CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 11 mars 2010

.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 } .sEB98FB19 { margin-top:0pt; margin-left:14.2pt; margin-bottom:0pt } .s1AE6489F { width:14.15pt; 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 } .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 } .sE2AD579 { margin-top:18pt; margin-left:29pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:0.6pt; font-family:Arial; font-weight:bold } .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 } .sBCC81419 { width:207.31pt; display:inline-block } .sA2E62387 { width:204.97pt; display:inline-block } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .s71833996 { width:42.55pt; display:inline-block } FIRST SECTION DECISION AS TO THE ADMISSIBILITY OF Application no. 5727/04 by Tamara Viktorovna DANILINA against Russia The European Court of Human Rights (First Section), sitting on 11   March 2010 as a Chamber composed of:   Christos Rozakis, President,   Anatoly Kovler,   Elisabeth Steiner,   Dean Spielmann,   Sverre Erik Jebens,   Giorgio Malinverni,   George Nicolaou, judges, and André Wampach, Deputy Section Registrar, Having regard to the above application lodged on 20 December 2003, Having regard to the Court’s decision to examine jointly the admissibility and merits of the case (Article 29 § 3 of the Convention), 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, Ms Tamara Viktorovna Danilina, is a Russian national who was born in 1959 and lives in Samara. She was represented by Ms   L.   Churkina, a lawyer practising in Yekaterinburg. The Russian Government (“the Government”) were represented by Mrs V. Milinchuk, former 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. A.     Employment dispute On 22 April 1999 the applicant lodged an action with the Krasnoglinskiy District Court of Samara against her former employer, a municipal company, seeking reinstatement, the annulment of certain orders, the payment of arrears of salary, and compensation for non-pecuniary damage. On 5 May 1999 the District Court accepted the case for an examination on the merits and stayed the proceedings pending the outcome of a criminal case against the company’s director. The proceedings were resumed on 21   July 1999 and a hearing was scheduled for 23 August 1999. The applicant did not attend the hearing on 23 August 1999 and the proceedings were then stayed until 12 November 1999 because the judge was on leave. The applicant submitted that she had not been notified of the hearing fixed for 23 August 1999. The hearing listed for 12   November 1999 was re-scheduled at the applicant’s request because she was ill. On 26 November 1999 the applicant asked the District Court to resume the proceedings. A hearing was scheduled for 8 December 1999. However, that hearing was adjourned because the applicant was ill. On 25   January 2000, following notification by the applicant that she was fit to participate, the District Court fixed a hearing for 4   February 2000. That hearing was not held as the applicant had requested an adjournment, claiming that she was ill. The next hearing was to take place on 24 February 2000. Of three hearings listed between 24 February and 20 April 2000, two were postponed because a prosecutor failed to attend, and one was adjourned to allow the defendant to submit additional evidence. On 20 April 2000 the applicant successfully requested the District Court to stay the proceedings as she was ill. The proceedings were resumed on 3   July 2000 following notification by the applicant that she was able to take part in them. A hearing was scheduled for 19 July 2000. The applicant failed to appear and another hearing was scheduled for 5   September 2000. According to the applicant, she had not been notified of the hearing fixed for 19 July 2000. Between 5 September 2000 and 14 June 2001 the District Court stayed the proceedings three times, at the applicant’s request. She claimed she was not able to participate because she or her child was ill. In addition, two hearings were postponed to provide the applicant with an opportunity to retain counsel and to enable the defendant to submit additional evidence. According to the Government, the hearing fixed for 14 June 2001, to which the applicant had been duly summoned, was re-scheduled for 13 July because she did not attend. The applicant submitted that she had not been summoned to the hearing. No hearings were held between 13 July and 20 August 2001 because the presiding judge was ill. On 6 September 2001 the District Court disallowed the applicant’s action because she had failed to attend the hearings on 20 August and 6   September 2001 and had not asked for the case to be examined in her absence. The applicant asked the District Court to quash the decision of 6   September 2001, arguing that owing to her illness she had not been able to attend the hearings on 20 August and 6 September 2001, to which she, in any case, had not been summoned, and that she had not been served with a copy of the decision of 6 September 2001 in due time. The proceedings were resumed on 4 March 2002 and the hearing was fixed for 21 March 2002. Between 21 March and 2 September 2002 the District Court twice stayed the proceedings, acting at the applicant’s request. The latter argued that her poor state of health prevented her from attending. In the meantime, the District Court had sent a letter to the hospital treating the applicant, asking it to provide information about her health. On 19 August 2002 the District Court received a reply stating that the applicant’s illness did not impair her ability to participate effectively in the proceedings. On 2 September 2002 the District Court held a hearing. The applicant attended, but once again asked for an adjournment, alleging that she was not fit enough to participate effectively. The District Court granted her request and stayed the proceedings. On 17 September 2002 the applicant asked the District Court to resume the proceedings. The next hearing could not be held until 16 December 2002 because the presiding judge was on leave. Of six hearings scheduled between 16 December 2002 and 17 April 2003, three were adjourned at the defendant’s request to allow for the provision of additional evidence and pending the outcome of related appeal proceedings before another court, and two were postponed because the applicant was unfit to participate. On 17 April 2003 the District Court dismissed the applicant’s action. The applicant appealed. According to the applicant, she had been in hospital and had telephoned the Registry of the Samara Regional Court to find out the date of the appeal hearing. She was informed that the appeal hearing had been scheduled for 23 June 2003. The applicant stated that she had sent a letter to the Regional Court asking for an adjournment of the proceedings because she had been ill. The letter reached the Regional Court on 24 June 2003. The Government, relying on copies of the Regional Court’s summonses and minutes, submitted that the applicant had been informed on 26 May 2003 that an appeal hearing had been scheduled for 2 June 2003. Following the applicant’s failure to attend that hearing, the Regional Court listed a hearing for 23 June 2003 and sent a letter to the applicant informing her of the date and time. On 23 June 2003 the Samara Regional Court, in the applicant’s absence, upheld the judgment of 17 April 2003. On the following day the Regional Court received a request by the applicant for an adjournment of the hearing because she had been admitted to hospital. The Government provided the Court with a copy of the applicant’s letter showing that it had reached the Regional Court on 24 June 2003. B.     Housing dispute In 2006 the applicant instituted legal proceedings against the housing maintenance authorities and her neighbours, seeking the removal of a metal door installed in an apartment block in which she was renting a flat. On 26   June 2006 the Samara Regional Court, at last instance, dismissed her claim. COMPLAINTS 1.     The applicant complained under Article 6 of the Convention that the proceedings in the employment dispute had been excessively long. 2.     The applicant further complained under Article 13 of the Convention that she had had no effective remedy for her complaints of a violation of the “reasonable time” requirement in the employment dispute proceedings. 3. Finally, the applicant argued under Articles 4, 6 and 13 of the Convention that the domestic courts in both sets of proceedings had misinterpreted her claims, had incorrectly assessed the facts and applied the law, and had committed various procedural violations. In addition, she complained that she had not been reinstated and thus she had been forced to accept undesirable work. THE LAW 1.     The applicant complained that the length of the proceedings in the employment dispute 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 ...” Submissions by the parties The Government submitted that the length of the proceedings, which had been pending for a little over four years, had not exceeded the “reasonable time” requirement. The applicant had caused the majority of the delays, by requesting adjournments, not allowing the District Court to examine the case in her absence, and failing to appear at hearings for unknown reasons. The only delays which could be attributed to the State had resulted from the judge being on annual leave or ill. However, the resulting total delay of approximately four months was negligible. The applicant admitted that certain delays in the proceedings had been caused by her inability to attend the hearings. At the same time, despite her poor state of health, she had tried to take part in the proceedings whenever possible. The applicant was of the opinion that her personal participation in the proceedings was the sole guarantee of the best defence of her interests. Furthermore, her illness did not relieve the State of its responsibility to ensure that her employment action was examined expeditiously. According to the applicant, the domestic courts had deliberately violated her right to “trial within reasonable time” by failing to properly summon her to the hearings, and postponing hearings at the defendant’s request. In addition, some delays had resulted from the prosecutor’s failure to attend or the judge’s being on leave. B.     The Court’s assessment The Court observes that the period to be taken into consideration began on 22 April 1999, when the applicant lodged the action with the Krasnoglinskiy District Court, and ended on 23 June 2003 with the final judgment of the Samara Regional Court. It thus lasted four years and two months before courts of two levels of jurisdiction. 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). Turning to the facts of the present case, the Court finds that the proceedings at issue were of some complexity as they required an assessment of the complex factual background to the case and the studying of the applicant’s former employer’s staff regulations. 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). Moreover, the Court reiterates that special diligence is necessary in employment disputes (see Ruotolo v. Italy , 27 February 1992, § 17, Series A no. 230-D). In so far as the behaviour of the applicant is concerned, the Court notes that at least ten stays in the proceedings were granted at her request. Thus, a delay of approximately nineteen months is attributable to the applicant. In addition, as can be seen from the list of hearings submitted by the Government, at least three hearings were adjourned owing to the applicant’s failure to attend, for unknown reasons. The applicant, however, argued that she had not been properly summoned to those hearings. The Court considers it unnecessary to resolve the difference of opinion, as the resulting delay was, in any event, negligible. However, turning back to the lengthy stays of the proceedings, the Court observes that it was the applicant who requested the adjournments, citing her inability to participate because of her poor state of health. Moreover, she did not appoint a representative and did not authorise the District Court to proceed with the examination of the case in her absence. The Court is of the view that although the applicant’s efforts to ensure the best representation of her interests in the proceedings through her participation in person are understandable, the manner in which she exercised her procedural rights undoubtedly contributed to prolonging the proceedings for more than a year and a half (see Antonov v. Russia (dec.), no. 38020/03, 3   November 2005, and, 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 delays amounting to approximately two years and seven months. In this respect the Court reiterates 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 inactivity on the part of the courts, save for the periods when the presiding judge was ill or on annual leave. The Court does not consider those periods to be unreasonably lengthy. Apart from the periods discussed above, the hearings were scheduled at regular intervals and the parties’ requests were examined at the same or at the following hearing. The Court also notes that courts at two levels of jurisdiction were involved in the applicant’s case. The domestic courts examined the merits of the case and did not idle (see Kravchuk v. Russia (dec.), no. 72749/01, 1   February 2005, and Pronina v. Russia (dec.), no. 65167/01, 30 June 2005). Regard being had to the circumstances of the case, the complexity of the facts and legal issues involved, and 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. 2.     The applicant also complained that she did not have an effective domestic remedy for her Convention complaint pertaining to the excessive length of the employment proceedings, in breach of Article 13 of the Convention, which provides as follows: “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.” Submissions by the parties The Government argued that the applicant’s complaint was manifestly ill-founded, being linked to the manifestly ill-founded complaint under Article 6 of the Convention. In any event, it had been open to the applicant to appeal against the judgment of 17 April 2003 to the Regional Court and she had effectively explored that avenue. In addition, she could have instituted supervisory-review proceedings before the Supreme Court of the Russian Federation. The applicant maintained her complaints. B.     The Court’s assessment The Court reiterates that a complaint may only be made under Article 13 in connection with a substantive claim which is “ arguable” (see, for example, Hatton and Others v. the United Kingdom [GC], no. 36022/97, §   137, ECHR 2003 ‑ VIII, with further references, and Ashworth and Others v. the United Kingdom (dec.), no. 39561/98, 20   January   2004). The Court has found that the complaint under Article 6 of the Convention concerning the length of the employment proceedings is manifestly ill-founded and therefore inadmissible. It accordingly finds that that claim cannot be said to be “arguable” within the meaning of the Convention case-law. It follows that the corresponding complaint under Article 13 is also manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, and that it must be rejected pursuant to Article 35 § 4. 3.       Lastly, the applicant raised a number of complaints relating to both sets of proceedings and their unfavourable outcome. Having regard to all the material in its possession, the Court finds that the evidence discloses no 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 Declares the application inadmissible. André Wampach   Christos Rozakis Deputy Registrar   President