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FIRST
SECTION
CASE OF MARKOVA v. RUSSIA
(Application
no. 13119/03)
JUDGMENT
STRASBOURG
8 January 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 Markova v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis,
President,
Anatoly Kovler,
Elisabeth
Steiner,
Dean Spielmann,
Sverre Erik
Jebens,
Giorgio Malinverni,
George Nicolaou,
judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 4 December 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 13119/03) 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, Ms Nadezhda
Nikolayevna Markova (“the applicant”), on 8 April 2003.
- The
Russian Government (“the Government”) were initially
represented by Mr P. Laptev, the former Representative of the Russian
Federation at the European Court of Human Rights, and subsequently by
their former Representative, Mrs V. Milinchuk.
- On
14 March 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 FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1952 and lives in Moscow.
A. Compensation proceedings
- In
February 1996 the applicant's neighbour caused a flood in the
applicant's flat. According to the applicant, she sent a statement of
claims to the Basmanniy District Court of Moscow by regular mail in
November 1996. She sought compensation for damage caused by her
neighbour. It is unclear whether the applicant's statement was
received by the District Court.
- On
14 January 1997 the applicant resubmitted her tort action against her
neighbour to the Basmanniy District Court of Moscow. On 10 October
1997 the proceedings were stayed pending an expert examination. They
were subsequently resumed on 10 March 1998 with no examination having
been performed.
- From
28 April 1998 to 17 February 1999 several hearings were adjourned
either because the defendant had not attended or because the judge
was busy on another case.
- On
17 February 1999 another expert examination was ordered. The parties
refused to pay for it. The examination was not performed and on
13 May 1999 the experts returned the case file to the District
Court. On 8 June 1999 and 10 April 2000 the court made an offer to
the applicant to pay for the expert report. According to the
Government, she did not reply to the offer.
- On
3 August 2000 the Basmanniy District Court resumed the proceedings.
- On
15 August 2000 the hearing was adjourned because the parties had not
attended. On 24 August 2000 the Basmanniy District Court refused to
examine the action because the parties had again failed to appear.
- On
4 September 2000 the applicant complained to the Moscow City Court
that she had not been properly notified of the hearing of 24 August
2000 and had been unable to attend.
- On
8 September 2000 the Moscow City Court quashed the decision of 24
August 2000 and ordered the proceedings to be resumed. A hearing was
listed for 6 December 2000.
- From
6 December 2000 to 3 June 2002 several hearings were adjourned either
because the defendant had not attended or had asked for an
adjournment or because the judge was busy on another case.
- On
3 June 2002 the Basmanniy District Court of Moscow granted the
applicant's action in part and awarded her 10,000 Russian roubles as
compensation for damage.
- On
22 October 2002 the Moscow City Court upheld the judgment on appeal.
B. Complaints about the excessive length of the
compensation proceedings
- On
many occasions in 2001-2002 the applicant complained to various
domestic officials, including the Supreme Judicial Appointments
Board, the Judicial Department of the Supreme Court of Russia, the
Moscow City Court, and the Ministry of Justice, of the excessive
length of the proceedings in her case.
- It
appears that her complaints were either left unanswered or redirected
to the Basmanniy District Court of Moscow.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- 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 acknowledged that the proceedings in the applicant's case
had been unreasonably long.
- The Court observes that the parties' submissions
differ as to whether the proceedings commenced in November 1996 or
January 1997. However, the Court will consider only the period of the
proceedings which began on 5 May 1998, when the Convention entered
into force in respect of Russia. In assessing the reasonableness of
the time that elapsed after that date, account must be taken of the
state of the proceedings at the time. The period in question ended on
22 October 2002 with the decision of the Moscow City Court. Thus the
Court has competence ratione temporis to examine the period of
approximately four years and six months. During that period the case
was examined at two levels of jurisdiction.
A. Admissibility
- 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
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). In addition, only delays attributable to the
State may justify a finding of a failure to comply with the
“reasonable time” requirement (see Pedersen and
Baadsgaard v. Denmark [GC], no. 49017/99, § 49, ECHR
2004-XI).
- Turning
to the facts of the present case, the Court observes that several
delays in the proceedings were caused because the judge was busy on
another case. In this connection the Court reiterates that it is for
Contracting States to organise their legal systems in such a way that
their courts can guarantee the right of everyone to obtain a final
decision within a reasonable time (see Löffler v. Austria,
no. 30546/96, § 21, 3 October 2000). Therefore, the delays
resulting from the judge's absence are imputable to the State.
- The
Court also notes a prolonged period of inactivity relating to the
pending expert examination. In particular, almost eighteen months
elapsed from 17 February 1999, when the District Court ordered an
expert examination and suspended the proceedings, to 3 August 2000,
when the proceedings were resumed without any expert opinion having
been prepared, since the parties refused to pay for it. The Court
reiterates that the principal responsibility for delay due to expert
opinions rests ultimately with the State (see Capuano v. Italy,
25 June 1987, § 32, Series A no. 119, and Volovich v.
Russia, no. 10374/02, § 30, 5 October 2006).
- The
Court has frequently found violations of Article 6 § 1 of the
Convention in cases raising issues similar to the one in the present
case (see Frydlender, cited above).
- Having
examined all the material submitted to it, the Court considers that
the Government have not put forward any fact or argument capable of
persuading it to reach a different conclusion in the present case.
Indeed the Government acknowledged that the proceedings had been
unreasonably long. Therefore, having regard to its case-law on the
subject, the Court considers 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 13 OF THE CONVENTION
- The
applicant further complained that she had no effective remedies for
her complaint concerning the excessive length of the proceedings. She
relied on Article 13 of the Convention.
- The
Government did not comment on this issue.
- The
Court refers to its finding in paragraph 21 above and notes that this
complaint is linked to the applicant's complaint under Article 6 § 1
and must therefore likewise be declared admissible.
- 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 applicant's case
or provided her with adequate redress for the delays that had already
occurred (see Kudła, cited above, § 159;
Kormacheva v. Russia, no. 53084/99, §§ 61-62,
29 January 2004; and Kuzin v. Russia, no. 22118/02,
§§ 42-46, 9 June 2005).
- Accordingly,
the Court considers that in the present case there has been a
violation of Article 13 of the Convention in that the applicant had
no domestic remedy whereby she could enforce her right to a “hearing
within a reasonable time” as guaranteed by Article 6 § 1
of the Convention.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant complained under Articles 6 and 14 of the Convention and
Article 1 of Protocol No. 1 that the domestic courts had only granted
her action in part, that they had incorrectly assessed the facts and
wrongly calculated the compensation, and that the defendant could
have been assisted by a lawyer whereas she could not afford one.
- Having
regard to all the material in its possession, and in so far as these
complaints fall within the Court's competence, it 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 150,000 Russian roubles (RUR) in respect of
pecuniary damage. She also stressed that the sum of 1,500 euros
(EUR), proposed by the Government to compensate for the non-pecuniary
damage, was not sufficient.
- The
Government contested the claim for pecuniary damage.
- 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 accepts that the applicant suffered
distress, anxiety and frustration because of the unreasonable length
of the proceedings in her case and the lack of an effective remedy
for a breach of the requirement to hear her case within a reasonable
time. Making its assessment on an equitable basis, it awards the
applicant EUR 1,500 in respect of non-pecuniary damage, plus any tax
that may be charged on the above amount.
B. Costs and expenses
- The
applicant submitted several receipts for postal expenses,
translation, copying and legal aid in a total sum of RUR 31,865; she
did not itemise her claim under this head.
- The
Government contested the claim.
- 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 were
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 EUR 100 covering all costs under
this head, plus any tax that may be chargeable to the
applicant.
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 complaints concerning the excessive
length of the proceedings and absence of 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 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
1,500 (one thousand five hundred euros) in respect of non-pecuniary
damage, plus any tax that may be chargeable; and
(ii) EUR
100 (one 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 8 January 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
