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KOLEGOVY v. RUSSIA - 15226/05 [2012] ECHR 385 (1 March 2012)
URL: http://www.bailii.org/eu/cases/ECHR/2012/385.html
Cite as:
[2012] ECHR 385
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FIFTH
SECTION
CASE OF KOLEGOVY v. RUSSIA
(Application
no. 15226/05)
JUDGMENT
STRASBOURG
1 March
2012
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 Kolegovy v.
Russia,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Dean Spielmann, President,
Karel
Jungwiert,
Boštjan M. Zupančič,
Anatoly
Kovler,
Ann Power-Forde,
Angelika
Nußberger,
André Potocki, judges,
and
Claudia Westerdiek, Section
Registrar,
Having
deliberated in private on 7 February 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 15226/05) 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, Ms Mariya Ilyinichna
Kolegova (“the first applicant”) and Mr
Pavel Ivanovich Kolegov (“the second applicant”)
on 8 March 2005.
On
23 June 2006 the second applicant died. The first applicant expressed
an interest to pursue the application in his stead.
The
first applicant, who had been granted legal aid, was represented by
Mr I.L. Fedotov and L.V. Stakhiyeva, lawyers practising in Moscow.
The Russian Government (“the Government”) were
represented by Mr G. Matyushkin, the Representative of the
Russian Federation at the European Court of Human Rights.
On
8 December 2008 the application was communicated to the Government.
It was also decided to rule on the admissibility and merits of the
application at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicants, who are a couple, were born in 1934 and 1932
respectively. The second applicant died in 2006. The first applicant
lives in Skhodnya, the Moscow Region.
A. Domestic court proceedings
The
applicants, both wheelchair-bound and having first degree
disability status, repeatedly requested social-security services to
provide them with a car adapted to their disability. Their numerous
complaints in this respect to the General Prosecutor’s Office,
Members of the State Duma, and Administration of the President of the
Russian Federation proved unsuccessful. As it was mentioned in the
authorities’ letters to the applicants, according to the
medical expert report ordered by the social-security services, the
first applicant was not entitled to a free car and driving was
contra-indicated in respect of the second applicant.
On
18 November 2003 the applicants, apparently assisted by counsel,
lodged a claim against the Ministry of Labour challenging the refusal
to provide them with a car and claiming compensation for
non-pecuniary damage.
On 15 March 2004 the Basmannyy
District Court of Moscow (“the district court”) fixed the
hearing for 14 May 2004 and at some point, apparently on the same
date, summoned the applicants to appear at the hearing.
According to the Government, on
30 March 2004 one of the applicants received the respective
notification. They submitted a copy of an acknowledgment-of-receipt
card containing information on the date and time of the hearing, the
name of the court, the date of notification, and signatures of a
recipient and a postman.
According to the applicants,
they did not receive the summons.
On
14 May 2004 the district court, having heard the defendant’s
representatives, rejected their claim because the applicants had
lodged it against a wrong defendant. The court established that the
social welfare services did not belong to the Ministry of Labour and
that the latter did not have power to review their decisions. The
applicants were absent from the hearing. The court found, with
reference to the acknowledgment-of-receipt card, that they had been
duly summoned and examined the case in their absence. The
representative of the respondent authority was present.
On
30 June 2004 the applicants’ representative received a copy of
the judgment of 14 May 2004.
On
5 July 2004 the applicants appealed against the judgment. They
complained, inter alia, that their right to a fair trial had been
violated as neither they nor their lawyer had had a chance to attend
the hearing due to their having been summoned belatedly.
On
14 July 2004 the district court on the applicants’ request
extended the time-limit for lodging the grounds of appeal.
On
6 October 2004 the Moscow City Court adjourned the examination of the
applicants’ appeal until 20 October 2004, having found that the
parties had not been notified of the date of the hearing in a timely
manner.
According to the
Government, at some point the district court dispatched summonses to
the parties, including the applicants, informing them of the date and
time of the appeal hearing. According to the applicants, neither they
nor their representative received the summons.
On
20 October 2004 the Moscow City Court upheld the judgment of 14 May
2004 on appeal. The court examined the case in the applicants’
absence, having mentioned that they had been notified of the appeal
hearing. As regards the applicants’ complaint about their
absence from the hearing at the first instance court, the appeal
court found that they had been properly summoned. The court further
upheld the lower court’s finding that the civil action was
lodged against the wrong defendant.
B. Access to the case file at the registry of the
Basmannyy District Court
On
12 December 2008 the application was communicated to the Government.
On
21 January 2009 the Moscow City Court requested the case file from
the district court in order to prepare a report on the factual
circumstances of the case, to be included in the Government’s
observations on the admissibility and merits of the application.
On
27 January 2009 the Moscow City Court received the case file.
On
4 February 2009 Ms Stakhiyeva, the first applicant’s
representative before the Court, requested the district court to
grant her access to the case file concerning the applicants’
civil proceedings.
On
the same date the registry of the district court rejected her request
having advised her that she could be granted access to the file not
earlier than ten days following the request.
On
5 February 2009 the President of the district court refused to
examine the representative’s oral complaint in this respect,
apparently having provided no reasons for the decision. It appears
that on the same date the lawyer lodged a written complaint about the
refusal to allow her to study the file, but the petition remained
unanswered.
On
27 February 2009 the registry of the district court again rejected
the applicant’s new request for access to the file, and on the
same date the President of the district court disallowed her
complaint in this respect.
On
10 March 2009 the registry of the Moscow City Court returned the case
file to the district court.
On
25 March 2009 the Government advised the Court that the file had been
transferred to the district court and was available for study. On
27 March 2009 this letter was forwarded by the Court to the
applicant’s representatives.
On
9 April 2009 the Court received the Government’s observations
and on 29 April 2009 forwarded them to the applicant’s
representatives with a request to provide observations in reply.
On
12 May 2009 the applicant’s lawyer requested to grant her
access to the case file. She submits that on the same date the
registry disallowed her request, and the President of the court
refused to discuss the matter with her.
On
14 May 2009 she was advised by the registry of the district court
that the file was available at the registry.
On
18 May 2009 the lawyer studied the case file.
On
9 June 2009 the applicant’s lawyers submitted the observations
in reply to the Government’s observations on the applicants’
case.
II. RELEVANT DOMESTIC LAW
For
a summary of relevant domestic law provisions see Gusak v.
Russia, no. 28956/05, § 20, 7 June
2011.
THE LAW
I. LOCUS STANDI
The Court observes that on 23 June 2006 the second applicant died
after having lodged his application under Article 34 of the
Convention.
The
Court observes that in various cases in which an applicant has died
in the course of the Convention proceedings it has taken into account
the statements of the applicant’s heirs or of close family
members expressing their wish to pursue the application (see, among
other authorities, Kalló v. Hungary, no. 30081/02, §
24, 11 April 2006). The Court considers that the first applicant, the
second applicant’s widow, who stated her intention of
continuing the proceedings, has a legitimate interest in pursuing the
application in the second applicant’s stead (see Bitiyeva and X
v. Russia, nos. 57953/00 and 37392/03, § 92, 21 June 2007).
The Government did not contend that the first applicant had no
standing to pursue the case in her late husband’s stead.
Accordingly, the Court finds that the first applicant, as the second
applicant’s heir, has standing to continue these proceedings in
his stead.
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
The
applicants complained that they were not notified of the hearings of
14 May and 20 October 2004. They relied on
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 fair ... hearing ... by [a]
... tribunal ...”
A. The parties’ submissions
The
Government argued that the applicants were notified of both hearings
in good time and in due form. As regards the hearing at the first
instance court, they refer to a copy of the acknowledgment-of-receipt
card form signed by one of the applicants confirming that on 30
March 2004 the summons had been dispatched to the applicants’
address. They argued that the applicants did not appear at the
hearing without a valid reason after having been duly notified
thereof. In these circumstances, the first instance court’s
decision to proceed with the examination of the case was not
incompatible with the fair trial guarantees of Article 6 § 1, as
confirmed by the Court’s judgments in several cases against
Russia (such as, mutatis mutandis, Groshev v. Russia, no.
69889/01, § 30, 20 October 2005; Mokrushina v. Russia,
no. 23377/02, § 23, 5 October 2006; and Larin and
Larina v. Russia, no. 74286/01, § 43, 7 June 2007). As
regards the appeal hearing at the Moscow City Court of 20 October
2004, they submitted that, first, the decision of the Moscow City
Court of 6 October 2004 contained a date of the examination of the
case and, second, the respective summons had been sent to the parties
by mail. They reached the addressees, because the defendant received
the notification and was present at the hearing. They further pointed
out that the applicants could have submitted a certificate from a
local post office confirming that they had not received any
correspondence from the domestic court before the hearing, but had
not done so.
The
first applicant maintained the applicants’
initial complaint adding that there was no evidence that she or the
second applicant or their representative had received the summons in
respect of the two hearings. As regards the acknowledgment of receipt
in respect of the summons for the hearing at the first instance
court, she challenged its authenticity, arguing that the signature on
it did not belong to any of the applicants. It did not contain a name
and address of a recipient. As regards the appeal proceedings before
the Moscow City Court, they submitted that the domestic case file did
not contain any documents to confirm that the notifications had been
sent to the applicants or that the applicants had received the
summons.
B. The Court’s assessment
1. Admissibility
The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
2. Merits
The
Court notes the first applicant’s argument as regards the lack
of authenticity of the signatures on the acknowledgment-of-receipt
card. The Court observes that the case file does not contain
sufficient information for it to decide on the issue of authenticity
of the signature on the card. However, it considers that there is no
need to decide on the issue of notification of the first instance
hearing separately for the following reasons.
The
Court observes that the applicants complained about the alleged
failure to notify them of the hearings at the courts of two levels of
jurisdiction, including the appeal instance. As regards that hearing,
the Government submitted that the parties had been properly summoned
by mail.
The
Court recalls that Article 6 cannot be construed as conferring on
litigants an automatic right to obtain a specific form of service of
court documents, such as by registered mail (see Bogonos v. Russia
(dec.), no. 68798/01, 5 February 2004). Nevertheless, the Court
considers that in the interests of the administration of justice a
litigant should be summoned to a court hearing in such a way as not
only to have knowledge of the date and the place of the hearing, but
also to have enough time to prepare his case and to attend the court
hearing. A formal dispatch of a notification letter without any
confidence that it will reach the applicant in good time cannot be
considered by the Court as proper notification (see Gusak, §
27, cited above).
Turning to the circumstances of the present case, the
Court observes that the Government did not submit any evidence
showing that the summons for the appeal hearing had reached the
applicants or their representative in good time. Moreover, they did
not submit any documents to demonstrate that the summons had, in
fact, been sent to the applicants or their lawyer, such as copies of
the summons, acknowledgments of receipt, envelopes bearing postmarks,
a checklist of the case-file or any other record confirming the fact
of actual dispatching of the notifications to the applicants or their
representative (see, by contrast, Belan v. Russia (dec.),
no. 56786/00, 2 September 2004, and Bogonos v. Russia,
cited above). In these circumstances, the Court is unable to accept
the Government’s submission that the respondent party had been
notified of the hearing as sufficient evidence of the applicants’
notification of the examination of the case. Similarly,
the fact that the decision of 6 October 2004 contained a new date of
the hearing, taken alone, cannot be regarded as an appropriate
notification. It is important to note in this respect that the
applicants had not been present at the court on 6 October 2004 and
that the case-file does not contain any information as to the date on
which they had received a copy of the decision to adjourn the case
taken on that date. Moreover, the Court observes that there is
nothing in the text of the appeal judgment to suggest that the appeal
court examined the question whether the applicants had been duly
summoned, and, if they had not been, whether the examination of the
appeal should have been adjourned. In fact, the court’s
reasoning in this respect was confined to a finding that the
applicants had been apprised of the date of the examination of their
case, without further details.
It
follows that the domestic authorities failed to demonstrate that they
had taken a reasonable effort to duly summon the applicants to the
hearing (see by contrast Babunidze v. Russia (dec.), no.
3040/03, 15 May 2007). In these circumstances the Court accepts the
applicants’ allegation that the domestic courts had failed in
their duty to inform them of the appeal hearing. The Court also does
not lose sight of the fact that the other party took part in the
appeal hearing and made oral submissions. The participation in the
hearing enabled the other party to submit observations on the
applicants’ appeal submissions, which were not communicated to
the applicants and to which they could not reply orally.
The
Court reiterates that it has frequently found a violation of
Article 6 § 1 of the Convention in cases raising issues
similar to the one in the present case (see, among other authorities,
Yakovlev v. Russia, no. 72701/01, §§ 19 et
seq., 15 March 2005; Groshev v. Russia, cited above, §§ 27
et seq.; Mokrushina v. Russia, cited above, §§ 20 et
seq.; and Prokopenko v. Russia, no. 8630/03, §§ 17
et seq., 3 May 2007)
Having
examined the materials in its possession, the Court notes that the
Government have not put forward any fact or argument capable of
persuading it to reach a different conclusion in the present case.
The Court has established that due to the authorities’ failure
to duly summon the applicants they were deprived of the opportunity
to attend the appeal hearing.
It
follows that there has been a violation of the applicants’
right to a fair hearing under Article 6 § 1 of the Convention
III. COMPLIANCE WITH ARTICLE 34
The
first applicant may be understood to complain about a hindrance with
her right to individual petition with reference to the refusals by
the registry of the Basmannyy District Court to grant Ms Stakhiyeva
access to the case file. The Court will examine these allegations
under Article 34 which reads as follows:
“The Court may receive applications from any
person, non-governmental organisation or group of individuals
claiming to be the victim of a violation by one of the High
Contracting Parties of the rights set forth in the Convention or the
Protocols thereto. The High Contracting Parties undertake not to
hinder in any way the effective exercise of this right.”
The
Government argued that there had been no hindrance with the right of
individual petition. On 21 January 2009 the case file had been
requested from the Basamannyy District Court via the Moscow City
Court in order to prepare the Government’s observations on the
admissibility and merits of the case. On 10 March 2009 the case file
had been sent back to the district court and had been available for
the first applicant’s representative at the registry of the
court. The representative’s new request to give her access to
the file dated 12 May 2009 had been granted on 14 May 2009, and she
successfully studied the file four days later.
The
first applicant maintained her complaint.
The
Court observes that from 21 January to 10 March 2009 the case file
was unavailable for consultation at the first instance court because
it was forwarded to the Moscow City Court, so that the Government
could obtain information on the factual circumstances of the case and
prepare their observations. Accordingly, the applicant’s
requests of 4 and 27 February 2009 to give her access to the
file could not be granted. The Court accepts that the case file was
necessary for the Government to prepare its observations on the
admissibility and merits of the present application within the
time-limit set out for this purpose. The Court notes, however, that
the registry of the first instance court could have considered
alternative means of transferring the information on the case which
would have permitted to avoid any impediment to the applicant’s
representative’s access to the documents, such as, for
instance, sending photocopies of the case file by fax or mail.
Nevertheless, the Court is satisfied that once the file was returned
to the registry of the district court, the lawyer’s new request
for access to the file was granted without an undue delay. In fact,
her new request to afford her an opportunity to study the case file
lodged on 12 May 2009 was allowed two days later. She was able to
study the case file, and the first applicant’s representatives
successfully submitted their observations on the admissibility and
merits of the present application.
The
Court finds it regrettable that the applicant’ representative
was not provided with specific reasons for the repeated refusals of
the registry of the district court to give her access to the case
file in February 2009. However, having regard to the fact that the
applicant’s representative studied the case file on 18 May 2009
and was able to prepare and submit her observations within the
time-limit set out for this purpose, the Court considers that there
is an insufficient factual basis to consider that there has been any
unjustified interference by State authorities with the first
applicant’s exercise of the right of petition in the
proceedings before the Court in relation to the present application.
The
Court therefore concludes that the respondent State has complied with
its obligations under Article 34 of the Convention.
IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
Lastly,
the applicants complained under Article 3 of the Convention that
without a car they could not gain access to necessary facilities and
thus felt humiliation and distress, which impinged on the quality of
their private life.
The
Court observes that their claim was rejected by the domestic courts
as it had been lodged against a wrong defendant. The domestic court
advised them that such claim could be lodged against social welfare
services. However, there is nothing to suggest that the applicants
had brought proceedings against that authority. Therefore, they
failed to lodge their claim against a due
respondent. It follows that this complaint must be rejected
under Article 35 §§ 1 and 4 of the Convention for
non exhaustion of domestic remedies.
The
applicants further complained under Articles 6 and 13 and about the
outcome of the civil proceedings.
In
the light of all the material in its possession, and in so far as the
matters complained of are within its competence, the Court finds that
the above complaints do not disclose any appearance of a violation of
the rights and freedoms set out in the Convention or its Protocols.
It follows that this part of the application is manifestly
ill-founded and must be rejected in accordance with Article 35 §§
3 (a) and 4 of the Convention.
V. 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
first applicant claimed 20,000 euros (EUR) in respect of
non pecuniary damage. She did not make a claim in respect of
pecuniary damage.
The
Government contested the claim as excessive and unreasonable.
The
Court finds that the applicants suffered non-pecuniary damage which
would not be adequately compensated by the finding of a violation
alone. Having regard to the nature of the violation found and making
its assessment on an equitable basis, the Court awards the first
applicant EUR 1,800, plus any tax that may be chargeable on that
amount, and dismisses the remainder of the claim under this head.
B. Costs and expenses
The
first applicant claimed 3,384.80 Russian roubles (RUB) in respect of
“pecuniary expenses incurred for prevention and remedying the
alleged violation of the applicant’s rights in the context of
the proceedings before the Court”, of which RUB 3,090
represented the costs of the legal representation by Ms Stakhiyeva
and RUB 294.80 postal expenses. She submitted copies of the postal
receipts and a document confirming that a payment of RUB 3,090 had
been made by the first applicant to her.
Referring
to the wording of the applicant’s claims under this head, the
Government argued that these should be rather regarded as a claim for
pecuniary damage. They concluded that the first applicant had not, in
fact, lodged a claim for costs and expenses and therefore nothing
should be awarded by the Court under this head. At the same time,
they accepted that the claim was substantiated by the respective
documents.
The
Court observes that the first applicant made a request for
compensation of her expenses in the context of the proceedings before
the Court, claiming reimbursement of the postal expenses and the
lawyer’s fee. In these circumstances, the Court accepts that
the claim was made, in fact, in respect of costs and expenses.
According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum.
In
the present case, regard being had to the documents in its possession
and the above criteria and to the fact that the Government had
accepted that the claim had been sufficiently substantiated, as well
as to the fact that the applicant was granted legal aid, the Court
considers it reasonable to allow the claim in full and to award the
first applicant the sum of EUR 78 for the proceedings before the
Court, plus any tax that may be chargeable on that amount.
C. Default interest
The
Court considers it appropriate that the default interest rate 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
Holds that the first applicant has standing to
continue the present proceedings in the second applicant’s
stead;
Declares the complaint under Article 6 § 1
concerning the domestic authorities’ failure to duly apprise
the applicants of the appeal hearing admissible and the remainder of
the application inadmissible;
Holds that there has been a violation of Article
6 § 1 of the Convention;
Holds that the Government have not failed to
comply with its obligations under Article 34 of the Convention;
Holds
(a) that
the respondent State is to pay the first applicant, within three
months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention, the following
amounts, to be converted into Russian roubles at the rate applicable
at the date of settlement:
(i) EUR
1,800 (one thousand eight hundred euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage;
(ii) EUR
78 (seventy-eight euros), plus any tax that may be chargeable, in
respect of costs and expenses;
(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;
Dismisses the remainder of the first applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 1 March 2012, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Dean Spielmann
Registrar President
