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FIRST
SECTION
CASE OF MIKHAYLOVICH v. RUSSIA
(Application
no. 30019/05)
JUDGMENT
STRASBOURG
12 February 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 Mikhaylovich 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 22 January 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 30019/05) 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 Diana
Ivanovna Mikhaylovich (“the applicant”), on 8 July 2005.
- The
applicant was represented by Mr A. Romanov, a lawyer practising in St
Petersburg. The Russian Government (“the
Government”) were initially represented by Ms V. Milinchuk,
former Representative of the <<Russian
Federation>> at the
European Court of Human Rights, and subsequently by their
Representative, Mr G. Matyushkin.
- On
26 November 2007 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 1927 and lives in St Petersburg.
- She
owned and occupied a 15 square metre room in a communal flat in St
Petersburg. In 1999 she decided to change her room, which was located
on the fifth floor, to a similar room on the ground floor which would
better suit her deteriorated state of health. Mr B. offered his help
in improving her housing situation. Since it was impossible,
according to the law, to pass over the owners of the remaining rooms
in the same flat holding pre-empting rights, in order to sell the
room to an individual found by Mr B., the applicant signed on 5
September 1999, following Mr B.'s advice and explanations by the
notary, an agreement for the transfer of her room as a gift while in
reality she sold it. Mr B. disappeared with the money after the deal.
The applicant managed to occupy her room again. She learned that the
room had meanwhile been sold to another individual K. who then died.
- On
8 September 2000 the applicant requested the police to initiate
criminal proceedings against Mr B. The police advised her to apply to
a court.
- On
14 September 2000 the applicant instituted proceedings against the
buyer before the Frunzenskiy District Court of St Petersburg claiming
that the agreement was null and void and requesting the restitution.
As her application did not comply with formal requirements she was
requested to correct the defects before 18 September 2000. It appears
that she did so and on 21 September 2000 the judge issued a ruling on
the preparation of the case for examination according to which the
judge was to meet the parties on 16 November 2000.
- On
3 March 2003 the case was assigned to another judge who scheduled a
hearing for 16 May 2003. On that day the judge imposed an arrest on
the disputed property and adjourned the examination of the case to 29
October 2003 due to the failure of the respondent and the notary to
appear and the need to join to the proceedings K.'s heir as a third
party. On 29 October 2003 the examination of the case was adjourned
to 29 April 2004 for reasons related to the judge's workload.
- On
an unspecified date K.'s heir brought proceedings against the
applicant seeking for her eviction from the room. On 29 April 2004
those proceedings were joined with the proceedings in the applicant's
case and the hearing was scheduled for 10 November 2004. On that date
the court heard the parties and K.'s heir, adjourned the hearing to
26 January 2005 and ordered that certain additional evidence should
be collected.
- On
26 January 2005 the applicant was represented by Mr Romanov who
requested that the hearing be adjourned to enable him to examine the
case file. The hearing was adjourned to 22 June 2005.
- On
22 June 2005 the court heard the parties, K.'s heir and witnesses.
The applicant's counsel Mr Romanov was ordered to leave the
courtroom. According to him, the judge did so because, despite the
judge's reluctance, he kept on requesting the court's order for
obtaining certain documents as evidence. According to a letter of 24
May 2006 from the St Petersburg prosecutor's office to Mr Romanov,
the judge did so in response to Mr Romanov's refusal to stand
when addressing the court, as was required by the procedural rules.
Mr Romanov unsuccessfully tried to bring criminal proceedings against
the judge.
- The
examination of the case was adjourned to 23 November 2005 under K.'s
heir's request. On the latter date the applicant and her counsel
failed to appear and the hearing was postponed to 29 March 2006.
- In
a judgment of 29 March 2006 the District Court found that the
applicant had not given her room as a gift but had sold it. Therefore
she had lost her rights to the room including the right to occupy it.
The court ordered her eviction. It noted that the applicant could
have brought proceedings against Mr B. but had not done so.
- The
applicant did not appeal against the judgment within ten days of the
delivery of the judgment on 4 April 2006 in its final form and the
judgment became final on 14 April 2006 by virtue of Articles 209 §
1 and 338 of the Code of Civil Procedure.
- On
30 May 2006 the applicant's counsel lodged an appeal against the
judgment. On 5 June 2006 the District Court held that the appeal was
time-barred. Mr Romanov appealed against that decision. On 23 August
2006 the St Petersburg City Court dismissed his appeal and upheld the
decision of 5 June 2006. The applicant's further appeal by way of
supervisory review was dismissed on 6 February 2007.
- On
29 August 2007 the St Petersburg Bailiffs' Service initiated
enforcement proceedings and ordered the applicant to vacate the room.
According to the latest available information, the enforcement
proceedings are pending.
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 contested that argument.
- The
period to be taken into consideration began in September 2000 and
ended in April 2006 when the judgment in the applicant's case became
final. It thus lasted for about five and a half years for one level
of jurisdiction.
A. Admissibility
- The
Government submitted that the applicant had not exhausted domestic
remedies as she had not complained of the delay in the examination of
her case to the court's president or the Qualification Board of
Judges. Nor had she requested that her case be transferred to another
judge.
- The Court notes that the Government did not indicate
whether and, if so, how the applicant could obtain relief –
either preventive or compensatory – by having recourse to the
mentioned authorities. It was not suggested that these remedies could
have expedited the determination of the applicant's case or provided
her with adequate redress for delays that had already occurred. Nor
did the Government supply any example from domestic practice showing
that, by using the means in question, it was possible
for the applicant to obtain such a relief (see Kormacheva
v. Russia,
no. 53084/99, §§ 61-64, 29 January 2004, and Olshannikova
v. Russia, no. 77089/01, § 44, 29 June 2006). The Court
therefore dismisses the Government's non-exhaustion argument.
- It
further notes that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention and that
it is not inadmissible on any other grounds. It must therefore be
declared admissible.
B. Merits
- The
Government argued that the case was complex and that the applicant's
conduct, notably her request for adjournment on 26 January 2005 and
her failure to appear on 23 November 2005, had delayed the
proceedings for ten months, and that a further delay of about
thirteen months had been caused by the conduct of the other
participants to the proceedings. The Government acknowledged that the
State was responsible for the delay of two years, nine months and 17
days during the periods from 16 November 2000 to 3 March 2003 and
from 29 October 2003 to 29 April 2004.
- The
applicant disagreed, noting, in particular, that on 26 January 2005
her counsel had requested an adjournment of the examination of the
case only for three days.
- 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).
- The
Court does not consider that the present case was particularly
complex. Nor is it convinced that the applicant can be blamed for
delaying the proceedings for ten months. The court adjourned the
hearing at her request on 26 January 2005 and due to her failure to
appear on 23 November 2005 for five and four months accordingly.
It has not been shown that such long intervals between the hearings
in these, as well as in other instances (between 16 May and 29
October 2003, 29 April and 10 November 2004 and between 22 June
and 23 November 2005), were justified. The Court further notes with
concern the period of total inactivity on the part of the judicial
authorities for reasons purely attributable to them during two years
and three months from 16 November 2000 to 3 March 2003 and during
five months from 29 October 2003 to 29 April 2004.
- 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.
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. OTHER COMPLAINTS
- The
applicant complained that the delays in the examination of her case
and the lack of respect on the part of the authorities had violated
her rights under Articles 3 and 8 of the Convention. She further
complained under Articles 6 § 1 and 10 of the Convention of her
lawyer's removal from the courtroom on 22 June 2005 and of the
court's alleged refusal to explain the reasons for adjourning the
examination of the case. Relying on Articles 13 and 17 of the
Convention, the applicant also complained about the alleged failure
of the various authorities to grant her requests.
- In
the light of all the material in its possession, and in so far as the
matters complained of are within its competence, the Court finds that
these complaints 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 claimed 20,000 euros (EUR) in respect of non pecuniary
damage.
- The
Government contested the claim.
- The
Court considers that the applicant must have sustained non pecuniary
damage. Ruling on an equitable basis, it awards her EUR 3,600
under that head.
B. Costs and expenses
- The
applicant also claimed 50,000 Russian roubles for the legal costs
incurred before the domestic authorities and 25,000 Russian roubles
for the legal costs incurred before the Court.
- 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
rejects the claim for costs and expenses in the domestic proceedings
and considers it reasonable to award the sum of EUR 700 for the
proceedings before the Court.
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;
- 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
3,600 (three thousand six hundred euros), plus any tax that may be
chargeable, in respect of non pecuniary damage and EUR 700
(seven hundred euros), plus any tax that may be chargeable to the
applicant, in respect of costs and expenses, both 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 12 February 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
