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FIFTH
SECTION
CASE OF SIVUKHIN v. RUSSIA
(Application
no. 31049/05)
JUDGMENT
STRASBOURG
7
May 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 Sivukhin v. Russia,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Rait Maruste, President,
Karel
Jungwiert,
Anatoly Kovler,
Renate Jaeger,
Mark
Villiger,
Isabelle Berro-Lefèvre,
Zdravka
Kalaydjieva, judges,
and Claudia
Westerdiek, Section
Registrar,
Having
deliberated in private on 14 April 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 31049/05) 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, Mr Sergey Semenovich
Sivukhin (“the applicant”), on 27 July 2005.
- The
applicant was represented before the Court by Ms T. Chernyak, a
lawyer practising in Krasnodar. The Russian Government (“the
Government”) were represented by Ms V. Milinchuk and
subsequently by Mr G. Matyushkin, Representatives of the Russian
Federation at the European Court of Human Rights.
- The
applicant alleged, in particular, that his
right to a fair trial had been violated since the appeal court
had heard his case in his absence.
- On
5 March 2008 the President of the Fifth Section decided to give
notice of the application 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 1946 and lives in Krasnodar.
- In 1986 the applicant took part in the cleaning-up
operation at the Chernobyl nuclear disaster site. He was subsequently
granted Category 2 disability status and became entitled to various
social benefits, including a 50% discount on housing charges.
- In March 2004 the municipal housing maintenance
authority lodged a claim against the applicant, seeking to recover
unpaid housing charges.
- On
31 March 2004 the applicant counterclaimed, seeking compensation in
respect of non-pecuniary damage. He insisted that he had paid the
housing charges on time and in full. The amount of the charges paid
had been calculated to include the 50% discount to which he and his
family were entitled.
- On 26 July 2004 the Justice of the Peace of the 47th
Court Circuit of the Prikubanskiy District of Krasnodar partly found
against the applicant and ordered him to pay outstanding housing
charges. It rejected the applicant’s counterclaim, finding that
by law only he, but not his family members, was entitled to the
discount.
- The
applicant appealed against the judgment. He challenged the
first-instance court’s assessment of the facts and application
of the legal provisions.
- On
1 October 2004 the applicant’s representative requested the
Prikubanskiy District Court of Krasnodar to bring the Social
Protection Department into the proceedings as a third party. The
court granted this request and suspended the proceedings.
- The
appeal hearings were subsequently scheduled for 24 December 2004
and 21 January 2005 but did not take place due to the presiding
judge’s illness.
- On 2 February 2005 the Prikubanskiy District Court of
Krasnodar upheld the judgment. The applicant received the summons on
3 February 2005 and therefore neither he nor his
representative could attend the hearing. The judgment (определение)
contained a notice to the effect that no appeal lay against it.
- On
9 February 2005 the applicant requested the court to resume the
appeal proceedings since he had been summoned to the appeal hearing
on 2 February 2005 belatedly.
- On
6 April 2005 the Prikubanskiy District Court of Krasnodar heard the
parties and rejected the applicant’s request. The court
established that the summons had been sent to the applicant on 1
February 2005, and there had been no evidence showing that the
summons had reached him before the hearing on 2 February.
Nevertheless, according to civil procedural law, improper summoning
is not a ground for a review of the case.
- On
5 July 2005 the Krasnodarsk Regional Court rejected the applicant’s
request for supervisory review proceedings.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- Under Article 113 of the Code
of
Civil Procedure of 2002, in force at the material time,
parties to the proceedings are to be summoned to a hearing by
a letter sent by registered mail with an acknowledgment of receipt,
by court summons with an acknowledgment of receipt, by telegram, by
phone or fax or by any other means which can guarantee a record of
the fact that the summons was sent and was received by the party.
Summons shall be served on the parties and their representatives in
such a way that they have enough time to appear at the hearing and
prepare their case.
- According
to Article 327 §§ 2 and 3 of the Code
of Civil Procedure, an appeal court examines a
case following rules of procedure in a first-instance court; it can
establish new facts and examine new evidence.
- Article
2.13 of the Instruction on the judicial workflow in district courts,
approved by Order no. 36 of the Judicial Department of the Supreme
Court on 29 April 2003, provides that, summons and copies of
procedural documents shall be sent by registered mail with an
acknowledgement of receipt form
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that he had not been afforded the opportunity to
attend the appeal hearing in his civil case, in breach of Article 6 §
1 of the Convention, which reads as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing ... by
[a] ... tribunal ...”
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 claimed that the applicant had been
notified of the appeal hearing of 2 February 2005 in good time. The
summons was sent to him on 1 February 2005 and one day was sufficient
to be prepared for the hearing. In any event, the applicant’s
presence was not necessary as the appeal court could decide on the
basis of the case file and his written submissions. Furthermore, the
applicant was in fact heard by the appeal court on 6 April 2005.
- The
applicant averred that the Prikubanskiy District Court of Krasnodar
had failed in its duty to inform him of the appeal hearing, that he
had received the letter of 1 February 2005 only on 3 February 2005, a
day after the hearing, and that the Government had not provided any
evidence to the contrary.
- The
parties did not dispute, and the Court has no reason to doubt, that
the letter of 1 February 2005 was, in fact, dispatched. However, the
Government did not present any evidence, such as an acknowledgment of
receipt card or an envelope bearing postmarks, showing that it had
reached the applicant in good time and disproving the applicant’s
allegation that he had received the summons only on 3 February 2005.
No such evidence had been found in the course of domestic review of
this issue either (see paragraph 15 above). The Court also does not
lose sight of the fact that the summons to the hearing of 2 February
2005 were sent to the applicant only one day in advance. In its view
this is insufficient time for the letter to pass through the mail
service and reach the applicant in such a way as to provide him with
an opportunity to attend the hearing and prepare his case.
- The
Court reiterates that it has frequently found violations of Article
6 § 1 of the Convention in cases raising issues similar to
the one in the present case (see Yakovlev v. Russia, no.
72701/01, § 19 et seq., 15 March 2005; Groshev
v. Russia, no. 69889/01, § 27 et seq., 20 October 2005;
and Subbotkin v. Russia, no. 837/03, § 18 et seq.,
12 June 2008).
- Having
examined the materials submitted to it, the Court notes that the
Government have not put forward any fact or argument capable of
persuading it to reach a different conclusion in the present case.
With respect to the Government’s submission that the applicant
was heard by the appeal court on 6 April 2005, the Court notes that
in these proceedings the appeal court merely examined the question
whether the belated summons of the applicant could be a sufficient
ground to reopen the appeal hearing, and did not decide on the merits
of his appeal. The Court has thus established that owing to improper
notification the applicant was deprived of an opportunity to attend
the appeal hearing in his case.
- It
follows that there was a violation of the applicant’s right to
a fair hearing enshrined in Article 6 § 1 of the Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant complained under Articles 6 § 1 and 13 of
the Convention that that the proceedings in his case had been
excessively long and unfair. He also relied on Article 1 of Protocol
No.1 to the Convention in this respect.
- Having
regard to all the material in its possession and in so far as the
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 his 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 100,000 euros (EUR) in respect of pecuniary and
non-pecuniary damage.
- The
Government contested his claim as excessive and unreasonable. They
considered that a finding of a violation would be adequate just
satisfaction in the applicant’s case.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged. On the other hand, the Court finds
that the applicant must have suffered frustration and a feeling of
injustice as a result of the domestic authorities’ failure to
apprise him of the appeal hearing in good time. Having regard to the
nature of the violation found and making its assessment on an
equitable basis, the Court awards the applicant EUR 1,000, plus
any tax that may be chargeable on that amount.
- The
Court further points out that the most appropriate form of redress in
cases where it finds that a trial was held in breach of Article 6 §
1 of the Convention would, as a rule, be to reopen the proceedings in
due course;
however,
as the applicant has not implicitly requested that, the Court will
not make any ruling in this respect.
B. Costs and expenses
- The
applicant did not claim costs and expenses. Accordingly, there is no
call to make an award under this head.
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 domestic
authorities’ failure to apprise the applicant of the appeal
hearing in good time 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 1,000 (one
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 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 7 May 2009, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Rait Maruste
Registrar President
