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FIRST
SECTION
CASE OF ZHARKOVA v. RUSSIA
(Application
no. 32380/06)
JUDGMENT
STRASBOURG
17
September 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 Zharkova 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 27 August 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 32380/06) 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 a Russian national, Ms Elza
Georgiyevna Zharkova (“the applicant”), on 19 July 2006.
- The
applicant was represented by
Mr G. Lebedev, a
lawyer practising in St Petersburg. The Russian
Government (“the Government”) were initially represented
by Mrs V. Milinchuk, the former Representative of the Russian
Federation at the European Court of Human Rights and subsequently by
their Representative, Mr G. Matyushkin.
- On
16 June 2008 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 1937 and lives in St Petersburg.
- On
1 October 1997 the applicant was dismissed from her position as head
of department of a state research institute. On 24 February 1998 she
lodged a court action against her former employer with the Vuborgskiy
District Court of St Petersburg (“the District Court”).
She requested the court to reinstate her in her previous position,
recover and index-link the unpaid salary, and award compensation for
unused leave and for pecuniary and non-pecuniary damage. In the
course of the proceedings the applicant amended her claims. The
domestic courts examined her claims three times at two levels of
jurisdiction.
A. First examination of the case
- The
case was initially assigned to judge V. who, on 30 November 1998,
scheduled a hearing for 3 December 1998. On an unspecified date in
2001 the case was reassigned to judge N.
- Between
1998 and 2002 the proceedings were adjourned several times for
various reasons.
- During
three periods (between 8 December 1998 and 1 March 1999, between 21
March and 28 April 2000, and between 15 January and 11 April 2001) no
hearings were scheduled because the judge was on sick leave. The case
was also adjourned from 5 February until 10 April 2002 because the
court's registrar was on sick leave.
- The
proceedings were adjourned between 3 and 9 June 1999, 29 November
1999 and 21 March 2000, 28 April and 2 June 2000, 19 June and 25
September 2002 because the defendant failed to attend. They were also
adjourned from 25 July until 9 August 2000 and from 10 April until
19 June 2002 because the defendant's representative was on a
business trip.
- The
case was postponed from 9 June until 5 August 1999 and from 17 until
25 December 2002 because the applicant's counsel failed to attend.
- The
proceedings were also adjourned on several occasions because the
applicant amended her claims and the defendant needed additional time
to comment on them.
- On
25 December 2002 the District Court awarded the applicant a certain
amount in compensation for unused leave and compensation for legal
costs. It further held that the applicant's claim for compensation
for delayed payment of her salary was unsubstantiated and dismissed
it. Finally, it found that the remainder of the applicant's claims
were either unsubstantiated or lodged out of time.
- On
14 April 2003 the applicant filed the final version of her grounds of
appeal against the judgment of 25 December 2002 with the St
Petersburg City Court (“the City Court”). A hearing was
scheduled for 9 June 2003. On that date the
case was adjourned until 23 June 2003 because the applicant did not
attend.
- On
23 June 2003 the City Court quashed the judgment of 25 December
2002 in so far as it had dismissed the applicant's claims for
compensation for delayed payment of salary and remitted this part of
the case to the District Court for fresh examination. The City Court
found that this part of the judgment was not duly reasoned. It upheld
the rest of the judgment.
B. Second examination of the case
- On
31 July 2003 the case was transmitted to the District Court and
assigned to judge T. On 1 September 2003 a hearing was scheduled for
4 November 2003. On that date the case was
adjourned until 17 December 2003 because the applicant's counsel
failed to attend.
- Subsequently,
the case was adjourned several times for various reasons. In
particular, on 25 February and 8 June 2004 the case was adjourned
until 2 March and 7 September 2004 respectively because the
defendant's representative did not have the necessary power of
attorney. On 2 June 2004 the case was adjourned until 8 June 2004
because the judge was busy in unrelated proceedings. On 1 February
2005 the case was adjourned again because the judge was on sick
leave.
- On
17 March 2005, after a fresh examination, the District Court
dismissed the applicant's claims. However, on 19 October 2005 the
City Court quashed that judgment as unlawful and remitted the case to
the District Court for fresh examination.
C. Third examination of the case
- On
26 October 2005 the case was referred to the District Court and
assigned to judge S.
- On
22 November 2005 the District Court awarded the applicant
compensation for delayed payment of her salary. It further held that
the domestic law did not provide for further indexation of the amount
of compensation. It dismissed the remainder of the applicant's
claims. On 7 February
2006 the City Court upheld that judgment.
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 proceedings commenced on 24 February 1998, when
the applicant lodged her claim with the District Court. However, the
Court only has competence ratione temporis to examine the
period after 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
proceedings at the time. In the present case the proceedings were
pending until 7 February 2006, when the City Court adopted a final
decision in the case. Taking into account the above, the period to be
considered is approximately seven years and
nine months. During that period the case
was examined three times 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
Government considered that the domestic courts examined the
applicant's claim within a reasonable time. The case was particularly
complex. The applicant amended her claims and the court needed
additional time to study them and to call third parties and witnesses
to the hearings. The applicant had contributed to the length of the
proceedings by amending her claims and by lodging additional
evidence, motions and appeals. On four occasions the case was
adjourned because of her counsel's failure to attend, which resulted
in a four-month delay. The courts examined the case several times.
They conducted the proceedings promptly, without any delays. The case
was adjourned on several occasions because the judge was on sick
leave and other judges had a very heavy workload.
- The
applicant considered that the most significant delays in the
proceedings were caused by the repeated reassignment of the case to
different judges and the poor quality of the first-instance court
decisions.
- 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). The Court further reiterates that
special diligence is necessary in employment disputes (Ruotolo
v. Italy, 27 February 1992, §
17, Series A no. 230-D).
- The
Court agrees that
the proceedings at issue were of a certain complexity, in particular,
because the applicant amended her claims on several occasions.
However, it cannot accept that the complexity of the case, taken on
its own, was such as to justify the overall length of the
proceedings.
- As
to the applicant's conduct, the Court is not convinced by the
Government's argument that the applicant should be held responsible
for amending her claims and lodging motions and appeals. It has been
the Court's constant approach that an applicant cannot be blamed for
taking full advantage of the resources afforded by the national law
in the defence of his interests (see, mutatis mutandis, Yağcı
and Sargın v. Turkey, judgment of 8 June 1995, Series A
no. 319-A, § 66). It is not disputed that the applicant failed
to attend four hearings. However, the resulting delay of four months
is insignificant compared to the overall length of the proceedings.
Therefore, the applicant cannot be held responsible for any
substantial delays in the proceedings.
- As
regards the conduct of the judicial authorities, the Court notes the
Government's argument that during the period under consideration the
domestic authorities examined the case in several rounds of
proceedings. The Court observes in that respect that on 23
June 2003 the appeal court quashed the judgment of the
first-instance court because it had rejected a part of the
applicant's claim without due reasoning. However, the new decision of
the District Court was again quashed on appeal as unlawful, which led
to a third round of proceedings. The Court considers that the
repeated shifting of the case between
several levels of jurisdiction was the
main reason for the lengthy examination of the case. Those delays are
entirely attributable to the domestic authorities and their failure
to examine the case properly. The fact that the domestic courts heard
the case several times did not absolve them from complying with the
reasonable time requirement of Article 6 § 1 (see Litoselitis
v. Greece, no. 62771/00, § 32, 5 February 2004).
29. Furthermore,
the Court does not agree with the Government that the domestic courts
conducted the proceedings properly. The Court observes that the
applicant lodged her claim on 24 February 1998. However, nine months
elapsed before the examination of the case was scheduled for
3 December 1998. Of that period more than six months fall under
the Court's temporal jurisdiction. In the second round of
proceedings, the case was transmitted to the District Court on 31
July 2003; however, it was not until 4 November 2003 that the first
hearing was scheduled. The Government did not provide any explanation
for those delays. Furthermore, on several occasions (see paragraphs 8
and 16 above) the proceedings were adjourned because the judge or the
court's registrar was on sick leave. The accumulated delay amounted
to approximately ten months. 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, for instance, Löffler
v. Austria, no. 30546/96, § 21,
3 October 2000). The manner in which a
State provides for mechanisms to comply with this requirement –
whether by increasing the numbers of judges, or by automatic
time-limits and directions, or by some other method – is for
the State to decide. If a State lets proceedings continue beyond the
“reasonable time” prescribed by Article 6 of the
Convention without doing anything to advance them, it will be
responsible for the resultant delay (see Price
and Lowe v. the United Kingdom,
nos. 43185/98 and 43186/98, §
23, 29 July 2003). The
Court finds that in the present case the authorities did not take due
measures to speed up the proceedings and, therefore, the delays
resulting from the judge's absence from the hearings are imputable to
the State.
- The
Court also notes that on several occasions the hearings were
adjourned because the defendant failed to attend, because their
representative was on a business trip or because the latter did not
have power of attorney to represent the defendant (see paragraphs 9
and 16 above). The accumulated delay amounted to approximately a
year. There is no indication that the District Court took any
measures to discipline the defendant.
- In
sum, the Court considers that the most significant delays in the
proceedings are attributable to the domestic courts.
- The
Court finally notes that the proceedings in the present case
concerned a labour dispute between the applicant and her former
employer and required a particular diligence on the part of the
domestic courts.
- In
the light of the criteria laid down in its case-law, and having
regard to all the circumstances of the case, 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 of the
Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant complained under Article 6 of the Convention that the
domestic courts had wrongly applied substantive law. She finally
complained under Article 1 of Protocol No. 1 that the domestic courts
had refused to index-link the amount of compensation for the delayed
payment of her salary. Having regard to all the material in its
possession, and in so far as those complaints fall within its
competence, 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.
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 considered that the amount of compensation awarded by the
domestic courts had lost its value because the proceedings had lasted
a very long time and the domestic courts had refused to index-link
the awards. She claimed 3,927 euros (EUR) in that respect. She
further claimed EUR 4,708 in respect of pecuniary damage caused by
the late payment of her salary and EUR 2,116 for loss of profit which
she could have made if she had received her salary without delay.
Finally, the applicant claimed EUR 5,000 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 applicant's claims for pecuniary damage; it therefore rejects
her claims in that part. On the other hand, the Court considers that
the applicant must have sustained non-pecuniary damage as a result of
the lengthy examination of her claim. Ruling on an equitable basis
and having regard to the nature of the proceedings in the present
case, the Court awards the applicant EUR 4,800 under that head, plus
any tax that may be chargeable on that amount.
B. Costs and expenses
- The
applicant also claimed EUR 31 for costs and expenses incurred before
the domestic courts and the Court.
- The
Government accepted the applicant's claims under that head.
- 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 and the above criteria, the Court
considers that the sum claimed should be awarded in full, 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 in respect of the excessive length of
the proceedings;
- 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 4,800 (four
thousand eight hundred euros) in respect of non-pecuniary damage and
EUR 31 (thirty one euros) in respect of costs and expenses, plus any
tax that may be chargeable to the applicant on those amounts, 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 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 17 September 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
