[New search]
[Contents list]
[Printable RTF version]
[Help]
FIRST SECTION
CASE OF SHELOMKOV v. RUSSIA
(Application no. 36219/02)
JUDGMENT
STRASBOURG
5 October 2006
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 Shelomkov v. Russia,
The European Court of Human Rights (First Section), sitting as a
Chamber composed of:
Mr C.L. Rozakis,
President,
Mr L. Loucaides,
Mrs F.
Tulkens,
Mrs N. Vajić,
Mr A.
Kovler,
Mrs E. Steiner,
Mr K. Hajiyev,
judges,
and Mr S. Nielsen, Section Registrar,
Having deliberated in private on 14 September 2006,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
- The case originated in an
application (no. 36219/02) 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, Mr Aleksandr
Igorevich Shelomkov (“the applicant”), on 31 August 2002.
- The Russian Government (“the Government”)
were represented by Mr P. Laptev, the Representative of the Russian
Federation at the European Court of Human Rights.
- The applicant complained, in particular, that the
length of the proceedings in the dispute to which he was a party had
been excessively long.
- On 13 May 2005
the Court decided to communicate the application. Applying Article 29
§ 3 of the Convention, it decided to rule on the admissibility
and merits of the application at the same time.
- The applicant and Government each filed observations on
the admissibility, merits and just satisfaction. The Court decided,
after consulting the parties, that no hearing was required (Rule 59 §
3 of the Rules of Court).
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The applicant was born in 1961 and lives in Moscow.
A. Proceedings concerning dismissal in 1995
- In May 1995 the applicant was dismissed from his
position as a musical accompanist in the municipal school. On 11
August 1995 he appealed against his dismissal to the Butyrskiy
District Court of Moscow. He also sought payment of wage arrears and
compensation for non-pecuniary damage.
- On 4 June 1996 the Butyrskiy District Court dismissed
the applicant's claim concerning the reinstatement and ordered that
the claim for the wage arrears should be considered separately. The
judgment became final on 14 August 1996 when the Moscow City
Court upheld it on appeal.
- By way of a supervisory review, on 20 March 1997 the
Presidium of the Moscow City Court quashed the judgments of 4 June
and 14 August 1996 and remitted the case for a fresh examination
to the District Court.
- Between May and October 1998 the
Butyrskiy District Court listed six hearings, of which two were
adjourned upon the applicant's request and three were postponed due
to the defendant's absence.
- On 22 October 1998 the Butyrskiy
District Court dismissed the applicant's action. That judgment was
quashed on appeal by the Moscow City Court on 16 December 1998. The
case was returned for a new examination by the District Court.
- On 9 September 1999 a new judge
of the District Court was assigned to the applicant's case. He listed
the first hearing for 12 October 1999.
- Of the six hearings fixed
between 12 October 1999 and 4 April 2000, three hearings were
postponed because the defendant defaulted or asked for an adjournment
and two were adjourned to allow the parties to submit additional
evidence.
- On 4 April 2000 the Butyrskiy
District Court granted the applicant's claims in part. The court
ordered that the applicant should be reinstated and paid 20,201.98
Russian roubles (RUR) in wage arrears and RUR 300 for non-pecuniary
damage. The District Court, by an interim decision, also decided that
the claim concerning calculation of the applicant's wage should be
determined in a separate set of the proceedings.
- The judgment of 4 April 2000 was
upheld on appeal on 20 June 2000 by the Moscow City Court.
- On 28 September 2000 the
Presidium of the Moscow City Court, by way of supervisory-review
proceedings, quashed the judgments of 4 April and 20 June 2000 in the
part concerning payment of the wage arrears and remitted this matter
for a new examination.
- It appears that the District
Court received the case-file on 15 February 2001 and fixed the
first hearing for 6 March 2001.
- Between 6 March 2001 and 11
January 2002 the District Court listed seven hearings, of which four
hearings were adjourned because the defendant defaulted or asked for
an adjournment, one was postponed because the parties did not attend
and two hearings were adjourned because the applicant amended his
claims.
- No hearings were held between 11
January and 18 March 2002 because the judge was involved in other
unrelated proceedings.
- Of the three hearings listed
between 18 March and 30 April 2002, one hearing was adjourned upon
the defendant's request and one was postponed because the parties
could not attend.
- On 30 April 2002 the Butyrskiy
District Court accepted the applicant's claims for wage arrears and
awarded him RUR 768,885.34. That judgment was quashed by the Moscow
City Court on 30 July 2002. The case was remitted for a fresh
examination to the District Court.
B. Proceedings concerning dismissal in 2000
- On 4 April 2000 the applicant was reinstated in his
position. However, on the following day his employer informed him
about his forthcoming dismissal on 6 June 2000. The
applicant appealed against the dismissal to a court on 30 June 2000.
- A judge was assigned to the case on 23 October 2000
and the first hearing was listed for 22 November 2000. Of
the fifteen hearings listed between 22 November 2000 and 24 May
2002, six hearings were adjourned because the parties did not attend,
three were postponed to obtain additional evidence, three were
adjourned because the defendant defaulted and one was postponed
because a fire broke out in the courthouse.
- On 24 May 2002 the Butyrskiy District Court held that
the applicant's dismissal in 2000 had been unlawful and awarded him
wage arrears and compensation for non-pecuniary damage.
- On 14 November 2002 the Moscow City Court quashed the
judgment of 24 May 2002 in the part concerning the wage arrears,
remitted this matter for a fresh examination and upheld the remainder
of the judgment.
C. Joint proceedings
- On 26 November 2002 the Butyrskiy District Court
joined two sets of the proceedings related to the applicant's
dismissals in 1995 and 2000.
- On 18 December 2002 the Butyrskiy District Court
partly granted the applicant's action and awarded him RUR 45,648.14
to be paid by the Department of Culture of the North-Eastern
Administrative District of Moscow. That judgment was upheld on appeal
by the Moscow City Court on 24 March 2003.
- Enforcement proceedings were opened and on 21 July
2003 the Department of Culture transferred the sum of RUR 45,648.14
to the deposit account of a public notary. The applicant was invited
to receive money.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION ON ACCOUNT OF EXCESSIVE LENGTH OF THE PROCEEDINGS
- The applicant complained that the length of the
proceedings had been incompatible with the “reasonable time”
requirement, provided 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
- The Government considered that the applicant's
complaint about the length of the proceedings was inadmissible under
Article 35 § 3 of the Convention. As to the period to be taken
into consideration, the Government submitted that that period had
commenced on 5 May 1998 and ended in December 2002 in respect of one
of the applicant's claims and in March 2003 in respect of the
remainder of his claims.
- The applicant contested the Government's view. He
insisted that he had initiated the proceedings in August 1995. In his
view, the duration of the enforcement should be included in the
overall length. Thus the proceedings were still pending because the
judgment of 18 December 2002, as upheld on appeal on 24 March 2003,
remained unenforced.
- The Court observes that the period to be taken into
consideration began 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.
- With the view to determining when the period in
question ended, the Court reiterates that the period when the
enforcement proceedings were pending must be regarded as an integral
part of the “trial” for the purpose of Article 6 and
should be included in the overall length when it was incumbent on the
State to enforce the judgment in the applicant's favour (cf. Sokolov
v. Russia, no. 3734/02, § 32, 22 September 2005).
The Court observes that on 24 March 2003 the Moscow City Court issued
a final judgment by which the applicant was to be paid a certain sum
of money by the Department of Culture, a State body. On 21 July 2003
the sum in question was transferred to the deposit account of a
notary public and the applicant was able to receive it. The Court is
of the view that the period from 5 May 1998 to 21 July 2003
should be regarded as a whole. It thus lasted approximately five
years and three months.
- 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 argued that the delays in the
adjudication of the applicant's action had been caused by the fact
that the parties had actively made use of their procedural rights,
including the rights to obtain and submit evidence, to challenge the
composition of the bench, to amend the claims, etc. At least
thirty-five hearings were adjourned because the parties defaulted, of
which the applicant failed to attend six hearings.
- The applicant averred that the delays in the
proceedings had been caused by the defendant's failure to attend. The
District Court did not take any measures to discipline the defendant,
a State body. The applicant insisted that he had defaulted because he
had been ill and his absence had not caused a substantial delay. He
could not be blamed for amending his claims and petitioning the
District Court for certain procedural actions because those requests
had been dismissed or left without any consideration. The applicant
argued that the Court should take into account that his dispute had
concerned employment-related issues, it had required special
diligence and it had already been pending before the domestic courts
for almost three years before 5 May 1998.
- 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).
- The Court notes that the parties did not argue that
the case was complex. Thus the Court has no reason to conclude
otherwise.
- As to the applicant's conduct, the Government argued
that the applicant had contributed to the delay in the proceedings by
amending his claims, submitting additional evidence and consulting
the case-file. In this respect, the Court reiterates that the
applicant cannot be blamed for taking full advantage of the resources
afforded by national law in the defence of his interest (see, mutatis
mutandis, Yağcı and Sargın v. Turkey,
judgment of 8 June 1995, Series A no. 319 A, § 66).
- The Court observes, however, that the applicant
contributed to the delay in the proceedings by failing to attend
hearings. As it appears from the list of hearings included in the
Government's memorandum, the applicant did not appear at six
hearings, although the defendant attended. The aggregated delay
resulting therefrom amounted to approximately four months.
- 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
approximately four years and eleven months which fall in the Court's
competence ratione temporis.
- The Court observes that the Government have not
submitted any satisfactory explanation for substantial periods of
inactivity which are attributable to the domestic authorities. The
aggregated length of the delays occasioned by the judge's
participation in unrelated proceedings, his belated assignment to the
case and the transfer of the case-file (see paragraphs 11-12, 16-17,
19 and 22-23 above) amounted to approximately seventeen months. The
Court also notes that it usually took the District Court up to three
months to fix hearings. The Court finds it peculiar that in the case
which was of no particular complexity so many hearings had to be
adjourned in order to obtain additional evidence (compare with Di
Pede v. Italy, judgment of 26 September 1996, Reports of
Judgments and Decisions 1996-IV).
- The Court furthermore notes that the conduct of the
defendant, a State body, was one of the reasons for the prolongation
of the proceedings. The Court reiterates that the delay occasioned by
the defendant's failure to attend at least twenty hearings and the
domestic courts' failure to take adequate steps in order to ensure
its attendance is attributable to the State (cf. Sokolov v.
Russia, cited above, § 40).
- Finally, the Court recalls that the employment
disputes generally require particular diligence on the part of the
domestic courts (see Ruotolo v. Italy, judgment of 27 February
1992, Series A no. 230 D, p. 39, § 17). Having regard
to the overall length of the proceedings and what was at stake for
the applicant, the Court concludes that in the instant case the
length of the proceedings was excessive and failed to meet the
“reasonable time” requirement. There has accordingly been
a breach of Article 6 § 1.
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION ON
ACCOUNT OF UNFAIRNESS OF THE PROCEEDINGS
- The applicant complained under Article 6 the
Convention that the proceedings had been unfair because the courts
had committed serious errors of fact and had wrongly assessed
evidence.
- In this respect the Court recalls that it is not a
court of appeal from the decisions of domestic courts and that, as a
general rule, it is for those courts to assess the evidence before
them. The Court's task under the Convention is to ascertain whether
the proceedings as a whole were fair (see, among many authorities,
García Ruiz v. Spain [GC], no. 30544/96, §§ 28-29,
ECHR 1999-I). On the basis of the materials submitted by the
applicant, the Court notes that within the framework of the civil
proceedings the applicant was able to introduce all necessary
arguments in defence of his interests, and the judicial authorities
gave them due consideration. His claims were examined on three levels
of jurisdiction and partly accepted. The decisions of the domestic
courts do not appear unreasonable or arbitrary.
- 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. OTHER
ALLEGED VIOLATIONS OF THE CONVENTION
- The applicant finally complained under Article 11 of
the Convention and Article 1 of Protocol No. 1 that trade unions
did not protect his rights, that the judgment of 18 December 2002
remained unenforced and that he could not receive the wage arrears
because the proceedings in his case had been excessively long.
However, having regard to all the material in its possession, 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.
IV. 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 3,350,576 Russian roubles (RUR)
in respect of pecuniary damage, representing the wage arrears he had
not received due to the excessive length of the proceedings in his
case. He also claimed RUR 28,650,000 in respect of non-pecuniary
damage.
- The Government contested these claims. They indicated
that there was no causal link between the violation alleged and the
pecuniary damage claimed. In any event, the sums claimed in respect
of pecuniary and non-pecuniary damage were unreasonable and
excessive.
- 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 must have sustained non-pecuniary damage. Ruling on an
equitable basis and taking into account the nature of the dispute and
the overall length of the proceedings in the present case, it awards
him EUR 4,400 under that head, plus any tax that may be chargeable.
B. Costs and expenses
- The applicant also claimed RUR 15,611.79 for the costs
and expenses. Those included RUR 1,948.56 for postal expenses, RUR
10,993.91 for the purchase and maintenance of a fax, scanner and
copying machine and use of the Internet, RUR 1,025.92 for office
supplies and RUR 1,643.40 in respect of legal fees paid to a lawyer
for representation in unrelated domestic proceedings and to a notary
for attesting powers of authority.
- The Government submitted that the applicant should
only be granted RUR 1,948.56 as those expenses had actually been
incurred.
- According to the Court's case-law, an applicant is
entitled to reimbursement of his costs and expenses only in so far as
it has been shown that these have been actually and necessarily
incurred and were reasonable as to quantum. The Court observes that
certain expenses claimed by the applicant were not incurred in
connection with the domestic proceedings at issue or the Strasbourg
proceedings. It thus rejects the applicant's claim in respect of the
legal fees and the notary's services. As regards the remainder of the
applicant's claims, the Court accepts that the applicant incurred
some expenses. It considers, however, the amounts claimed to be
excessive. Having regard to the elements at its disposal, the Court
awards the applicant 200 EUR for the costs related to his
application, plus any tax that may be chargeable.
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 excessive
length of the proceedings admissible and the remainder of the
application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention on account of the excessive length of
the proceedings;
3. 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 the settlement:
(i) EUR 4,400 (four thousand and four hundred euros) in respect of
non-pecuniary damage;
(ii) EUR 200 (two 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 applicant's claim
for just satisfaction.
Done in English, and notified in writing on 5 October 2006, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
