(Application no. 20882/04)
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:
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:
I. THE CIRCUMSTANCES OF THE CASE
II. RELEVANT DOMESTIC LAW
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).”
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
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.
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
2. The conduct of the applicant and her representatives
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
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.
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
“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.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
(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