European Court of Human Rights

 

 

 

FIRST SECTION

 

 

 

 

 

 

 

CASE OF PANCHENKO v. RUSSIA

 

(Application no. 11496/05)

 

 

 

 

 

 

 

 

 

JUDGMENT

 

 

STRASBOURG

 

11 June 2015

 

 

 

 

 

This judgment is final but it may be subject to editorial revision.

 




 

In the case of Panchenko v. Russia,

The European Court of Human Rights (First Section), sitting as a Committee composed of:

          Khanlar Hajiyev, President,
          Erik Møse,
          Dmitry Dedov, judges,
and André Wampach, Deputy Section Registrar,

Having deliberated in private on 19 May 2015,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1.  The case originated in an application (no. 11496/05) 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 a Russian national, Mr Igor Vladilenovich Panchenko (“the applicant”), on 7 March 2005.

2.  The applicant was represented by Mr V. Yesakov, a lawyer practising in St Petersburg. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, the Representative of the Russian Federation at the European Court of Human Rights.

3.  On 16 March 2010 the application was communicated to the Government.

THE FACTS

THE CIRCUMSTANCES OF THE CASE

4.  The applicant was born in 1962 and lives in St Petersburg.

5.  In 1995, a criminal case was opened against the applicant on suspicion of fraud and bribery. On 31 August 1995 the investigators searched the applicant’s home and office. They removed some items and money.

6.  On 10 March 1998 the applicant sued the Prosecutor’s Office for the return of his possessions. On 27 May 1998 the proceedings were adjourned pending the outcome of the criminal case.

7.  By decisions of 29 November 2000 and 23 January 2001, the Oktyabrskiy District Court of St Petersburg established that the searches of 31 August 1995 had been unlawful.

8.  In July 2002 the civil proceedings were resumed.

9.  On 4 February 2004 the criminal proceedings against the applicant were discontinued. Prosecutors returned a part of the applicant’s possessions but the rest of them had already been disposed of.

10.  In its judgment of 8 February 2005, the Court found that the length of the criminal proceedings against the applicant did not satisfy the “reasonable time” requirement (see Panchenko v. Russia, no. 45100/98, § 136, 8 February 2005).

11.  On 9 March 2005 the Oktyabrskiy District Court partly upheld the applicant’s claims. On 18 May 2005 the St Petersburg City Court remitted the case to the first instance for a fresh examination.

12.  On 13 February 2007 the applicant submitted an amended statement of claims. In particular, he asked the court to award him damages in respect of the loss of value and profit, and, finally, costs and expenses.

13.  By a final judgment of 3 October 2007, the St Petersburg City Court awarded the applicant damages and costs and expenses in the amounts claimed but dismissed his claim for the loss of profit. The City Court acknowledged that the investigative authorities had illegally removed, and subsequently disposed of, the applicant’s property.

14.  The judgment was enforced in January 2008.

THE LAW

I.  ALLEGED VIOLATION OF ARTICLES 6 AND 13 OF THE CONVENTION

15.  The applicant complained that the length of the civil proceedings did not meet the reasonable time requirement. He also complained that he did not have an effective remedy in this respect. The relevant parts of the provisions read as follows:

Article 6 § 1

“In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”

Article 13

“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.”

16.  The Government acknowledged that there had been a violation of Article 6 on account of an unreasonable length of the civil proceedings. As for the complaint under Article 13, they argued that the applicant had not used the new remedy introduced in the wake of the Burdov (n^o2) judgment (see Burdov v. Russia (no. 2), no. 33509/04, ECHR 2009).

17.  The applicant took note of the Government’s acknowledgment of a violation of Article 6 of the Convention and maintained his complaint under Article 13.

A.  Admissibility

18.  The Court notes that as far as the complaint under Article 6 of the Convention is concerned, the period before 5 May 1998, the date of entry into force of the Convention in regard of Russia, falls out of its jurisdiction ratione temporis. It further notes that the remainder of the complaints under Articles 6 and 13 is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and that they are not inadmissible on any other grounds. They must therefore be declared admissible.

B.  Merits

1.  Article 6 § 1 of the Convention

19.  The Court takes note of the Government’s acknowledgment of a violation of Article 6 of the Convention on account of an unreasonable length of the civil proceedings.

20.  The Court further observes that the civil proceedings lasted for approximately nine years and five months. However, for a considerable period of time, they were stayed pending the outcome of the criminal proceedings against the applicant (see paragraphs 6 and 8). The Court has already found a violation of Article 6 of the Convention on account of an unreasonable length of those criminal proceedings (see Panchenko, cited above, §§ 128-136). It follows that the longest delay in the applicant’s civil case was attributable to an excessively long duration of the concurrent criminal proceedings. In these circumstances, the Court concludes that there has been a violation of Article 6 of the Convention on account of an unreasonable length of the civil proceedings.

2.  Article 13 of the Convention

21.  The Government argued that the applicant did not use the new remedy introduced in the wake of the Burdov (n^o2) judgment (Burdov, cited above).

22.  The Court takes note of the existence of a new remedy to which the Government referred. It Shcherbakov, the Court found that it would be unfair to request applicants, whose cases have already been pending for many years in the domestic system and who had come to seek relief at the Court, to bring their claims again before domestic tribunals (see Shcherbakov v. Russia (no. 2), no. 34959/07, § 121, 24 October 2013).

23.  However, an examination of the present case on its merits should in no way be interpreted as prejudging the Court’s assessment of the quality of the remedy introduced in 2010. It will examine this question in other cases that are more suitable for such analysis. It does not see fit to do so in the present case, particularly as the parties’ observations were made in relation to a situation that had existed before its introduction (see, for a similar reasoning, Shcherbakov, cited above, § 122).

24.  Indeed, the Court notes that the proceedings complained of by the applicant terminated on 3 October 2007, that is before 4 May 2010, when the new remedy became available.

25.  In these special circumstances, the Court does not consider it necessary to pursue a separate examination of the complaint under Article 13.

II.  ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION

26.  The applicant complained that he had not recovered all of his possession after the criminal proceedings had been discontinued. He relied on Article 1 of Protocol no. 1 which reads as follows:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

27.  The Government acknowledged that there had been a violation of the applicant’s right to peaceful enjoyment of possessions. However, they argued that the applicant could no longer claim to be a victim of this violation in so far as he had obtained compensation by the final judgment of 3 October 2007.

28.  The applicant argued that he retained the status of a victim as his claim relating to the loss of profit had been rejected.

29.  The Court notes that the St Petersburg City Court, in its decision of 3 October 2007, acknowledged that the investigators had unlawfully removed, and disposed of, the applicant’s property. The City Court awarded him damages in the amount that does not appear unreasonable.

30.  The applicant can thus no longer claim to be a victim under Article 34 of the Convention.

31.  It follows that this complaint is incompatible ratione personae with the provisions of the Convention and must be declared inadmissible in accordance with Article 35 §§ 3 and 4 of the Convention.

III.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION

32.  The Court considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, those complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. Accordingly, the Court rejects them as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

IV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

33.  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

34.  The applicant claimed 15,000 euros (EUR) in respect of non-pecuniary damage and 374,528 Russian roubles (RUB) in respect of pecuniary damage.

35.  The Government considered that the applicant’s claim for just satisfaction should be rejected.

36.  The Court notes that it has found violation of Article 6 of the Convention on account of an unreasonable length of the civil proceedings. Having regard to the circumstances of the case, and making its assessment on an equitable basis, the Court awards the applicant the sum of EUR 1,250 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount.

B.  Costs and expenses

37.  The applicant also claimed RUB 5,000 for the costs and expenses incurred before the Court.

38.  The Government claimed that the applicant had failed to submit a detailed description of the work by the applicant’s counsel.

39.  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, the Court rejects the claim for costs and expenses as unsubstantiated.

C.  Default interest

40.  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,

1.  Declares the complaints about the excessive length of the civil proceedings and the lack of an effective remedy in this respect admissible and the remainder of the application inadmissible;

 

2.  Holds that there has been a violation of Article 6 of the Convention;

 

3.  Holds that there is no need to examine the complaint under Article 13 of the Convention;

 

4.  Holds

(a)  that the respondent State is to pay the applicant, within three months, EUR 1,250 (one thousand two hundred and fifty euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(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;

 

5.  Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 11 June 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

André Wampach                                                                  Khanlar Hajiyev
Deputy Registrar                                                                       President