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FIFTH
SECTION
CASE OF SHCHIGLITSOV v. ESTONIA
(Application
no. 35062/03)
JUDGMENT
STRASBOURG
18
January 2007
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 Shchiglitsov v. Estonia,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Mr P. Lorenzen,
President,
Mrs S. Botoucharova,
Mr K.
Jungwiert,
Mr V.
Butkevych,
Mrs M.
Tsatsa-Nikolovska,
Mr R.
Maruste,
Mr M.
Villiger, judges,
and
Mrs C. Westerdiek, Section
Registrar,
Having
deliberated in private on 11 December 2006,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 35062/03) against the
Republic of Estonia lodged with the Court
under Article 34 of the Convention for the Protection
of Human Rights and Fundamental Freedoms (“the Convention”)
by an Estonian national, Mr Aleksandr
Shchiglitsov (“the applicant”), on 15 October 2003.
- The
Estonian Government (“the Government”) were represented
by their Agent, Ms M. Hion, Director of the Human Rights Division of
the Legal Department of the Ministry of Foreign Affairs.
- On
6 October 2005 the
Court decided to give notice of the application to the Government.
Applying Article 29 § 3 of the Convention, it decided to rule on
the admissibility and merits of the application at the same time.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1956 and lives in Narva.
- In
1983 the applicant married N. The marriage was dissolved on
7 February 1997.
- On
26 May 1997 N. lodged an action with the Narva City Court
(linnakohus), requesting that the joint property, including an
apartment, be divided.
- On
30 January 1998, the Narva City Court scheduled a preliminary hearing
for 12 February 1998. However, on 11 February 1998 the applicant
requested that the hearing be postponed as his lawyer had to
participate in a hearing of a criminal case at the same time. The
City Court adjourned the hearing.
A new
preliminary hearing was scheduled for 19 August 1998. On the same
day, N. requested that the hearing be adjourned because of her
lawyer's absence. She requested that the hearing be scheduled for a
date after 10 September 1998.
The
third preliminary hearing took place on 13 October 1999 and a trial
hearing on 31 August 2000. On 11 September 2000 the court delivered
the judgment by which the marital property was divided. According to
the City Court, the apartment was in the ownership of an apartment
cooperative (korteriühistu, kooperatiiv). The applicant
and N. had possessed a share in the cooperative. The City Court
considered the sum they had paid for the share as a part of the joint
property.
- On
5 June 2001, after an appeal by N., the Viru Court of Appeal
(ringkonnakohus) quashed the rulings of the City Court and
referred the case back to it. The Court of Appeal noted, inter
alia, that the actual market value of the apartment at the time
of the division of the property (as opposed to the construction
costs) had to be taken into account for the determination of the
value of the property.
- A
hearing before the Narva City Court, scheduled for 13 June 2002, was
adjourned in order to enable the parties to adduce additional
evidence. In September, the parties submitted additional pleadings.
On 10
October 2002 the Narva City Court, following a hearing, delivered the
judgment. It found that the applicant and N. had not been the owners
of the apartment during their marriage. They had owned a share in the
apartment cooperative. The City Court decided that the share had to
be divided between the applicant and N.
- N.
lodged an appeal with the Viru Court of Appeal, which, on 28 January
2003, quashed the City Court's judgment. It found that the apartment
had been acquired by the applicant and N. jointly during their
marriage. According to an expert opinion the current value of the
apartment was 119,337 kroons (EEK) (corresponding approximately to
7,700 euros (EUR)). Proceeding from the above, the Court of Appeal
divided the property. According to the judgment, the applicant had to
pay EEK 61,698.5 (approximately EUR 3,900) to N.
- On
16 April 2003 the Supreme Court (Riigikohus) refused the
applicant leave to appeal.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION ON ACCOUNT OF THE EXCESSIVE LENGTH OF THE PROCEEDINGS
- 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, 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...”
- The
Government contested that argument. They submitted that there had
been several vacancies in the Narva City Court at the material time
and that the judges of that court had had particularly high workload.
- The
period to be taken into consideration began on 26 May 1997 and ended
on 16 April 2003. It thus lasted more than five years and ten months
for three levels of jurisdiction, whereby both of the lower courts
examined the matter twice.
A. Admissibility
- The
Court finds 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
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).
- As
concerns the present case, the Court notes that it related to the
division of the parties' marital property, including an apartment. As
such, the applicant would have had a considerable interest in the
speedy resolution of the dispute. The Court furthermore considers, on
the one hand, that it involved some degree of complexity on account
of the interpretation of domestic law, in particular, whether the
parties' marital property included an apartment or a share in the
housing cooperative. On the other hand, the facts of the case and the
main substance of the dispute – division of marital property –
were not in themselves complex. The Court considers that the length
of the proceedings in the present case cannot be justified by the
complexity of the case.
- As
regards the conduct of the applicant, the Court notes that he
requested the postponement of the hearing once, on 11 February 1998,
as his lawyer had another hearing in a criminal case at the same
time. Another hearing was adjourned in 1999 for a similar reason at
N.'s request. In 2002, the City Court adjourned a hearing to enable
the parties to adduce additional evidence.
The
Court notes that the City Court rescheduled the first two adjourned
hearings after considerable periods of delay (six months and one year
and two months, respectively). Moreover, the very first preliminary
hearing had been scheduled nine months after the action had been
brought by N. and there was a delay of more than ten months between
the last preliminary hearing and the trial hearing. The Court takes
note of the Government's argument that these delays were caused by
the difficult situation in the Narva City Court at the material time.
However, it recalls that Article 6 § 1
of the Convention imposes on the contracting States the duty to
organise their legal systems in such a way that their courts can meet
each of its requirements (see, inter alia, Tusa v. Italy,
judgment of 27 February 1992, Series A no. 231 D, p. 41, § 17,
and Vocaturo v. Italy, judgment of 24 May 1991, Series A no.
206 C, p. 32, § 17).
The
Court finds that between 1997 and 2000 considerable periods of
inactivity, attributable to the authorities, occurred in the domestic
proceedings. Although thereafter the Court of Appeal and the Supreme
Court dealt with the case speedily, the Court considers that this did
not in the circumstances of the present case remedy the earlier
delays. At the same time, the length of the proceedings was only to a
minute extent attributable to the applicant.
- In
the light of the above, the Court finds that the applicant's case was
not heard within a reasonable time.
There
has accordingly been a breach of Article 6 § 1 of the
Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
A. Alleged violation of Article 6 §
1 of the Convention on account of unfairness of the proceedings
- Under
Article 6 § 1 of the Convention the applicant also complained
that he was not given a fair trial, as the Court of Appeal's judgment
of 28 January 2003 had been unfair and its reasoning had been
insufficient.
- The
Court considers that there is nothing in the case file indicating
that the courts lacked impartiality or that the proceedings, devoid
of any sign of arbitrariness, were otherwise unfair. The impugned
Court of Appeal's judgment was sufficiently reasoned. The Court finds
that the applicant's submissions do not disclose any appearance of a
violation of his rights under Article 6 § 1 of the Convention.
It follows that this part of the application is manifestly
ill-founded within the meaning of Article 35 § 3 and must be
rejected pursuant to Article 35 § 4 of the Convention.
B. Alleged violation of Article 1 of Protocol No. 1 to
the Convention
- The
applicant further complained under Article 1 of Protocol No. 1 to the
Convention that the judgments infringed his property rights, since he
had to pay to his former wife compensation for the apartment which
had not been in the ownership of the couple at the time when their
marriage had been dissolved. He also complained that the sum of
compensation he had to pay to his wife had been calculated
incorrectly by the Court of Appeal.
- The
Court recalls that it is not its task to substitute itself for the
domestic jurisdictions. It is primarily for the national authorities,
notably the courts, to resolve problems of interpretation of domestic
legislation (see Waite and Kennedy v. Germany [GC], no.
26083/94, § 54, ECHR 1999 I). In the present case, the
Court considers that there is nothing to show that the Court of
Appeal reached any arbitrary conclusions in striking a balance
between the property rights of the applicant and N. It follows that
this complaint is manifestly ill-founded and must be rejected in
accordance with Article 35 §§ 3 and 4 of the
Convention.
C. Alleged violation of Article 8 of the Convention
- Finally,
the applicant complained that, as a result of his new wife's decision
to be sterilised because of the prolonged uncertainty caused by the
length of the court proceedings and lack of proper living space, they
could not have children. He alleges that he was deprived of the right
to family life in violation of Article 8 of the Convention.
- The
Court finds that the applicant's submissions do not disclose any
appearance of a violation of his right to family life, as guaranteed
by Article 8 of the Convention (see, mutatis mutandis,
Velosa Barreto v. Portugal, judgment of 21 November 1995,
Series A no. 334, pp. 10-12, §§ 21 and 29-30). It
follows that this complaint is manifestly ill-founded and must be
rejected in accordance with 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 EEK 151,898.95 (corresponding approximately to EUR
9,700) in respect of pecuniary damage and EEK 1,600,000
(approximately EUR 100,000) in respect of non-pecuniary damage.
- The
Government contested these claims.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim.
However, it considers that the applicant must have sustained certain
non-pecuniary damage. Ruling on an equitable basis, it awards him EUR
900 under that head.
B. Costs and expenses
- The
applicant also claimed EEK 100,000 (approximately EUR 6,400) for
the costs and expenses incurred before the domestic courts and EEK
70,000 (approximately EUR 4,500) for those incurred before the
Court.
- The
Government contested these claims.
- 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. In the present case, regard being had to the information in
its possession and the above criteria, the Court rejects the claim
for costs and expenses in the domestic proceedings and considers it
reasonable to award the sum of EUR 300 for 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 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;
- 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, EUR 900 (nine
hundred euros) in respect of non-pecuniary damage and EUR 300 (three
hundred euros) in respect of costs and expenses, to be converted into
the national currency of the respondent State at the rate applicable
at the date of settlement, plus any tax that may be chargeable;
(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 18 January 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
