CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 4 mars 2010

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RUSSIA   (Application no. 22721/04)                   JUDGMENT     STRASBOURG   4 March 2010   FINAL   04/06/2010   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Barantseva v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Christos Rozakis, President,   Nina Vajić,   Anatoly Kovler,   Elisabeth Steiner,   Khanlar Hajiyev,   Dean Spielmann,   Sverre Erik Jebens, judges, and Søren Nielsen, Section Registrar , Having deliberated in private on 9 February 2010, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 22721/04) 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, Ms Tatyana Yevdokimovna Barantseva (“the applicant”), on 28 May 2004. 2.     The Russian Government (“the Government”) were initially represented by Ms V. Milinchuk and Mr A. Savenkov, former Representative and former acting Representative respectively of the Russian Federation at the European Court of Human Rights, and subsequently by their Representative, Mr G. Matyushkin. 3.     On 11 March 2008 the President of the First Section decided to communicate the complaint concerning the length of the proceedings to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 3). THE FACTS THE CIRCUMSTANCES OF THE CASE 4.     The applicant was born in 1935 and lives in Krasnogorsk, the Moscow Region. 5.     In May 1995 the applicant signed a contract with a building partnership. Under the terms of the contract the applicant was obliged to pay the company a certain sum, and the company was obliged to provide the applicant with a garage. 6.     Since the company failed to comply with its obligation, on 4   December 1996 the applicant brought court proceedings seeking to oblige the company to provide her with a garage and compensate her for pecuniary and non-pecuniary damage. A.     First examination of the case 7.     On 19 March 1997 the Krasnogorsk Town Court scheduled a hearing for 31 March 1997. 8.     In the period between 31 March 1997 and 29 October 1997 the hearing was adjourned on two occasions because of the absence of the parties, and on two occasions because the judge was sitting in unrelated proceedings. 9.     On 29 October 1997 the applicant's case was joined to twenty-four similar cases initiated by other plaintiffs against the same defendant, and the hearing was adjourned until an unspecified date. 10.     On 4 December 1997 the applicant modified her claims in so far as they concerned the amount of interest and compensation for legal costs to be paid to her by the defendant. 11.     Following a request by the parties, on 9 December 1997 the hearing was adjourned until 14 January 1998. 12.     On 14 January 1998 some of the cases were assigned to be examined separately. The hearing was adjourned until an unspecified date. 13.     On 18 February 1998 the hearing was adjourned until 18 March 1998 because the judge was sitting in unrelated proceedings. 14.     On 18 March 1998 the Krasnogorsk Town Court examined the merits of the applicant's claim and dismissed it. The judgment was given in the applicant's absence, and she learned of it from other plaintiffs on 28   May 1998, that is, after the procedural time-limit for appealing had already expired. 15.     On 8 October 1998 the Moscow Regional Court upheld the judgment of 18 March 1998 in respect of all the plaintiffs except the applicant. 16.     The applicant applied for the restoration of the procedural time-limit for appeal against the judgment of 18 March 1998, and on 15 February 1999 her request was granted. 17.     On 28 April 1999 the Moscow Regional Court quashed the judgment of 18 March 1998 in respect of the applicant because it had been given in her absence. 18.     On 16 June 1999 the Presidium of the Moscow Regional Court quashed the appeal decision of 8 October 1998 by way of supervisory review and remitted the case for fresh examination. 19.     On 2 August 1999 the case in respect of all the plaintiffs, including the applicant, was submitted to the Krasnogorsk Town Court. B.     Second examination of the case 20.     On 5 October 1999 the hearing was adjourned until an unspecified date because the applicant had failed to appear. 21.     On 15 November 1999 the proceedings were suspended until an unspecified date because the defendant's representative was ill. 22.     Following a complaint by the applicant, on 10 April 2000 the proceedings were resumed, and a hearing was scheduled for 5 May 2000. 23.     On 5 May 2000 the Krasnogorsk Town Court again dismissed the applicant's claims. On 4 June 2000 the Moscow Regional Court upheld the judgment on appeal. 24.     Following a request filed by the Deputy President of the Supreme Court of Russia on behalf of the applicant and other plaintiffs, on 25 July 2001 the Presidium of the Moscow Regional Court quashed the judgment of 5   May 2000, as upheld on 4 June 2000, by way of supervisory review, and remitted the case for fresh examination. 25.     The case file was remitted to the Krasnogorskiy Town Court on 9   August 2001. C.     Third examination of the case 26.     During the period between 23 April and 30 September 2002 hearings were adjourned on four occasions owing to the defendant's failure to appear before the court. 27.     On 30 September 2002 a hearing was adjourned until 24 October 2002, on the court's initiative, in view of the necessity to obtain certain documents. 28.     On 24 October 2002 the hearing was adjourned until 22 November 2002, on the request of the defendant, for friendly-settlement negotiations. 29.     On 19 November 2002 the applicant asked the court to attach the defendant's property as a security measure. 30.     Following a request by the applicant, on 22 November 2002 the applicant's case was disjoined from the cases lodged by the other plaintiffs. The hearing was adjourned until 27 March 2003. 31.     On 27 March 2003 the applicant amended her claims. The hearing was adjourned until 3 June 2003 because of the necessity to obtain certain documents and because of a further amendment to the applicant's claims. 32.     In the period between 3 June and 21 October 2003, and between 21   December 2003 and 15 March 2004 hearings were adjourned on four occasions because the defendant had failed to appear before the court. 33.     On 20 August 2004 the Krasnogorsk Town Court refused to entertain the applicant's action in view of her failure to appear at the hearings of 23 July and 20 August 2004. 34.     Following an appeal by the applicant, on 26 April 2005 the Krasnogorsk Town Court quashed its decision of 20 August 2004, because there was no information in the case file recording that the applicant had been notified of the hearings of 23 July and 20 August 2004. The next hearing was set for 27 May 2005. 35.     On 27 May 2005 the hearing was adjourned until 8 July 2005 because the judge was sitting in unrelated proceedings. 36.     On 8 July 2005 the applicant challenged the judge, without success. The hearing was adjourned until an unspecified date. 37.     On 5 August 2005 the case was assigned to a different judge and a hearing was fixed for 25 October 2005. 38.     On 6 December 2005 the applicant amended her claims in so far as they concerned the amount to be paid to her in interest and in respect of non-pecuniary damage by the defendant. 39.     In the period between 7 December 2005 and 26 January 2006 hearings were adjourned on two occasions because the defendant had failed to appear. 40.     On 26 January 2006 the applicant waived some of her claims. The hearing was adjourned until 6 February 2006. 41.     On 6 February 2006 the Krasnogorsk Town Court partly granted the applicant's claims. The applicant appealed. 42.     The appeal hearing was scheduled for 18 July 2006. 43.     On 18 July 2006 the appeal hearing was adjourned until 14   August 2006 since both parties had failed to appear and the case file contained no proof that they had been properly notified of it. 44.     On 14 August 2006 the Moscow Regional Court upheld the judgment on appeal. THE LAW I.     ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF THE LENGTH OF THE PROCEEDINGS 45.     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.     Admissibility 46.     The Court observes that the applicant introduced her claim on 4   December 1996; however, it only has competence ratione temporis to examine the period after 5 May 1998, when the Convention entered into force in respect of Russia. 47.     The Court further observes that only those periods when the case was actually pending before the courts should be taken into account, that is, the periods when there was no judgment in the determination of the merits of the applicant's dispute and when the authorities were under an obligation to give such a judgment. The periods during which the domestic courts were deciding whether or not to reopen the case should, however, be excluded since Article 6 does not apply to such proceedings (see Ignatyeva v. Russia , no. 10277/05, § 34, 3 April 2008, and Skorobogatova v. Russia , no.   33914/02, § 39, 1 December 2005, with further references). 48.     It follows that after 5 May 1998 the proceedings remained pending during two periods. The first period commenced on 5 May 1998 and ended on 4 June 2000 when the judgment of 5 May 2000 was upheld on appeal. The second period commenced on 25 July 2001 with the supervisory-review decision and ended on 14 August 2006 when the judgment of 6 February 2006 was upheld on appeal. Therefore, in the post-ratification period the proceedings lasted for approximately seven years and two months. During this period the case was determined by ordinary courts at two levels of jurisdiction. 49.     The Court notes that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.     Merits 1.     Submissions by the parties 50.     The Government submitted that the case was rather complex in nature. It had been further complicated by its initial merger with similar cases lodged by other plaintiffs and the necessity to rule on the attachment of the defendant's property. The applicant herself had contributed to the length of the proceedings by failing to appear before the court, amending her claims, and challenging the judge. In addition, she had never protested about the adjournments caused by the defendant's absence. As regards the conduct of the domestic authorities, the Government submitted that the length of the proceedings was justified by the involvement of several instances in the examination of the case. Otherwise, hearings had been scheduled at regular intervals and the parties' requests examined promptly. The delays caused by adjournments of hearings on the initiative of the court had been negligible. Having regard to the foregoing, the Government concluded that the requirement of reasonableness of the length of the proceedings enshrined in Article 6 § 1 of the Convention had been complied with by the domestic authorities. 51.     The applicant submitted that the case was not particularly complex. The domestic authorities themselves had complicated the proceedings by joining the applicant's case to numerous other cases against the same defendant. The applicant had made attempts to have her case separated from the other cases as early as February 2000; however, the domestic court had agreed to do so only after her repeated request to that effect lodged in November 2002. The case had not required any intricate procedural actions or the appointment of experts. The domestic court's task had been limited to the application of the domestic law. The domestic courts had constantly breached the provisions of the domestic law by calling for the re-examination of the case on so many occasions. The applicant had never failed to appear, save for the occasions when she had not been duly apprised of the hearings. The amendment of the applicant's claims over the period when the proceedings were pending had been made necessary by inflation. 2.     The Court's assessment 52.     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). 53.     The Court considers that the case was not particularly complex, despite the involvement of several parties and their claims; there was no complex background to the case; all the claims were homogeneous and straightforward; the domestic court's task consisted of applying the provisions of the domestic law. Moreover, on all three occasions the first- instance court decided on the case at a single hearing. 54.     As to the applicant's conduct, the Court notes the Government's argument that the applicant contributed to the delay in the proceedings by failing to attend, amending her claims, challenging the judge, and not raising objections to the adjournments of the hearings due to the defendant's absence. 55.     The Court observes that the applicant was absent from the hearing of 5   October 1999. The resulting delay amounted to one month and ten days, which is negligible in view of the overall length of the proceedings. The Court further notes that the applicant did not attend the hearings scheduled for 23 July and 20 August 2004, and 18 July 2006. However, as can be seen from the material in the case file, the applicant's attendance on the above dates was made impossible by the domestic court's failure to notify her. 56.     The adjustment by the applicant of her pecuniary claims cannot, in the Court's view, be considered vexatious or an abuse of process, regard being had to the overall duration of the proceedings and the concomitant inflation processes in the period between the lodging of the applicant's initial claims in 1996 and their final examination in 2006. 57.     The Court further considers that the applicant cannot be criticised for challenging the judge on one occasion. In this connection, the Court reiterates that an applicant cannot be blamed for taking full advantage of the resources afforded by national law in the defence of her interests (see Kurbatov v. Russia , no. 44436/06, § 29, 2 October 2008; Angelova v. Russia , no. 33820/04, § 44, 13 December 2007; and Sokolov v. Russia , no.   3734/02, § 38, 22 September 2005). 58 .     In so far as the applicant did not object to the adjournments of the hearings resulting from the failure of the defendant to appear, the Court observes that it was not for the applicant, but for the domestic authorities to discipline the participants in the proceedings and to ensure that the case was heard within a reasonable time (see Kurbatov , cited above, § 30, and Sokolov , cited above, § 40). 59.     Turning to the conduct of the domestic authorities, the Court notes that it led to some substantial delays in the proceedings. In particular, on several occasions rather substantial delays were caused by failures to apprise the applicant (or both parties) of the hearings. Thus, the failure to notify the applicant of the hearing of 18 March 1998 and to inform her of the relevant judgment before the expiration of the procedural time-limit for appealing resulted in inordinate delays in the appeal proceedings totalling almost one year. The failure to apprise the applicant of the hearings of 23   July and 20 August 2004 delayed the proceedings by nine months. The failure to apprise the parties of the appeal hearing of 18 July 2006 delayed the proceedings by another month. 60.     The Court further notes that a delay amounting to approximately one year and eight months was caused by the adjournments of the hearings from 15   November 1999 to 5 May 2000, from 23 April to 30 September 2002, from 3 June to 21 October 2003, from 21 December 2003 to 15 March 2004 and from 7 December 2005 to 26 January 2006, which were due to the absence of the defendant and for which the domestic authorities should be held responsible (see paragraph 58 above). 61.     Furthermore, it appears that after the quashing on 25 July 2001, by way of supervisory review, of the judgment of 5 May 2000, as upheld on 4   June 2000, no hearings in the case were scheduled until 23 April 2002, which resulted in another delay of almost nine months. 62.     It follows that the total delay imputable to the domestic authorities amounted to at least four years and three months. 63.     The Court is mindful of the Government's argument that on several occasions the case involved several instances. Nevertheless, this alone cannot justify the overall length of the proceedings (see Yerkimbayev v. Russia , no. 34104/04, § 41, 23 October 2008, and Angelova , cited above, §   46). 64.     Although the Court is not in a position to analyse the juridical quality of the domestic courts' decisions, it considers that, since the remittal of cases for re-examination is frequently ordered as a result of errors committed by lower courts, the repetition of such orders within one set of proceedings may disclose a serious deficiency in the judicial system (see Wierciszewska v. Poland , no. 41431/98, § 46, 25 November 2003; Matica v. Romania , no. 19567/02, § 24, 2 November 2006; Falimonov v. Russia , no.   11549/02, § 58, 25 March 2008; and Oblov v. Russia , no. 22674/02, §   28, 15 January 2009). 65.     Having regard to the foregoing, to the fact that the case was not complex and that the proceedings within the Court's competence ratione temporis lasted seven years and two months, the Court considers that the length of the proceedings did not satisfy the “reasonable time” requirement. There has accordingly been a breach of Article 6 § 1 of the Convention. II.     ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF UNFAIRNESS OF THE PROCEEDINGS 66.     The applicant further complained that by granting her claims only partly the domestic courts had misapplied the provisions of the domestic law. 67.     The Court reiterates that, in accordance with Article 19 of the Convention, its duty is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention. In particular, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention (see, among other authorities, Čekić and Others v. Croatia (dec.), no. 15085/02, 9 October 2003). 68.     Turning to the facts of the present case, the Court finds that there is nothing to indicate that the domestic courts' evaluation of the facts and evidence presented in the applicant's case was contrary to Article 6 of the Convention. The applicant was provided with ample opportunity to present her arguments and to challenge the submissions of the opposing party in the proceedings, and the judicial authorities gave her arguments due consideration. In the light of the foregoing consideration, the Court finds that the reasons on which the national courts based their conclusions are sufficient to exclude any concern that the way in which they established and assessed the evidence in the applicant's case was unfair or arbitrary. 69.     It follows that this complaint must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention. III.     APPLICATION OF ARTICLE 41 OF THE CONVENTION 70.     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 71.     The applicant claimed 2,000 euros (EUR) in respect of pecuniary damage and EUR 30,400 in respect of non-pecuniary damage. 72.     The Government considered that no award should be made in respect of pecuniary damage in the absence of a causal link between the damage alleged by the applicant and the alleged violation. As regards non-pecuniary damage, the Government considered the applicant's claim excessive and unreasonable. They further suggested that a finding of a violation would in itself constitute sufficient just satisfaction. 73.     The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, the Court accepts that the applicant suffered distress and frustration because of the unreasonable length of the proceedings. Making its assessment on an equitable basis, the Court awards the applicant EUR   3,600 in respect of non-pecuniary damage, plus any tax that may be chargeable to the applicant on that amount. B.     Costs and expenses 74.     The applicant also claimed EUR 380 for the costs and expenses incurred before the Court. 75.     The Government submitted that no compensation for costs and expenses should be paid to the applicant. 76.     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 considers it reasonable to award the sum of EUR 380 under this head, plus any tax that may be chargeable to the applicant on the above amount. C.     Default interest 77.     The Court considers it appropriate that the default interest 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 complaint concerning the excessive length of the proceedings admissible and the remainder of the application inadmissible;   2.     Holds that there has been a violation of Article 6 § 1 of the Convention;   3.     Holds (a)     that the respondent State is to pay the applicant, within three months of the date on which the judgment becomes final in accordance with Article   44 § 2 of the Convention, EUR 3,600 (three thousand six hundred euros) in respect of non-pecuniary damage and EUR 380 (three hundred and eighty euros) in respect of costs and expenses, to be converted into Russian roubles at the rate applicable on the date of settlement, plus any tax that may be chargeable to the applicant on the above amounts; (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;   4.     Dismisses the remainder of the applicant's claim for just satisfaction. Done in English, and notified in writing on 4 March 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Søren Nielsen   Christos Rozakis   Registrar   President