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FIRST
SECTION
CASE OF
SERGEY SMIRNOV v. RUSSIA
(Application
no. 14085/04)
JUDGMENT
STRASBOURG
22
December 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 Sergey Smirnov v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina
Vajić,
President,
Anatoly
Kovler,
Elisabeth
Steiner,
Khanlar
Hajiyev,
Dean
Spielmann,
Sverre
Erik Jebens,
Giorgio
Malinverni,
judges,
and
Søren Nielsen, Section
Registrar,
Having
deliberated in private on 3 December 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 14085/04) 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 Sergey Yuryevich Smirnov
(“the applicant”), on 26 February 2003.
- The applicant was represented by Mr D. Gorelishvili, a
lawyer practising in Moscow. The Russian Government (“the
Government”) were represented by Mr P. Laptev,
Representative of the Russian Federation at the European Court of
Human Rights.
- The applicant complained of a violation of his right of
access to a court.
- By a decision of 6 July 2006 the Court declared the
application partly admissible.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant was born in 1959 and lives in Moscow. He
has no fixed place of residence or residence registration.
A. Proceedings against a hire agency
- On 24 May 2002 the applicant asked to hire cutlery and
a folding bed from the “Morion” hire agency. Having
studied his passport, the manager replied that the company could not
hire out anything to him because he had no residence registration.
- On
12 August 2002 the applicant lodged a civil action against the
“Morion” company, alleging unlawful denial of services.
The statement of claim indicated that the applicant had no fixed
place of residence and provided an address in Moscow for
correspondence.
- On
9 October 2002 the Khoroshevskiy District Court stayed the
applicant's claim because his place of residence had not been
specified. He was invited to specify it by 11 November 2002, failing
which his action would be declared inadmissible.
- The
applicant appealed against the decision of 9 October 2002, alleging
an unlawful restriction on his right of access to a court guaranteed
by Article 46 of the Russian Constitution on account of his
inability to show that he had permanent residence at a specific
place.
- On
20 December 2002 the Moscow City Court upheld the decision.
B. Proceedings against a telecommunications provider
- On
5 April 2003 the applicant unsuccessfully attempted to subscribe to
the services of the MTS telecommunications company. He was refused
because he had no residence registration.
- On
22 August 2003 he sued the MTS company and the cell phone vendor for
subscription to a contract and compensation for non-pecuniary damage.
He indicated the city of Moscow as his place of residence and
provided a poste restante address for correspondence.
- On
8 September 2002 the Taganskiy District Court of Moscow stayed the
applicant's claim due to his omission to indicate his address. He was
instructed to rectify the omission within ten days, failing which his
claim would be declared inadmissible.
- The
applicant received a copy of the decision by mail at the address
indicated in his statement of claim.
- The
applicant appealed, submitting that he had indicated his address in
the statement of claim.
- On
18 November 2003 the Moscow City Court upheld the decision of
8 September 2003.
II. RELEVANT DOMESTIC LAW
- The RSFSR Code of Civil Procedure (“the old
CCP”, in force until 1 February 2003) provided that a civil
claim was to be filed with the court with territorial jurisdiction
over the defendant's place of residence (Article 117).
- The
statement of claim was to specify, in particular, the plaintiff's
name and place of residence. If such information was missing, the
judge had to stay the proceedings and set a time-limit by which the
plaintiff would remedy the defects. If the missing information was
not supplied, the claim should be declared inadmissible (Articles 126
and 130).
- The
Code of Civil Procedure of the Russian Federation of 14 November
2002 (“the new CCP”, in force from 1 February 2003)
contains identical provisions in Articles 28, 131 § 2 and 136.
- The
Civil Code defines a place of residence as a place where a person
permanently or predominantly lives (Article 20 § 1).
- On
17 July 1995 the Russian Government approved the Regulations for
registration of temporary and permanent residence of Russian citizens
(no. 713). Section 3 of the Regulations defines a place of residence
as a place where a person permanently or predominantly lives as
an owner or under the terms of a tenancy contract or on other
statutory grounds. Section 16 imposes a duty to seek
residence registration within seven days of a change of place of
residence. Moreover, section 9 imposes a
duty to obtain registration at any address where a person
intends to stay temporarily for longer than ten days. The person is
required to file an application for registration and to submit an
identity document, an application form and a document showing the
legal basis for residence at the indicated address.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained under Article 6 § 1 of the Convention that
he had had no access to a court for the determination of his civil
claims. The relevant parts of Article 6 § 1 read as follows:
Article 6 § 1
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing ... by
[a] ... tribunal...”
- The
applicant submitted that the very essence of his right of access to a
court had been impaired by the domestic courts' refusals to examine
the merits of his claims on the ground that he had omitted to
indicate his place of residence. His statements of claim had
mentioned an address for correspondence which, in the applicant's
view, sufficed to enable the courts to keep contact with him. He had
in fact received correspondence from courts at that address. The
requirement to indicate his registered place of residence had no
basis in domestic law and, taking into account his particular
situation as a person with no fixed residence, it had had a
prohibitive effect, depriving him of the right of access to a court.
- The
Government did not make submissions on the merits of the application.
- The
Court reiterates that Article 6 § 1 secures to
everyone the right to have any claim relating to his civil rights and
obligations brought before a court or tribunal. In this way, that
provision embodies the “right to a court”, of which the
right of access, that is, the right to institute proceedings before a
court in civil matters, constitutes one aspect only; however, it is
an aspect that makes it in fact possible to benefit from the further
guarantees laid down in paragraph 1 of Article 6 (see
Teltronic-CATV v. Poland, no. 48140/99, § 45,
10 January 2006).
- The
“right to a court” is not absolute, but may be subject to
limitations. The Court has ruled that, guaranteeing to litigants an
effective right of access to courts for the determination of their
“civil rights and obligations”, Article 6 § 1
leaves to the State a free choice of the means to be used towards
this end but, while the Contracting States enjoy a certain margin of
appreciation in that respect, the final decision as to the observance
of the Convention's requirements rests with the Court (see Jedamski
and Jedamska v. Poland, no. 73547/01, § 58, 26
July 2005).
- The
Court must be satisfied that the limitations applied do not restrict
or reduce the access afforded to the individual in such a way or to
such an extent that the very essence of that right is impaired.
Furthermore, the Court underlines that a limitation will not be
compatible with Article 6 § 1 unless it pursues a
legitimate aim and there is a reasonable relationship of
proportionality between the means employed and the legitimate aim
sought to be achieved (see Tinnelly & Sons Ltd
and Others and McElduff and Others v. the United Kingdom,
judgment of 10 July 1998, Reports of Judgments and Decisions
1998-IV, p. 1660, § 72; and Kreuz v. Poland, judgment
of 19 June 2001, no. 28249/95, §§ 54 and 55, ECHR
2001-VI).
- The
Court further reiterates that it is not its task to take the place of
the domestic courts. It is primarily for the national authorities,
notably the courts, to resolve problems of interpretation of domestic
legislation. The Court's role is confined to ascertaining whether the
effects of such an interpretation are compatible with the Convention
(see Société Anonyme Sotiris and Nikos Koutras Attee
v. Greece, no. 39442/98, § 17, ECHR 2000 XII).
- The
requirement to indicate the plaintiff's place of residence is not in
itself incompatible with Article 6 § 1. It pursues a legitimate
aim of proper administration of justice, as it enables the courts to
contact the plaintiff and serve summonses and decisions on him. The
Court will however review the circumstances and manner in which that
requirement was actually applied to the applicant to determine
whether its effects in the particular circumstances of the case have
been consonant with the Convention.
- The
Court observes that the applicant did not have a fixed or registered
place of residence and was therefore unable to comply with the
court's requirement. He brought his inability to indicate his
place of residence to the attention of the domestic courts and
indicated an address for correspondence instead. However, the
domestic courts refused to entertain his claims.
- No
justification was provided by the domestic courts or the Government
for such an inflexible application of this procedural rule. Indeed,
the domestic courts did not need to know the applicant's place of
residence to determine whether they had territorial jurisdiction to
entertain his claims as the claims were filed with the court with
jurisdiction over the defendant's place of residence, as required by
domestic law (see paragraph 17 above). Nor was the place of residence
the only valid contact address; an address for correspondence
indicated by the applicant was obviously sufficient to enable the
courts to keep contact with him. The Court therefore considers that
the Russian courts demonstrated excessive and unjustified formalism
by insisting that the applicant indicate his place of residence, a
requirement that was known to be impossible in the applicant's
situation.
- In
holding that the applicant could not take legal proceedings unless he
indicated his place of residence the domestic courts did not only
penalise his failure to comply with a formal requirement. They also
imposed a real restriction on the applicant, preventing him from
having his civil claims determined by the courts. What is at stake in
the present case is therefore not merely a problem of interpretation
of a legal provision in the usual way but of an unreasonable
construction of a procedural requirement which prevented the
applicant's claims being examined on the merits and thereby
interfered with the very essence of his right of access to a court
(cf. Miragall Escolano and Others v. Spain, nos. 38366/97,
38688/97, 40777/98, 40843/98, 41015/98, 41400/98, 41446/98, 41484/98,
41487/98 and 41509/98, §§ 36 and 37, ECHR 2000 I; and
Canea Catholic Church v. Greece, 16 December 1997, § 41,
Reports 1997 VIII). Such rigid application of a
procedural rule, without considering particular circumstances, cannot
be said to be compatible with Article 6 § 1.
- Accordingly,
there was 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 118,965 euros (EUR) in respect of pecuniary damage.
The amount represents the cost of a flat, plus the monetary value of
a privatisation voucher, plus the approximate value of social
benefits he would have received if he had had residence registration.
He also claimed EUR 20,000,000 in respect of non-pecuniary
damage.
- The
Government submitted that the claim for pecuniary damage is not
related to the complaint declared admissible, while the claim for
non-pecuniary damage is excessive.
- The
Court does not discern a causal link between the violation found and
the claim for pecuniary damage.
- The
Court further considers that the applicant must have suffered
distress and frustration resulting from the refusal of domestic
courts to entertain his claims. In these circumstances, the Court
considers that the applicant's suffering and frustration cannot be
compensated for by a mere finding of a violation. The particular
amount claimed is however excessive. Making its assessment on an
equitable basis, the Court awards the applicant EUR 2,000 for
non-pecuniary damage, plus any tax that may be chargeable on the
above amount.
B. Costs and expenses
- The
applicant claimed EUR 20,700 for his representation. His
representative had spent 470 hours on the preparation of the
observations and just satisfaction claims, and on the preparation of
another related application on the applicant's behalf. The applicant
and his representative had agreed that the representative's work
would be remunerated at the rate of EUR 44 per hour.
- The
Government submitted that the applicant's claim was not supported by
any documents. The applicant had not produced the legal fee agreement
or documents showing that he had indeed paid the legal fee.
- 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 are reasonable as to quantum. Moreover, under Rule 60 of
the Rules of the Court, any claim for just satisfaction must be
itemised and submitted in writing together with the relevant
supporting documents or vouchers, “failing which the Chamber
may reject the claim in whole or in part”. The applicant failed
to produce the legal fee agreement to which he referred. Nor did he
submit any other documents supporting his claims for legal costs and
expenses. The Court therefore rejects the applicant's claim in full.
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
- 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) in respect of non-pecuniary damage, to be converted
into Russian roubles 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 amount 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 22 December 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Nina Vajić
Registrar President
