European Court of Human Rights

 

THIRD SECTION

CASE OF ANDREYEVY v. RUSSIA

(Application no. 83399/17)

 

 

 

 

 

 

JUDGMENT

STRASBOURG

28 January 2020

 

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

In the case of Andreyevy v. Russia,

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

          Alena Poláčková, President,
          Dmitry Dedov,
          Gilberto Felici, judges,
and Stephen Phillips, Section Registrar,

Having deliberated in private on 17 December 2019,

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

PROCEDURE

1.  The case originated in an application (no. 83399/17) 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 Vyacheslav Anatolyevich Andreyev and Mrs Svetlana Yuryevna Andreyeva (“the applicants”), on 25 November 2017.

2.  The applicants were represented by Mr V.Ye. Solonovich, a lawyer based in Belogorsk. The Russian Government (“the Government”) were represented by Mr M. Galperin, the Representative of the Russian Federation to the European Court of Human Rights.

3.  On 19 December 2018 the Government were given notice of the complaint concerning the quashing of a final judgment in the applicants’ favour following the extension of the time-limit for an ordinary appeal and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

4.  The first applicant was born in 1967. The second applicant was born in 1979. Both applicants live in Belogorsk.

5.  On 28 July 2015 the Ministry of Defence (“the Ministry”) brought a case against the applicants claiming compensation for part of the flat allocated to the first applicant as a military officer and his family, as it exceeded the size stipulated under the domestic law.

6.  On 28 September 2015 the Prikubanskiy District Court in Krasnodar dismissed the Ministry’s claims. In its judgment the district court indicated as follows:

“The representative of the Ministry of Defence was summoned to the hearing but failed to attend it. He submitted a request to examine a case without his participation and asked to grant his claim in full.”

7.  It appears that on an unspecified date after the hearing the Prikubanskiy District Court sent the copy of the judgment to the Ministry. There is no evidence as to when the Ministry received the copy of that judgment.

8.  On 13 January and then on 13 April 2016 the Ministry lodged a request to the Prikubanskiy District Court asking to send a copy of the judgment of 28 September 2015.

9.  On 15 June 2016 the Ministry received a copy of the judgment and applied for an extension of the time-limit for appeal on 23 June 2016. They argued that the Ministry received a copy of the judgment after the time-limit for appeal had passed.

10.  On 25 May 2017 the Krasnodar Regional Court granted the Ministry’s request and restored the time-limit for appeal.

11.  On 18 July 2017 the Krasnodar Regional Court quashed the judgment of 28 September 2015 on appeal and granted the Ministry’s claims. The applicants were obliged to pay 589,384.56 Russian roubles (8,700 euros). The applicants unsuccessfully appealed against the judgment. On 31 July 2018 their appeal was dismissed by the single judge of the Supreme Court of Russia.

II. RELEVANT DOMESTIC LAW

12.  The relevant domestic law governing the extension of the time limits for appeal is summed up in the Court’s decision in the case of Samoylenko v. Russia (dec.) (no. 58068/13, §§ 27-30, 30 March 2017).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

13.  The applicants complain under Article 6 of the Convention about an unlawful extension of the time-limits for appeal and the subsequent quashing of the final judgment in their favour by the regional court. The relevant part of the aforementioned provisions reads:

Article 6

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

A.    Admissibility

14.  The Court notes that these 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.

B.     Merits

15.  The Government did not contest the fact that the Ministry was summoned to the hearing of 28 September 2015. They further submitted that although the district court’s judgment of 28 September 2015 was sent to the Ministry after the hearing, there is no evidence in the case file as to when the Ministry received it. It was only on 15 June 2016 when the Ministry received a copy of the judgment following its two requests submitted in January and April 2016.

16.  The applicants argued that the Ministry was notified about the hearing of 28 September 2015 and could have shown due diligence in requesting a copy of the judgment well before June 2016. Moreover the judgment was available on the official web site of the district court after the hearing and the Ministry could have had access to it.

17.  The Court reiterates that the existence of reasons capable of justifying a departure from the principle of legal certainty, even where they are established, is not in itself sufficient to conclude to the absence of a violation of Article 6 of the Convention. Another important factor should be taken into account is the time elapsed from the moment when the person requesting the extension of the time-limits became aware that a judgment was delivered against him. Since the extension of the time-limits for appeal constitutes an interference with the principle of res judicata, a person requesting such an extension should act with sufficient diligence, that is without delay from the moment when he became aware, or ought to have become aware, of the judgment subject to appeal (Magomedov and Others v. Russia, nos. 33636/09 and 9 others, § 89, 28 March 2017, with further references).

18.  Turning to the circumstances of the present case, the Court notes that although the Ministry was summoned to the hearing of 28 September 2015 its representative did not attend it. Then, it took the Ministry more than eight months to obtain a copy of the judgment delivered on that day. The Government failed to provide any explanation to justify why the Ministry had remained passive until 13 January 2016 and then another four months, until 13 April 2016, without taking any reasonable steps to obtain the copy of the judgment (see paragraph 8 above).

19.  The Court recalls that it has already had an opportunity to examine a similar situation in the Magomedov and Others judgment (cited above). In the aforementioned case the Court found a violation of Article 6 of the Convention on account of the domestic courts’ failure to examine when the intervening party became aware or “ought to have become aware” of the adoption of the judgments against it, in particular in view of a significant lapse of time between the delivery of those judgments and the introduction of out-of-time appeals (Magomedov and Others, cited above, §§ 98-101). The Court does not see any reason to reach a different conclusion in the present case.

20.  Having regard to the above mentioned and examined all the material before it the Court concludes that there has been a violation of Article 6 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 1 of Protocol no. 1

21.  The applicants further complained that there was an interference with their peaceful enjoyment of possessions as a result of the quashing of the judgment of 28 September 2015. They relied on Article 1 of Protocol No. 1. The relevant part of the aforementioned Article read as follows:

Article 1 of Protocol No. 1

“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.”

22.  The Court notes that after the extension of the time limit for appeal the domestic courts returned to the ordinary procedure (see paragraph 11 above), that is the appeal hearing. The Court cannot speculate as to what would have been the outcome of the appeal hearing in the applicant’s case, had there been a fair hearing in keeping with the requirements of Article 6 § 1.

23.  Having regard to its conclusion under Article 6 § 1 of the Convention, the Court considers that there is no need to consider either the admissibility or the merits of the complaint submitted by the applicants under Article 1 of Protocol No. 1 (see S.C. Britanic World S.R.L. v. Romania, no. 8602/09, § 50, 26 April 2016 ; Bochan v. Ukraine (no 2) [GC], no. 22251/08, § 68, CEDH 2015; Rozalia Avram v. Romania, no. 19037/07, § 46, 16 September 2014; and Lyubov Stetsenko v. Russia, no. 26216/07, § 92, 17 April 2014).

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

24.  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

25.  The applicants claimed 12,000 euros (EUR) in respect of non‑pecuniary damage.

26.  The Government contested this claim as being unsubstantiated.

27.  The Court reiterates its finding that there had been a violation of Article 6 § 1 of the Convention on account of the interference with the principle of legal certainty. As regards the applicants’ claim for non‑pecuniary damage the Court considers that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage which may have been suffered by the applicants.

B.     Costs and expenses

28.  The applicants also claimed 144,000 Russian roubles (EUR 2,100) for the costs and expenses incurred before the domestic courts.

29.  The Government contested this claim arguing that they were related to the domestic proceedings only.

30.  Regard being had to the documents in its possession and to its case‑law, the Court considers it reasonable to award the sum of EUR 700 for costs and expenses incurred with regard to the domestic proceedings followed the extension of the time-limit for appeal.

C.    Default interest

31.  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 application admissible;

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 1 of Protocol No. 1 to the Convention;

4.      Holds

(a)   that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicants;

(b)  that the respondent State is to pay the applicants, within three months, EUR 700 (seven hundred euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

5.      Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 28 January 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

  Stephen Phillips                                                                  Alena Poláčková
       Registrar                                                                              President