CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 3 novembre 2005

.s800EAC49 { font-size:12pt } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .sBB9EE52A { font-family:Arial } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .s61ED8A2B { width:14.36pt; display:inline-block } .s61E420C2 { font-family:Arial; font-variant:small-caps } .sA36B60A1 { font-family:Arial; font-style:italic } .s859E34A4 { width:11.02pt; display:inline-block } .s84D0D60A { width:8.36pt; display:inline-block } .s967D43C6 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s6B505E72 { margin:0pt; padding-left:0pt } .s10E083FF { margin-top:6pt; margin-left:42.29pt; margin-bottom:6pt; text-align:justify; padding-left:4.66pt; font-family:Arial; font-size:10pt } .s88A92475 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sDD165512 { margin-top:12pt; margin-left:14.2pt; margin-bottom:0pt; text-align:justify } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .s77C0EB13 { width:35.02pt; display:inline-block } .sC82FC970 { width:167.44pt; display:inline-block } .s8EFC8F8 { width:32.36pt; display:inline-block } .s6B737D45 { width:205.46pt; display:inline-block } THIRD SECTION DECISION AS TO THE ADMISSIBILITY OF Application no. 38020/03 by Konstantin ANTONOV against Russia The European Court of Human Rights (Third Section), sitting on 3   November 2005 as a Chamber composed of:   Mr   B.M. Zupančič , President ,   Mr   J. Hedigan ,   Mr   L. Caflisch ,   Mr   M. Tsatsa - Nikolovska ,   Mr   A. Kovler,     Mrs   A. Gyulumyan,   Mrs   R. Jaeger, judges , and Mr V. Berger, Section Registrar, Having regard to the above application lodged on 11 October 2003, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant, Having deliberated, decides as follows: THE FACTS The applicant, Mr Konstantin Olegovich Antonov, is a Russian national, who was born in 1963 and lives in the town of Gatchina in the Leningrad Region. The respondent Government are represented by Mr P. Laptev, the Representative of the Russian Federation at the European Court of Human Rights. The facts of the case, as submitted by the parties, may be summarised as follows. On 2 September 1996 the applicant sued his former employer for reinstatement, wage arrears and compensation for non-pecuniary damage. Between 12 September and 20 December 1996 the Gatchina Town Court fixed six hearings of which four were adjourned at the applicant’s request. On 20 December 1996 the Gatchina Town Court dismissed the action. On 6 March 1997 the Leningrad Regional Court partly upheld the judgment of 20 December 1996, quashed the remainder of the judgment and remitted the matter for a fresh examination. On 15 May 1997 the Gatchina Town Court dismissed the claim. On 26 June 1997 the Leningrad Regional Court quashed the judgment of 15 May 1997 and remitted the case for a new examination. Of five hearings scheduled between 11 August 1997 and 17 June 1998, four were adjourned because the composition of the court was changed at the applicant’s request or because his representative did not attend. One hearing was adjourned because the presiding judge was ill. On 26 August 1998 the applicant successfully challenged the presiding judge. Of nine hearings fixed between 2 December 1998 and 9 December 1999, four were adjourned because the applicant did not attend and five were adjourned because he challenged the court members or asked to stay the proceedings on various grounds. On 17 December 1999 the applicant asked the town court to change the composition of the bench. The Gatchina Town Court granted his request and transferred the case to another court. On 28 February 2000 the Presidium of the Leningrad Regional Court, by way of supervisory-review proceedings, quashed the decision of 17   December 1999 and transferred the case back to the Gatchina Town Court for examination. On 28 March 2000 the hearing was adjourned because the defendant did not attend. At the hearing of 28 April 2000 the applicant asked to change the composition of the bench. The request was granted. On 15 June 2000 the Leningrad Region Court quashed the decision of 28   April 2000 and returned the case back to the Gatchina Town Court for examination by the same bench. Of seven hearings between 6 July 2000 and 26 April 2001, one was adjourned due to the parties’ absence, three were adjourned because the applicant did not attend, two were adjourned because the applicant successfully challenged the bench, and one hearing was postponed because the applicant intended to retain a new representative. On 26 April 2001 the Gatchina Town Court disallowed the action because the applicant had repeatedly defaulted and had not informed the court about the reasons for his absence. On 5 June 2001 the Leningrad Regional Court, on an appeal by the applicant, quashed the decision of 26 April 2001 and ordered that the case should be examined by the Gatchina Town Court. On 1 August 2001 the applicant unsuccessfully challenged the bench and the registrar. On the same day the town court ordered the applicant’s medical examination. On 10 August 2001 the applicant appealed against the decision of 1   August 2001. His appeal was dismissed on 9 October 2001 by the Leningrad Regional Court. On 22 October 2001 the case-file was sent to medical experts. On 28 February 2002 the experts returned the case-file to the court because medical documents had not been enclosed. The court fixed a hearing for 19 April 2002. This hearing was adjourned because the applicant wished to retain a lawyer. The hearing of 20 June 2002 was postponed at the applicant’s request based on unclear reasons. On 26 August 2002 the Gatchina Town Court dismissed the claim. On 5 November 2002 the Leningrad Regional Court quashed the judgment of 26 August 2002 in the part concerning the applicant’s reinstatement, payment of outstanding salary and compensation for non-pecuniary damage, and remitted these claims for a new examination by a different bench. Of ten hearings between 15 December 2002 and 3 December 2003, two were postponed because the applicant did not attend, three were adjourned at the defendant’s request and five at the applicant’s request. On 3 December 2003 the Gatchina Town Court disallowed the applicant’s action because he had persistently defaulted and appeared to have lost interest in the proceedings. On 18 February 2004 the Leningrad Regional Court quashed the decision of 3 December 2003 because the applicant had informed the court about the reasons for his absence and remitted the case for a fresh examination. On 17 May 2004 the Gatchina Town Court dismissed the applicant’s action. On 7 July 2004 the Leningrad Regional Court upheld the judgment on appeal. COMPLAINTS The applicant complained under Articles 4 and 6 § 1 of the Convention that the proceedings were excessively long, that the composition of the Gatchina Town Court was in breach of the domestic law because the term of office of lay judges had expired, that he was not summoned for the supervisory-review hearing of 28 February 2000 and that he had been transferred by his employer to a less lucrative work. THE LAW 1.     The applicant complained about an excessive length of the proceedings, his absence from the supervisory-review hearing of 28   February 2000 and allegedly unlawful composition of the town court. The Court considers that these complaints fall to be examined under Article 6 § 1 of the Convention which provides as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing within a reasonable time by [a] ... tribunal established by law.” (a) The Government indicated that the length of the proceedings could still be regarded as reasonable because the applicant had contributed to a considerable extent to the delays in the proceedings, notably he had persistently defaulted and the action had been twice disallowed for that reason, he repeatedly asked to adjourn the proceedings and challenged the bench almost at every hearing. Furthermore, the delay of several months was caused by the fact that an expert examination was ordered. The applicant disagreed. He claimed that the proceedings dragged on for eight years instead of ten days as required by the domestic law. On five occasions the case was remitted to the town court although the final judgment could have already been made in 1997. The case was simple. The delay of several months was caused by the fact that the expert examination had been ordered but not performed. He asked to adjourn the hearings for good reasons: he or his lawyer wanted to study the case-file or his lawyer could not attend the hearings because of his involvement in other proceedings or the applicant had exams at the university. The Court notes that the period to be taken into consideration began only on 5 May 1998 when the Convention entered into force in respect of Russia. The period in question ended on 7 July 2004 when the Leningrad Regional Court gave its final judgment. The Court thus has competence ratione temporis to examine the period of six years, two months and four days.   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 criteria established by its case-law, particularly the complexity of the case, the conduct of the applicant and of 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 finds that the proceedings at issue were of some complexity as they required the taking of an expert opinion, assessment of a complex factual background of the case and studying of the applicant’s former employer’s staff regulations. The applicant changed, amended and supplemented his claims on several occasions. The Court considers that the task of the courts was rendered more difficult by these factors, although 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 Malinin v. Russia (dec.), no. 58391/00, 8 July 2004). Insofar as the behaviour of the applicant is concerned, the Court recalls that at least nine hearings were adjourned due to the applicant’s failure to appear which led to the stay of the proceedings on two occasions, on 26   April 2001 and 3 December 2003. Thus, a delay of approximately nine months is attributable to the applicant. Moreover, as it appears from the list of hearings submitted by the Government, at least on eighteen occasions the applicant asked the court to change the composition of the bench or challenged the court members or officers. At least on seven occasions these requests were granted and the case was re-assigned to another judge or the composition of the bench was changed or the case was transferred to another court. The aggregated delay caused by such requests amounted to one year and some four months. The Court also notes that from 15 March to 4 June 1999 the proceedings were stayed at the applicant’s request pending the outcome of another set of proceedings to which he was a party. The Court observes that the applicant requested the court to adjourn at least eight hearings because he intended to obtain or change his representative or because his representative could not participate or the applicant himself could not attend. The Court is of the view that although the applicant’s efforts to ensure the best representation of his interests in the proceedings are understandable, the manner in which he exercised his procedural rights undoubtedly contributed to prolonging the proceedings for additional four months (see, by contrast, Havelka v. the Czech Republic , no. 76343/01, § 54, 2 November 2004). As regards the conduct of the authorities, the Court considers that the overall period less the period attributable to the applicant’s conduct leaves the authorities accountable for approximately three years and four months which fall in the Court’s competence ratione temporis . In this respect the Court recalls that only delays attributable to the State may justify a finding of failure to comply with the “reasonable time” requirement (see Des Fours Walderode v. the Chech Republic (dec.), no. 40057/98, 4 March 2003). The Court observes no substantial periods of the courts’ inactivity, save for one: on 1 August 2001 the proceedings were adjourned to carry out an expert examination. They were resumed on 28 February 2002 when the case-file was returned to the court as the experts lacked necessary medical documents. The Court recalls in this respect that the principal responsibility for the delay due to the expert opinions rests ultimately with the State (see Capuano v.   Italy , judgment of 25   June 1987, Series   A no.   119, §   32). It was incumbent on the domestic courts to ensure that all necessary information had been made available to the experts. Accordingly, this period is imputable to the State. Apart from the period discussed above, the hearings were scheduled at regular intervals and the parties’ requests were examined in the same or in the following hearing. The Court also does not lose sight of the fact that the courts of three levels of jurisdiction were involved in the applicant’s case. The domestic courts examined the merits of the case four times and did not idle (cf. Kravchuk v. Russia (dec.), no. 72749/01, 1   February 2005; Pronina v. Russia (dec.), no. 65167/01, 30 June 2005). Regard being had to all the circumstances of the case, the complexity of the facts and the legal issues involved, the substantial delays attributable to the applicant, the Court considers that the “reasonable time” requirement has been complied with. It follows that the complaint is manifestly ill-founded and must be rejected in accordance with Article   35 §§   3 and   4 of the Convention. (b) As to the applicant’s complaint that he was not summoned for the supervisory-review hearing of 28 February 2000, the Court recalls that the quashing of a final decision by way of supervisory-review is an instantaneous act, which does not create a continuing situation, even if it entails the re-opening of the proceedings ( see Sardin v. Russia (dec.), no.   69582/01, 12 February 2004; Church of Scientology Moscow and Others v. Russia (dec.), no. 18147/02, 28   October 2004). In the instant case the supervisory-review hearing occurred on 28 February 2000 that is more than six months before the application was lodged on 11 October 2003.     It follows that this complaint is introduced out of time and must be rejected in accordance with Article   35 §§   1 and   4 of the Convention. (c) As to the complaint that the domestic courts were composed in breach of domestic law, it appears from the applicant’s submissions that he did not mention that grievance in his grounds of appeal, and he did not indicate any ground capable of casting doubt on the effectiveness of such an avenue. Accordingly, the Court considers that there was a domestic remedy available to the applicant which he did not use.     It follows that this complaint must be rejected on the ground of non-exhaustion of domestic remedies, in accordance with Article 35   §§   1 and 4 of the Convention. 2.     The applicant complains that his former employer transferred him to a less lucrative employment. He relied on Article 4 of the Convention, which provides in so far as relevant: “1.     No one shall be held in slavery or servitude. No one shall be required to perform forced or compulsory labour.” The Court observes that the applicant did not submit any evidence which would allow to conclude that the work he had performed had been exacted from him under the menace of any penalty or that he had not offered himself for this work voluntarily (cf. Van der Mussele v.   Belgium , judgment of 23   November 1983, Series   A no.   70, p.   16, §   32). It follows that the complaint is manifestly ill-founded and must be rejected in accordance with Article   35 §§   3 and   4 of the Convention. For these reasons, the Court unanimously Declares the application inadmissible.   Vincent Berger   Boštjan M. Zupančič   Registrar   President