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ANGELOVA v. RUSSIA - 33820/04 [2007] ECHR 1099 (13 December 2007)
URL: http://www.bailii.org/eu/cases/ECHR/2007/1099.html
Cite as:
[2007] ECHR 1099
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FIRST
SECTION
CASE OF ANGELOVA v. RUSSIA
(Application
no. 33820/04)
JUDGMENT
STRASBOURG
13
December 2007
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 Angelova v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Mr C.L. Rozakis, President,
Mr A.
Kovler,
Mrs E. Steiner,
Mr K. Hajiyev,
Mr D.
Spielmann,
Mr S.E. Jebens,
Mr G. Malinverni,
judges,
and Mr S. Nielsen, Section Registrar,
Having
deliberated in private on 22 November 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application
(no. 33820/04) 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 a Russian national, Ms Mariya
Alekseyevna Angelova (“the applicant”), on 29 July 2004.
The
Russian Government (“the Government”) were represented by
Mr P. Laptev, the Representative of the Russian Federation at the
European Court of Human Rights.
On
17 November 2005 the
Court decided to give notice of the complaint concerning the length
of the proceedings in the applicant's case to the Government.
Applying Article 29 § 3 of the Convention, it decided to rule on
the admissibility and merits of the application at the same time.
THE FACTS
The
applicant was born in 1926 and lives in Korolev, a town in the Moscow
Region.
In
1990 the applicant underwent surgery on her right hand in a local
hospital. The applicant alleges that the operation was unsuccessful
because of the negligence of the medical personnel, with the result
that her ability to move her right hand was impaired.
On
24 April 1994 the applicant brought proceedings against the hospital,
seeking compensation for harm inflicted on her as a result of medical
negligence.
Following
an order of the court, on 10 April 1995 the applicant underwent a
forensic medical examination at the Forensic Examination Bureau of
the Moscow City Health Department (“the Bureau”).
On
14 December 1995 the Koptevskiy District Court of Moscow (“the
District Court”) dismissed the applicant's civil action as
unfounded. The judgment was upheld on appeal by the Moscow City Court
on 12 February 1996.
Following
a request by the applicant, on 5 December 1996 the Presidium of the
Moscow City Court quashed the judgment of 14 December 1995,
as upheld on 12 February 1996, by way of supervisory review, and
remitted the case for a fresh examination to the first-instance
court.
On
2 February 1998 the District Court ordered another forensic
examination to be performed by the Bureau and stayed the proceedings
pending its results. However, on an unspecified date the Bureau
informed the District Court that it could not proceed with the
examination, because it had already conducted the initial forensic
examination in the applicant's case.
On
23 April 1998 the District Court ordered another forensic examination
to be performed by the Forensic Medical Examination Centre of the
Russian Ministry of Health (“the Centre”).
On
12 May 1998 the Centre informed the District Court that the
examination was rather costly and required an advance payment.
However, since both parties to the proceedings refused to make an
advance payment, on an unspecified date the case file was returned to
the District Court.
Following
a request by the applicant, on 21 October 1998 the District Court put
further questions to the Bureau. The applicant was requested to
provide the Bureau with her medical documents. The proceedings were
stayed pending the outcome of the examination.
On
21 October 1998 the applicant asked the Institute of Traumatology and
Orthopaedics to issue her with her medical file, but the request was
refused.
On
22 July 1999 the applicant's medical file was obtained from the above
Institute by the District Court. The case file does not contain any
information on whether the Bureau provided the District Court with
answers to the further questions raised by the applicant.
Following
a request by the applicant, on 6 September 1999 the District Court
again ordered the new forensic examination to be performed by the
Centre.
Between
5 January and 10 February 2000 the Centre carried out a new forensic
examination.
On
29 March 2000 the District Court resumed the proceedings and
scheduled a hearing for 25 April 2000. However, on 25 April and
8 June 2000 the District Court postponed the hearing until
8 June and 29 June 2000 respectively, because the
applicant's lawyer was busy and could not attend. On 29 June 2000 the
hearing was postponed until 6 July 2000, because the
respondent's representative could not attend.
On
6 July 2000 the District Court ordered an additional forensic
examination to be performed by the Bureau, with the participation of
experts from the Centre. The proceedings were stayed pending the
outcome of the above examination. However, on 26 February 2001 the
Bureau informed the District Court that it could not proceed with the
examination, because it had already given its opinion after having
conducted the initial examination.
From
11 May to 31 October 2001 no hearings were scheduled, because the
case was being transferred to another judge.
Following
a request by the applicant, on 31 October 2001 the District Court
ruled out the Institute of Traumatology and Orthopaedics as a
defendant in the case. The hearing was postponed until 7 December
2001.
On
7 December 2001 the District Court excluded the expert opinion gained
between 5 January and 10 February 2000 from the evidence.
On
14 December 2001 the hearing was postponed until 11 February 2002
because of the judge's illness.
On
11 February 2002 the District Court, in the applicant's absence,
ordered a new forensic examination to be performed by the Centre. The
court ordered the defendant to cover the costs connected with the
above examination and stayed the proceedings pending the outcome of
the examination. There is no information in the case file on whether
the above examination ever took place.
On
30 May 2002 the District Court ordered an additional forensic
examination to be performed by the Bureau.
Between
19 September 2002 and 25 February 2003 the Bureau conducted the
additional forensic examination.
On
an unspecified date the proceedings resumed.
On
9 October 2003 the District Court held a hearing and questioned the
experts. It appears that the applicant was not apprised of this
hearing. For this reason, on 10 October 2003 she requested the court
to call the experts once again so that she could cross-examine them.
It
appears that the District Court granted the applicant's request and
scheduled a new hearing for 13 November 2003, but the applicant was
unable to appear before the court on that date because of illness.
The court apparently postponed the hearing and rescheduled it for 3
December 2003.
On
1 December 2003 the applicant informed the District Court by telegram
that she would be unable to attend the hearing on 3 December 2003
because she was ill, and requested the court to postpone it. The
registry of the court received the telegram on the same date.
On
3 December 2003 the District Court refused the applicant's request to
postpone the hearing. The court observed that the applicant had not
formulated any new claims in addition to those contained in her
written submissions, nor had she presented any supplementary
evidence. The court accordingly decided to hold the hearing and to
examine the applicant's claims on the basis of her written
submissions. The representatives of the defendant hospital were
present at the hearing. Having heard the experts and the defendant's
representatives, the District Court allowed the applicant's claims in
part and ordered the hospital to pay her damages.
The
applicant appealed, complaining in particular that the first-instance
judgment had been given in her absence. On 2 February 2004 the Moscow
City Court delivered its decision. The court reviewed the applicant's
case on points of facts and law and upheld the judgment of 3 December
2003, having noted that the applicant's absence from the
first-instance court had in no way affected the lawfulness of its
judgment. The applicant, as well as the defendant hospital's
representatives, attended the appeal hearing and made oral
submissions. It does not appear that the applicant presented any new
arguments or evidence in support of her claims.
Following
a request by the applicant, on 29 September 2005 the Presidium of the
Moscow City Court quashed the judgment of 3 December 2003 and the
appeal decision of 2 February 2004 and remitted the case for a fresh
examination to the first-instance court. The reasons for the above
quashing were not made available to the Court.
On
2 February 2006 the District Court allowed the applicant's claims in
part and ordered the hospital to pay her damages. It appears that the
applicant was present at the above hearing. The case file does not
contain any further information as to whether the judgment was
appealed against.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The
applicant complained that the length of the proceedings had been
incompatible with the “reasonable time” requirement, laid
down in Article 6 § 1 of the Convention, which reads as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
A. Admissibility
The
Court recalls that the proceedings commenced on 24 April 1994, when
the applicant submitted her statement of claim to the Koptevskiy
District Court of Moscow. The proceedings were pending during three
periods. The first period commenced on 24 April 1994 and ended on
12 February 1996, when the judgment of 14 December 1995 became
final. The second period began on 5 December 1996 with the
supervisory-review decision and ended on 2 February 2004, when the
judgment of 3 December 2003 became final. The third period began on
29 September 2005 with another supervisory-review decision and ended
with the judgment of 2 February 2006.
The
proceedings thus lasted for approximately nine years and four months.
The Court observes that the period to be taken into consideration
began on 5 May 1998, when the Convention came into force in respect
of Russia. Therefore, at least six years and one month are in the
Court's competence ratione temporis. During this period the
case was determined by the courts of three instances. The Court
reiterates that in assessing the reasonableness of the length of the
proceedings account must be taken of the state of the proceedings on
the date of entry of the Convention into force in respect of the
Contracting State (see, among other authorities, Billi v. Italy,
judgment of 26 February 1993, Series A no. 257-G, §
16). In this respect the Court observes that by 5 May 1998 the
proceedings had been pending for approximately three years and three
months.
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
1. Submissions by the parties
The
Government submitted that forensic medical examinations had been
conducted in the applicant's case between 5 May 1998 and 7 July 2000,
and between 12 September 2000 and 9 October 2003. In particular,
between 5 January and 10 February 2000 the Forensic Medical
Examination Centre of the Russian Ministry of Health had carried out
a new forensic examination, and between 19 September 2002 and 25
February 2003 the Forensic Examination Bureau of the Moscow City
Health Department had carried out a comprehensive forensic
examination. The Government argued that the applicant had contributed
to the length of the above expert examinations, because she had
objected to the examinations, refused to submit her medical file to
experts, requested additional examinations and asked to put
additional questions to experts. Furthermore, the applicant had
failed to attend the hearings scheduled to take place on 25 April, 8
June and 29 June 2000, and later between 9 October and 3 December
2003. The Government further submitted that the case had been
examined three times by the first-instance court, and each time had
required determination both of the facts and the law. Furthermore,
following the applicant's requests the case had twice been quashed by
way of the supervisory review procedure. Throughout the proceedings
the applicant had been able to exercise her procedural rights in
full. Finally, the outcome of the proceedings had been successful for
the applicant. As regards the conduct of the domestic authorities,
the Government submitted that there had been no periods of inactivity
attributable to them.
The
applicant contested the Government's submissions. She argued that it
had taken the domestic courts twelve years to examine her claims. The
applicant submitted that the expert examinations had been scheduled
without reference to her and that her questions had not been put to
the experts. The examinations had been assigned several times to the
same expert establishments, and as a result the materials submitted
had been returned unexamined. The applicant further submitted that
the hearings of 23 April and 8 June 2000 had been postponed at
her request, because her lawyer was busy and could not attend. The
hearing of 29 June 2000 had been postponed at the request of the
defendant's representative. Between 11 May and 5 October
2000 no hearings had been scheduled, because the case had been
transferred to another judge. The applicant had not been apprised of
the hearings of 17 August 2000 and 9 October 2003.
2. The Court's assessment
The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the following criteria: the complexity of the case,
the conduct of the applicant and the relevant authorities and what
was at stake for the applicant in the dispute (see, among many other
authorities, Frydlender v. France [GC], no. 30979/96, §
43, ECHR 2000-VII).
Although
the parties did not argue that the case was particularly difficult to
determine, the Court observes that the proceedings at issue were of
some complexity, as they required expert opinions and study of the
applicant's medical records. However, the Court cannot accept that
the complexity of the case, taken on its own, was such as to justify
the overall length of the proceedings. Moreover, the Court considers
that special diligence is necessary in disputes concerning
compensation for damage caused to a person's health.
As
to the applicant's conduct, the Court notes the Government's argument
that the applicant contributed to the delay in the proceedings by
failing to attend and requesting the adjournment of hearings. The
Court observes that the applicant was absent from the hearings of
25 April and 8 June 2000, and 13 November and 3
December 2003. The aggregate delay incurred amounted to less than
three months, which is negligible in view of the overall duration of
the proceedings. Besides, the Court does not lose sight of the fact
that, in any event, the hearing of 3 December 2003 took place and the
judgment was delivered in the applicant's absence. As regards the
hearings which took place on 29 June 2000 and 9 October 2003, the
parties' submissions are contradictory.
The
Government also indicated that the applicant had contributed to the
delay in the proceedings by objecting to forensic medical
examinations, refusing to submit her medical file to experts, filing
requests for additional examinations and putting additional questions
to experts. As to the applicant's activity with regard to the
appointment and conduct of forensic medical examinations, the Court
reiterates that an applicant cannot be blamed for taking full
advantage of the resources afforded by national law in the defence of
her interests (see Sokolov v. Russia, no. 3734/02, § 38,
22 September 2005). As to the applicant's failure to submit her
medical file promptly to experts, the Court observes that the
applicant asked the Institute of Traumatology and Orthopaedics to
issue her with her medical documents as soon as the District Court
put further questions to the Forensic Examination Bureau on 21
October 1998; however, her attempts proved futile. Later it took the
District Court about nine months to obtain those documents on its own
initiative. In any event, it does not follow from the parties'
submissions as to the circumstances of the case that the Bureau ever
answered the questions put by the District Court on 21 October 1998.
Therefore, even if the applicant was at fault in not informing the
District Court of the Institute's refusal to issue her with her
medical file as soon as she knew about it, that is not in itself
sufficient to explain the overall length of the proceedings.
The
Court observes, however, that substantial periods of inactivity, for
which the Government have not submitted any satisfactory explanation,
are attributable to the domestic authorities. The Court notes that
from 5 May 1998 to 9 October 2003 there was virtually no
progress in the applicant's case. In particular, between 11 May and
31 October 2001 no hearings were listed or held, because the case was
being transferred to another judge. As regards the remaining period,
although it would seem that quite a number of different types of
forensic medical examinations were ordered by the District Court, it
appears that only two of them were actually conducted: the one that
took place between 5 January and 10 February 2000 and
another, which took much longer and was carried out between
19 September 2002 and 25 February 2003. In this connection, the
Court reiterates that it is not called upon to determine the reasons
for the delay in preparation of the expert report, because Article 6
§ 1 of the Convention imposes on Contracting States the duty to
organise their judicial systems in such a way that their courts can
meet the obligation to decide cases within a reasonable time (see,
among other authorities, Löffler v. Austria, no.
30546/96, § 57, 3 October 2000). Furthermore, the
Court observes that the principal responsibility for a delay caused
by the expert examinations rests ultimately with the State (see
Capuano v. Italy, judgment of 25 June 1987, Series A no. 119,
§ 32).
The
Court is also mindful of the Government's argument as regards the
fact that the case several times spanned three levels of
jurisdiction. Nevertheless, this alone cannot justify the overall
length of the proceedings. Furthermore, as regards the Government's
closing argument concerning the favourable outcome of the proceedings
for the applicant, even assuming that the allowing in part of the
applicant's claim may be regarded as a favourable outcome of the
proceedings, the Court notes that such an outcome was not directly
connected with the length of the proceedings and cannot, therefore,
be considered, either directly or by implication, a recognition of a
violation of Article 6 or reparation for the damage allegedly caused
to the applicant by the length of the proceedings (see Byrn
v. Denmark, no. 13156/87, Commission decision of 1 July
1992, Decisions and Reports 74, p. 5).
In
view of the above considerations, the Court considers that the
overall period less the period attributable to the applicant's
conduct leaves the authorities accountable for approximately five
years and ten months.
Finally,
the Court points out that the dispute in the present case concerned
compensation for damage to health. The Court is of the opinion that
the nature of the dispute called for particular diligence on the part
of the domestic courts (see Marchenko v. Russia, no. 29510/04,
§ 40, 5 October 2006).
Having
examined all the material submitted to it and taking into account
what was at stake for the applicant, the Court considers that in the
instant case the length of the proceedings was excessive and failed
to meet the “reasonable time” requirement. There has
accordingly been a breach of Article 6 § 1.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION ON ACCOUNT OF UNFAIRNESS OF THE PROCEEDINGS
The
applicant complained under Article 6 of the Convention that the
judgment of 3 December 2003 had been given in her absence. She
further alleged that the examinations of experts had been carried out
in breach of the national law, that the domestic courts had refused
to assist her in collecting the evidence and that the amount of
compensation awarded was insufficient.
As
regards the applicant's first complaint, the Court observes that on
29 September 2005 the Presidium of the Moscow City Court
quashed the judgment of 3 December 2003 by way of supervisory review
and remitted the case for a fresh examination to the first-instance
court. It appears that the applicant was present at the fresh
examination of the case on 2 February 2006. In these circumstances
the Court finds that she can no longer claim to be a victim of the
alleged violation.
It
follows that this complaint must be rejected as being manifestly
ill-founded, pursuant to Article 35 §§ 3 and 4 of the
Convention.
As
regards the remainder of the applicant's complaints, the Court
reiterates that, in accordance with Article 19 of the Convention, its
duty is to ensure the observance of the engagements undertaken by the
Contracting Parties to the Convention. In particular, it is not its
function to deal with errors of fact or law allegedly committed by a
national court unless and in so far as they may have infringed rights
and freedoms protected by the Convention (see, among other
authorities, Čekić and Others v. Croatia (dec.), no.
15085/02, 9 October 2003). Moreover, while Article 6 of the
Convention guarantees the right to a fair hearing, it does not lay
down any rules on the admissibility of evidence or the way it should
be assessed, which are therefore primarily matters for regulation by
national law and the national courts (see García Ruiz
v. Spain [GC], no. 30544/96, § 28, ECHR
1999 I).
Turning to the facts of the
present case, the Court finds that there is nothing to indicate that
the domestic courts' evaluation of the facts and evidence presented
in the applicant's case was contrary to Article 6 of the Convention.
The applicant was provided with ample opportunities to present her
arguments and to challenge the submissions of the opposing party in
the proceedings and the judicial authorities gave them due
consideration. In the light of the foregoing consideration, the Court
finds that the reasons on which the national courts based their
conclusions are sufficient to exclude any concern that the way in
which they established and assessed the evidence in the applicant's
case was unfair or arbitrary.
It follows that this complaint must also be rejected
as being manifestly ill-founded, pursuant to Article 35 §§
3 and 4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
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.”
A. Damage
The
applicant claimed 4,673 euros (EUR) in respect of pecuniary damage.
This sum represents the difference between the sum the applicant
recovered as a result of the proceedings and the sum she had expected
to recover. She further claimed EUR 2,920 in respect of non-pecuniary
damage.
The
Government considered that no award should be made in respect of
pecuniary damage, in the absence of a causal link between the damage
alleged by the applicant and the alleged violation. As regards
non-pecuniary damage, the Government considered the applicant's claim
excessive and unreasonable.
The Court considers that the applicant has failed to
demonstrate that the pecuniary damage was actually caused by the
violation of the Convention in her case. Consequently, there is no
cause to make an award under that head. On the other hand, the Court
accepts that the applicant suffered distress, anxiety and frustration
because of the unreasonable length of the proceedings. Making its
assessment on an equitable basis and taking into account that the
proceedings in the applicant's case concerned compensation for damage
to health, the Court awards the applicant EUR 2,900 in respect
of non-pecuniary damage, plus any tax that may be chargeable on that
amount.
B. Costs and expenses
The
applicant also claimed EUR 1,460 for costs and expenses incurred
before the domestic courts and the Court.
The
Government considered that the applicant's claim should be allowed in
part, as she has only shown proof of having spent 7,601.42 Russian
roubles in the course of the proceedings before the domestic courts
and before the Court.
According
to the Court's case-law, an applicant is entitled to reimbursement of
costs and expenses only in so far as it has been shown that these
have been actually and necessarily incurred and were reasonable as to
quantum. In the present case, regard being had to the information in
its possession and the above criteria, the Court considers it
reasonable to award the applicant the sum of EUR 220 under this head,
plus any tax that may be chargeable on the above amount.
C. Default interest
The
Court considers it appropriate that the default interest 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
Declares the complaint concerning the excessive
length of the proceedings admissible and the remainder of the
application inadmissible;
Holds that there has been a violation of Article
6 § 1 of the Convention;
Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 2,900 (two
thousand nine hundred euros) in respect of non-pecuniary damage and
EUR 220 (two hundred and twenty euros) in respect of costs and
expenses, to be converted into Russian roubles at the rate applicable
at the date of the settlement, plus any tax that may be chargeable on
the above amounts;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 13 December 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
