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FIRST
SECTION
CASE OF PLEMYANOVA v. RUSSIA
(Application
no. 27865/06)
JUDGMENT
STRASBOURG
15 October 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 Plemyanova 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,
Giorgio
Malinverni,
George Nicolaou, judges,
and André
Wampach, Deputy Section Registrar,
Having
deliberated in private on 24 September 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 27865/06) 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 Mariya Sergeyevna
Plemyanova (“the applicant”), on 16 May 2006.
- The
Russian Government (“the Government”) were represented by
Mr G. Matyushkin, Representative of the Russian Federation at
the European Court of Human Rights.
- On
19 June 2008 the President of the First Section decided to grant
priority treatment to the application and to give notice of it 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 1928 and lives in Krasnodar.
A. First round of proceedings
- In
October 1996 the applicant's husband sued his neighbours, Mr P and Mr
Pr alleging that they prevented him from using his land. In April
1997 he amended his claim raising a complaint against the Krasnodar
town administration claiming removal of structures built on his land
and annulment of the administration's decision allowing such
construction. In reply to the court's request, in his report
dated 31 March 1997, the expert concluded that the border
between P's and the applicant's land was not in line with the
reference document issued in 1957. By a default judgment of 23
January 1998, the Pervomayskiy District Court of Krasnodar granted
the applicant's husband's claims. Mr P sought annulment of the
default judgment. On 10 April 1998 this judgment was annulled and the
proceedings resumed.
- On
5 May 1998 the Convention entered into force in respect of Russia.
B. Second round of proceedings
- On
26 June 1998 the District Court granted the applicant's husband's
claims and ordered the town administration “not to place any
obstacles in the way of his building a garage”. The applicant's
husband and the district prosecutor lodged appeals against this
judgment. On 27 August 1998 the Krasnodar Regional Court quashed the
judgment on appeal; the case was remitted to the District Court.
C. Third round of proceedings
- In
the resumed proceedings, three hearings were adjourned because third
parties, experts or witnesses defaulted. Two hearings were adjourned
because the applicant's husband's lawyer studied the case file for
ten days and because the applicant's husband drafted an amended
statement of claim.
- In
April 1999 the case was re-assigned to another judge. In May 1999 the
applicant's husband lodged a claim against a Ms N, his other
neighbour. In June 1999 Mr P and Ms N lodged counter-claims against
the applicant's husband. In July 1999 the court ordered an expert
report. In the absence of the necessary documents and payment, the
expert refused to submit a report.
- In
3 February 2000 the case was re-assigned. At least five hearings were
adjourned for various reasons (the judge was ill or busy; the other
parties, their lawyers or other participants failed to attend). In
September 2000 the applicant's husband and Mr P signed a friendly
settlement agreement in respect of certain claims. On 30 November
2000 the Presidium of the Regional Court annulled it.
- In
January 2001 the applicant's husband withdrew some of his claims; Mr
Pr waived his right to be present at hearings; Ms N withdrew her
claims against the applicant. By a judgment of 1 February 2001, the
District Court rejected the applicant's husband's claims. On 20 March
2001 the Regional Court upheld the judgment. On 2 August 2001 the
Presidium of the Regional Court quashed the above judgments by
supervisory review and ordered a re-examination of the case.
D. Fourth round of proceedings
- The applicant's husband died on 8 October 2001. On 17
October 2001 the court suspended the proceedings pending the
succession proceedings (see paragraph 20 below). In early 2002 the
applicant informed the court that she had applied for a succession
certificate.
- In March 2002 Mr Pr waived his right to be present at
hearings and asked the court to render a judgment with reference to
his depositions made over the previous years. On 9 April 2002 the
court resumed the proceedings. A hearing was scheduled for 3 June
2002. On the latter date, the court suspended the proceedings because
the applicant decided to bring a separate court action in order to
have certain succession-related documents amended. The outcome of
this court action remains unclear. On 23 December 2002 the
notary public issued a succession certificate to the applicant in
respect of the house. Thereby the applicant acquired rent title to
the land under and around the house, which was at the heart of the
civil dispute initiated by her late husband.
- In March 2003 the main proceedings were resumed. In
April 2003 the case was re-assigned. In 2003 there were several
adjournments for various reasons: at least five hearings were
scheduled but adjourned because one or two defendants (or their
lawyers) were absent or ill or because the judge was busy in other
proceedings.
- On 26 January 2004 the court issued an order allowing
the applicant to step into the proceedings as the plaintiff's heir.
In 2004 and 2005 hearings were regularly scheduled but were adjourned
for various reasons, mainly on account of the illness or
unavailability of one or more parties.
- In
2006 three hearings were scheduled and adjourned because the
defendants failed to appear or because the judge was busy in other
proceedings or ill.
- Hearings were held on 12 and 21 February 2007. On the
latter date, the court refused to start the deliberations because of
the announcement of Mr Pr's death. Thus, the proceedings resumed. In
March 2007 the applicant asked the District Court to discontinue the
proceedings in respect of Mr Pr. On 18 April 2007 the court
granted her request. Despite the applicant's objection, the court
also considered that the rights of Mr Pr's heirs might be affected by
the applicant's civil case, and thus suspended the proceedings
pending determination of the succession issue. On 24 October 2007 the
Regional Court refused to re-examine the above decision by way of
supervisory review.
- The
main proceedings resumed in April 2008. The case was reassigned.
According to the Government, the parties failed to attend a hearing
on 2 June 2008. Mr Pr's heirs indicated that they would obtain a
succession certificate only in early August 2008.
- By
a judgment of 12 August 2008, the District Court granted the
applicant's claims in part. With reference to the 1997 expert report,
the court concluded that the border between P's and the applicant's
land was not in line with the reference document issued in 1957. The
court also heard the parties' neighbours who made contradictory
statements. On 7 October 2008 the Regional Court upheld the
judgment, except for one claim against Mr P. Having noted that the
case had already been pending for more than ten years, the appeal
court itself re-examined that claim and rejected it.
II. RELEVANT DOMESTIC LAW
- Pursuant to the RSFSR Code of Civil Procedure in force
before 1 February 2003, the court was required to suspend the
proceedings if one party had died and the claims could be succeeded
to (Article 214). The suspension had to be valid until a successor
was identified (Article 216). Similar provisions are contained in
Articles 215-217 of the 2002 Code of Civil Procedure.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicant complained that the length of the civil proceedings had
been in breach of the “reasonable time” requirement under
Article 6 of the Convention, which in the relevant part 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. Submissions by the parties
- The
Government submitted that the period to be taken into consideration
started on 5 May 1998 and ended on 7 October 2008. They argued that
the proceedings were complex on account of the nature and the number
of the claims, which were amended several times, and the number of
persons and judicial instances involved in the dispute. Delays were
occasioned by the time needed for the applicant and a co-respondent's
heirs to confirm their succession status. Thus, following the death
of the applicant's husband the proceedings remained suspended for
fourteen months. The case had to be adjourned on fifteen occasions
because both parties failed to appear, thus delaying the proceedings
for eleven months in total. The applicant was solely responsible for
eight adjournments amounting to a cumulative delay of five months.
The other parties caused delays on twenty-one occasions (a delay of
nearly thirteen months). Certain delays were caused by the fact that
the parties appealed against first-instance judgments. Lastly, the
Government acknowledged that the national authorities were
responsible for a cumulative period of fifteen months resulting from
adjournments on account of the judges' unavailability or illness.
- The applicant maintained her complaint. She argued
that the case was not complex. The case file contained six volumes,
half of which were documents of a procedural nature. Moreover, one of
two respondents, Mr Pr, accepted the applicant's claims and thus
there was no need to adjourn subsequent proceedings insisting on his
presence. The other respondent, Mr P, was responsible for twenty-one
adjournments resulting in a cumulative delay of one year, eleven
months and seven days. The court was responsible for six years, six
months and fifteen days. Certain delays were caused by the court's
failure to apprise the parties of hearings. Adjournments had lasted
over a month each and were, at times, ordered despite a party's
waiver of the right to be present. The case was arbitrarily
re-assigned between district court judges. No penalties had been
imposed on the defaulting party. Lastly, the applicant accepted that
she could be held accountable for adjournments on nine occasions
amounting in total to one year, six months and six days, in
particular after her husband had died and before she stepped into the
proceedings as her husband's heir.
B. The Court's assessment
1. Admissibility
- The
Court notes that the 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.
2. Merits
(a) Period to be taken into account
- Having
regard to the materials in the case file, the Court accepts that the
domestic proceedings started in October 1996. However, the Court's
competence ratione temporis is limited to the proceedings
pending after 5 May 1998, the Convention having entered into
force in respect of Russia on that date. In assessing the
reasonableness of the time that elapsed after that date, the Court
may, however, take account of the state of proceedings at the time.
- The
domestic proceedings ended on 7 October 2008. The Court considers
that the period from 20 March to 2 August 2001 should not be taken
into account because no proceedings were pending before the national
courts.
- Thus,
the proceedings took approximately eleven years and eight months, of
which the period of ten years and nearly one month (at two level of
jurisdiction) was within the Court's competence ratione temporis.
(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 the conduct of the relevant
authorities (see, among many other authorities, Frydlender v.
France [GC], no. 30979/96, § 43, ECHR 2000 VII).
- The
Court considers that the case was not particularly complex, despite
the involvement of several parties and their claims. In the course of
the proceedings a number of claims and counterclaims were withdrawn.
It is noted in that connection that the court determined the dispute
in 2008 essentially with reference to an expert report issued already
in 1997.
- The
Court considers that first the applicant's husband and then the
applicant, at least to a certain extent, contributed to the length of
the proceedings as they or their lawyers failed to appear at several
hearings, which resulted in adjournments. The applicant accepted that
she was accountable for a cumulative delay of three months and for
the period after 17 October 2001 when the proceedings were suspended
at her request pending determination of her succession status and the
issuing of the relevant certificate (see paragraph 23 above).
Whatever the applicant's responsibility for that delay may be, there
is insufficient factual basis for the Court to conclude that the
period from October 2001 to March 2003 was attributable to the
applicant or the State in the circumstances of the case (see
paragraphs 12 - 14 above). The same considerations apply in relation
to the suspension of the proceedings in 2007 following Mr Pr's death
(see paragraph 17 above). The Government produced no evidence
confirming their argument that the applicant was responsible for any
delays other than those indicated above.
- As
regards the conduct of the judicial authorities, bearing in mind the
above considerations, the Court observes that no full hearing was
held between 2003 and early 2007. Although there were no significant
periods of inactivity directly attributable to the court, the latter
did not take any measures to discipline the defaulting parties, thus
allowing the proceedings to drag on for years (see Salmanov v.
Russia, no. 3522/04, § 87, 31 July 2008, with further
references). The Court reiterates in that connection that the
respondent States have a duty to organise their legal systems in such
a way that their courts can meet the obligation to hear cases within
a reasonable time (see Sürmeli v. Germany [GC], no.
75529/01, § 129, 8 June 2006). Moreover, the
Court notes that the court insisted on a number of occasions on Mr
Pr's presence despite the fact that in 2002 he had asked the court to
render a judgment in his absence (see paragraph 13 above). Lastly,
the Government provided no explanation for replacing the trial judge
in the course of the proceedings, which contributed to their overall
duration.
- The
Court notes that the length of the proceedings was also due to the
fact that the civil case was re-examined several times. Although the
Court is not in a position to analyse the juridical quality of the
domestic courts' decisions, it considers that, since the remittal of
cases for re-examination is frequently ordered as a result of errors
committed by lower courts, the repetition of such orders within one
set of proceedings may disclose a serious deficiency in the judicial
system (see Oblov v. Russia, no. 22674/02, § 28, 15
January 2009, with further references).
- Having
regard to the above, to the fact that the case was not complex and
that the proceedings within the Court's competence ratione
temporis lasted over ten years, the Court considers that the
length of the proceedings did not satisfy the “reasonable-time”
requirement. There has accordingly been a breach of Article 6 §
1 of the Convention.
II. ANOTHER ALLEGED VIOLATION OF THE CONVENTION
- The
applicant complained in substance under Article 6 § 1 of the
Convention about the discontinuation decision of 18 April 2007 (see
paragraph 17 above).
- The
Court observes that the applicant did not bring an ordinary appeal
against this decision. It follows that this complaint must be
rejected under Article 35 §§ 1 and 4 of the
Convention for non-exhaustion of domestic remedies.
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 50,000 euros (EUR) in respect of non-pecuniary
damage.
- The
Government considered that the claim was excessive and
unsubstantiated.
- Making
its assessment on an equitable basis, the Court awards the applicant
EUR 3,000 in respect of non-pecuniary damage, plus any tax that may
be chargeable.
B. Costs and expenses
- The
applicant also claimed 50,000 Russian roubles (RUB) for legal advice
given by a Ms Fomicheva in relation to the proceedings before
the Court and RUB 12,799 for various costs and expenses, including
postage, incurred at the national level and before the Court.
- The
Government submitted that the second claim was unrelated to the
proceedings before the Court.
- 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. The applicant submitted that she was
assisted by Ms Fomicheva, deputy director of the Krasnodar
regional society for consumer rights, in the proceedings before the
Court and thus claimed reimbursement of RUB 50,000 paid for her
advice. It is undisputed that the applicant did pay this sum to the
above non-governmental organisation. Regard being had to the
information in its possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 710 covering costs
under all heads.
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 application admissible;
- 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 3,000
(three thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage, and EUR 710 (seven hundred ten
euros) in respect of costs and expenses, both sums 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 15 October 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Christos Rozakis
Deputy Registrar President
