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SALIKOVA v. RUSSIA - 25270/06 [2010] ECHR 1119 (15 July 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/1119.html
Cite as:
[2010] ECHR 1119
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FIRST
SECTION
CASE OF SALIKOVA v. RUSSIA
(Application
no. 25270/06)
JUDGMENT
STRASBOURG
15 July
2010
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 Salikova v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis, President,
Nina
Vajić,
Anatoly Kovler,
Elisabeth
Steiner,
Khanlar Hajiyev,
Dean
Spielmann,
Sverre Erik Jebens, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 24 June 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 25270/06) 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 Tatyana Yevgenyevna
Salikova (“the applicant”), on 22 May 2006.
The
applicant was represented by Mr V. Stepanov, a lawyer practising in
Orenburg. The Russian Government (“the Government”) were
represented by Mr G. Matyushkin, Representative of the Russian
Federation at the European Court of Human Rights.
On
9 March 2009 the President of the First Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 1).
THE FACTS
THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1931 and lives in Orenburg.
On
3 October 2000 the applicant filed a suit with the justice of peace
of judicial circuit no. 7 of the Leninskiy District of Orenburg
against a municipal enterprise. She alleged that certain actions of
the respondent had led to grave damage to her privately owned house
and claimed that the respondent should repair it or provide
equivalent monetary compensation, fix construction flaws and pay her
compensation for non-pecuniary damage.
On
5 October 2000 the justice of peace left the claim without
consideration for lack of competence.
On
10 October 2000 the justice of peace of the judicial circuit no. 6
also left the claim without consideration for the same reason.
A. First examination of the case
On
31 October 2000 the claim was admitted by the justice of peace of the
judicial circuit no. 1 of the Tsentralnyy District of Orenburg.
On
20 December 2000 the hearing was adjourned due to the respondent’s
representative’s failure to appear.
On
18 January 2001 the court granted the applicant’s motion to
identify a co-respondent and adjourned the hearing.
On
19 July 2001 the court ordered a technical examination, which lasted
until 25 March 2002. Two questions were put to the experts.
On
19 April 2002 the case was transferred to the Tsentralnyy District
Court of Orenburg (“the District Court”) as falling
within the latter’s competence.
On
an unspecified date the applicant altered her claims.
On
10 June 2002 the hearing was adjourned to 26 June 2002 as the
applicant’s counsel failed to appear.
On
22 August 2002 the District Court disallowed the applicant’s
claims. The judgment was overturned on appeal by a decision of the
Orenburg Regional Court (“the Regional Court”) on 10
October 2002, for erroneous application of the substantive law. The
case was remitted to the first instance for fresh examination.
B. Second examination of the case
On
2 December 2002 the hearing was adjourned at both parties’
requests.
Two
following hearings were adjourned at the applicant’s request
due to her counsel’s failure to appear and to enable her to
secure additional evidence.
On
20 January 2003 the District Court ordered a technical examination.
Eleven questions were put to the experts.
On
10 February 2003 head of the State forensic examinations bureau
informed the court that the examination would start in April once the
snow melted.
On
9 July 2003 the same official informed the court that the examination
was delayed because it was necessary to carry out an additional
survey and to invite another expert.
On
20 October 2003 the District Court requested information on the date
of completion of the examination. In their reply the forensic
examinations bureau referred to a heavy workload.
The
technical examination was completed on 9 December 2003, and on 30
January 2004 the District Court resumed the proceedings.
Two
following hearings were adjourned at the applicant’s request to
enable her to secure additional evidence and specify her claims.
On
2 March 2004 the court granted the applicant’s motion for a new
technical examination, which lasted until 20 March 2004. The experts
had to answer one question.
On
5 April 2004 the District Court resumed the proceedings. The court
adjourned two following hearings to enable the applicant to specify
her claims and for a new respondent to familiarise themselves with
the claims.
On
11 June 2004 the District Court granted the applicant’s claims
in part. However, the judgment was set aside by the Regional Court on
21 September 2004 for erroneous application of the substantive
law. The case was ordered for re-examination.
C. Third examination of the case
On
12 November 2004 the District Court accepted alterations to the
applicant’s claims and, four days later, ordered a technical
examination. Thirty-six questions were put to the experts. The
decision to order the new examination was upheld by the Regional
Court on 22 March 2005 on the applicant’s appeal.
On
18 April 2005 the case was sent to the experts, followed by a
contract for execution of services on 13 July 2005 and by payment
arrangements on 12 October 2005.
On
13 January, 1 March and 31 May 2006 the District Court inquired with
the forensic examinations bureau about the results of the
examination. It is unclear whether it received any reply.
On
8 August 2006 the applicant complained to the president of the
District Court of unreasonably long consideration of the case. The
parties did not submit any information regarding a reply to this
complaint.
On
21 August 2006 the District Court received the examination results
and resumed the proceedings.
Between
30 August 2006 and 14 March 2007 nine hearings were adjourned at the
applicant’s request for various reasons, mainly to summon
witnesses and secure additional evidence, as well as to enable the
respondents to familiarise themselves with the amended claims.
On
19 March 2007 the District Court disallowed the claim. On 6 June
2007 the Regional Court overturned the judgment on appeal for
erroneous application of the substantive law and required a new
hearing.
D. Fourth examination of the case
On
8 August 2007 the District Court granted the applicant’s motion
for a new technical examination and a forensic medical examination.
On
23 October 2007 at the applicant’s request the District Court
commissioned the medical examination to a different agency.
On
22 November 2007 the District Court granted the applicant’s
claims in part ordering the town administration to build a drainage
system in the vicinity of the applicant’s house, and dismissed
the other claims. The judgment was upheld on appeal by the Regional
Court on 6 February 2008.
On
27 May 2008 the bailiff service initiated the enforcement
proceedings. Four months later they were terminated as the court
judgment had been deemed executed.
E. Supervisory review and fifth examination of the case
On
21 October 2008 the Supreme Court of Russia, acting upon the
applicant’s request for supervisory review, quashed the
judgment of 22 November 2007 and the decision of 6 February 2008
in the part concerning dismissal of the applicant’s claim for
compensation of pecuniary damage. The case was remitted in the
relevant part to the first instance for fresh consideration.
On
18 December 2008 the District Court stayed the proceedings until the
applicant’s recovery from illness.
On
19 December 2008 head of the regional bailiff office quashed the
decision to terminate the enforcement proceedings after establishing
that the court judgment had not been properly enforced. The
enforcement proceedings were resumed.
On
11 January 2009 the District Court clarified its judgment of
22 November 2007 at the bailiff’s request.
On
2 February 2009 the court proceedings were resumed.
On
12 March 2009 the District Court ordered a new technical examination
at the applicant’s request.
On
5, 7 and 14 May 2009 the District Court reminded the applicant to
allow the experts access to the examined objects. However, the
applicant failed to do so.
On
18 May 2009 the court dismissed the applicant’s request for
extension of the time-limit for appeal of the decision to order the
new technical examination. It is not clear from the parties’
submissions when this examination was completed.
On
13 November 2009 the District Court granted the applicant’s
claim for pecuniary compensation in part, awarding her 67,555 roubles
to be paid by the town administration. In particular, the court
repeatedly referred to expert conclusions from different years which
established that the condition of the applicant’s house was
‘unacceptable’ and ‘dangerous for human
habitation’.
On
16 December 2009 the Regional Court upheld the judgment on appeal.
The
judgment of 22 November 2007 has not been enforced to date.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION ON ACCOUNT OF EXCESSIVELY LONG PROCEEDINGS
The
applicant complained that the proceedings in her case had been
excessively long, breaching the “reasonable time”
requirement of Article 6 § 1. The relevant part of the provision
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
Court observes that the proceedings in the applicant’s case
commenced on 3 October 2000, when the applicant lodged her claim, and
ended on 16 December 2009. During this time the domestic courts
reviewed the case five times at two levels of jurisdiction. However,
the period from 6 February to 21 October 2008 has to be excluded
from the overall length, as the case was being examined on
application for supervisory review and not pending. Accordingly, the
period to be taken into consideration amounted approximately to eight
years and six months.
A. 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.
B. Merits
The
applicant submitted that her case had not been complex and had not
warranted such a long examination by the domestic courts.
The
Government disagreed. They stated that the applicant’s case had
been technically complex requiring a number of expert examinations
which overall lasted for a reasonable time. They further submitted
that the majority of the unnecessary delays had been caused by the
applicant’s lodging multiple motions, altering her claims and
requesting adjournments. She also did not object to the other party’s
motions delaying the proceedings. Finally, the hearings were
scheduled regularly and motions were examined promptly.
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). In addition, only delays attributable to the
State may justify a finding of a failure to comply with the
"reasonable time" requirement (see, among other
authorities, Zimmermann and Steiner v. Switzerland, 13 July
1983, p. 11, § 24, Series A no. 66; see also Pélissier
and Sassi v. France [GC], no. 25444/94, § 67, ECHR
1999-II).
The
Court finds that the proceedings at issue were of some complexity as
they required the taking of an expert opinion and involved several
respondents. The applicant amended and supplemented her claims on at
least three occasions. The Court considers that the task of the
courts was rendered more difficult by these factors, although it
cannot accept that the complexity of the case, taken on its own, was
such as to justify the overall length of the proceedings (see, among
others, Antonov v. Russia (dec.), no. 38020/03, 3
November 2005).
Insofar
as the applicant’s behaviour is concerned, the Court accepts
that indeed she delayed the proceedings to some extent by requesting
adjournments and, in one particular instance, failing to comply with
the court’s requests to provide access to the experts (see
para. 44 above). As to the applicant’s amending and
supplementing her claims, it has been the Court’s constant
approach that an applicant cannot be blamed for taking full advantage
of he resources afforded by the national law in defence of his
interests (see, mutatis mutandis, Yağcı and Sargın
v. Turkey, 8 June 1995, § 66, Series A no. 319 A).
Accordingly, the Court finds that the overall delay imputable to the
applicant did not exceed eleven months.
Turning
to the conduct of the authorities, the Court recalls that the
domestic courts examined the case in five rounds of proceedings. It
accepts the Government’s argument that the courts did not
display any procrastination in scheduling the hearings and resolving
the parties’ motions. However, the Court observes three major
deficiencies that occurred in the course of the proceedings.
Firstly,
it notes that the authorities had failed to establish the court
competent to deal with the applicant’s claims for eighteen
months. The Court reiterates that the authorities are responsible for
the delays stemming from the courts’ mistakes concerning
jurisdiction (see Gheorghe v. Romania, no. 19215/04, §
58, ECHR 2007 III (extracts)). It was incumbent upon the
domestic authorities to ensure that the national law provided clear
guidance on the application of the courts’ jurisdiction.
Secondly,
it recalls that the aggregate length of the time it took to complete
four technical examinations of varying complexity was almost three
years. While the Court is not in possession of the relevant documents
and cannot assess the necessity and complexity of these examinations,
it is mindful that the authorities substantively acknowledged the
fact of the delays, as evidenced in the correspondence between the
domestic court and the State forensic examinations bureau. In
particular, it takes cognisance of the District Court’s
procrastination in submitting all necessary documents to the bureau
and the latter’s repeated references to a heavy workload. The
Court recalls in this respect that the principal responsibility for
the delay due to the expert opinions rests ultimately with the State
(see Capuano v. Italy, 25 June 1987, § 32, Series A no.
119). Accordingly, this period is also imputable to the State.
Furthermore,
the Court observes that the first-instance judgments in the
applicant’s case were set aside four times either by the appeal
or by the supervisory-review courts for erroneous application of the
substantive law. In this respect the Court reiterates that the
Convention and its Protocols must be interpreted as guaranteeing
rights which are practical and effective as opposed to theoretical
and illusory. The right to have one’s claim examined within a
reasonable time would be devoid of all sense if domestic courts
examined a case endlessly, even if at the end the length of
proceedings per instance did not appear particularly excessive (see,
mutatis mutandis, Svetlana Orlova v.
Russia, no. 4487/04, § 47,
30 July 2009).
Although
the Court is not in a position to analyse the juridical quality of
the domestic courts’ decisions, it considers that multiple
repetition of re-examination orders within one set of proceedings may
disclose a deficiency in the judicial system (see Wierciszewska
v. Poland, no. 41431/98, § 46, 25 November 2003; Matica
v. Romania, no. 19567/02, § 24, 2 November 2006; and
Falimonov v. Russia, no. 11549/02, § 58, 25 March
2008). The fact that the domestic courts heard the case several times
did not absolve them from complying with the reasonable time
requirement of Article 6 § 1 (see Litoselitis v. Greece,
no. 62771/00, § 32, 5 February 2004; and Svetlana
Orlova, cited above, § 50).
Having
regard to the above, the Court considers that the failure of the
domestic authorities to promptly refer the applicant to a competent
court, delays in completing the technical examinations and repeated
referrals of the case to the first instance significantly contributed
to the length of the examination of the applicant’s case.
Regarding
what was at stake for the applicant, the Court observes that,
according to the findings of the State experts and domestic courts,
the applicant’s only housing had indeed suffered a grave damage
that made it hardly suitable for living (see para. 46 above). Taking
into additional consideration the applicant’s advanced age, the
Court is of the opinion that those circumstances required a
particular diligence on the part of the domestic authorities.
The
foregoing considerations are sufficient to enable the Court to
conclude that the length of the proceedings in the present case was
excessive. There has accordingly been a violation of Article 6 §
1 of the Convention on account of the length of proceedings.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION ON ACCOUNT OF NON-ENFORCEMENT
The
applicant also complained that the non-enforcement of the judgment of
22 November 2007 in the part ordering construction of the drainage
system in the vicinity of her house breached Article 6 § 1 of
the Convention. The relevant part of the provision reads as follows:
“In the determination of his civil rights and
obligations ... everyone is entitled to a fair ... hearing ... by [a]
... tribunal ...”
A. 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.
B. Merits
The
Government did not provide a clear response to the complaint, having
merely referred to the actions undertaken by the enforcement
authorities.
68. The Court reiterates that an
unreasonably long delay in the enforcement of a binding judgment may
breach the Convention (see Burdov v.
Russia, no. 59498/00, ECHR
2002 III). To decide if the delay
was reasonable, the Court will look at how complex the enforcement
proceedings were, how the applicants and the authorities behaved, and
what was the nature of the award (see Raylyan
v. Russia,
no. 22000/03, § 31, 15 February 2007).
The
Court accepts that the enforcement of the applicant’s award was
relatively complex due to its technical nature and is mindful of the
fact that a clarification of the judgment was demanded by the bailiff
service.
At
the same time, it observes that the applicant did not obstruct the
enforcement and that the award has not been enforced for more than
two years. It also takes cognizance of the fact that the drainage
system has been badly needed to prevent further damage to the
applicant’s house and worsening of her housing situation.
Having
regard to the above, the Court concludes that the State’s
failure to comply with the judgment has breached Article 6 of the
Convention.
III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
The
applicant further complained that she had no effective domestic
remedies against the excessive length of the proceedings and
non-enforcement of the judgment in her favour. She relied on Article
13 of the Convention, which reads as follows:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
A. 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.
B. Merits
The
Government contested the applicant’s argument. Regarding the
complaint of lack of effective remedies in respect of the excessive
length of the proceedings, they stated that it had been open to the
applicant to motion for replacement of the technical experts, to
complain to the Judicial Qualifications Board or to the president of
the court examining her case. In respect of the complaint of lack of
effective remedies against non-enforcement, they argued that such
remedies existed and had been identified by the Government in the
case of Burdov v. Russia (no. 2).
The
Court reiterates that Article 13 guarantees an effective remedy
before a national authority for an alleged breach of the requirement
under Article 6 § 1 to hear a case within a reasonable time (see
Kudła v. Poland [GC], no. 30210/96, § 156, ECHR
2000-XI).
The
Court reiterates that according to its case-law there was at the
material time no effective remedy under Russian law capable of
affording redress for the unreasonable length of civil proceedings
(see, among many other authorities, Kormacheva,
cited above, §§ 61-62; Kuzin
v. Russia, no. 22118/02,
§§ 42-46, 9 June 2005; Bakiyevets
v. Russia, no. 22892/03, § 53,
15 June 2006; Markova v. Russia,
no. 13119/03, § 31, 8 January 2009; and Zaytsev
and Others v. Russia, no. 42046/06,
§ 48, 25 June 2009).
The
Court recalls that in the present case the applicant had used one of
the measures offered by the Government, namely, she had complained to
the president of the first-instance court examining her case.
However, it does not appear from the submissions that this expedited
the proceedings or led to the provision of compensation. As to the
other suggested remedies, the Government did not supply any new
argument as to whether and how the applicant could obtain effective
relief by having recourse to them. Nor did the Government supply any
example from domestic practice showing that, by using the means in
question, it was possible for the applicant to obtain such relief
(see Kudla, cited above, § 159). Accordingly, the Court
rejects this part of the Government’s argument.
Turning
to the existence of effective remedies against the non-enforcement,
the Court observes that the effectiveness of the suggested measures
had been refuted in its previous findings (see, in particular, Burdov
v. Russia (no. 2), no. 33509/04, §
101-116, ECHR 2009 ...). In the present case the Government did
not provide any information that would warrant a different
conclusion.
Accordingly,
the Court considers that in the present case there has been a
violation of Article 13 of the Convention.
IV. 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
Court observes that in her submissions the applicant did not make any
claims in respect of pecuniary damage, nor did she explicitly request
to enforce the judgment of 22 November 2007 in the part ordering
construction of the drainage system. However, the Court is of the
opinion that the claim for enforcement transpires from the nature of
the applicant’s complaint.
The
Court recalls that in general the most appropriate form of redress in
respect of violations found is to put applicant as far as possible in
the position he or she would have been in if the Convention
requirements had not been disregarded (see, among many other
authorities, Dovguchits v. Russia, no. 2999/03, §
48, 7 June 2007). Having regard to the violation found on account of
the State’s failure to enforce the judgment in the applicant’s
favour, this principle is applicable in the present situation.
Therefore
the Court considers that the Government shall
secure, by appropriate means, the enforcement of the judgment of 22
November 2007 in the case no. 2-1467-07 (see Lesnova v.
Russia, no. 37645/04, § 25, 24 January 2008).
The
applicant claimed 68,181 euros (EUR) in respect of non-pecuniary
damage.
The
Government disputed the claim arguing that it was arbitrary and
excessive.
Referring
to its case-law, the Court finds that the applicant suffered some
distress and frustration caused by the unreasonable length of the
proceedings and by the State’s continuing failure to enforce a
judgment in her favour. Deciding on an equitable basis, the Court
awards the applicant 5,000 EUR under this head.
B. Costs and expenses
The
applicant also claimed EUR 493 for the costs and expenses incurred
before the domestic courts.
The
Government disagreed with the claim as unsupported by any evidence.
The
Court observes that the applicant failed to submit any documents that
could prove the allegedly sustained expenses. Accordingly, the Court
rejects the claim.
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 on account of the excessively long
proceedings;
3. Holds that there has been a violation of Article
6 § 1 of the Convention in respect of non-enforcement of the
final judgment in the applicant’s favour;
Holds that there has been a violation of Article
13 of the Convention;
Holds
(a) that
the respondent State, within three months from the date on which the
judgment becomes final in accordance with Article 44 § 2
of the Convention, shall secure, by appropriate means, the
enforcement of the judgment of 22 November 2007 in the case no.
2-1467-07;
(b) 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 5,000 (five
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 at the date of settlement;
(c) 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 15 July 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
