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LEKHANOVA v. RUSSIA - 43372/06 [2009] ECHR 2129 (22 December 2009)
URL: http://www.bailii.org/eu/cases/ECHR/2009/2129.html
Cite as:
[2009] ECHR 2129
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FIRST
SECTION
CASE OF LEKHANOVA v. RUSSIA
(Application
no. 43372/06)
JUDGMENT
STRASBOURG
22
December 2009
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 Lekhanova v.
Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina Vajić,
President,
Anatoly Kovler,
Elisabeth
Steiner,
Khanlar Hajiyev,
Dean
Spielmann,
Sverre Erik Jebens,
George Nicolaou,
judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 3 December 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 43372/06) 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 Anna Grigoryevna
Lekhanova (“the applicant”), on 14 August 2006.
The
applicant was represented by Mr P. Finogenov, 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.
On
25 November 2008 the President of the First Section decided to grant
priority treatment to the application and to give notice of it to the
Government. It was also decided to examine the merits of the
application at the same time as its admissibility (Article 29 §
3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1930 and lives in the town of Voronezh.
A. Civil proceedings
1. First round of proceedings
The
applicant was a member of a housing cooperative. Having paid a sum of
money, she expected to receive a certain flat from the cooperative in
a newly built block of flats. However, the applicant was then
expelled from the cooperative. The flat was given to Mr L instead.
The latter sold the flat to Mr Ch.
On
16 March 1998 the applicant brought proceedings against the housing
cooperative in the Kominternovskiy District Court of Voronezh. She
sought the annulment of the cooperative's decision to expel her and
give the flat to L. She also sought compensation in respect of
non-pecuniary damage and recognition of her title to the flat.
In
the meantime, Mr Ch resold the flat to Ms K. On 7 May 1998 the judge
issued a charging order in respect of the flat.
In
September 1998 the applicant amended her claims, seeking the
annulment of the purchase contracts by Ch and K and recognition of
her right to live in the flat in question.
According
to the Government, several hearings between September and November
1998 had to be adjourned in order to take account of the applicant's
amended claims and enable the parties to collect evidence in support
of their claims.
According
to the Government, in 1999 one hearing was adjourned because of the
defendants; another one was adjourned on account of their and the lay
judges' failure to attend; and two further hearings were adjourned to
enable the applicant to submit amended claims.
By
a judgment of 6 September 1999, the District Court rejected her
claims. The applicant appealed. After complying with the court's
instructions concerning court fees, on 20 April 2000 the Voronezh
Regional Court examined her appeal and upheld the above judgment as
regards the rejection of the non-pecuniary claim but ordered a fresh
hearing in respect of the remaining claims.
2. Second round of proceedings
Upon
the applicant's complaint about the length of proceedings before the
District Court, a judge of the Regional Court carried out a
preliminary inquiry and concluded on 31 January 2001 that a further
inquiry would be appropriate. Its outcome remains unclear.
In the meantime, having re-examined the remaining
claims, on 27 June 2001 the District Court upheld most of the
claims against the defendant, including the applicant's claim for
title to the flat in question. On 15 August 2001 the District
Court issued an additional judgment amending the earlier one and
ordering Ms K's eviction. On 11 October 2001 the Regional Court
upheld the judgment of 27 June 2001.
On an unspecified date the applicant applied for
registration of her title to the flat. On 18 January 2002 the State
Property Registry refused to issue a title certificate to the
applicant because there was a valid charging order in respect of the
flat. However, on 29 January 2002 the applicant was provided with the
title certificate.
3. Supervisory review
On
5 February 2002 the President of the Regional Court lodged a request
for supervisory review of the judgment of 15 August 2001. On
11 February 2002 the Presidium of the Regional Court quashed the
judgment on the ground that the defendant had not been informed of
the hearing.
Upon
a request of the Acting President of the Regional Court, on
14 October 2002 the Presidium court quashed the judgments of
27 June and 11 October 2001 in part and ordered a
re-examination of the relevant claims.
It appears that, on an unspecified date, the title
registration in respect of the flat at issue was revoked in view of
the annulment of the court decisions on which it had been based.
4. Third round of proceedings
In
view of her advancing age and declining health, the applicant was
represented by her daughter, Ms P, at most hearings throughout
the proceedings.
According
to the Government, in 2004 at least six hearings were listed and
adjourned because the parties had failed to appear. One hearing was
adjourned because the judge was on sick leave, and another one
because the defendants failed to attend. Each adjournment resulted in
delays of up to two months.
In
2005 at least three hearings were listed but adjourned because the
parties failed to attend or sought to adduce evidence or appoint new
representatives. On 3 August 2005 the applicant submitted amended
claims.
By a judgment of 5 October 2005 the District
Court ruled on the merits of the applicant's claims as amended. With
reference to the judgment of 27 June 2001 in its valid part, the
court reconfirmed the unlawfulness of the cooperative's decisions to
expel the applicant and give the flat to L. The court accepted that
the applicant had honoured her contract with the cooperative and had
thus acquired a claim to a particular flat, the one which was
given to L. Referring to a 2003 ruling by the Constitutional Court,
the court refused to annul the flat purchases by Ch. and then K.
because they were protected “purchasers in good faith”
within the meaning of Article 167 of the Civil Code; the court
indicated, however, that a claim under Article 302 of the Code would
be a proper course of action (see paragraphs 29 and 30 below). The
court also observed that any of the above claims could be brought by
an “owner”. The court reiterated that only an official
certificate from the State register could prove ownership title (see
paragraph 31 below). Accordingly, the court refused to accept the
applicant's membership card as valid proof of her title to the flat
at issue (see, however, paragraphs 14 and 17 above). The court also
rejected the applicant's eviction claim against Ms K, because only
the proven owner could seek eviction. However, the court awarded the
applicant 3,000 Russian roubles (RUB) in respect of non-pecuniary
damage and RUB 2,000 in litigation costs (lawyer's fees, photocopying
fees, compensation for loss of time). The court refused to award the
applicant's representative P's travel expenses between her residence
town (Moscow) and Voronezh.
The
applicant appealed, contending that the 2003 ruling of the
Constitutional Court could not be applied to events in the 1990s. On
16 February 2006 the Regional Court set aside the judgment in
the part concerning compensation in respect of non-pecuniary damage
and upheld it in the remaining part. The appeal court held that the
Constitutional Court had only determined the constitutional meaning
of the relevant provisions of the Civil Code in force at the material
time.
5. Subsequent proceedings
In
May 2006 Ms K obtained an official certificate confirming her title
to the flat. It appears that she sold it to another person in the
same month.
By an order of 6 September 2006, the District Court
lifted the charging order in respect of the flat in question. The
applicant appealed. On 16 January 2007 the Regional Court upheld this
order.
On an unspecified date the applicant applied to the
Bailiffs' Service for enforcement of the judgment of 5 October 2005.
On 19 April 2007 the Bailiffs' Service indicated that the judgment
could not be enforced against the housing cooperative because it had
ceased its activity in January 2007.
On
20 April 2007 the Regional Court refused leave for supervisory review
of the judgments of 5 October 2005 and 16 February 2006.
B. Other proceedings
In
reply to the applicant's complaint concerning the above civil
dispute, by a letter of 12 February 2007 the Prosecutor General's
Office advised her to sue the housing cooperative for damages in view
of their failure to honour their contractual obligations.
In
separate proceedings, on an unspecified date, the authorities opened
a criminal investigation into the applicant's allegations that the
private company's acts had deprived her of her flat. In August 2008
the case was discontinued because the statutory time-limit for
criminal prosecution had expired.
II. RELEVANT DOMESTIC LAW AND PRACTICE
Under Article 167 of the Civil Code 1994, a voided
transaction does not give rise to any legal consequences beyond those
related to its annulment, and is void ab initio. In a voided
transaction the parties should return to each other what was received
or, if not practicable, they should pay compensation. Under
Article 302 of the Civil Code, the first owner can claim property
back from a purchaser in good faith who has acquired it from an
unauthorised seller without knowing or being in a position to know
that the seller was unauthorised. However, such a claim can only
arise if the property was lost, stolen or otherwise taken out of the
first owner's control.
By a ruling of 21 April 2003, the Constitutional Court
interpreted Article 167 of the Code as not allowing the first owner
to reclaim his property from a purchaser in good faith unless there
is a special legislative provision to this effect. Instead, a claim
vindicating prior rights (виндикационный
иск) could be lodged under Article 302 of the
Code.
Under Article 219 of the Civil Code, ownership title
to a building or other newly built premises requiring State
registration, arises from the time of such registration.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The
applicant complained that the length of the civil proceedings had
exceeded a “reasonable time” in breach of Article 6 §
1 of the Convention, which, in so far as relevant, 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. Submissions by the parties
The
Government submitted that the case was complex, involving issues of
property rights, eviction claims and requests for annulment of a
contract. The case concerned several parties and had been examined at
three levels of jurisdiction on seven occasions. The applicant
amended her claims on a number of occasions and lodged various
requests, thus causing delays of around six months. She failed to
attend a number of hearings, thus causing delays of eleven months and
seventeen days. The applicant's appeals caused further delays. Other
delays were attributable to the defendants. At the same time, the
State could not be held liable for any significant delays; hearings
were scheduled at regular intervals. In any event, adjournments were
intended to enable the parties to be present at hearings.
The
applicant contested the Government's submissions, noting that the
latter adduced no evidence in support of their argument. The
applicant argued that the case was not particularly complex and that
she had amended her claims only twice – in 1998 and 2005 –
because the relevant factual circumstances had evolved. Only one
hearing was held in 2000; no full hearing was held between October
2002 and January 2004. While more than twenty adjournments were due
to the defendants' or third persons' failure to appear before the
court, the authorities had taken no measures to discipline the
defaulting persons. Certain adjournments unnecessarily spanned over
several months. As a result, the applicant or her representative had
to appear before the court on fifty-nine occasions only to see most
of the hearings adjourned.
B. The Court's assessment
1. Admissibility
The
Court notes that this 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.
2. Merits
(a) Period under consideration
The
Court notes that the domestic proceedings started in March 1998.
However, the Court's competence ratione temporis is limited to
the proceedings pending after 5 May 1998, the Convention having
entered into force in respect of Russia on that date. In assessing
the reasonableness of the time that elapsed after that date, the
Court may, however, take account of the state of proceedings at the
time.
As
to the date when the proceedings ended, the Court considers it
unnecessary to decide, in the absence of the parties' submissions,
whether the 2007 proceedings concerning the charging order (see
paragraph 24 above and, mutatis mutandis, Robins v. the
United Kingdom, 23 September 1997, §§ 28 and 29,
Reports of Judgments and Decisions 1997 V) or the
enforcement proceedings in the applicant's favour (see paragraph 25
above and Hornsby v. Greece, 19 March 1997, § 40, Reports
of Judgments and Decisions 1997 II) should be taken into
account. Thus, it is accepted that the proceedings ended on
16 February 2006, when the appeal court issued its decision.
For the same reasons, the Court considers that the
period from 11 October 2001 to 5 February 2002 should not
be taken into account because no court or enforcement proceedings
were pending.
Thus,
the proceedings lasted seven years and nearly seven months, of which
a period of seven years and nearly five months (at two levels of
jurisdiction) was within the Court's competence ratione temporis.
(b) Reasonableness of the period
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 conduct of the relevant
authorities (see, among many other authorities, Frydlender v.
France [GC], no. 30979/96, § 43, ECHR 2000 VII).
The
Court considers that the case was relatively complex. While admitting
that the task of the courts was rendered more difficult by this
factor, the Court cannot accept that the complexity of the case,
taken on its own, was such as to justify the overall length of those
proceedings (see Mattila v. Finland, no. 77138/01, § 15,
23 May 2006).
As
to the applicant's conduct, the Court reiterates that the person
concerned is required only to show diligence in carrying out the
procedural steps relating to her and to refrain from using delaying
tactics (see Unión Alimentaria Sanders S.A. v. Spain, 7
July 1989, § 35, Series A no. 157). There is no reason to
criticise the applicant for having used the remedies available under
Russian law in the defence of her interests (see, among other
authorities, Rokhlina v. Russia, no. 54071/00, § 88,
7 April 2005). It has not been alleged by the Government that the
applicant went beyond the limits of legitimate defence by lodging
frivolous petitions or unsubstantiated requests (see Komarova v.
Russia, no. 19126/02, § 50, 2 November 2006).
Having examined the parties' submissions and the available material,
the Court considers, however, that some delays in 1998, late 1999 and
2004 are at least in part attributable to the applicant and that no
other significant delay is attributable to her.
As
regards the conduct of the judicial authorities, the Court reiterates
that respondent States have a duty to organise their legal systems in
such a way that their courts can meet the obligation to hear cases
within a reasonable time (see Sürmeli v. Germany [GC],
no. 75529/01, § 129, 8 June 2006). The Court notes in
that connection that the length of the proceedings was due, inter
alia, to the fact that the civil case was re-examined several
times, including once following a reopening by way of supervisory
review. The Court does not lose sight of the fact that the
procedure for reopening proceedings in 2002 was set in motion by the
President of the Regional Court. Besides, while the Convention allows
the resumption of national proceedings in the circumstances of a
substantial and compelling character outweighing the principle of
legal certainty (see Protsenko v. Russia, no. 13151/04,
§§ 30-34, 31 July 2008, and Lenskaya v. Russia,
no. 28730/03, §§ 40 and 41, 29 January 2009),
once such a reopening is allowed, the ensuing proceedings should be
completed within a “reasonable time”, regard being had to
all pertinent factors (see, mutatis mutandis, Oblov v.
Russia, no. 22674/02, § 27, 15 January 2009). However, in
the present case, no full hearing was held after the resumption of
the trial proceedings in 2000 and 2002. Nor was such a hearing held
in 2003.
Moreover,
numerous adjournments throughout the proceedings resulted on each
occasion in delays exceeding two or three months at times. The
Government provided no reasons to justify such repetitive periods of
inactivity.
The Court further observes that although there were no
other significant periods of inactivity directly attributable to the
domestic courts, they did not take any measures to discipline the
defaulting parties, thus allowing the proceedings to drag on for
years (see Salmanov v. Russia, no. 3522/04, § 87, 31
July 2008, with further references). It is also true that
Article 6 commands that judicial proceedings be expeditious, but it
also lays down the more general principle of the proper
administration of justice (see Boddaert v. Belgium, 12
October 1992, § 39, Series A no. 235-D). However,
in the circumstances of the case, the Court is not satisfied that the
authorities succeeded in maintaining the fair balance between various
aspects of this fundamental requirement.
Having
regard to the above, in particular to the fact that the proceedings
within the Court's competence ratione temporis lasted over
seven years at two levels of jurisdiction, the Court considers that
the length of the proceedings did not satisfy the “reasonable
time” requirement. There has accordingly been a breach of
Article 6 § 1 of the Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The
applicant also complained under Article 6 of the Convention about the
quashing of the judgments of 27 June and 15 August 2001 by way
of supervisory review. The Court observes that the supervisory review
took place on 14 October and 11 February 2002 respectively, while the
above complaint was first raised before the Court in 2009. It follows
that this complaint has been introduced out of time and must be
rejected in accordance with Article 35 §§ 1 and 4
of the Convention.
Lastly,
the applicant complained in general terms about the outcome of the
court proceedings and the findings made by the court. She also
contended that as a result of the proceedings she had been deprived
of her “possessions” in breach of Article 1 of Protocol
No. 1.
The
Court has examined the remaining complaints as submitted by the
applicant. However, 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. It follows that this part of the application is
manifestly ill-founded and must be rejected in accordance with
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 5,000 euros (EUR) in respect of non-pecuniary
damage.
The
Government considered that the claim was excessive and unfounded.
Making
an assessment on an equitable basis, the Court awards the applicant
EUR 3,600 in respect of non-pecuniary damage, plus any tax that may
be chargeable to the applicant.
B. Costs and expenses
The
applicant submitted a detailed list of claims totalling EUR 780 for
the costs and expenses incurred before the domestic courts,
consisting in the major part of lawyers' fees and the travel expenses
of her representative Ms P, and before the European Court
(postage, photocopying and translation).
The
Government considered that the claim was unrelated to the proceedings
before the Court.
According
to 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 were
reasonable as to quantum. The Court first observes that certain
litigation costs were granted by the national court (see paragraph 21
above). Regard being had to the information in its possession and the
above criteria, and in so far as related to the violation found, the
Court considers it reasonable to award the sum of EUR 480 covering
costs under all heads.
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 length of
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 3,600
(three thousand six hundred euros) in respect of non-pecuniary
damage, and EUR 480 (four hundred and eighty euros) in respect of
costs and expenses, plus any tax that may be chargeable to the
applicant, both sums to be converted into Russian roubles at the rate
applicable at the date of settlement;
(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;
Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 22 December 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Nina Vajić
Registrar President
