicant appealed against the judgment.
24. On 18 August 2009 the Sverdlovsk Regional Court dismissed the applicant’s appeal and upheld the Town Court’s judgment. It rejected the applicant’s argument that the Town Court’s judgment had not been pronounced publicly as required by Article 6 § 1 of the Convention, stating that the Town Court had read out the operative part of its judgment at the hearing and prepared the reasoned judgment within five days thereafter in compliance with domestic law.
D. Application of Ms Surkova
25. The applicant was born in 1946 and lives in Moscow.
26. The applicant brought proceedings against the Moscow department of the Federal Service for State Statistics, challenging its refusal to employ her for the campaign of the population census on the ground of her disability and claiming damages in the amount of RUB 356,145. The applicant argued, in particular, that despite her disability she was perfectly fit for the work and that she had successfully performed that type of work in the past.
27. At a public hearing on 30 October 2009 the Basmanniy District Court of Moscow examined the case in the presence of the applicant and the defendant’s representative. It dismissed her claims in full, having found, inter alia, that the refusal to employ her had been lawful in view of a medico-social expert report confirming her total incapacity for any kind of work. The District Court noted that it had been open to the applicant to challenge the conclusion of the medico-social expert report, but that she had chosen not to do so. At the close of the hearing the court read out the operative part of its judgment.
28. On 17 November 2009 the applicant received a copy of the District Court’s reasoned judgment.
29. On 28 January 2010 the Moscow City Court dismissed the applicant’s appeal and upheld the District Court’s judgment. The City Court read out the operative part of its judgment at the close of its public hearing in the presence of the parties’ representatives. The applicant’s representative received a copy of its reasoned judgment in March 2010.
II. RELEVANT DOMESTIC LAW
A. Code of Civil Procedure
30. Article 10 § 8 of the Code of Civil Procedure of the Russian Federation of 2002, in force at the material time, provided:
“Judgments shall be pronounced publicly, save in cases where the public pronouncement of a judgment would infringe the rights and lawful interests of a minor.”
31. Article 199 of the Code provided:
“Judgment shall be delivered immediately after the examination of a case. The preparation of a reasoned judgment may be postponed for not more than five days from the date on which the examination of the case ended, provided that the court has pronounced the operative part of the judgment at the same hearing in which the examination of the case ended. The pronounced operative part of the judgment shall be signed by all judges and included in the case file.”
32. Under Article 193 § 2 of the Code, if only the operative part of the judgment was read out at the hearing, the presiding judge had to announce when parties to the proceedings and their representatives would become acquainted with the reasoned judgment.
33. Under Article 198 of the Code, judgments were to include an introduction (including the date and place of the adoption of the judgment, the name and composition of the court, the registrar, parties to and other participants in the proceedings, their representatives, and the subject matter of the dispute), a description (the claims and parties’ submissions), the reasons (the circumstances of a case as established by the court, the evidence on which the court based its conclusions, the reasons for which the court rejected one or another piece of evidence, and the statutes by which the court was governed) and an operative part (the court’s decision whether to grant or reject the suit, instructions as to how court costs should be divided and explanations concerning an appeal against the judgment).
34. Under Article 214 of the Code, copies of judgments were to be sent to those participants in the proceedings who had not been present at the court hearing not later than five days after the adoption of the final text of the judgment.
B. Instructions of the Courts Administration Office at the Supreme Court of the Russian Federation
35. The Courts Administration Office at the Supreme Court of the Russian Federation provides administrative support for district and regional courts. In particular, it organises their clerical work, including archives. Thus, at the material time, the clerical work in a district court was governed by Courts Administration Office Instruction no. 36 of 29 April 2003 (“the Instruction”).
36. Paragraph 12.1 of the Instruction contained an exhaustive list of persons who could consult a case file in a court building. For civil proceedings, it was limited to the parties to the proceedings, their representatives, other participants in the proceedings, judges and officers of higher courts, public prosecutors and officers of the Courts Administration Office.
37. Paragraph 12.4 of the Instruction provided that, at the discretion of the president or deputy president of a court, a copy of case-file documents could be given to the parties to the civil case and their representatives.
38. The Instruction was unsuccessfully challenged in the Supreme Court. In its decision of 2 November 2004, the latter found that the Instruction had fully complied with the Code of Civil Procedure of 2002. The Supreme Court relied on Articles 34 and 35 of the Code, which vested the right to consult a case file and receive a copy of judgments and other documents only in the participants in the proceedings. On 13 January 2005 the decision was upheld by the Cassation Division of the Supreme Court.
39. The relevant part of paragraph 12.4 of the Instruction, as amended on 23 January 2007, read as follows:
“Original case-file documents and their certified copies ... are issued by authorised officers of the court’s registry or archives to ... participants in the civil proceedings and their representatives ...
Copies of final judgments in civil cases are issued to other persons if those persons’ rights and lawful interests have been infringed by the judgments ...
... copies of final judgments are issued in the order as established by the president of the court ...”
40. In accordance with Courts Administration Office Instruction no. 169 of 28 December 1999 (paragraph 12.19) and Instruction no. 161 of 13 December 2004 (paragraph 12.16), a judgment by an appeal instance is dispatched after its delivery (not later than five and seven days, respectively), together with the case file, to the first-instance court that delivered the judgment in the case.
C. Law no. 262-FZ
41. Federal Law no. 262-FZ of 22 December 2008 on Access to Information on the Functioning of Courts in the Russian Federation (Об обеспечении доступа к информации о деятельности судов в Российской Федерации), which came into force on 1 July 2010, provided for the publication of domestic courts’ judgments on the internet.
I. JOINDER OF THE APPLICATIONS
42. Given that the applications at hand raise an identical issue under the Convention, the Court decides to join them in accordance with Rule 42 § 1 of the Rules of Court.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
43. The applicants complained that the judgments in their civil cases had not been “pronounced publicly”, as required by Article 6 § 1 of the Convention, the relevant part of which reads as follows:
“1. In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing ... by [a] ... tribunal ... Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.”
A. The parties’ submissions
1. The Government
44. The Government submitted that the courts in the applicants’ civil proceedings had acted in accordance with the domestic law, which at the material time did not provide for compulsory publication of judgments or for making copies of them available to persons other than participants in the proceedings. That problem had been identified by the Court in its judgment in the case of Ryakib Biryukov v. Russia (no. 14810/02, ECHR 2008). The Government acknowledged that the Court’s findings in that judgment were applicable to the present applications.
45. The Government further stated that as a result of the enactment of Law no. 262-FZ, which provided for the compulsory publication of judgments on the internet, the requirement under Article 6 § 1 of the Convention that judgments be pronounced publicly had been complied with. The authorities had thus taken measures to prevent the same violation as that found in the Ryakib Biryukov judgment. The Government submitted that, given that the enactment of new legislation had reasonably required a significant period of time, the State should not be held responsible for its failure to comply with the requirement that judgments be pronounced publicly in the applicants’ cases.
46. The Government noted that no requests for access to the judgments in the applicants’ cases had been received by the courts from third parties who had not participated in the proceedings. It would have been open for them to appeal to a court against any refusal to give them such access, pursuant to the provisions of the Code of Civil Procedure, as interpreted by the Constitutional Court of the Russian Federation in its decision no. 1-P of 20 February 2006. They also noted that at the material time it had not been the practice of the domestic courts to prepare records of court hearings on appeal.
47. The Government concluded that the applications should be declared inadmissible as manifestly ill-founded.
2. The applicants
48. The applicants maintained their complaints.
49. In particular, Ms Malmberg disagreed with the Government that the problem of the lack of publicity of judgments had been successfully resolved by the adoption of Law no. 262-FZ. She also submitted that there was no information in the final text of a judgment about the date on which it had actually been prepared, in the absence of such a requirement in the Code of Civil Procedure.
50. Ms Surkova submitted that the preparation of the final texts of the District Court’s and City Court’s judgments had been delayed for seventeen and more than twenty days respectively. In the absence of the relevant requirement in the Code of Civil Procedure, there was no information as to the dates on which those final texts had been prepared. She also argued that Law no. 262-FZ could not be applied to the facts of her case as they took place before it had entered into force. Furthermore, the domestic law in force at that time, in particular Article 123 § 1 of the Constitution and Article 11 of the Code of Civil Procedure, had laid down a sufficient basis for the courts to administer justice and pronounce judgments openly and publicly.
B. The Court’s assessment
51. The Court notes that the applications are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.
52. The Court has previously found a violation of Article 6 § 1 of the Convention by the respondent State on account of the lack of public access to a reasoned judgment in a civil case in which only the operative part of the judgment was read out in open court and the full text of the judgment was prepared later (see Ryakib Biryukov, cited above, §§ 28-46).
53. Turning to the facts of the present applications and taking into account the proceedings as a whole (see, for example, Axen v. Germany, 8 December 1983, §§ 27 and 32, Series A no. 72, and Moser v. Austria, no. 12643/02, § 101, 21 September 2006), the Court observes that the St Petersburg City Court, the Ulyanovsk Regional Court and the Moscow City Court read out the operative parts of their judgments at public hearings, that they prepared the full texts of their judgments later, and that the reading out of the lower courts’ judgments - which they upheld on appeal fully or partially - was also limited to their operative parts. The Tavda Town Court likewise publicly pronounced the operative part of its judgment, which - in so far as the material before the Court suggests - was not made any more public by the appeal court by which it was upheld.
54. The Government submitted that the domestic law in force at the material time had not provided for compulsory publication of judgments or for otherwise making their full texts available to persons who had not participated in the proceedings. The Government acknowledged that the Court’s finding in its Ryakib Biryukov judgment was therefore applicable to the applications at hand (see paragraph 44 above).
55. The Court sees no reason to disagree with the Government. It concludes that, as there were no means of ensuring publicity other than by reading out the operative parts of the judgments in open court, the judgments of the above-mentioned courts remained inaccessible to the public. The possibility of granting those whose rights and lawful interests had been infringed access to the judgments (see paragraph 39 above) was insufficient to comply with the publicity requirement (see, mutatis mutandis, Moser, cited above, § 103).
56. As to the Government’s argument that Law no. 262-FZ provided for the compulsory publication of judgments on the internet in compliance with the requirement to pronounce judgments publicly, the Court notes that the events complained of in the instant case took place before that legislation entered into force on 1 July 2010 (see paragraph 41 above and Buscarini and Others v. San Marino [GC], no. 24645/94, § 40, ECHR 1999-I).
57. The foregoing considerations are sufficient for the Court to conclude that the object pursued by Article 6 § 1 in this context - namely, to ensure scrutiny of the judiciary by the public with a view to safeguarding the right to a fair trial - was not achieved in the present cases. The court’s reasoning, which would have explained why the applicants’ claims had been rejected, was inaccessible to the public.
58. There has accordingly been a violation of Article 6 § 1 of the Convention.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
59. As regards the applicants’ remaining complaints concerning, in particular, the unfavorable outcome of their civil proceedings, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.
60. It follows that these parts of the applications are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
61. 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.”
62. Ms Malmberg claimed 3,000 euros (EUR) in respect of non-pecuniary damage suffered as a result of the violation of the publicity requirement in her proceedings. Mr Tazikov claimed EUR 50,000 in respect of non-pecuniary damage suffered on account of the courts’ failure to pronounce publicly the judgments delivered in his case and the outcome of his civil proceedings. Ms Shevchenok claimed EUR 7,000 in respect of non-pecuniary damage suffered on account of the violations of the Convention alleged by her. Ms Surkova claimed 208,650 Russian roubles (RUB, approximately EUR 5,348) in lost wages as a result of the refusal of her employment, and RUB 300,000 (approximately EUR 7,690) in respect of non-pecuniary damage suffered on account of the courts’ failure to pronounce publicly the judgments in her case and other alleged violations of the Convention.
63. The Government considered the applicant’s claims excessive and unreasonable. They also submitted that there was no causal link between the applicants’ claims and the alleged violation of the Convention. Relying on the case of Ryakib Biryukov, cited above, the Government argued that if the Court were to find a violation of Article 6 § 1 of the Convention in the present case, the finding of a violation would constitute in itself sufficient just satisfaction.
64. The Court does not discern any causal link between the violation found and the pecuniary damage alleged by Ms Surkova and therefore dismisses that claim. As to the applicants’ claims in respect of non-pecuniary damage suffered on account of the courts’ failure to pronounce publicly the judgments delivered in their cases, the Court considers that the finding of a violation of Article 6 § 1 constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicants.
B. Costs and expenses
65. Ms Malmberg claimed RUB 596.40 (approximately EUR 15) in postal and copying costs incurred in the proceedings before the Court. Ms Surkova claimed RUB 89,000 (approximately EUR 2,281) for the costs and expenses incurred before the domestic authorities and the Court. The other applicants made no such claims.
66. The Government agreed with Ms Malmberg’s claim of RUB 521.50 in postal expenses, and Ms Surkova’s claim of RUB 13,000 in translation costs and RUB 1,087.90 in postal expenses, and disagreed with the remainder of the claims.
67. In accordance with the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 13 for postal and copying expenses to Ms Malmberg, to be paid directly into the bank account of the applicant’s representative, as requested by her, and the sum of EUR 358 for postal, copying and translation expenses to Ms Surkova. It rejects the remainder of the claims.
C. Default interest
68. The Court considers it appropriate that the default interest rate 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. Decides to join the applications;
2. Declares the complaint concerning the lack of the public pronouncement of the judgments admissible and the remainder of the applications inadmissible;
3. Holds that there has been a violation of Article 6 § 1 of the Convention;
4. Holds that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicants;
(a) that the respondent State is to pay, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into Russian roubles at the rate applicable at the date of settlement:
(i) to Ms Malmberg EUR 13 (thirteen euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be paid into the applicant’s representative’s bank account;
(ii) to Ms Surkova EUR 358 (three hundred and fifty-eight euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
(b) 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;
6. Dismisses the remainder of the applicants’ claims for just satisfaction.
Done in English, and notified in writing on 15 January 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Isabelle