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ANTYUSHINA v. RUSSIA - 23204/03 [2010] ECHR 1340 (23 September 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/1340.html
Cite as:
[2010] ECHR 1340
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FIRST
SECTION
CASE OF ANTYUSHINA v. RUSSIA
(Application
no. 23204/03)
JUDGMENT
STRASBOURG
23
September 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 Antyushina v.
Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis, President,
Nina
Vajić,
Anatoly Kovler,
Khanlar
Hajiyev,
Dean Spielmann,
Sverre Erik
Jebens,
Giorgio Malinverni, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 2 September 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 23204/03) 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 Larisa Viktorovna
Antyushina (“the applicant”), on 19 June 2003.
The
Russian Government (“the Government”) were represented by
Mr G. Matyushkin, representative of the Russian Federation
at the European Court of Human Rights.
On
30 April 2008 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
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1942 and lives in Uspenskoye, the Krasnodar
Region.
A. Proceedings concerning real estate transactions
The
applicant and her husband were involved in a number of real estate
transactions. On 1 June 1993 the applicant’s husband presented
her with a flat in Nevinnomyssk of the Stavropol Region which she
subsequently exchanged for another flat in a different locality.
On
5 July 1994 the applicant became involved in the dispute challenging
the four-way real estate exchange transactions through the claims
brought by the other parties to the transactions.
On
26 December 1994 the Shpakovskiy District Court of the Stavropol
Region (“the District Court”) annulled the transactions
concerning the applicant and her husband. The parties did not appeal,
and the judgment came into force.
On
26 December 1995 and 30 September 1996 two other trial courts of the
region adopted further judgments related to the same dispute. The
parties did not inform the Court of the content of those judgments.
On
27 February 1997, at the applicant’s request, the deputy
president of the Supreme Court of the Russian Federation brought an
extraordinary appeal against the judgment of 26 December 1994.
On
14 March 1997 the Supreme Court of the Russian Federation granted the
appeal, quashed the impugned judgment and remitted the case for fresh
consideration.
On
8 September 1997 the Presidium of the Stavropol Regional Court
suggested that the District Court review the judgments of 26 December
1995 and 30 September 1996 on account of newly discovered
circumstances.
On
22 September and 22 December 1997 the District Court explained to the
applicant that it was necessary to file a request for review of the
impugned judgments on account of newly discovered circumstances.
On
26 February 1998 the applicant filed such a request with the District
Court, at the same time claiming invalidation of two exchange
transactions, involving her husband and third parties M. and Kh.
On
12 January 1999 the District Court decided to quash the judgment of
26 December 1994 on account of newly discovered circumstances.
Between
23 October 1998 and 27 September 1999 the District Court scheduled
eleven hearings. Five of them did not take place due to the parties’
failure to appear. According to the Government, on 27 September 1999
the District Court “made certain arrangements to ensure the
parties’ appearance for the next hearing”.
On
5 October 1999 the District Court annulled all the real estate
exchange transactions between the parties to the dispute. The court
found it lawful to examine the case and adopt the judgment in absence
of one of the respondents Kh. who had been notified of court hearings
on multiple occasions.
On
22 December 1999 the Stavropol Regional Court (“the Regional
Court”) set aside the above judgment on appeal for errors in
application of the procedural law, including insufficient measures to
ensure Kh.’s appearance in court, and ordered a new hearing.
On
31 January 2000 the District Court stayed the proceedings until the
end of a counter-terrorist operation in Grozniy of the Chechnya
Republic, where one of the disputed flats was located. The
proceedings were resumed on 19 May 2000.
On
26 June 2000 the court postponed the hearing due to some of the
parties’ failure to appear, having again “made certain
arrangements to ensure their appearance for the next hearing”.
On
6 October 2000 the hearing was adjourned due to the failure to appear
of one of the parties’ legal counsel.
After
a hearing on 13 November 2000, the court decided to send a rogatory
letter to the Nevinnomyssk Town Court (“the Town Court”)
for questioning of one of the parties. The proceedings were stayed
until its execution.
On
13 March 2001 the proceedings were resumed. The court scheduled the
next hearing for 14 August 2001 due to examination of one of the
parties’ appeal of an injunction order.
On
14 August 2001 the hearing did not take place due to some of the
parties’ failure to appear.
On
12 September 2001 the District Court accepted some of the parties’
renunciation of their claims, transferred the rest of the claims for
consideration to the Town Court and discontinued the proceedings.
After
two hearings, on 25 December 2001 the Town Court discontinued the
proceedings, including the part concerning the applicant’s
flat.
On
8 February 2002 the Regional Court overturned the above decision of
on appeal and ordered a new examination.
On
5 April 2002 president of the Regional Court brought an extraordinary
appeal (протест
в порядке
надзора)
against the District Court’s decisions of 12 January 1999 and
12 September 2001. It is not clear from the parties’
submissions when the higher court called up the case for examination
of the extraordinary appeal.
On
22 April 2002 the Presidium of the Regional Court quashed the
impugned decisions by way of supervisory review for errors in
application of the procedural law and remitted the matter for fresh
consideration.
On
28 May 2002 the District Court admitted the claims for new
consideration and scheduled preparatory meetings with the parties.
On
23 October 2002 following one of the parties’ protest against
examination of the case in absence of the respondent Kh., the
District Court stayed the proceedings until Kh.’s whereabouts
could be established. In particular, the court noted that it had
procured information from the post office, town administration and
address bureau of the region of Kh.’s possible residence and
obtained a police report. The parties were apprised of their right to
file a request with the police for Kh.’s search.
On
23 December 2002 the Regional Court upheld the decision on appeal.
On
5 June 2008 the District Court quashed its decision of 23 October
2002 at the parties’ request and resumed the proceedings.
On
16 June 2008 the District Court rejected the applicant’s claims
for invalidation of the four-way exchange transactions. It transpires
from the text of the judgment that Kh., whose whereabouts were still
unknown, was represented by legal counsel appointed by the court in
accordance with Section 50 of the Code of Civil Procedure. The
applicant appealed the judgment but did not inform the Court about
the outcome of her appeal.
B. Action for damages allegedly arising out of the
State’s failure to pay the guardian’s allowance to the
applicant
On
20 September 2002 the Justice of Peace of Court Circuit No. 1 of the
Kochubeyevskiy District of the Stavropol Region dismissed the
applicant’s claim for pecuniary and non-pecuniary damages
allegedly resulting from delayed payment of the guardian’s
allowance to her.
On
25 December 2002 the Kochubeyevskiy District Court of the Stavropol
Region upheld the judgment of 20 September 2002 on appeal.
II. RELEVANT DOMESTIC LAW
A. Code of Civil Procedure of the RSFSR of 1964 in
force until 1 February 2003
Section
112 provided that in case of unknown whereabouts of a respondent
party the court should begin examination of the case upon receipt of
the summons with a note testifying that it had been viewed by the
housing authority or local council of people’s deputies at the
respondent’s place of residence. It further provided that the
court should put a missing respondent on the wanted list if the
dispute concerned alimony, health damages and damages resulting from
the loss of the main provider, and was entitled to do so in disputes
brought by State or public agencies.
Section
215.4 provided that the court was entitled to stay the proceedings if
the respondent had been put on the wanted list in accordance with
Section 112.
Section
216.2 provided that the proceedings that were stayed in accordance
with Section 215 should be resumed upon establishing the respondent’s
whereabouts.
B. Code of Civil Procedure of Russia in force as of 1
February 2003
Section
50 provides that the court should appoint legal counsel to represent
a respondent with an unknown place of residence and in other cases
envisaged by the federal law.
Section
219 provides that court proceedings should be resumed upon clearance
of the factors impeding continuation of the proceedings, by way of
the parties’ request or court’s own initiative.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The
applicant complained that the proceedings in her case had been
excessively long, breaching Article 6 § 1 of the Convention, the
relevant part of 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
Court observes that the period to be taken into consideration began
on 5 May 1998, when the Convention entered into force in respect of
Russia. However, in assessing the reasonableness of the time that
elapsed after that date, it will take account of the state of
proceedings at the time.
The
Court is satisfied that between 5 May 1998 and 16 June 2008 the
domestic courts considered the applicant’s case twice at two
levels of jurisdiction and once at one level of jurisdiction, with an
insignificant interval in April 2002. The examination of the case
thus lasted ten years and one month.
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 disagreed with the complaint. In particular, they argued
that the applicant’s case had been complex involving four-way
real estate transactions, four case files and over fifteen parties at
various points in the proceedings. They further suggested that the
location of some of the disputed housing outside the area of the
court’s competence and particularly a special situation in the
Chechen Republic where one of the houses had been located had made
examination of the case even more difficult. As to the conduct of the
authorities, the Government stated that the domestic courts had not
displayed any negligence or procrastination and had undertaken all
available measures to speed up the proceedings. As to the applicant’s
conduct, they provided a list of all procedural motions made by the
parties as well as reasons of the adjournment decisions.
The
applicant maintained her complaint. In particular, she argued that
staying of the proceedings due to Kh.’s unknown whereabouts had
not been provided for in the domestic law.
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).
The
Court accepts that the case at question bore a certain degree of
complexity, having concerned a set of four-way real estate exchange
transactions and involved numerous parties. However, 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 parties’ conduct is concerned, the Court deems it best
to examine separately the period preceding the decision of 23 October
2002 to stay the proceedings and the period following it.
In
respect of the first period the Court firstly notes that by 5 May
1998, the date of entry into force of the Convention in respect of
Russia, the applicant’s case had been pending for one year and
two months after its remittal to the first instance by way of
supervisory review (see paragraph 10 above). After 5 May 1998 the
proceedings continued for four years and five months, during which
the domestic courts examined the case twice at two levels of
jurisdiction. The Court is satisfied that during this period the
domestic courts scheduled hearings regularly and did not exhibit any
particular negligence. With regard to the applicant’s
behaviour, even though she delayed the proceedings to some extent by
failing to appear in a few hearings together with some other parties,
the resulting delays were insignificant. Overall, taking into account
the complexity of the case the Court accepts that there was no breach
of the “reasonable requirement” during this period.
With
regard to the second period, the Court observes that it lasted from
23 October 2002 to 16 June 2008 for consideration of the case at one
level of jurisdiction. The Court is particularly mindful of a lapse
of five years and eight months that occurred after the decision to
stay the proceedings and that contributed most to the overall length.
The Court is thus called to analyse whether this delay was justified
and whether any of the parties bear a particular responsibility for
it.
The
Court recalls that on 23 October 2002 the trial court examining the
applicant’s case decided to stay the proceedings due to the
lack of knowledge about a respondent’s whereabouts (see
paragraph 30 above). This decision was taken in response to a motion
by one of the parties objecting to the examination of the case in the
respondent’s absence. Its reasoning took into account the fact
that the case was complex and could not be resolved in absence of
that particular respondent who, in addition, could not have been
properly notified of the hearings due to the lack of knowledge about
his whereabouts. The Court takes cognisance of the applicant’s
argument that the decision did not have a ground in the national law.
Nevertheless, the decision which attempted to balance speedy
administration of justice with the interests of the parties and fair
consideration of the case does not appear to be arbitrary.
The
Court observes that with the entry into force of the new code of
civil procedure in 1 February 2003 and, consequently, introduction of
the provision on appointment of legal counsel to represent a missing
respondent, the applicant and the trial court were given the equal
possibility of initiating the resumption of the proceedings.
The
Court reiterates that, according to its previous findings, the
responsibilities of the applicant in civil cases are “to show
diligence in carrying out the procedural steps relevant to him...and
to avail himself of the scope afforded by domestic law for shortening
proceedings” (Unión Alimentaria Sanders S.A. v.
Spain, 7 July 1989, § 35, Series A no. 157). It further
reiterates that it is incumbent on the interested party to display
special diligence in the defence of his interests (see Sutyazhnik
v. Russia (dec.), no. 8269/02, 2 March 2006).
Turning
to the present case, it observes that during more than five years the
applicant did not make any effort to initiate resumption of the
proceedings which were stayed by the court upon a motion made by one
of the parties. Nor did she attempt any other course of action. A
contrario to the case of Unión Alimentaria Sanders S.A.
cited above, in the present application a request by the applicant to
resume the proceedings could not have been deemed extraordinary and
such a request would have been necessarily examined by the court. The
Court is not in possession of any explanation from the applicant as
to why she abstained from taking advantage of the available
procedural remedy, or any other course of action, for more than five
years. In this situation the Court cannot attribute the
responsibility for the delay at issue solely to the authorities.
In
view of these special circumstances, notwithstanding the overall
length of the proceedings in the applicant’s case, the Court
considers that the authorities cannot be found responsible.
There
has accordingly been no violation of the Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The applicant also complained under Article 6 and
Article 1 of Protocol No. 1 of the Convention of unlawfulness of the
judgment of 26 December 1994 and under Article 6 of unfairness
of the proceedings concerning payment of a guardian’s allowance
that ended on 25 December 2002.
The Court considers that the first complaint is
manifestly ill-founded and must be rejected in accordance with
Article 35 §§ 3 and 4 of the Convention.
As to the second complaint, it was introduced outside
of the period of six months after adoption of the final decision and
must be rejected in accordance with Article 35 § 1 of the
Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the complaint concerning length of the
proceedings admissible and the remainder of the application
inadmissible;
Holds that there has been no violation of
Article 6 § 1 of the Convention.
Done in English, and notified in writing on 23 September 2010,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
