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MP KINESKOP v. RUSSIA - 16141/05 [2009] ECHR 2132 (22 December 2009)
URL: http://www.bailii.org/eu/cases/ECHR/2009/2132.html
Cite as:
[2009] ECHR 2132
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FIRST
SECTION
CASE OF MP KINESKOP v. RUSSIA
(Application
no. 16141/05)
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 MP Kineskop 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,
Giorgio
Malinverni, 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. 16141/05) 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 MP Kineskop, a company
incorporated in Ukraine, (“the
applicant company”), on 1 March 2005.
The
applicant company was represented by Mr A.V. Kiryanov and
Mrs
E.V. Kiryanova, lawyers practising in Taganrog. The
Russian Government (“the Government”) were represented by
Mr P. Laptev and Mrs V. Milinchuk, the former representatives of the
Russian Federation at the European Court of Human Rights.
On
20 November 2006 the
President of the First Section decided to give notice of the
application to the Government. It was also decided to rule on the
admissibility and merits of the application at the same time (Article
29 § 3).
On
3 December 2009 the Chamber decided that in the interests of the
proper administration of justice, the proceedings in the present case
should be conducted simultaneously with those in the cases of
Gorovaya v. Russia and Makarova v. Russia (applications
nos. 20882/04 and 20886/04)
(Rule 42).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
On 31 July 1998 the applicant company, together with three other
plaintiffs, Mr Kesyan, Ms Gorovaya and Ms Makarova, all represented
by the same lawyer, filed an action against the Rostov Regional
Department of the Federal Treasury and Mrs O. seeking compensation
for pecuniary and non-pecuniary damage on account of the unlawful
seizure of goods.
A. First round of court proceedings
The first hearing was scheduled for 22 September 1998 but was
adjourned owing to the judge's leave. The following hearing on
28 December 1998 did not take place owing to the defendants'
failure to appear in court.
On
11 February 1999, at the plaintiffs' request, the District Court
ordered an expert examination and stayed the proceedings.
In
September 1999 the experts' report was received. In October and
November 1999 the applicant company's representative amended the
claims.
On
25 November 1999 the court proceedings were resumed.
Between 25 November 1999 and 3 October 2000 the District Court listed
eight hearings, of which three were adjourned because the defendants
failed to attend and five because none of the parties attended.
By a decision of 3 October 2000, the District Court declined to
examine the applicant company's claims on the merits on the ground of
its repeated failure to appear in court.
On 9 July 2001 the applicant company's representative requested that
the decision of 3 October 2000 be set aside for the reason that
neither he, nor the applicant company had been duly notified of the
hearings. By a decision of 12 July 2001, the District Court allowed
the request and resumed the proceedings.
By a decision of 5 September 2001, the District Court invited the
Taganrog Custom Service to join the civil proceedings as a third
party.
At the third party's request of 10 October 2001, the proceedings were
stayed because a related administrative case was pending before
another court. On 30 September 2002 they were resumed.
Between 30 September and 20 December 2002, three hearings were
adjourned because the parties failed to attend.
On 20 December 2002 the District Court declined to examine the
applicant company's claims on the merits on the ground of its
repeated failure to appear in court.
The proceedings were resumed on 23 January 2004, at the request of
the applicant company's representative of 19 January 2004, for the
reason that neither he, nor the applicant company had been properly
summoned to the hearings.
Of ten hearings listed between 20 February and 16 November 2004, four
hearings were adjourned owing to Mrs O.'s absence, two owing to the
parties' absence, one at the applicant company's representative's
request and two because the presiding judge was on leave.
By a judgment of 16 November 2004, the Kuybyshevskiy District Court
dismissed the applicant company's claim. On 16 February
2005 the Rostov Regional Court quashed the judgment of 16 November
2004 on appeal and remitted the matter to the first-instance court
for fresh examination.
B. Second round of court proceedings
The Kuybyshevskiy District Court listed the first hearing for 18 May
2005. Of three hearings fixed between 18 May and 28 June 2005, two
were adjourned because the defendants failed to attend and one was
adjourned at the defendants' request.
On 28 June 2005, at the plaintiffs' request, the District Court
ordered an expert examination and stayed the proceedings.
The proceedings were later resumed and, by a judgment of 15 December
2005, the Kyubyshevskiy District Court allowed the applicant
company's action in part. The judgment of 15 December 2005
was upheld on appeal by the Rostov Regional Court on 8 February 2006.
II. RELEVANT DOMESTIC LAW
The Code of Civil Procedure of the Russian Federation, which has been
in force since 1 February 2003, provides as follows:
Article 113. Court notices and summons
“1. The parties to the
proceedings, as well as witnesses,
experts, specialists and interpreters, shall
be summoned to a hearing by a letter sent by registered mail with an
acknowledgment of receipt, by court summons with an acknowledgment of
receipt, by telegram, by phone or fax or by any other means which can
guarantee a record of the fact that the summons was sent and was
received by the party...
3. Summons shall be served on the parties in such a way
that they have enough time to prepare their case and appear at the
hearing.”
Article 222. Ground for leaving the case without
consideration on merits
“A
court shall leave a case without examination on the merits if the
parties to the proceedings have failed to attend at least two
scheduled hearings.”
Article 223. Procedure and consequences of leaving
the case
without consideration on merits
“1.
Where a case is left without examination on the merits, the
proceedings shall be discontinued by a decision of the court...
3. The court shall revoke its
decision if the party concerned adduced evidence disclosing a valid
excuse for not attending the hearing(s).”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The
applicant company 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...”
The
Government contested that argument.
A. Admissibility
The
Government submitted that the applicant company had not exhausted the
following domestic remedies which had been available to it in respect
of the excessive length of court proceedings: (1) a complaint to the
Qualification of Judges Board of the Rostov Regional Court; (2) an
appeal against the District Court's decisions to adjourn hearings and
the decisions to carry out the expert examinations, which could have
been lodged in accordance with the Code of Civil Procedure; (3) an
application to the judge to replace the experts, if the applicant
company had considered the expert examinations to have taken an
unreasonably long time; and (4) a complaint to the competent court
that the judgment had not been executed.
27. The Court notes that the Government did not indicate whether and,
if so, how the applicant company could obtain relief – either
preventive or compensatory – by having recourse to the first
three suggested remedies. In particular, the Government failed to
spell out how a complaint to the Rostov Regional Qualification of
Judges Board could have expedited the impugned proceedings (see
Kormacheva v. Russia, no. 53084/99, §§ 61-64, 29
January 2004, and Mikhaylovich v. Russia, no.
30019/05, § 21, 12 February 2009). The Government also
failed to refer to provisions of the Code of Civil Procedure which
would have allowed the applicant company to appeal against the
adjournment of the hearings. Furthermore, the Government failed to
explain why, in order to ensure the right to a fair trial within a
reasonable time, the applicant company should have appealed against
the court's decisions to carry out the expert examinations requested
by all of the plaintiffs, including itself (see §§ 7 and
21above) and how replacing the experts could have accelerated the
completion of the examinations. As to the fourth and last avenue of
redress referred to by the Government, it should be noted that any
issue of the non-enforcement of a final judgment is beyond the scope
of the present case. The Court therefore dismisses the Government's
non-exhaustion plea.
It further notes that the application is not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention and is
not inadmissible on any other grounds. It must therefore be declared
admissible.
B. Merits
The period to be taken into consideration began on 31 July 1998 when
the applicant company lodged its action with the Kuybyshevskiy
District Court and ended on 8 February 2006 with the final judgment
of the Rostov Regional Court. It thus lasted approximately seven
years and seven months at two levels of jurisdiction.
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).
31. It is noted that in the
present case the Government argued that the domestic courts
examined the applicant company's claim within a reasonable time. They
relied on three groups of arguments, which will be examined below.
1. Complexity of the case
32. First of all, the
Government indicated that there had been a large number of
participants, that is to say four plaintiffs, two respondents and one
third party and that the plaintiffs, their representatives and
witnesses had all resided in other regions. The District Court had
had to rely on the assistance of the competent court of a
neighbouring region in order to take evidence from the witnesses
residing there.
They further pointed to the considerable financial value of the
plaintiffs' claims which had meant that the District Court had had to
check the veracity of a significant amount of material. The
conducting of the two expert examinations had been a further
complicating factor.
Finally, the Government stated that the parallel progression of a
related administrative case, the outcome of which was of significant
importance for the resolution of the present civil dispute, had
rendered the stay of the civil proceedings unavoidable and that
domestic courts at two levels of jurisdiction had been involved in
the examination of the case.
The Court accepts the Government's argument that the proceedings in
question were rather complex as regards the procedural and factual
aspects. However, taken on its own, the complexity of the civil
dispute cannot justify the seven years and seven months taken for its
judicial examination (see Kesyan v. Russia, cited above, §
54).
2. The conduct of the applicant company and its representatives
The Government asserted that, though the participants' efforts to
ensure the best representation of their interests were
understandable, the manner in which the applicant company and its
representatives had exercised their procedural rights had contributed
to the prolongation of the proceedings. They referred, in particular,
to the requests by the applicant company's representative to conduct
the two expert examinations and to take evidence from witnesses
residing in another region.
They also imputed to the applicant company's representatives a
repeated failure to appear in court and lack of diligence in keeping
up with developments in the proceedings. The former factor had twice
resulted in the proceedings being discontinued and the latter had
been a cause for their belated resumption (see §§ 10-12 and
15-17). Together, these factors had caused a delay of approximately
two years and six months.
As regards the applicant company's procedural applications, the Court
notes that they were not abusive, frivolous or vexatious but were
legitimate and aimed at obtaining additional evidence. It has been
the Court's consistent approach that an applicant cannot be
criticised for taking full advantage of resources afforded by
national law in the defence of his or her interests, even if it
results in a certain increase in the length of the proceedings (see,
mutatis mutandis, Yağcı and Sargın v.
Turkey, 8 June 1995, § 66, Series A no. 319 A and
Sürmeli v. Germany [GC], no. 75529/01, § 131, ECHR
2006 VII). The opposite approach would render the concept of
litigation meaningless.
39.
The Court cannot accept the Government's further argument that the
applicant company's representatives continually failed to attend the
hearings and then failed to enquire about the progress of the
proceedings. It is noted that the national law explicitly provides
for an obligation on the part of the domestic courts to inform the
parties, in a proper manner, of the dates of scheduled hearings (see
§ 23 above). In the present case, the District Court twice
discontinued the proceedings on the ground that the applicant
company's representatives had failed to appear in court, although
that was, in fact, owing to its own failure to notify them of the
hearings (see §§ 12 and 17 above). In such circumstances,
the time that elapsed while the applicant company
and its representatives waited in vain for the court summons and
before the discontinued proceedings were resumed cannot be imputable
to the applicant company.
3. The conduct of the national authorities
The Government alleged that the domestic courts had, in general,
complied with the reasonable time requirement as they had made it
possible for the expert examinations to be carried out promptly, had
cooperated in collecting evidence from the witnesses and had even
twice taken measures to discipline the applicant company's
representatives, that is by discontinuing the civil proceedings. At
the same time, the Government acknowledged that on several occasions
one of the defendants, a State authority, had failed to attend the
court hearings. They stated, however, that having regard to the
overall length of the proceedings the delay of approximately five
months thereby incurred was negligible.
41. The Court is not convinced by the Government's arguments.
It observes that it is incumbent on the Contracting States to
organise their legal systems in such a way that their courts can meet
the requirements of Article 6 of the Convention, including the
obligation to hear cases within a reasonable time (see Sürmeli
v. Germany [GC], no. 75529/01, § 129, 8 June 2006).
42. As
has been established above, the District Court repeatedly failed to
properly inform the applicant company and its representatives of the
scheduled hearings. For that reason, an aggregate delay of
approximately two years and six months is to be attributed to the
respondent State.
43.
The Court further observes that the domestic court failed to take
procedural measures in order to ensure that the defendants were
present at the hearings, despite the fact that such measures were
twice taken with respect to the other party to the dispute.
4. Conclusion
44. In the light of the
criteria laid down in its case-law, and having regard to all the
circumstances of the case, the Court considers that in the instant
case the length of the proceedings was excessive and failed to meet
the reasonable time requirement. It finds no reason to distinguish
between the present case and that of Kesyan v. Russia (cited
above).
There has accordingly
been a breach of Article 6 § 1 of the Convention.
II. 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 company claimed 2,000 euros (EUR) in respect of
non-pecuniary damage sustained as a result of a violation of its
right to a fair trial within a reasonable time.
The
Government submitted that the claim was excessive and unreasonable
and if the Court were to find a violation of the Convention, this
would in itself be sufficient just satisfaction.
The
Court considers that the applicant company must have sustained
non-pecuniary damage, which would not be
adequately compensated by the finding of a violation alone.
The Court considers that it should award the full sum claimed.
B. Costs and expenses
The
applicant company did not claim
reimbursement of its costs and expenses incurred before the domestic
authorities and the Court. Accordingly, the Court does not make any
award under this head.
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 application admissible;
Holds that there has been a violation of Article
6 § 1 of the Convention;
3. Holds
(a) that
the respondent State is to pay the applicant company, within three
months of the date on which the judgment becomes final in accordance
with Article 44 § 2 of the Convention, EUR 2,000
(two thousand euros), plus any tax that may be chargeable, in respect
of non-pecuniary damage, to be converted into Russian roubles at the
rate applicable on 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.
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
