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FIRST
SECTION
CASE
OF ZAYTSEV AND OTHERS v. RUSSIA
(Application
no. 42046/06)
JUDGMENT
STRASBOURG
25
June 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 Zaytsev and Others v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis, President,
Nina
Vajić,
Anatoly Kovler,
Dean
Spielmann,
Sverre Erik Jebens,
Giorgio
Malinverni,
George Nicolaou, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 4 June 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 42046/06) 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 three Russian nationals, Mr Yevgeniy Mikhaylovich Zaytsev, Ms
Irina Vasilyevna Zaytseva and Mr Yaroslav Yevgenyevich Zaytsev (“the
applicants”), on 14 April 2004.
- The
Russian Government (“the Government”) were represented by
Ms V. Milinchuk, former Representative of the Russian Federation at
the European Court of Human Rights.
- On
20 November 2006 the
President of the First Section decided to give notice of the
application 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
Government objected to the joint examination of the admissibility and
merits of the application. Having examined the Government's
objection, the Court dismissed it.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1950, 1959 and 1989 respectively and live in
St. Petersburg. They are relatives.
- On
17 July 1996 the first applicant lodged an action before the Nevskiy
District Court of St. Petersburg against a private company and its
owner, Mr P., claiming execution of a contract and compensation for
damage. According to the Government, the action was lodged on
30 October 1996.
- The
Nevskiy District Court fixed a hearing for 12 September 1996 and
ordered the first applicant to provide a detailed calculation of the
damages claimed. The first applicant submitted the calculation and
amended his claims.
- On
15 October 1996 the Nevskiy District Court adjourned the examination
of the action because the first applicant had not followed the
pre-trial procedure for settling the dispute.
- Three
days later the first applicant appealed against the decision of
15 October 1996 to the St. Petersburg City Court. On the same
day he lodged another action before the Nevskiy District Court
against Mr P. seeking compensation for damage and execution of a
contract. The action was based on the same set of facts as the action
of 17 July 1996.
- On
18 November 1996 the St. Petersburg City Court upheld the decision of
15 October 1996.
- On
17 June 1997 the District Court partly granted the action of
18 October 1996. The judgment was quashed on appeal on 1
December 1997 and a re-examination of the case was ordered.
- Having received the case file, on 11 March 1998 the
Nevskiy District Court joined the two sets of the proceedings
pertaining to the applicant's actions and listed a hearing for 3
April 1998. Between April 1998 and March 2000 the District Court
fixed fourteen hearings, of which, according to the Government, three
hearings in 1998, one hearing in 1999 and five hearings in 2000 were
adjourned due to the parties' failure to attend. The first applicant,
relying on a letter of 15 December 1998 from a deputy president of
the Nevskiy District Court, disputed the Government's assertion,
arguing that one hearing in 1998 had been postponed due to the
parties' absence, two had been adjourned because the presiding judge
had been involved in other unrelated proceedings or had been ill and
the remaining eight hearings had been adjourned because the
respondent had defaulted.
- In the meantime, on 12 March 1999 the first applicant,
who at that time lived in the town of Sestroretsk, asked the District
Court to examine the action in his absence and to serve him with a
copy of the judgment. The first applicant provided the Court with
copies of summonses for the hearings, neither of which contained a
notification that his presence before the District Court was
mandatory.
- On 28 March 2000 the Nevskiy District Court partly
accepted the action. The first applicant appealed. On 14 August 2000
the District Court adjourned the appeal proceedings and asked the
first applicant to pay a court fee.
- On
5 February 2001, following a complaint by the first applicant, the
St. Petersburg City Court quashed the decision of 14 August 2000 and
accepted the appeal. On the same day the City Court quashed the
judgment of 28 March 2000 in part and sent the case for a fresh
examination.
- On 25 April 2001 the first applicant once again asked
the Nevskiy District Court to consider the case in his absence.
- As it appears from the parties' submissions, after the
District Court had received the case file from the St. Petersburg
City Court, it fixed the first hearing for 4 March 2002.
- On
4 March 2002 the District Court postponed the hearing. According to
the Government, the District Court held that the first applicant's
presence was mandatory. They further submitted that summonses had
been served on the parties, including the first applicant, with a
note stating that their presence was required.
- Hearings scheduled for 5 August and 30 September 2002
were also adjourned due to the first applicant's absence. According
to the Government, summonses containing an order for the first
applicant's presence had been served on him in due time. Copies of
the summonses presented by the first applicant, including those for
the hearings scheduled for 4 March, 5 August and 14 November 2002,
did not contain notification that his presence was mandatory.
- On
14 November 2002 the Nevskiy District Court discontinued the
examination of the action because the first applicant had defaulted
at the hearings on 4 March, 30 September and 14 November 2002 and had
apparently lost interest in his case.
- The
first applicant was not notified of the decision of 14 November
2002. Accordingly, he complained to various domestic officials and
the Supreme Court of the Russian Federation about the excessive
length of the proceedings in his case.
- On
1 October 2003 the St. Petersburg City Court, in reply to numerous
complaints by the first applicant, sent a letter informing him that
on 14 November 2002 the proceedings in his case had been
discontinued due to his failure to attend hearings. The City Court,
explained in detail to the first applicant the various judicial
avenues he could follow if he wanted to challenge the decision of 14
November 2002. A copy of the decision of 14 November 2002 was not
enclosed.
- The
first applicant asked the President of the Nevskiy District Court to
serve him with the decision of 14 November 2002. He also argued that
he had requested the Nevskiy District Court to examine his action in
his absence and that therefore his absence from the hearings should
not have been interpreted as proof that he had lost interest in the
case.
- On
23 January 2004 the District Court President informed the first
applicant that his requests for the examination of his action in his
absence had been included in the case file and that the District
Court had taken them into consideration. However, the District Court
had considered that the first applicant's presence at the hearings
had been absolutely necessary and thus, following unsuccessful
attempts to obtain his attendance, on 14 November 2002 it had
decided to discontinue the examination of the case. The President of
the District Court enclosed a copy of the decision of 14 November
2002.
- On
12 March 2003 the St. Petersburg City Prosecutor's office, in
response to complaints by the applicant about the discontinuation of
the proceedings, once again informed the first applicant of the
procedure for challenging the decision of 14 November 2002.
II. RELEVANT DOMESTIC LAW
- The
RSFSR Code on Civil Procedure of 11 June 1964 (in force at the
material time) provided that civil cases were to be prepared for a
hearing no later than seven days after the action had been lodged
with the court. Civil cases were to be examined no later than one
month after the preparation for the hearing had been completed
(Article 99)
- Summonses
were to be served on the parties and their representatives in a way
that allowed them enough time to attend the hearing on time and
prepare their case. If necessary, the parties could be summoned by a
phone call or a telegram (Article 106).
- Parties could ask a court to examine a case in their
absence and to serve them with a copy of a judgment. A court could
decide that the presence of a party was mandatory on the basis of the
particular circumstances of a case (Article 157).
- Article 221 set out a list of grounds for issuing an
interim decision on discontinuation of the proceedings (определение
об оставлении
заявления без
рассмотрения),
that is, if parties failed to make use of a preliminary non-judicial
avenue of solving a dispute; if an action was lodged by an
incapacitated person or by a person lacking the authority to act; if
the parties, who had not asked for the examination of a case in their
absence, without valid reasons, failed to attend two hearings and the
court considered it impossible to decide the case on the basis of
case file materials; if a claimant, who had not asked for the
examination of a case in his/her absence, failed to attend two
hearings and a respondent did not insist on the examination of the
merits of the case; and if the same dispute between the same parties
was pending before a court.
- A copy of a decision on discontinuation of the
proceedings was to be sent to the absent party no later than three
days after its delivery (Article 213).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION ON ACCOUNT OF THE LENGTH OF THE PROCEEDINGS AND ARTICLE 13
OF THE CONVENTION
- The
applicants 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...”
Relying
on Article 13 of the Convention, they further complained of the fact
that in Russia there was no court to which an application could be
made to complain about the length of proceedings. Article 13 reads 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.”
A. Submissions by the parties
- In their observations lodged with the Court on 30
March 2007 the Government submitted that the proceedings in the
present case had lasted from 30 October 1996, when the first
applicant had lodged his action with the District Court, to 23
January 2004, when he had been served, for the first time, with a
copy of the decision of 14 November 2002. Noting that although the
Court only has competence to examine the period after 5 May 1998,
when the Convention entered into force in respect of Russia, the
Government stressed that the period under consideration, that is,
approximately five years and eight months, was still extremely long.
They observed that, despite the complexity of the case, the parties'
failure to attend and the absence of particular diligence on the
first applicant's part, the period in question could not be
considered reasonable. The Government accepted that there had been a
violation of Article 6 of the Convention on account of the excessive
length of the proceedings in the present case and a violation of
Article 13 on account of the absence of effective remedies for the
complaints about the excessive length of the proceedings.
- In
their further observations lodged with the Court on 18 September
2007, however, the Government reversed their position, arguing that
the first applicant had contributed substantially to the delays in
the proceedings by failing to attend a number of hearings, thus
leaving the domestic courts accountable for a period of a little over
two years. In addition, the Government submitted that the complaint
was, in any event, inadmissible, as the proceedings ended on 14
November 2002 and the application was lodged with the Court on 14
April 2004. In their opinion, the applicants had failed to comply
with the six-month rule under Article 35 § 1 of the Convention.
- The
applicants maintained their complaints, insisting that the
proceedings had been unreasonably long. They argued that on a number
of occasions the first applicant had asked the District Court to
examine the action in his absence and to serve him with a copy of the
judgment. At least until March 2002 the District Court had accepted
those requests, finding it possible to examine the merits of the
first applicant's action in his absence. In particular, the
applicants referred to the District Court's judgment of 28 March
2000 as the proof of that assertion.
B. The Court's assessment
1. Admissibility
(a) Victim status
- As
to the question whether all the applicants can be regarded as
“victims” within the meaning of Article 34 of the
Convention, the Court reiterates that there must be a sufficiently
direct link between an applicant and the damage which he or she
claims to have sustained as a result of the alleged violation for
that applicant to be able to claim that he or she is the victim of a
violation of one or more of the rights and freedoms recognised by the
Convention and its Protocols (see Smits and Others v. the
Netherlands (dec.), nos. 39032/97, 39343/98, etc., 3 May 2001).
- The second and third applicants are not directly
affected by the matters complained of. They were neither claimants in
the domestic civil proceedings under consideration, nor were their
own “civil rights and obligations” at issue in the
proceedings before the competent domestic courts. The Court notes
that the complaints before it concern the allegation that the delay
in those proceedings breached the reasonable time requirement of
Article 6 and that there was no effective remedy for it as required
by Article 13 of the Convention. The Court does not consider that
these two applicants can claim to be victims of violations of those
provisions when neither of them were a party to those proceedings
(see O'Reilly and Others v. Ireland (dec.), no. 54725/00, 4
September 2003). It follows that second and third applicants cannot
claim to be “victims” of a violation of Articles 6 and 13
in the sense of Article 34 of the Convention. Their complaints under
those provisions are thus incompatible ratione personae
with the Convention's provisions and must be dismissed pursuant to
Article 35 § 4 of the Convention.
(b) Six-month rule
- The Court reiterates the Government's argument that
the complaints were lodged out of time, as the proceedings ended on
14 November 2002 and the application was only brought on 14 April
2004. In this connection, the Court observes, and it was not disputed
by the parties, that the first applicant had been notified of the
District Court's decision of 14 November 2002 sometime in
October 2003. However, it was not until 23 January 2004 that, in
response to his requests, he was served with a written copy of that
decision. The Court reiterates that where an applicant is entitled to
be served ex officio with a written copy of the final domestic
decision, the object and purpose of Article 35 § 1 of the
Convention are best served by counting the six-month period as
running from the date of service of the written judgment (see
Jałowiecki v. Poland, no. 34030/07, § 21,
17 February 2009, Papachelas v. Greece [GC], no.
31423/96, § 30, ECHR 1999 II, and Worm v. Austria, §
33, 29 August 1997, Reports of Judgments and Decisions
1997-V). The Court notes that the RSFSR Code of Civil Procedure
provided for ex officio service of decisions on the
discontinuation of proceedings (see paragraph 30 above). The first
applicant lodged his application with the Court on 14 April 2004,
that is, within less than six months from the date of the service of
the decision. It could therefore not be said that the application was
introduced out of time. The Government's objection should be
dismissed.
(c) Period to be considered
- The
period to be taken into consideration began only on 5 May 1998, when
the Convention entered into force in respect of Russia. However, in
assessing the reasonableness of the time that elapsed after that
date, account must be taken of the state of proceedings at the time.
As to the end of the period in question, the Court, being mindful of
the Government's admission made on 30 March 2007 (see paragraph 32
above), considers that the period ended on 23 January 2004 when the
District Court complied with its statutory obligation to serve the
first applicant with a copy of the decision of 14 November 2002 (see,
for similar reasoning, Skorobogatova v. Russia, no. 33914/02,
§ 40, 1 December 2005, with further references). It thus lasted
for approximately five years and nine months before two levels of
jurisdcition.
(d) Conclusion
- The
Court therefore notes that the present complaints of the first
applicant raised under Articles 6 and 13 of the Convention are not
manifestly ill-founded within the meaning of Article 35 § 3 of
the Convention and that they are not inadmissible on any other
grounds. They must therefore be declared admissible.
2. Merits
(a) Article 6 § 1
- 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 applicants and the relevant authorities and what
was at stake for the applicants in the dispute (see, among many other
authorities, Frydlender v. France [GC], no. 30979/96, §
43, ECHR 2000-VII).
- The
Court notes that the parties did not dispute that the case was
complex. The Court has no reason to conclude otherwise. However,
it cannot accept that the complexity of the case in itself was
sufficient to justify the overall length of the proceedings.
- As
to the first applicant's conduct, the Government submitted that he
had contributed to a delay in the proceedings by failing to attend
fourteen hearings in 1998, 1999, 2000 and 2002. The Court is not
convinced by the Government's arguments. In particular, in respect of
the first applicant's alleged absence from the hearings in 1998, it
observes that the Government did not refer to any source of
information on the basis of which their assertion could be verified.
It was open to the Government to submit copies of any decisions or
records of court hearings in which the District Court gave reasons
for the adjournments. No such documents were presented. At the same
time, the first applicant provided the Court with a copy of the
letter of the deputy president of the Nevskiy District Court,
showing that in 1998 only one hearing had been adjourned due to the
first applicant's absence. The remaining postponements were
attributable to the domestic courts (see paragraph 12 above). The
Court considers the delay caused by the first applicant's failure to
attend one hearing negligible.
- The
Court further observes that by virtue of Article 157 of the RSFSF
Code of Civil Procedure the first applicant was entitled to an
examination of his case in absentia (see paragraph 28 above). As it
appears from the documents presented by the parties, in March 1999 he
successfully availed himself of that avenue. There is no evidence,
and the Government did not argue otherwise, that either in 1999 or in
2000 the District Court had sought the first applicant's mandatory
attendance. Moreover, on 28 March 2000 the District Court gave the
judgment in the first applicant's absence, granting a part of his
claims (see paragraphs 13 and 14 above). The Court therefore does not
accept the Government's argument that the first applicant caused
delays in the proceedings in 1999 and 2000 (see Skorobogatova,
cited above, § 48).
- As
to the first applicant's absence from the hearings in 2002, the Court
finds it peculiar that the Government, while arguing that the
District Court had considered his presence to be indispensable, did
not produce a copy of the District Court's decision to that effect or
copies of summonses notifying the first applicant that his presence
had been required. At the same time, the Court does not lose sight of
the fact that on 25 April 2001 the first applicant repeated his
request to the District Court for an examination of the case in his
absence (see paragraph 16 above). Furthermore, the copies of
summonses for the hearings in 2002 presented to the Court do not bear
any indication that the District Court had rejected the first
applicant's request for an in-absentia examination of the case (see
paragraph 19 above). The Court therefore cannot conclude that the
first applicant contributed to the prolongation of the proceedings.
- The
Court observes, however, that substantial periods of inactivity, for
which the Government have not submitted any satisfactory explanation,
are attributable to the domestic authorities. It took the District
Court several months to fix hearings. A delay of approximately two
years was caused by the District Court's refusal to accept the first
applicant's appeal against the judgment of 28 March 2000 and the
transfer of the case between the St. Petersburg City and Nevskiy
District courts (see paragraphs 14-17 above). Furthermore, the Court
finds it striking that it took the District Court over fourteen
months to serve a written copy of the decision of 14 November
2002 on the first applicant. In this respect, the Court reiterates
that Article 6 § 1 of the Convention imposes on Contracting
States the duty to organise their judicial system in such a way that
their courts can meet the obligation to decide cases within a
reasonable time (see, among other authorities, Löffler v.
Austria, no. 30546/96, § 57, 3 October 2000). In
addition, there were several shorter periods during which there was
no apparent progress in the case.
- The Court furthermore notes that the conduct of the
defendants was one of the reasons for the prolongation of the
proceedings. In the Court's opinion, the domestic authorities failed
to take adequate steps in order to ensure
their attendance. The defendants defaulted on at least thirteen
occasions, which resulted in a delay of approximately fifteen months.
There is no indication that the court reacted in any way to that
behaviour. Accordingly, the Court considers that the domestic courts
did not avail themselves of the measures available to them under
national law to discipline the participants to the proceedings and to
ensure that the case was heard within a
reasonable time
(see Rybakov v. Russia, no. 14983/04, § 32, 22
December 2005).
- Having
regard to the overall length of the proceedings,
the Court concludes that the first applicant's case was not examined
within a reasonable time. There has accordingly been a violation of
Article 6 § 1 of the Convention.
(b) Article 13
- The
Court reiterates that Article 13 guarantees an effective remedy
before a national authority for an alleged breach of the requirement
under Article 6 § 1 to hear a case within a reasonable time (see
Kudła v. Poland [GC], no. 30210/96, § 156, ECHR
2000-XI). It notes that the Government did not indicate any remedy
that could have expedited the determination of the first applicant's
case or provided him with adequate redress for the delays that had
already occurred (see Kormacheva v. Russia, no. 53084/99,
29 January 2004, § 64). Furthermore, the Court does not
lose sight of the Government's submissions made on 30 March 2007 that
there are no effective domestic remedies in the Russian Federation
for complaints about the excessive length of proceedings.
- Accordingly,
the Court considers that in the present case there has been a
violation of Article 13 of the Convention on account of the lack of a
remedy under domestic law whereby the first applicant
could have obtained a ruling upholding his right to have his case
heard within a reasonable time, as set forth in Article 6 § 1 of
the Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- Invoking
Articles 1, 6, 8 and 14 of the Convention, the applicants finally
complained that the decision of 14 November 2002 had been unfair,
that they had been discriminated against as a family, that their
consumer rights remain unprotected, that they had sustained pecuniary
damage and that their health had deteriorated during the proceedings.
- Having
regard to all the material in its possession, and in so far as these
complaints fall within its competence, the Court 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.
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
first applicant claimed 40,179,063 Russian roubles (RUB) in respect
of pecuniary damage, representing losses and expenses allegedly
sustained as a result of the domestic courts' refusal to accept his
claims, including medical expenses and loss of a plot of land. He
further claimed 50,000 euros (EUR) in respect of non-pecuniary
damage.
- The
Government submitted that the first applicant's claims were excessive
and manifestly ill-founded.
- The
Court considers that the first applicant has failed to demonstrate
that the pecuniary damage claimed was actually caused by the
violation of the Convention in his case. Consequently, there is no
cause to make an award under that head.
- As
to the claim for non-pecuniary damage, the Court accepts that the
first applicant suffered distress, anxiety and frustration because of
the unreasonable length of the proceedings and the lack of an
effective remedy for the breach of the requirement to hear his case
within a reasonable time. Making its assessment on an equitable
basis, it awards the first applicant EUR 2,400
in respect of non-pecuniary damage, plus any tax that may be
chargeable on the above amount.
B. Costs and expenses
- The
first applicant also claimed EUR 2,200 for the costs and expenses
incurred before the domestic courts and the Court. This included RUB
27,000 for his legal representation in the proceedings before the
domestic courts, RUB 1,944 in travel expenses, RUB 2,630 in postal
expenses and office supplies and EUR 1,300 for the representation of
his interests before the Court.
- The
Government submitted that the claims were 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, in particular copies of postal
receipts, certificates and invoices, and the above criteria, the
Court considers it reasonable to award the first applicant, who was
not represented by a lawyer, the sum of EUR 600 under this head.
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 first applicant's complaints
concerning the excessive length of the proceedings and the absence of
an effective remedy admissible and the remainder of the application
inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds that there has been a violation of Article
13 of the Convention;
- Holds
(a) that
the respondent State is to pay the first 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 the settlement:
(i) EUR
2,400 (two thousand and four hundred euros) in respect of
non-pecuniary damage;
(ii) EUR
600 (six hundred euros) in respect of costs and expenses;
(iii)
any tax that may be chargeable 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;
- Dismisses the remainder of the first applicant's
claim for just satisfaction.
Done in English, and notified in writing on 25 June 2009, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
