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FIRST
SECTION
CASE OF ZAYTSEVA v. RUSSIA
(Application
no. 11583/05)
JUDGMENT
STRASBOURG
26 November
2009
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Zaytseva 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 5 November 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 11583/05) 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 Zoya Mikhaylovna
Zaytseva (“the applicant”), on 8 February 2005.
- The
applicant was represented by Mr I. Telyatyev, a lawyer
practising in Arkhangelsk. The Russian Government (“the
Government”) were initially represented by Ms V.
Milinchuk, former Representative of the Russian Federation at the
European Court of Human Rights, and subsequently by Mr A. Savenkov,
First Deputy Minister of Justice of the Russian Federation.
- The
applicant alleged, in particular, that she had not been apprised of
the appeal hearing before the Arkhangelsk Regional Court and the
appeal was considered in her absence.
- On
30 November 2007 the President of the First Section decided to
give notice of the application to the Government. It was also decided
to examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1939 and lives in Arkhangelsk.
- In
1975 the applicant was injured in a work-related accident. In 2004
she sued the Arkhangelsk Regional Health Department for disability
benefits alleging that her current disability had resulted from that
incident.
- On
15 December 2004 the Oktyabrskiy District Court of Arkhangelsk
rejected the applicant’s claims. The District Court examined,
among other evidence, a decision by the Medical and Labour Expert
Examination Service of the Arkhangelsk Region, which indicated that
the applicant’s disability had been caused by the injury she
sustained in 1975.
- The
applicant lodged an appeal with the Arkhangelsk Regional Court. The
appeal hearing was scheduled for 17 January 2005. According to the
Government, the District Court dispatched summonses to the parties,
including the applicant and her representative, informing them of the
date and time of the appeal hearing. According to the applicant, she
did not receive the summons.
- On
17 January 2005 the Arkhangelsk Regional Court examined the appeal
and rejected it. The applicant and the representative of the Health
Department were absent but the prosecutor intervened in the
proceedings on behalf of the Health Department and addressed the
court. The Regional Court did not examine the question whether the
applicant or her representative had been duly summonsed and, if they
had not, whether the examination of the appeal should have been
adjourned.
II. RELEVANT DOMESTIC LAW
- The
Code of Civil Procedure (in force as of 1 February 2003)
provides that parties to the proceedings are to be summonsed to a
court by registered mail with a confirmation of receipt, by a phone
call or a telegram, by fax or by any other means which will secure
delivery of the summons to the addressee. Summonses must be served on
the parties in such a way that they have enough time to prepare their
case and appear at the hearing (Article 113).
- Summonses
are to be sent by mail or by a court courier. The time when a summons
is served on the addressee is to be recorded on a document which must
be returned to the court by courier or by any other method used by
the postal service. A judge may request a party to the proceedings to
transmit a summons to another party. In that case, that person should
bring to the court an acknowledgment of receipt (Article 115).
- A
summons is to be served on a person against his or her signature, on
its copy, which is to be returned to the court (Article 116).
- A
civil case is to be heard in a court session with mandatory
notification of all parties of the place and time of the court
session (Article 155).
- If
a party to the case fails to appear at the hearing and there is no
evidence that the party has been duly summonsed, the hearing is to be
adjourned (Article 167).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicant complained that she had not been afforded an opportunity to
attend the appeal hearing in breach of Article 6 § 1
of the Convention, which reads, in so far as relevant, 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
- The
Government argued that the applicant had failed to exhaust the
domestic remedies available to her. She did not apply for a
supervisory review of the judgment of 17 January 2005 rendered
in her absence.
- In this connection, the Court reiterates that an
application for supervisory review is not a remedy to be used for the
purposes of Article 35 § 1 of the Convention (see
Denisov v. Russia (dec.), no. 33408/03, 6
May 2004). Therefore, the Government’s objection as to the
non-exhaustion of domestic remedies must be dismissed.
- The
Court notes that this 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
- The
Government claimed that the applicant, like all the parties to the
proceedings, had been duly notified of the date and time of the
appeal hearing. In support of their submissions, they provided the
Court with a copy of the summons dated 29 December 2004 and
addressed, inter alia, to the applicant and her
representative. The Government further reasoned that the failure of
the applicant and her representative to appear in court had not
precluded consideration of the matter by the appeal court. The
applicant’s case had not been complex and the appeal court had
duly considered the case on the basis of the materials in the case
file and the applicant’s written submissions. The Government
concluded, accordingly, that the fact that the appeal hearing in the
instant case had been held in the absence of the applicant and her
representative, who had been duly notified of its date and time, did
not disclose a violation of Article 6 § 1 of the
Convention.
- The
applicant maintained her claims.
- The
Court accepts the Government’s assertion that the summons had
been dispatched by the domestic judicial authorities. However, the
Government did not present any evidence, such as an acknowledgement
of receipt or an envelope with a postmark, showing that it had
reached the applicant or her representative, and that it had done so
in good time. Having regard to the provisions of Russian law on the
service of court summons (see “Relevant domestic law”
above), the Court considers that the Government should have been in
possession of such evidence. The failure on the Government’s
part to submit it without a satisfactory explanation gives rise to
the drawing of inferences as to the ill-foundedness of their
allegations. In such circumstances, the Court accepts the applicant’s
argument that the domestic authorities had failed to notify the
applicant of the appeal hearing in such a way as to provide her with
an opportunity to attend it and present her case effectively.
- The
Court reiterates that it has frequently found a violation of
Article 6 § 1 of the Convention in cases raising issues
similar to the one in the present case (see, among other authorities,
Yakovlev v. Russia, no. 72701/01, §§ 19 et
seq., 15 March 2005; Groshev v. Russia, no. 69889/01,
§§ 27 et seq., 20 October 2005; Mokrushina v. Russia,
no. 23377/02, §§ 20 et seq., 5 October 2006; and
Prokopenko v. Russia, no. 8630/03, §§ 17 et
seq., 3 May 2007)
- Having
examined the materials in its possession, the Court notes that the
Government have not put forward any fact or argument capable of
persuading it to reach a different conclusion in the present case.
The Court has established that owing to the missing notification the
applicant was deprived of the opportunity to attend the appeal
hearing. The Court also notes that there is nothing in the text of
the appeal judgment to suggest that the Regional Court examined the
question whether the applicant or her representative had been duly
summonsed and, if they had not, whether the examination of the appeal
should have been adjourned.
- It
follows that there has been a violation of the applicant’s
right to a fair hearing enshrined in Article 6 § 1 of the
Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- Lastly,
the applicant complained under Article 1 of
Protocol No. 1 of a violation of her right to disability benefits.
She further complained under Articles 6 and 14 of the
Convention that she had been placed at a disadvantage, because she
had been obliged to obtain a decision by the Medical and Labour
Expert Examination Service of the Arkhangelsk Region in order to
prove her entitlement to disability benefits, while the Health
Department had not been obliged to reverse this decision in order to
dispute her entitlement.
- Having
regard to all the material in its possession, and in so far as these
complaints fall within its competence ratione materiae, the
Court finds that they 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
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- 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
- The
applicant claimed 7,700 euros (EUR) in respect of pecuniary damage,
which represented a monetary compensation for her disability
allegedly resulting from a job-related injury, and EUR 10,000 in
respect of non-pecuniary damage.
- The
Government considered the applicant’s claims excessive and
unreasonable. They further submitted that the applicant had failed to
substantiate her claims and that there was no causal link between the
damage claimed and the subject matter of the case. Lastly, they
opined that the finding of a violation would constitute sufficient
just satisfaction.
- 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 considers that the applicant suffered
non-pecuniary damage which would not be adequately compensated by the
finding of a violation alone. However, the amount claimed by the
applicant appears to be excessive. Making its assessment on an
equitable basis, the Court awards the applicant EUR 1,000 in
respect of non-pecuniary damage, plus any tax that may be chargeable
on that amount.
B. Costs and expenses
- The
applicant also claimed EUR 800 for costs and expenses incurred
before the Court. She provided the Court with a statement from her
representative confirming that a payment of 30,000 Russian
roubles had been made by the applicant to him.
- The
Government considered her claims unsubstantiated.
- 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 information in its possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 800 for the
costs and expenses incurred by the applicant in the proceedings
before the Court.
C. Default interest
- 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
- Declares the complaint concerning the domestic
authorities’ failure to apprise the applicant of the appeal
hearing admissible and the remainder of the application inadmissible;
- Holds that there has been a violation of Article
6 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following
amounts, to be converted into Russian roubles at the rate applicable
at the date of settlement:
(i) EUR
1,000 (one thousand euros) in respect of non-pecuniary damage, plus
any tax that may be chargeable;
(ii) EUR 800
(eight hundred euros) in respect of costs and expenses, plus any tax
that may be chargeable to the applicant;
(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;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 26 November 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
