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ZHUKOVSKIYE v. RUSSIA - 23166/04 [2011] ECHR 34 (13 January 2011)
URL: http://www.bailii.org/eu/cases/ECHR/2011/34.html
Cite as:
[2011] ECHR 34
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FIRST
SECTION
CASE OF ZHUKOVSKIYE v. RUSSIA
(Application
no. 23166/04)
JUDGMENT
STRASBOURG
13 January
2011
This
judgment is final but it may be subject to editorial revision.
In the case of Zhukovskiye v.
Russia,
The
European Court of Human Rights (First Section), sitting as a
Committee composed of:
Sverre Erik Jebens,
President,
Anatoly Kovler,
George Nicolaou,
judges,
and André Wampach,
Deputy Section Registrar,
Having
deliberated in private on 9 December 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 23166/04) 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 two Russian nationals, Mr Feliks Aleksandrovich
Zhukovskiy and Mrs Varvara Nikitichna Zhukovskaya (“the
applicants”), on 25 May 2004
The
Russian Government (“the Government”) were represented by
Mr G. Matyushkin, Representative of the Russian Federation at the
European Court of Human Rights.
On
10 December 2008 the President of the First Section to the
Government. In accordance with Protocol No. 14, the application was
allocated to a Committee.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
The
applicants were born in 1930 and 1932 respectively and live in
Moscow.
In
2000 the applicants bought a flat in a block of flats under
construction from ZAO Otdelstroy, a private company.
On
6 June 2002 the applicants sued ZAO Otdelstroy claiming that the flat
had a number of construction defects. They requested repairs to be
done and claimed damages.
On
9 July 2002 the Lyublinskiy District Court of Moscow (“the
District Court”) dismissed their claims.
On
28 October 2002 the Moscow City Court examined the applicant’s
appeal, set the judgment aside and remitted the case for fresh
examination.
At
the hearing of 17 December 2002 the applicants further specified
their claims, following which the court adjourned the hearing to
enable the respondent to familiarise itself with the changes.
The
hearing of 21 January 2003 did not take place as one of the
applicants failed to appear.
On
6 February 2003 the respondent motioned for involvement of three
co-respondents which included two private companies and a municipal
agency.
The
hearing of 19 February 2003 did not take place due to the judge’s
illness.
On
18 March 2003 the court granted the above motion and the applicant’s
motion for filing of some additional documents and adjourned the
hearing.
The
applicants again specified their claims on 14 April 2003.
On
22 April 2003 the proceedings were adjourned to enable one of the
co-respondents to study the case file.
The
hearing of 28 May 2003 was adjourned at the request of one of the
respondents in order to enable it to draw up an act for elimination
of the defects in the applicants’ flat. The applicants did not
object.
On
17 June 2003 the court scheduled a construction expert examination.
The proceedings were resumed on 23 September 2003 when the court
again adjourned the hearing following additional specification of the
applicants’ claims.
On
10 October 2003 the District Court granted the claims in part,
following which the parties appealed. On 18 December 2003 the appeal
court sent the case back to the first instance for consideration of
the applicants’ objections to the hearing minutes. On 4
February 2004 the hearing at the appeal court did not take place
following lack of due notification and the resulting default in
appearance of the respondents. On 24 February 2004 the Moscow City
Court overturned the judgment of 10 October 2003 and ordered new
examination at the trial court.
The
hearing of 12 May 2004 did not take place due to the respondents’
default in appearance.
The
hearings scheduled for 3 August, 24 September and 15 November
2004 did not take place as the applicants and one of the respondents
failed to appear.
On
20 December 2004 the court decided that the defaulting parties had
been duly summoned and left the claims without consideration.
Neither
of the parties provided a copy of the above decision or the hearing
minutes recorded between 12 May and 20 December 2004.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The
applicants complained that the length of the proceedings in their
case had been incompatible with the “reasonable time”
requirement as provided in 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 ...”
A. Admissibility
The
Government submitted that the complaint was manifestly ill-founded
and should be rejected as inadmissible under Article 35 § 4 of
the Convention.
The
Court notes that this complaint does not appear to be 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 argued that the case had been complex due to its technical
nature and a large number of the respondents and that the applicants
had borne primary responsibility for its length in view of their
modification of the claims on multiple occasions and failure to
appear in court after May 2004.
The
applicants retorted that they had not been notified of the hearings
in which they had not appeared.
The
Court observes that the proceedings in the applicants’ case
commenced on 6 June 2002 and ended on 20 December 2004, during which
period the domestic courts examined the claims three times at the
first instance and twice in appeal. The aggregate length of the
proceedings thus amounted approximately to two years and six months.
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 considers that the proceedings had not been characterised by
particular complexity. It is also of the opinion that dealing with
the case required particular expedition as it concerned the
applicants’ living conditions.
Regarding
the applicants’ conduct, the Court observes that on two
occasions before May 2004 the applicants chose to specify their
claims, and on two occasions they failed to appear either at the
first instance or at the appeal court. It further observes that after
May 2004 they did not show in a single hearing, following which their
claims were left without consideration. It is mindful of the
applicants’ argument that they had not been duly notified of
the hearings. However, in absence of any documentary evidence and
considering that the applicants did not challenge the final decision
at the appeal court, which could have quashed it on the ground of
inadequate notification, the Court finds it difficult to accept this
argument as a valid reason for their repeated default.
Finally,
regarding the authorities’ behaviour, the Court notes that
apart from the judge’s brief illness and certain delay that
occurred at the appeal stage of the proceedings in view of the
courts’ failure to timely consider the applicants’
objections to the hearing minutes and to duly notify the respondents,
the authorities handled the case with sufficient care and expedition.
Regard
being had to the overall length of the proceedings and the levels of
jurisdiction involved, as well as the parties’ behaviour, the
Court considers that the “reasonable time” requirement
was not breached in the present case.
There
has accordingly been no violation of Article 6 § 1 of the
Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The
applicants also complained under Article 13 and Article 1 of Protocol
No. 1 about the failure of their contractors and subcontractors to
meet their obligations and execute necessary repairs.
The Court notes that this complaint was examined by
the domestic courts and the applicants essentially complain about the
outcome of the dispute. It recalls that
it is not its task to act by calling into question the outcome of the
domestic proceedings. The domestic courts are best placed for
assessing the relevance of evidence to the issues in the case and for
interpreting and applying rules of substantive and procedural law
(see Pekinel v. Turkey, no. 9939/02, § 53, 18 March
2008). The Court also reiterates
that Article 1 of Protocol No.
1 does not concern the regulation of civil law rights between parties
under private law. Courts’ decisions according to the rules of
private law cannot be seen as an unjustified State interference with
the property rights of one of the parties. Indeed, it is the very
function of the courts to determine such disputes, the regulation of
which falls within the province of domestic law and outside the scope
of the Convention (see, mutatis
mutandis,
Kuchař
and Štis
v. Czech Republic
(dec.), no.
37527/97,
21 October 1998; see also S.Ö.,
A.K., Ar.K. and Y.S.P.E.H.V. v. Turkey
(dec.) 31138/96, 14 September 1999). It follows that this
complaint should be rejected under Article 35 §§ 3 and 4 of
the Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the complaint concerning the 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 13 January 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Sverre Erik Jebens Deputy Registrar President
