CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 18 septembre 2008

.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 } .sA36B60A1 { font-family:Arial; font-style:italic } .s967D43C6 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s7EE1C8F0 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sC702907E { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; 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 } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .sBFD8E45 { width:185.97pt; display:inline-block } .sA2E62387 { width:204.97pt; display:inline-block } FIRST SECTION DECISION AS TO THE ADMISSIBILITY OF Application no. 37032/02 by Valeriy Ivanovich ROGOZHIN against Russia The European Court of Human Rights (First Section), sitting on 18   September 2008 as a Chamber composed of:   Christos Rozakis, President,   Nina Vajić,   Anatoly Kovler,   Elisabeth Steiner,   Khanlar Hajiyev,   Giorgio Malinverni,   George Nicolaou, judges, and André Wampach, Section Registrar , Having regard to the above application lodged on 7 September 2002, Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together, 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 Valeriy Ivanovich Rogozhin, is a Russian national who was born in 1946 and lives in Vilnus, Lithuania. The Russian Government (“the Government”) were represented by Ms V. Milinchuk, former Representative of the Russian Federation at the European Court of Human Rights. A.     The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. On 18 April 1992 the applicant was dismissed from work at construction department No. 3 of a joint stock company Yamburggazdobycha ( ООО   “Ямбурггаздобыча” ). Contrary to the requirements of the domestic law the applicant's “work record card” – a history of one's working life used for calculating pensions – was kept by the employer and was not returned to the applicant until 27   March   1998. On 10 May 1992 the applicant brought proceedings against his former employer seeking to be reinstated. However, since none of the parties appeared for the hearing, on 22 December 1992 the Nadym Town Court of the Yamalo-Nenets Autonomous Region left the applicant's claims unexamined. It appears that the applicant did not attempt to appeal against the above decision. Six years later, on 3 April 1998, the applicant brought proceedings against his former employer seeking to have the entry on his work record card as regards the date of his dismissal changed to 27   March 1998 and to recover salary arrears. On 15 April 1998 the Nadym Town Court returned the applicant's writ, because he had failed to sign it. On 3 April 1998 the applicant also brought similar proceedings against his former employer before the Noviy Urengoy Town Court. Eventually, on 22   October 1998 the Noviy Urengoy Town Court refused to examine the applicant's claims as it had no territorial jurisdiction over the matter. The applicant did not appeal against this decision. On 15 May 1999 the applicant returned his writ, duly signed, to the Nadym Town Court. On 17 May 1999 the Nadym Town Court asked the applicant to clarify the name and the location of the defendant. Since the applicant did not do so within the prescribed time-limit, on 26 July 1999 the Nadym Town Court returned the writ to the applicant. Eventually, following a new attempt by the applicant, on 16   October   2000 the Nadym Town Court refused to accept the applicant's writ for lack of territorial jurisdiction over the matter. On 21 December 2000 the applicant submitted his claims concerning the date of his dismissal and the payment of salary arrears to the Noviy Urengoy Town Court. On 23 July 2001 the Noviy Urengoy Town Court dismissed the applicant's claims. On 22 November 2001 the Yamalo-Nenets Autonomous Regional Court quashed the judgment on appeal and remitted the case for fresh examination. Following the fresh examination of the case, on 17 January 2002 the Noviy Urengoy Town Court granted the applicant's claims in part, obliged the defendant to change the date of the applicant's dismissal and to pay certain salary arrears. On 18 March 2002 the Yamalo-Nenets Autonomous Regional Court upheld the judgment with regard to changing the date of the applicant's dismissal, quashed the rest of the judgment and remitted it for fresh examination. On 1 April 2002 the hearing of the applicant's case in the part quashed on appeal by the decision of 18 March 2002 was fixed for 20 May 2002. During the hearing on 20 May 2002 the applicant added to his claims, and the defendant brought a counterclaim. The next hearing was fixed for 31 May 2002. Following the applicant's request, on 31 May 2002 the case was assigned to another judge. On 26 September 2002 the date of dismissal on the applicant's work record card was changed in compliance with the judgment of 17 January 2002, as upheld on 18 March 2002, and the enforcement proceedings in this respect were terminated. On 5 December 2002 the Presidium of the Yamalo-Nenets Autonomous Regional Court quashed the judgment of 17 January 2002 and the appeal decision of 18 March 2002 by way of supervisory review and remitted the matter for fresh examination. On 22 January 2003 the Noviy Urengoy Town Court set the hearing for 3   February 2003. As regards the eleven hearings scheduled between 3 February 2003 and 18   August 2004, they were adjourned either on the applicant's requests or in view of the necessity to examine his petitions (i.e. to clarify the decision of 22   January 2003, to obtain additional evidence, to examine some of the applicant's claims in separate proceedings, to suspend the proceedings, to appoint expert examinations, to involve third parties to the proceedings, etc.). However, the Noviy Urengoy Town Court dismissed those requests and petitions, having concluded that they were aimed at delaying the proceedings. On 18 August 2004 the Noviy Urengoy Town Court dismissed the applicant's claims in full. On 2 December 2004 the Yamalo-Nenets Autonomous Regional Court upheld the judgment on appeal. Although the judgment of 17 January 2002 and the appeal decision of 18   March 2002 were quashed by way of supervisory review, the date of the applicant's dismissal as recorded on his work record card in compliance with the above judgments on 26 September 2002 remained unchanged. B.     Relevant domestic law 1.     The RSFSR Code of Civil Procedure of 1964 Under Article 99 of the Code of Civil Procedure of 1964 in force until 1   February 2003, a case must be prepared for trial seven days after the writ is lodged. If litigants are from the same town or territory, disputes between them relating to labour issues must be examined by a court of first instance within ten days. Otherwise such disputes must be examined within twenty days. Under Article 284-1 of the Code of Civil Procedure of 1964, an appeal court must examine an appeal ten days after it is filed. 2.     The Code of Civil Procedure of the Russian Federation of 2002 Under Article 154 of the Code of Civil Procedure of the Russian Federation of 2002, effective as from 1 February 2003, disputes relating to labour issues must be examined within one month after the writ is lodged. Under Article 348-1 of the Code of Civil Procedure of the Russian Federation of 2002 an appeal court must examine an appeal one month after it is filed. COMPLAINTS 1.     The applicant complained under Article 6 § 1 of the Convention about the interference with his right to access to a court due to the prolonged failure of the domestic court to accept his writ. 2.     He also complained about the overall length of the proceedings, maintaining that his claim as regards the salary arrears had still not been considered by the court. 3.     The applicant further complained under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention about the non-enforcement of the judgment of 17 January 2002 in the part upheld on appeal on 18 March 2002 concerning the date of his dismissal. He maintained that due to this he had been prevented from applying for a bigger pension. THE LAW 1.     The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, 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.     Period to be considered The applicant submitted that the proceedings started as early as 10 May 1992 when he first attempted to lodge his action with the Nadym Town Court and ended on 2 December 2004 when the Yamalo-Nenets Autonomous Regional Court reached its final decision. The Government submitted that the proceedings began on 21 December 2000 when the applicant submitted his claims before the Noviy Urengoy Town Court and ended on 2 December 2004 with the final judgment of the Yamalo-Nenets Autonomous Regional Court. The Court considers that the period to be taken into consideration should be calculated from 21 December 2000 when the applicant lodged his action before the Noviy Urengoy Town Court. The Court further observes that the termination of the proceedings on 2 December 2004 is not disputed by the parties. The proceedings, therefore, lasted three years, eleven months and twelve days. B.     Reasonableness of the length of proceedings The Government submitted that the applicant himself had contributed to the length of the proceedings. In particular, within the period from 3   February 2003 to 2 December 2004 eleven hearings were adjourned following the applicant's requests or petitions. The Government suggested that such behaviour on behalf of the applicant had been directly linked to the introduction of his complaint to the European Court of Human Rights on 7   September 2002 and his attempt to recover compensation for the allegedly excessive length of the proceedings on his case. They relied on the case of Union Alimentaria Sanders S.A. v. Spain (no. 11681/85, § 35, 7 July 1989) in which the Court held that the person concerned is required only to show diligence in carrying out the procedural steps relating to him, to refrain from using delaying tactics and to avail himself of the scope afforded by domestic law for shortening the proceedings. He is under no duty to take action which is not apt for that purpose. The Government acknowledged that the period from December 2001 to January 2003 lay within the responsibility of the domestic authorities. Throughout this period the first-instance court and the court of appeal examined the applicant's case three times. Furthermore, the case was examined as part of the supervisory review procedure. The Government further submitted that no substantial periods of the courts' inactivity, save for the aforementioned period, could be attributable to the domestic authorities: the hearings were scheduled at regular intervals and the parties' requests were examined promptly. As regards the importance of what was at stake for the applicant in the litigation, the Government submitted that, regard being had to the nature of the dispute, the applicant should have had an important personal interest in securing a judicial decision on that matter promptly (see Obermeier v. Austria , judgment of 28 June 1990, Series A no. 179, pp. 23-24, § 72). However, between 1992 when the applicant first attempted to lodge his action against his former employer and 1998 when the applicant renewed his attempts to do so he remained completely inactive. Besides, the lack of interest in the prompt examination of the applicant's case follows from the fact that the applicant concealed from the court his actual place of residence (Lithuania) by indicating that he resided in the town of Novij Urengoy. As a result, the applicant continued to correspond via his son who lived in Novyj Urengoy, which led to frequent delays in terms of correspondence and to the expiration of time-limits. The Government further observed that between 1998 and 2000 when the applicant attempted to bring proceedings against his former employer he failed to comply with the formal requirements set out in the domestic law for lodging an action before a court. The defects pointed out to the applicant by the domestic courts were easily rectifiable. However, it took the applicant from seven months to a year to rectify the defects and resubmit his action. Furthermore, six years of the applicant's inactivity in bringing his claims before the domestic court objectively caused difficulties in determining the identity of the respondent and the court competent to examine the dispute since from 1992 the construction department no. 3 of a joint stock company “Yamburggazdobycha” started to undergo the process of reorganisation. Besides, almost nine years passed between the alleged violations of the applicant's rights until institution of the court proceedings. The above circumstances led the Government to the conclusion that the present case was rather complex. The Government therefore concluded that, regard being had to the above circumstances, the length of proceedings in the applicant's case did not exceed what could be regarded as being a reasonable time within the meaning of Article 6 of the Convention. The applicant maintained his claims. 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 present case did not raise any complex legal or factual issues. However, the Court is ready to accept that the task of the domestic courts was rendered more difficult by the fact that the courts had to deal with issues dating back to 1992. Besides, the proceedings were complicated by the fact that the applicant, who at the material time lived in Lithuania, litigated in the Courts of the Yamalo-Nenets Autonomous Region, about 4500 km from the applicant's new place of residence. The proceedings, therefore, largely relied on the postal exchange between the parties and the court. As regards the conduct of the applicant, the Court notes that the proceedings were adjourned as a result of his actions on eleven occasions between 3 February 2003 and 18 August 2004, which resulted in an overall delay of over one year and six months. As regards the conduct of the judicial authorities, the overall period less the period attributable to the applicant leaves the authorities accountable for approximately two years and five months. During that time the case spanned three levels of jurisdiction, and was examined three times by the first instance court, three times by the court of appeal and once by way of supervisory review. The Court further observes that the first-instance court dealt with the case on each occasion within the limit of one year, which does not appear to be excessive. The time taken for the appeal court's consideration of the case varied from two to four months, which also appears to be reasonable given the overall duration of the proceedings (see Biryukov v. Russia (dec.), no. 63972/00, 9 December 2004). Overall, the Court finds no indication of any serious delays in the proceedings imputable to the judicial authorities, whilst the applicant's conduct clearly made an important contribution to the overall length of proceedings (see Zenevich v. Russia (dec.), no. 4567/02, 6 July 2006, and Kravchuk v. Russia (dec.), no.   72749/01, 1 February 2005). In so far as what was at stake for the applicant, the Court recalls that, in principle, employment-related disputes represent undoubted importance and must, therefore, be dealt with particular expedition (see Obermeier , cited above, pp. 23-24, § 72). However, in the present case the applicant failed to show to what extent the subject of domestic proceedings was important to him. On the contrary, the Court observes that it took the applicant almost nine years to lodge his action with the court and that, once the proceedings were instituted, the applicant did not show particular diligence. Based on the foregoing considerations, the Court concludes that the length of the civil proceedings in the present case does not disclose any appearance of a violation of the “reasonable time” requirement under Article 6 § 1 of the Convention. It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4 of the Convention. 2.     The Court has examined the remainder of the applicant's complaints. However, having regard to all the material in its possession, it finds that these 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 must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention. For these reasons, the Court unanimously Decides to discontinue the application of Article 29 § 3 of the Convention and declares the application inadmissible. André Wampach   Christos Rozakis Deputy Registrar   President