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GOROVAYA v. RUSSIA - 20882/04 [2009] ECHR 2135 (22 December 2009)
URL: http://www.bailii.org/eu/cases/ECHR/2009/2135.html
Cite as:
[2009] ECHR 2135
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FIRST
SECTION
CASE OF GOROVAYA v. RUSSIA
(Application
no. 20882/04)
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 Gorovaya 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. 20882/04) 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 Valentina
Ivanovna Gorovaya (“the applicant”), on 23 April 2004.
The
applicant was represented by Mr A.V. Kiryanov, a lawyer 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
Makarova v. Russia and MP Kineskop v. Russia
(applications nos. 20886/04
and 16141/05) (Rule 42).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1951 and lives in Sochi, in the Krasnodar
Region.
On
31 July 1998 the applicant, together with three other plaintiffs,
Mr
Kesyan, Ms Makarova and MP Kineskop, 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'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's claims on the merits on the ground of her
repeated failure to appear in court.
On 9 July 2001 the applicant's representative requested that the
decision of 3 October 2000 be set aside for the reason that neither
he, nor the applicant 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.
Upon the third party's request of 10 October 2001, the proceedings
were stayed because a related administrative case had been 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 had failed to attend.
On 20 December 2002 the District Court declined to examine the
applicant's claims on the merits on the ground of her repeated
failure to appear in court.
The proceedings were resumed on 23 January 2004, at the request of
the applicant's representative of 19 January 2004, because neither
he, nor the applicant 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 request of the applicant's
representatives and two because the presiding judge was on leave.
By a judgment of 16 November 2004, the Kuybyshevskiy District Court
dismissed the applicant'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'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 adduces 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 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 failed to exhaust the
following domestic remedies which had been available to her in
respect of the excessive length of court proceedings: (1) a complaint
to the Judges' Qualification 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 she 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.
28. The Court notes that the Government did not indicate whether and,
if so, how the applicant could have obtained 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 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 should have appealed against the court's decisions to
carry out the expert examinations requested by all the plaintiffs,
including herself (see §§ 7 and 21 above) and how replacing
the experts could have accelerated the completion of the
examinations. As to the fourth and last avenue of redress suggested
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 lodged her 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).
32. It is noted that in the
present case the Government argued that the domestic courts
examined the applicant's claim within a reasonable time. They
relied on three groups of arguments, which will be examined below.
1. Complexity of the case
First of all, the Government indicated that there had been a large
number of participants, that is to say four plaintiffs, two
defendants 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 and her 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 and her
representative had exercised their procedural rights had contributed
to the prolongation of the proceedings. They referred, in particular,
to the requests by the applicant's representative to conduct the two
expert examinations and to take the evidence from witnesses residing
in another region.
They also imputed to the applicant'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 §§ 11-13 and 16-18).
Together, both factors had caused a delay of approximately two years
and six months.
As regards the applicant's procedural applications, the Court finds
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.
40.
The Court cannot accept the Government's further argument that the
applicant'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'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 and her representatives waited in vain for the court
summons and before the discontinued proceedings were resumed cannot
be imputable to the applicant.
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'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 defaulted in attending 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.
42. 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).
43. As
has been established above, the District Court repeatedly failed to
properly inform the applicant and her 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.
44.
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 of the dispute.
4. Conclusion
45. 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 claimed 2,000 euros (EUR) in respect of non-pecuniary
damage sustained as a result of a violation of her 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 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 did not claim reimbursement of her 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, 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
