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FIRST
SECTION
CASE OF KHARITONOV v. RUSSIA
(Application
no. 39898/03)
JUDGMENT
STRASBOURG
16 July 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 Kharitonov 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 25 June 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 39898/03) 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 Vladimir Pavlovich
Kharitonov (“the applicant”), on 5 December 2003.
- The
Russian Government (“the Government”) were represented by
Mr P. Laptev, the then Representative of the Russian Federation
at the European Court of Human Rights.
- On
29 August 2006 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 1932 and lives in Moscow.
- According
to the applicant, on 27 April 2000 he brought proceedings before the
Timiryazevskiy District Court of Moscow seeking compensation in
respect of non-pecuniary damage against a municipal maintenance
enterprise. According to him, the enterprise should have repaired the
bathroom or plumbing equipment on upper floors of the building in
which he was living. As can be seen from a copy of his statement of
claim, submitted to the Court, this statement had a handwritten
inscription “lodged on 27 April 2000 [unreadable signature]”.
According to the Government the claim was lodged and assigned to a
judge on 3 May 2001.
- On
16 August 2001 the District Court discontinued the proceedings
considering that there had already been a final judgment in the same
matter issued on 2 July 2001. On 6 September 2001 the Moscow
City Court quashed the above decision and remitted the case to the
District Court. The City Court considered that it had not been
properly established by the first-instance court that the above cases
concerned the same subject-matter.
- On
21 September 2001 the case was assigned to a professional judge
sitting with lay judges. Eight hearings were scheduled and adjourned
between October 2001 and February 2002 on account of the lay judges'
failure to attend hearings. On 12 and 27 February 2002 the court
requested a local hospital to provide information on the applicant's
state of health. Further six hearings were adjourned to collect
evidence and summon witnesses. Two hearings were adjourned because
the applicant defaulted.
- By
a judgment of 1 August 2002, the District Court granted the
applicant's claim in part and awarded him 2,000 Russian roubles
(RUB). The applicant appealed. On 22 January 2003 the City Court
quashed the judgment and remitted the case for re-examination. The
City Court considered that the District Court had misinterpreted the
subject-matter of the applicant's claims.
- On
29 April 2003 the applicant requested the District Court to examine
the case in his absence. The court granted this request. On 18 July
2003 the District Court discontinued the case referring to the
applicant's failure to attend hearings. On 26 August 2003 the City
Court quashed the decision and required the District Court to examine
the case. According to the Government, on an unspecified date the
District Court issued a notice that the applicant's presence at the
hearings had been indispensable.
- By
a decision of 29 December 2003 the District Court again discontinued
the case on grounds of the applicant's failure to attend an
unspecified number of hearings. The text of the decision indicated
that “the plaintiff could challenge this decision by applying
to a court within ten days”. Considering that this decision was
amenable to appeal to a higher court, on 16 January 2004 the
applicant appealed to the City Court alleging that the
discontinuation had been unlawful. According to the Government, on an
unspecified date, the City or District Court returned the appeal to
the applicant and informed him of his right to challenge the decision
not to examine the case before the same District Court.
- In
March 2004 the applicant complained to the President of the City
Court that his appeal had not been examined. This complaint was
forwarded to the District Court. No reply was received.
- On 2 October 2006 the applicant sought an extension of
the time-limit for his appeal. He also explained that he had waived
his right to be present at hearings listed in late 2003 and thus had
not attended any of those hearings. On 12 October 2006 the District
Court granted his request and quashed the decision of 29 December
2003. The court noted that the above decision did not contain
sufficient detail as to the procedure for appeal. It also observed
that the applicant had waived his right to be present at hearings in
2003 and that no decision had been taken in order to recognise his
personal presence at those hearings indispensable for the proper
conduct of the proceedings.
- By
judgment of 18 October 2006, the District Court awarded the applicant
RUB 3,000. Having heard the parties, on 9 November 2006 the City
Court upheld the judgment.
II. RELEVANT DOMESTIC LAW
- Pursuant to Article 222 of the Code of Civil
Procedure, a court could refuse to examine a claim if the
plaintiff/defendant had failed to attend at least two scheduled
hearings and had not waived their right to be present at hearings. In
such circumstances the court issued a decision not to examine the
claim. The court could revoke its own above decision if the relevant
party adduced evidence disclosing a valid excuse for not attending
the hearing(s) (Article 223 of the Code).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- Referring
to Articles 3, 6 and 13 of the Convention, the applicant complained
about the length of the civil proceedings and the court's failure to
process his appeal against the decision of 29 December 2003. The
Court will examine these complaints under Article 6 § 1 of the
Convention, which reads in the relevant part 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. Submissions by the parties
- The
Government submitted that the claim had been lodged and assigned to a
judge on 3 May 2001. There had been no significant delays between May
2001 and June 2003. The applicant had failed to attend court on seven
occasions without a valid excuse and despite the court's written
notice that his presence had been necessary. Thus, he had not
displayed much interest in pursuing his claim, which, in any event,
was “insignificant”.
- The
applicant maintained his complaints. He contended that he had not
contributed to the length of the proceedings and that he had not been
informed of any decision taken in relation to his appeal against the
decision of 29 December 2003. As suggested by the President of the
District Court, in October 2006 he applied for extension of the
time-limit for appeal against the above decision.
B. The Court's assessment
1. Admissibility
- The
Court observes that the applicant's original complaint was twofold:
(i) the allegedly excessive length of proceedings, and (ii) the
alleged failure to examine his appeal against the procedural order of
29 December 2003 (compare Sukhorubchenko v. Russia, no.
69315/01, §§ 41-56, 10 February 2005).
- As
regards the second issue, concerning access to a court, the Court
notes that in 2006 the City Court annulled the order of 29 December
2003 as unlawful and also referred to the fact that it did not
contain sufficient details as to the procedure for appeal. The
proceedings resumed thereafter and the applicant's claim was
eventually examined on the merits. Thus, the Court is satisfied that
the applicant is no longer a victim in respect of this alleged
violation. In any event, the above complaint is subsumed by the
applicant's complaint concerning the length of the civil proceedings.
- In
so far as length of proceedings is concerned, the Court considers
that this part of the application 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.
2. Merits
(a) Period under consideration
- Having
examined the evidence adduced by the parties, the Court accepts that
the applicant lodged his claim on 27 April 2000, as follows from the
inscription made on his statement of claim. The case was determined
at final instance on 9 November 2006. The Government adduced no
evidence to refute the applicant's allegation that he had not been
notified that his appeal against the procedural order of 29 December
2003 would not be processed. Thus, in the Court's opinion, the
proceedings should be considered as pending for the purpose of
Article 6 § 1 of Convention, during three uninterrupted periods:
from 27 April 2000 to 29 December 2003, from 29 December
2003 to 2 October 2006, and from 2 October to 9 November 2006.
Lastly, the Court observes that it has not been alleged that the
judgment in the applicant's favour was either not enforced or
enforced after only a delay. Thus, the overall length of the
proceedings to be taken into account amounted to six years, six
months and fourteen days for two levels of jurisdiction.
(b) Reasonableness of the period
- 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 that of the relevant authorities,
and what was at stake for the applicant in the dispute (see, among
other authorities, Frydlender v. France [GC], no. 30979/96, §
43, ECHR 2000-VII).
- The
Court considers that the case was not complex.
- Even
accepting that the applicant could be held accountable for certain
short delays in 2002, the Court considers that the remaining periods
of inactivity or delays were attributable to the State. The Court
reiterates that the State has a duty to organise its legal system in
such a way that its courts can meet the obligation to hear cases
within a reasonable time (see Sürmeli v. Germany [GC],
no. 75529/01, § 129, 8 June 2006). In particular, the Court
considers that there was a substantial delay between the date when
the claim was lodged (27 April 2000) and when it was first assigned
to a judge, which was, according to the Government, on 3 May
2001.
- Moreover,
in the Court's opinion, the delay between December 2003 and October
2006 is also imputable to the State. As acknowledged by the District
Court in its decision of 12 October 2006, the decision of 29 December
2003 did not contain sufficient detail, which would enable the
applicant to understand the appropriate procedure to be followed for
challenging the above decision (see paragraphs 12 and 14 above). At
the same time, the Court considers that the applicant displayed
sufficient diligence when he enquired about the state of proceedings
on his appeal against the decision of 29 December 2003. Thus, even
though the applicant was mistaken as to the procedure to be followed,
it was incumbent on the national courts to inform him that his appeal
would not be examined since it was not required by national law in
the circumstances of the case. The Government produced no evidence
that any such effective notification had been made to the applicant.
- Lastly,
the Court notes that certain other delays in the applicant's civil
case were due to the defaulting members of the trial panel (lay
judges) or the court's inability to determine correctly the
subject-matter of the dispute.
- The
foregoing considerations are sufficient to enable the Court to
conclude that there has been a breach of the “reasonable time”
requirement in the present case. There has accordingly been a
violation of Article 6 § 1 of the Convention.
II. 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 2,000 euros (EUR) in respect of non-pecuniary
damage.
- The
Government contested this claim as excessive.
- Making
its assessment on an equitable basis and taking into account the
nature of the dispute, the Court awards the applicant the sum
claimed, plus any tax that may be chargeable.
B. Costs and expenses
- The
applicant made no claim in respect of costs and expense. The Court
does not make any award 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 complaint concerning the length of
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 2,000 (two
thousand euros), plus any tax that may be chargeable, in respect of
non-pecuniary damage, to be converted into Russian roubles at the
rate applicable at the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points.
Done in English, and notified in writing on 16 July 2009, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
