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FIRST
SECTION
CASE OF RYSEV v. RUSSIA
(Application
no. 924/03)
JUDGMENT
STRASBOURG
18 June
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 Rysev 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 Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 28 May 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 924/03) 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 Nikolay
Leonidovich Rysev (“the applicant”), on 15 December 2002.
- The
Russian Government (“the Government”) were initially
represented by Mrs V. Milinchuk, former Representative of the Russian
Federation at the European Court of Human Rights, and subsequently by
Mr G. Matyushkin, their Representative.
- On
1 July 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 1959 and lives in St Petersburg.
- In
1987 the applicant inherited one half of a house in Leningrad (now St
Petersburg) from his mother.
A. Construction work on the plot of land and the
related proceedings
1. Background
- In
1989 the City Council decided to build new apartment buildings in the
area where the applicant's house was situated. It also decided that
the houses affected by the construction plan would be demolished and
their inhabitants resettled.
- Between
1992 and 1996 construction work was carried out on the land by
private companies commissioned by the City Council. Different
underground pipelines were installed. During
the construction work the applicant and his family continued to live
in their house. The applicant alleges that as a result of the
construction work his garden was destroyed and that the largest part
of the plot became unfit for garden purposes.
- On
26 January 1996 the applicant acquired the title to the plot of land
surrounding his house.
2. First examination of the case
- On
22 September 1997 the applicant brought a court action against
the Administration of the Primorskiy District of St Petersburg and
private companies which had carried out the construction work. He
requested the court to declare that the construction work carried out
on the plot of land had resulted in de facto expropriation of
part of his land and to award him compensation for pecuniary and
non-pecuniary damage. The case was assigned to judge S.
- In
1998 and 1999 the case was adjourned several times. In particular,
between 10 June and 24 November 1998 no hearings were scheduled
because the judge was busy in unrelated proceedings. Several hearings
were adjourned either because the defendants and third parties failed
to appear or because the applicant amended his claims.
- In
2000 and 2001 the case was adjourned several times. In particular,
between 17 February and 26 April 2000 the proceedings were suspended
pending an expert study. Between 24 August 2000 and 15 March 2001 and
between 21 June and 10 August 2001 the case was adjourned because the
judge was on sick leave. One hearing did not take place because the
defendants failed to appear.
- On
13 August 2001 the Primorskiy District Court of St Petersburg granted
the applicant's claims for compensation of pecuniary and
non pecuniary damage in part and dismissed the remainder of his
claims.
- On
18 July 2002 the St Petersburg City Court (“the City Court”)
held that the first-instance court had failed to properly establish
important circumstances of the case and to duly assess the evidence.
It quashed the judgment of 13 August 2001 in so far as it awarded the
applicant compensation for non-pecuniary damage and remitted the
matter to the first-instance court for a fresh examination. It upheld
the remaining part of the judgment.
3. Second examination of the case
- On
16 August 2002 the case was reassigned to judge K., who set the
examination of the case down for 16 January 2003. On that date
the case was adjourned until 20 March 2003, because the applicant
intended to submit additional evidence to the court.
- On
4 March 2003 the case was reassigned to judge A. and was scheduled
for 22 May 2003. On that date the hearing was postponed until
29 September 2003, at the applicant's request, so that he could
undergo a medical examination.
- Between
September 2003 and November 2004 the case was adjourned several times
because the applicant amended his claims and the defendants had to
study his new claims, the court requested additional evidence from
the parties and the applicant needed time to prepare questions to
experts. Between 29 April and 8 October 2004 the case was adjourned
because the applicant's representative failed to appear. The
applicant submitted that he did not ask for those adjournments and
requested the District Court to continue the examination of the case.
- Between
15 February 2005 and 14 March 2006 the proceedings were suspended
pending another expert study which had to establish the impact of the
construction work on the state of health of the applicant and his
daughters.
- Between
March and September 2006 several hearings were adjourned in order to
call experts and the applicant's daughter to the hearing. Some
hearings were postponed to give the applicant's daughter time to
prepare her claims, but also because the applicant amended his claims
and the defendant needed time to study them. One hearing did not take
place because the defendants did not appear.
- On
21 September 2006 the Primorskiy District Court, after a fresh
examination, dismissed the applicant's claim for compensation for
non pecuniary damage. On 7 December 2006 the City Court upheld
that judgment.
B. Alleged prohibitions on the repair of the house and
on the sale of the plot of land
- According
to the applicant, on several occasions he intended to repair his
house. At his request the authorities replied that his house was
still subject to demolition in the near future and that his family
would be provided with a flat. The applicant had to abandon his plan
to repair the house. The applicant also submitted that he had to
decline an offer for the purchase of his house, because it was
scheduled for demolition. Also, prospective buyers of his plot of
land withdrew after consulting the city authorities. The applicant
did not bring any court proceedings in respect of the alleged
prohibitions on the repair of the house and on the sale of the plot
of land.
C. Further proceedings
- In
1999 the Governor of St Petersburg annulled the decision to resettle
the inhabitants of the houses affected by the construction plan. It
was by then considered unlikely that the City would need to acquire
these properties in order to implement its new town plan. The
applicant sued the Governor and claimed compensation for
non pecuniary damage. By a final decision of 3 July 2001 the
City Court dismissed his claims.
- The
applicant also sued the City and District administrations for their
failure to provide him with a flat. By a final decision of 18 October
2001 the City Court dismissed his claims.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the proceedings which ended
on 7 December 2006 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 in 1997, when the applicant lodged his claim
with the Primorskiy District Court of St Petersburg. However, the
Court will only consider the period of the proceedings which took
place 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 the
proceedings at the time. The period in question ended on 7 December
2006. Thus, the Court has competence ratione temporis to
examine a period of approximately eight years and seven months.
During that period the case was examined 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 firstly argued that the length of proceedings in the
present case was due to the particular complexity of the case. They
further submitted that the applicant had also contributed to the
length of the proceedings by amending his claims on several
occasions, and by lodging different motions; he had requested an
expert study and appealed against the first instance court
decisions. Moreover, the parties had failed to appear at several
hearings. The domestic courts had conducted the proceedings properly.
They had examined the case twice at two levels of jurisdiction. Some
insignificant delays had occurred when the judge was on sick leave or
was involved in unrelated proceedings.
- In
the applicant's view, the most significant delays in the proceedings
were caused by 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 agrees with the Government that the proceedings at issue were
of a certain complexity as they required examination of a complex
factual background, involved several parties and required experts'
reports. It also notes that the applicant amended his claims on
several occasions. While the Court considers that these factors
rendered more difficult the task of the domestic courts, it cannot
accept that the complexity of the case, taken on its own, was such as
to justify the overall length of 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 his claims, lodging motions, requesting expert opinions
and lodging 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, 8 June 1995, § 66, Series A no.
319 A). Furthermore, the Government claimed that the parties had
failed to appear at some hearings. The Court considers that the
domestic courts should have taken measures to discipline the
defendants for their repeated failure to appear. In so far as the
applicant is concerned, the Government did not indicate any dates on
which the applicant had failed to appear. It is
true that between 29 April and
8 October 2004 the case was adjourned
because the applicant's representative did not appear.
However,
even if the applicant may be held
responsible for the delay due to the failure of his counsel to
appear, the Court considers that the applicant cannot be held
accountable for any other 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 twice at two levels. The Court
observes in this respect that the need for the second round of
proceedings was attributable to the District Court's failure to
properly establish important circumstances of the case and to duly
assess the evidence. In any event, 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).
- The
Court further observes that from 10 June until 24 November 1998 no
hearings were scheduled because the judge was involved in unrelated
proceedings. Furthermore, between 24 August 2000 and 15 March 2001
and between 21 June and 10 August 2001 no proceedings took place
because the judge was on sick leave. The accumulated delay amounted
to more than a year. The Court further notes that a considerable
delay occurred when the case was reassigned to judge K., who took the
case over on 16 August 2002 and scheduled
the case only for 16 January 2003. 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 and reassignment of the case to
different judges are imputable to the State.
- The
Court further notes that the proceedings were suspended for more than
a year pending the expert examination ordered on 15 February 2005.
That expert study had to establish the impact of the construction
work on the state of health of the applicant and his daughters.
However, such a term of examination appears quite long. In this
respect, the Court reiterates that the principle responsibility for
the delay due to the expert opinions rests ultimately with the State.
It was incumbent on the domestic court to ensure that the expert
examination was performed without delay (see, for example, Rolgezer
and Others v. Russia, no. 9941/03, § 30, 29 April 2008;
Volovich v. Russia, no. 10374/02, § 30, 5 October 2006;
and Capuano v. Italy, 25 June 1987, § 32, Series A
no. 119). However, the Government did not provide any information to
show that the first-instance court had inquired into the progress of
the expert report.
- In
sum, the Court considers that the most significant delays in the
proceedings are attributable to 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. ALLEGED VIOLATION OF
ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION
- The
applicant made several complaints under Article 1 of Protocol No. 1
to the Convention. He firstly complained that the construction work
carried out on his plot of land had resulted in de facto
expropriation of part of the land for which he had not received any
compensation. The Court reiterates that, in accordance with the
general rules of international law, the provisions of the Convention
do not bind a Contracting Party in relation to any act or fact which
took place or any situation which ceased to exist before the date of
the entry into force of the Convention with respect to that Party
(see Blečić v. Croatia [GC], no. 59532/00, §
70, ECHR 2006 ...). Furthermore, the Court's temporal
jurisdiction is to be determined in relation to the facts
constitutive of the alleged interference. The subsequent failure of
remedies aimed at redressing that interference cannot bring it within
the Court's temporal jurisdiction (see Blečić, cited
above, § 77). In the present case the alleged
interference (construction work) with the applicant's house and land
took place between 1989 and 1996, i.e. before the ratification of the
Convention by Russia. The proceedings by which the applicant
challenged the interference and which ended on 7 December 2006, i.e.
after the ratification, did not constitute a new or independent
interference with the applicant's property rights, but were aimed at
providing him with redress for the interference that had occurred
between 1989 and 1996. It follows that this complaint is incompatible
ratione temporis with the provisions of the Convention within
the meaning of Article 35 § 3 and must be rejected in
accordance with Article 35 § 4.
- The
applicant further complained about the authorities' failure to
resettle him in a different place. The Court observes that the
applicant challenged the authorities' failure to provide him with
accommodation in two separate actions and the final decisions were
taken on 3 July and 18 October 2001 respectively, whereas the
application was lodged on 15 December 2002. It follows that this
complaint has been introduced out of time and must be rejected in
accordance with Article 35 §§ 1 and 4 of the Convention.
- Lastly,
the applicant complained that he could not repair his house because
the authorities intended to demolish it and that he could not sell
his house and land either because of the authorities' refusal to
authorise the prospective buyers' projects for use of the land or
because of the underground pipelines installed there. The Court notes
that the applicant did not lodge any complaints in that respect with
the competent state authorities. It follows that this complaint must
be rejected for non-exhaustion of domestic remedies pursuant to
Article 35 §§ 1 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.”
- The
Court points out that under Rule 60 of the Rules of Court any claim
for just satisfaction must be submitted in writing within the
time-limit fixed for the submission of the applicant's observations
on the merits, “failing which the Chamber may reject the claim
in whole or in part”.
- In
the instant case, on 4 November 2008 the
applicant was invited to submit his claims for just satisfaction. He
failed to submit any such claims within the required time-limit.
Therefore, the Court makes no award under Article 41 of the
Convention.
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;
- Decides to make no award under Article 41.
Done in English, and notified in writing on 18 June 2009, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
