CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 7 juillet 2020

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She was represented before the Court by Ms   J.   Averinska, a lawyer practising in Riga. 2.     The Latvian Government (“the Government”) were represented by their Agent, Ms K. Līce. 3.     On 16 January 2019 notice of the complaint concerning the length of the proceedings under Article 6 § 1 of the Convention was given to the Government, and the remainder of the application was declared inadmissible pursuant to Rule   54   §   3 of the Rules of Court. 4.     The Government objected to the examination of the application by a Committee. Having considered the Government’s objection, the Court accepts it. The circumstances of the case 5.     The facts of the case, as submitted by the parties, may be summarised as follows. 6.     On 18 December 2007 the applicant lodged a claim against private persons before the Riga Regional Court, acting as a first-instance court. She challenged the transfer of her property and requested that her property rights be restored. The proceedings were initiated on 16 January 2008 after the applicant had filed an addendum eliminating deficiencies, and the first court hearing was scheduled for 2 February 2009. 7.     On 11 November 2013 the Riga Regional Court delivered its judgment, dismissing the applicant’s claim. 8.     On 29 November 2013 the applicant lodged an appeal against the judgment of 11 November 2013 and requested to be exempted from payment of the court fees. Her request was subsequently allowed in part, she paid the reduced court fees and on 22 May 2014 the Riga Regional Court sent the case to the Civil Cases Chamber of the Supreme Court. Two and a half years later, on 16 November 2016, the Civil Cases Chamber of the Supreme Court initiated the appeal proceedings; however, as a result of the court reform taking place at that time, under which the competence of the regional courts was changed, on 23 November 2016 the case was sent back to the Riga Regional Court for re-examination, sitting as a court of appeal. 9.     On 28 August 2017 the Riga Regional Court delivered its judgment, dismissing the applicant’s appeal and upholding the judgment of 11   November 2013. 10.     On 25 September 2017 the applicant lodged an appeal on points of law against the judgment of 28 August 2017. On 25 February 2018 the Supreme Court refused to initiate cassation proceedings. Relevant domestic law 11.     Article 92 of the Constitution of Latvia ( Satversme ) provides that everyone has the right to defend his or her rights and lawful interests in a fair court, and that everyone whose rights are violated without justification has the right to commensurate compensation. 12.     Section 1635 of the Civil Law provides that any wrongful act which has caused harm gives the victim the right to claim just satisfaction from the perpetrator, in so far as he or she may be held liable for that act. 13.     Sections 27 1 and 33 of the Law on the Judiciary set out the responsibilities of the president of the court, including actions he or she should take in order to ensure that cases are examined within a reasonable time. COMPLAINT 14.     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. THE LAW Admissibility The parties’ submissions 15 .     The Government argued that the applicant had failed to exhaust domestic remedies. In this regard their argument was twofold. Firstly, they maintained that the applicant should have lodged an application with the president of the Riga Regional Court to expedite the proceedings, relying primarily on section 27 1 and 33 of the Law on the Judiciary . The Government noted that in practice the Riga Regional Court examined each request, and more often than not scheduled the examination of the case earlier. They did not provide any examples in this regard. 16 .     Secondly, the Government stated that the applicant could have lodged a claim with the courts of general jurisdiction on the basis of Article   92 of the Constitution and section 1635 of the Civil Law, seeking compensation for the alleged violation of her right to a trial within a reasonable time. They provided two examples to substantiate their argument and noted that the judgments had been published in a public online database of judgments delivered by the Latvian courts ( https://manas.tiesas.lv/eTiesasMvc/nolemumi ). 17 .     As one of the examples, the Government submitted a judgment of 31   March 2016 of the Civil Cases Department of the Supreme Court (case no.   SKC-28) in which, relying on Article 92 of the Constitution, it had awarded the claimant 2,000 Latvian lati (approximately 2,846 euros) for a breach of the reasonable-time requirement. The claim had been brought against the Ministry of Justice. The Supreme Court found that civil proceedings that had lasted for two and half years at two levels of jurisdiction had been excessively lengthy as they concerned the claimant’s legal capacity, thus requiring a particularly expeditious examination. 18.     Furthermore, the Government submitted a judgment of 21   January 2016 of the Riga City Vidzeme District Court (case no.   C27297814) which also concerned a compensation claim, brought by a local municipality against the Ministry of Justice, in relation to the length of civil proceedings. In that case the court dismissed the local municipality’s claim, finding that a public legal entity was not covered by Article 92 of the Constitution of Latvia, which guaranteed only to private persons the right to a fair trial and commensurate compensation in the event of violations. Thus, the Government were of the view that this example implied that claims concerning the length of civil proceedings were in principle accepted and examined if they were submitted by private persons. 19 .     The applicant argued that the Government’s objection should be dismissed. As regards the Government’s first argument (see paragraph 15 above), she maintained that scheduling hearings was the courts’ exclusive right and that nobody else could influence how they went about their work. As regards the second argument (see paragraph 16 above), she submitted that the judgments cited were not available on the Supreme Court’s website under a dedicated case-law section. Moreover, she referred to another judgment of 5   October 2017 of the Civil Cases Department of the Supreme Court (case no.   SKC-239) and argued that bringing a civil claim against the State under section 1635 of the Civil Law was not possible. 20 .     The case referred to by the applicant concerned a compensation claim, brought by a prisoner against the Ministry of Justice, in relation to the fact that under the domestic legal provision, which had subsequently been declared unconstitutional, he had not been eligible for paid leave while employed by the prison authorities. The Civil Cases Department of the Supreme Court confirmed that Article 92 of the Constitution provided for the right to redress in cases where fundamental rights had been violated, though it did not necessarily require such redress to take the form of a monetary award. In the case in question the court considered that an award in respect of non-pecuniary damage was not warranted on the facts. The Civil Cases Department of the Supreme Court also confirmed its approach, taken in an earlier judgment of 29   December 2014 in the same proceedings and subsequently followed by the appellate court, that section 1635 of the Civil Law was not applicable in cases where claims were brought against the State and concerned public-law relationships. The Court’s assessment (a)    General principles 21.     The Court reiterates that under Article 35 § 1 of the Convention it may only deal with a matter after all domestic remedies have been exhausted. The purpose of the rule on exhaustion of domestic remedies is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court (see Scoppola v. Italy (no. 2) [GC], no. 10249/03, §   68, 17   September 2009, and the case-law cited therein). 22.     However, the obligation under Article 35 § 1 requires only that an applicant should have normal recourse to the remedies likely to be effective, adequate and accessible. In particular, the only remedies which the Convention requires to be exhausted are those that relate to the breaches alleged and are at the same time available and sufficient. To be effective, a remedy must be capable of remedying directly the impugned state of affairs and must offer reasonable prospects of success (see Sejdovic v. Italy [GC], no. 56581/00, §§ 45-46, ECHR 2006 ‑ II). Nevertheless, the existence of mere doubts as to the prospects of success of a particular remedy which is not obviously futile is not a valid reason for failing to use that avenue of redress (see Scoppola , cited above, §   70). In so far as there exists at the national level a remedy enabling the domestic courts to address, at least in substance, the argument of a violation of a given Convention right, it is that remedy which should be used (see Vučković and Others v. Serbia (preliminary objection) [GC], no. 17153/11 and 29 other cases, §   75, 25   March 2014). 23.     With respect to the complaints about the length of proceedings, the characteristics of an effective domestic remedy were set out in Scordino v.   Italy (no. 1) ([GC], no. 36813/97, §§ 182-89, ECHR 2006 ‑ V). The Court noted, in particular, that the best solution indisputably was, as in many spheres, prevention. Where the State had failed in its duty to organise its judicial systems in such a way that its courts were able to meet the obligation to hear cases within a reasonable time, a remedy designed to expedite the proceedings in order to prevent them from becoming excessively lengthy was the most effective solution (ibid., §   183). The Court observes that some States have also adopted remedies that combine the acceleratory and compensatory elements (see Novak v. Croatia (dec.), no.   7877/14, §§ 49-61, 14 June 2016, and Panayi v. Cyprus (dec.), no.   46370/09, 23 September 2010). However, the Court has also accepted that States can choose to introduce a solely compensatory remedy in respect of the undue length of proceedings without that remedy being automatically regarded as ineffective (see Fakhretdinov and Others v. Russia (dec.), no.   26716/09 and 2 others, 23 September 2010; see also Treial v. Estonia (dec.), no.   32897/12, §§   39-45, 28 January 2014). 24.     Lastly, Article 35 § 1 of the Convention provides for a distribution of the burden of proof. It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one, available in theory and in practice at the relevant time. The availability of a remedy said to exist, including its scope and application, must be clearly set out and confirmed or complemented by practice or case-law that dates back to the period before the application was lodged (see Gherghina v. Romania (dec.) [GC], no. 42219/07, § 88, 9 July 2015, and the case-law cited therein). 25.     Once this burden has been satisfied, it falls to the applicant to establish that the remedy advanced by the Government was in fact used, or was for some reason inadequate and ineffective in the particular circumstances of the case, or that there existed special circumstances exempting him or her from this requirement (see Vučković and Others , cited above, § 77, and Gherghina , cited above, § 89). (b)    Application of the above principles in the present case 26.     Turning first to the Government’s argument that the applicant could have applied to the respective court or its president to expedite the proceedings, the Court observes that in Veiss v. Latvia (no.   15152/12, §§   68-70, 28   January 2014) it already dismissed a similar argument, as it was not convinced that an application to accelerate the proceedings on its own would have brought relief to the applicant, and the Government had not submitted any examples from domestic practice attesting to the contrary. 27.     The Court has found that in principle a remedy designed to expedite the proceedings in order to prevent them from becoming excessively lengthy is the most effective solution and such a remedy offers an undeniable advantage over a remedy affording only compensation (see Scordino , cited above, §§ 183-84, and the case-law examples cited therein). However, as also noted by the applicant, sections 27 1 and 33 of the Law on the Judiciary set out the principles and obligations with respect to the organisation of judicial work, and lay down the right of the president of the court to carry out supervisory functions in relation to the length of proceedings. They do not provide for a right to lodge an individual application to expedite proceedings. In any event, it appears that such an application would be a remedy in relation to court’s management and not within court proceedings. It would have no binding effect on the court concerned and there would be no right of appeal. Thus, this remedy on its own cannot be considered effective (compare Lukenda v. Slovenia , no.   23032/02, §§ 63-64, ECHR 2005-X). Moreover, the Government have still not provided the Court with relevant case-law examples to establish the contrary. 28.     As concerns the compensatory remedy suggested by the Government, the Court has previously examined and dismissed a similar argument in Veiss (cited above, § 71) and, more recently, Sļadzevskis v.   Latvia ([Committee], no. 32003/13, § 32, 11 June 2020) on the ground that the domestic case-law examples provided by the Government could not be considered sufficient in themselves to conclude that, in the absence of a specifically introduced remedy, there nevertheless existed a remedy at the relevant time whose scope and application was clearly set out and confirmed or complemented by the domestic courts’ case-law for complaints about the length of civil proceedings. 29.     In particular, in Veiss the Government had failed to submit any examples demonstrating that the compensatory remedy would also cover claims concerning the length of proceedings (see Veiss , cited above, §§ 66 and   71). Subsequently, in Sļadzevskis , they submitted in addition a judgment of 11 April 2013 of the Riga Regional Court (case no.   C27200511) regarding a claim concerning the length of criminal proceedings. That example still did not show the prospects of success of claims concerning the length of civil proceedings and it also did not date back to the period when Mr Sļadzevskis’s case was still pending (see Sļadzevskis , cited above, §§ 30 and 32). Nevertheless, the case-law examples submitted in these cases demonstrated that there was a possibility of bringing a civil claim against the State before courts of general jurisdiction in the event of a breach of a person’s fundamental rights on the basis of Article 92 of the Constitution, including for breaches stemming from the actions of the courts. 30.     The case-law examples submitted in this case, in particular the judgment of 31 March 2016 of the Civil Cases Department of the Supreme Court (see paragraph 17 above), show that the compensatory remedy provided for in Article 92 of the Constitution is applicable to claims concerning the length of civil proceedings as well and that such claims can succeed in practice. In that judgment the claim concerning the length of the civil proceedings was aired at domestic level and duly examined by the domestic courts and it was indeed successful. The judgment was adopted well before the domestic proceedings in the applicant’s case were concluded on 25   February 2018 and, according to the Government, it was made available to the public. Moreover, the assessment of the length of civil proceedings was in line with the principles established by this Court and the level of compensation awarded to the claimant was reasonable in comparison to awards made by the Court in cases against Latvia (see, most recently, Sļadzevskis , cited above, and Kirjaņenko v. Latvia [Committee], no.   39701/11, 19 July 2018). 31.     Therefore, the Court finds that the Government have sufficiently established the effectiveness and availability in theory and in practice of a compensatory remedy for the length of civil proceedings, based on Article   92 of the Constitution. In these circumstances, while the applicant’s objection that section 1635 of the Civil Law is not applicable in public-law disputes against the State is substantiated (see paragraph   19-20 above), this does not change the fact that according to the Supreme Court (see, for example, paragraph 20 above) a remedy based directly on the Constitution is available. 32.     The applicant has not submitted any arguments contesting the effectiveness of this compensatory remedy, which existed before the final decision was given in the civil proceedings in her case. Instead, she argued that the judgment of 31 March 2016 of the Civil Cases Department of the Supreme Court had not been published on the Supreme Court’s web page dedicated to judgments of interest from a case-law perspective (see paragraph 19 above), but never challenged the Government’s argument that it had been published in a public database containing judgments delivered by the Latvian courts (see paragraph 16 above), and thus made publicly available. 33.     As noted above, there already existed a legal framework under Article 92 of the Constitution for bringing claims against the State for breaches of a person’s fundamental rights, including those stemming from the actions of the courts. The judgment of 31 March 2016 of the Civil Cases Department of the Supreme Court clarified that the existing compensatory remedy extended to claims concerning the length of civil proceedings. The applicant has not put forward any other arguments that enable the Court to find that this compensatory remedy would have been ineffective in the particular circumstances of her case or that there existed any special circumstances exempting her from the requirement to use this remedy. Thus, the applicant failed to take appropriate steps to enable the national courts to fulfil their fundamental role in the Convention protection system, that of the European Court being subsidiary to theirs (see Vučković and Others , cited above, § 90). 34.     While the development of the legal framework for bringing claims against the State for the length of civil proceedings was a lengthy process, at the time of the final decision in the applicant’s case on 25 February 2018, there already existed an effective domestic remedy whose scope and application was clearly set out and confirmed by the Supreme Court’s case-law. 35.     Accordingly, the Court upholds the Government’s objection and the applicant’s complaint under Article 6 § 1 must therefore be rejected under Article 35 §§ 1 and 4 for non-exhaustion of domestic remedies. For these reasons, the Court, unanimously, Declares the application inadmissible. Done in English and notified in writing on 10 September 2020.   Victor Soloveytchik   Síofra O’Leary   Deputy Registrar   President