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FIRST
SECTION
CASE OF AKHMATOVA v. RUSSIA
(Application
no. 22596/04)
JUDGMENT
STRASBOURG
21 October
2010
This
judgment is final but it may be subject to editorial revision.
In the case of Akhmatova v.
Russia,
The
European Court of Human Rights (First Section), sitting as a
Committee composed of:
Nina Vajić,
President,
Anatoly Kovler,
Dean Spielmann,
judges,
and André Wampach,
Deputy Section Registrar,
Having
deliberated in private on 30 September 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 22596/04) 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, Ms Lyudmila Demyanovna
Akhmatova (“the applicant”), on 7 June 2004.
- The
Russian Government (“the Government”) were initially
represented by Mr A. Savenkov, former acting Representative of the
Russian Federation at the European Court of Human Rights, and then by
their representative Mr G. Matyushkin.
- On
11 March 2008 the President of the First Section decided to give
notice of the application to the Government. In accordance with
Protocol No. 14, the application was allocated to a Committee.
It was also decided that the Committee would rule on the
admissibility and merits of the application at the same time (Article
29 § 1 of the Convention).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1944 and lives in Okha of the Sakhalin Region.
- The
applicant was employed as head of the legal department at a branch of
a state-owned oil company. On 29 May 1998 the employer informed the
applicant that she was dismissed from her position following staff
reduction.
A. Proceedings before the first instance court
- On 30 June 1998 the applicant brought a court action
against her former employer before the Okha Town Court of the
Sakhalin Region (“the Town Court”). She submitted that
her dismissal had been unlawful as de facto she had been
dismissed following the reorganisation of the company. She sought to
change the ground of her dismissal and to obtain compensation for
non-pecuniary damage.
- The first hearing of her case was
scheduled for 7 July 1999. On that date the applicant did not appear
at the court hearing as she had not received the summons. On an
unspecified date the prosecutor joined the proceedings.
- On 14 July 1999 she changed the subject-matter of her
claim against the former employer, now seeking reinstatement in her
previous post, salary arrears and compensation for non-pecuniary
damage sustained as a result of her dismissal.
- The hearings scheduled for 12 October and 9 November
1999 did not take place as the judge was involved in different
proceedings.
- On 9 November 1999 the applicant
brought a separate court action against her new employer.
- Between 1998 and 2000 the applicant’s claim
against the oil company was examined by judges Ch. and Sh.
respectively. In 2000 the case was transferred to judge S.
- On 24 March 2000 the applicant requested the court’s
assistance in obtaining certain evidence.
- On 22 January and 16 March 2001 the applicant
complained to the president of the Sakhalin Regional Court (“the
Regional Court”) of the trial court’s inactivity in her
case.
- On 19 April 2001 the Town Court granted the
respondent’s motion to adjourn the case until 18 July 2001, the
date of the hearing of the applicant’s claim against her new
employer, and ordered the parties to
submit documents relevant to the case. The applicant appealed against
this decision. She also requested that her case be re-assigned to
another judge as judge S. had been on vacation.
- On 10 May 2001 the president of the Regional Court
informed the applicant that in order to speed up the proceedings her
case had been reallocated to judge P. and a hearing had been
scheduled for 23 May 2001.
- On 5 June 2001 the Regional Court set aside the
decision of 19 April 2001 on appeal and remitted the matter to the
Town Court.
- On an unspecified date the applicant complained to the
Prosecutor’s Office of the Sakhalin Region of lengthy
examination of her case.
- On 8 August 2001 the prosecutor confirmed that there
had indeed been periods of inactivity in the examination of the case
between 1998 and 2000. He informed the applicant that the case was
set down for examination on 3 September 2001.
- On 10 August 2001 the prosecutor replied to the
applicant’s complaint that the president of the Regional Court
had been informed about the delays in the examination of her case. He
also advised her to forward her complaints to the Higher Board of
Judicial Qualifications.
- On 3 September 2001 the Town Court allowed
the applicant’s objection to
judge S. and adjourned the examination of the case.
- On 26 October 2001 the applicant requested that the
examination of her case be postponed until her claim against her new
employer had been considered by an appeal court. On 16 May 2002 the
applicant requested resumption of the proceedings.
- On 11 December 2002 the applicant’s case was
reassigned to judge Z.
- On 4 January and 24 March 2003 the hearings were
adjourned to give the parties time to secure further evidence. On 24
March 2003 the applicant increased her claim for non-pecuniary
damage.
- On 16 April 2003 the applicant
withdrew her claim for modification of the ground of dismissal and on
the same date the Town Court discontinued the proceedings in this
respect. The hearing was adjourned to enable the respondent to secure
additional evidence.
- The hearing of 25 September 2003
was adjourned following the respondent’s representative’s
failure to appear.
- The examination of the case resumed on 1 October 2003.
- On 7 October 2003 the Town Court, under the presidency
of judge Z., concluded that the applicant had failed to comply
with a one-month statutory time limit and dismissed her claim.
B. Proceedings before the appeal court
- On 22 October 2003 the applicant submitted her grounds
of appeal against the judgment of 7 October 2003 and her
remarks on the record of proceedings.
- On 7 November 2003 the respondent and the prosecutor
filed their comments on the applicant’s grounds of appeal.
- On 14 November 2003 the trial court sent the parties a
letter notifying them of the appeal hearing scheduled for 9 December
2003.
- On 21 November 2003 the applicant complained to the
president of the Regional Court that the Town Court had failed to
communicate to her the respondent’s and the prosecutor’s
observations and therefore had placed her at a significant
disadvantage vis-à-vis the respondent.
- On 9 December 2003 the Regional Court upheld the
judgment of 7 October 2003. The court heard the respondent’s
representative and the prosecutor and indicated that “the
applicant maintained her claims in the hearing”. According to
the applicant, she had not been notified of the appeal hearing and
therefore could not attend it. There is no indication in the text of
the decision that the court verified whether the parties had been
duly summoned to the hearing.
- On 25 May 2004 the Regional Court refused the
applicant’s request to transfer the case for consideration by
the supervisory instance. In particular, the court noted that the
failure to communicate to the applicant the respondent’s and
prosecutor’s observations on her grounds of appeal did not
constitute sufficient ground for quashing of the previous judgments
as the said observations had not contained any new arguments and, in
any event, the law did not envisage the applicant’s further
comments.
II. RELEVANT DOMESTIC LAW
- The Russian Code of Civil Procedure of 2002 provides
that the parties are notified of and called to a hearing by means of
summons, sent by registered post. Where necessary, the parties may be
summonsed by a phone call or a telegram. Summons should be served on
the parties in such a way as to enable them to have enough time to
prepare the case and to appear at the hearing in due time (Section
113). If a party to the case fails to appear
and there is no evidence that the party has been duly summoned, the
hearing has to be adjourned (Section 354). The
appeal court delivers its judgment in accordance with the rules
established for the first-instance courts (Section 360).
- Section 344 of the same Code
provides that the observations pertaining to grounds of appeal should
be lodged together with their copies in a number that is equal to the
number of involved parties.
- Federal
Law № 68-ФЗ of 30
April 2010 (in force as of 4 May 2010) provides that in case of a
violation of the right to trial within a reasonable time or of the
right to enforcement of a final judgment, the Russian citizens are
entitled to seek compensation of the non-pecuniary damage. Federal
Law № 69-ФЗ
adopted on the same day introduced the pertinent changes in the
Russian legislation.
- Section
6.2 of the Federal Law № 68-ФЗ
provides that everyone who has a pending application before the
European Court of Human Rights concerning a complaint of the nature
described in the law has six months to bring the complaint to the
domestic courts.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION ON ACCOUNT OF EXCESSIVE LENGTH OF PROCEEDINGS
- The
applicant complained that the length of the proceedings in her case
was incompatible with the “reasonable time” requirement
as provided in Article 6 § 1 of the Convention. 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. Admissibility
- The
Government submitted that the complaint should be rejected as
manifestly ill-founded in accordance with Article 35 §§ 3
and 4. They did not elaborate on their argument.
- 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 disagreed with the complaint. They argued that the case
had been complex concerning interpretation of the labour law. They
contended that a sizable period of the delay had been attributable to
the applicant who had amended her claims on a few occasions, appealed
the trial court’s intermediary decisions, challenged the judge
and requested the court’s assistance in recovery of evidence.
According to the Government, the length was also justified by such
factors as the court’s insufficient staff numbers and
significant case load. They also suggested that the applicant had
lodged her action on 21 July 1998.
- The
applicant maintained her complaint.
- 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 accepts that the applicant brought her claim before the trial
court on 30 June 1998 as evidenced by the post stamp on the envelope
in which her statement of claim was sent to the court. It further
observes that the proceedings ended on 9 December 2003. Thus, the
aggregate length of the proceedings amounts approximately to five
years and five months, during which the domestic courts considered
the case at two levels of jurisdiction.
- The
Court considers that the applicant’s case was not characterised
by particular complexity concerning a rather straightforward claim
for reinstatement in post, salary arrears and non-pecuniary damage.
- Insofar
as the applicant’s behaviour is concerned, the Court accepts
that the applicant delayed the proceedings by seven months by
requesting an adjournment until her claim in different proceedings
had been considered by an appeal court (see paragraph 21 above). It
also takes cognisance of the fact that the applicant indeed changed
and supplemented her claims on a few occasions and challenged the
judge, which to some extent contributed to the overall length of the
proceedings. At the same time, the Court reiterates that an applicant
cannot be blamed for taking full advantage of the resources afforded
by the national law in defence of his interests (see, mutatis
mutandis, Yağcı and Sargın v. Turkey, 8
June 1995, § 66, Series A no. 319 A). In any event,
the delays caused by such actions appear to be insignificant.
- Turning
to the conduct of the authorities, the Court notes firstly that the
first hearing of the applicant’s case was scheduled only a year
after her claim was lodged in June 1998. It further observes that
only one hearing was held in 1999, while two other hearings scheduled
for that year did not take place due to the judge’s
unavailability. It appears that no hearings were scheduled in the
period between November 1999 and April 2001, and only after the
latter date did the trial court begin to examine the case at somewhat
regular intervals. The Court also notes that the trial court’s
procrastination was confirmed in the replies of the prosecutor’s
office and the higher court to the applicant’s complaints (see
paras. 15, 18 and 19 above). In this respect the Court reiterates
that it is the States’ duty to organise their judicial systems
in such a way that their courts can meet the requirements of
Article 6 § 1 (see Muti v. Italy, 23 March 1994, §
15, Series A no. 281-C). Accordingly, it does not find the court’s
insufficient staff numbers and significant case load, cited above by
the Government, to be objective factors justifying lengthy delays in
the proceedings.
- Regarding
what was at stake for the applicant, the Court observes that the
applicant’s claims concerned the subject of employment, which
required particular diligence on the part of the domestic authorities
(see, among many other authorities, Buchholz v. Germany, 6 May
1981, § 597, Series A no. 42).
- Regard
being had to the substantial delays attributed to the authorities and
the applicant’s high stake in the case, the Court finds that
there was a violation of Article 6 § 1 of the Convention on
account of the excessive length of the proceedings.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION ON ACCOUNT OF VIOLATION OF THE RIGHT TO AN ADVERSARIAL
TRIAL
- The
applicant complained that the appeal proceedings in her case had
breached her right to an adversarial trial enshrined in the fair
hearing guarantees of Article 6 § 1 of the Convention, by way of
the courts’ failure to communicate to her the respondent
company’s and prosecutor’s observations on her grounds of
appeal and to duly summon her to the appeal hearing. The relevant
part of the provision 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
Government argued that the complaint of the court’s failure to
communicate the other parties’ observations on the applicant’s
grounds of appeal is outside the Court’s jurisdiction ratione
materiae as it had been duly considered by the national court in
supervisory instance and the applicant was substantially complaining
about the outcome of the proceedings. As to the complaint of failure
to duly summon to the appeal hearing, the Government submitted that
the applicant had not exhausted the available domestic remedies,
namely, application for supervisory review.
- The
Court rejects the Government’s argument concerning its
competence as consideration of a complaint by a national court does
not automatically exclude the Court’s examination. In addition,
it is clear from the case file that the applicant had set out a
separate grievance as described above. In respect of the applicant’s
alleged failure to exhaust the available domestic remedies, the Court
has previously found that supervisory review in Russia is not an
effective domestic remedy to be exhausted before bringing a complaint
to Strasbourg (see, among other authorities, Berdzenishvili
v. Russia (dec.), no. 31697/03, 29 January 2004). The Government
did not supply any new argument capable of changing the Court’s
opinion.
- The
Court notes that these complaints are not inadmissible on any other
grounds. They must therefore be declared admissible.
B. Merits
- The
Government submitted that the prosecutor and the respondent company
had not enclosed copies of their observations on the grounds of
appeal. They admitted that the case file did not contain any
indication that any copies of such observations had been forwarded to
the applicant. They further submitted that examination of the case in
the appeal hearing in the applicant’s absence had not run
counter to the provisions of the national law, especially considering
that the applicant had failed to inform the court of the reasons of
her absence. Moreover, the appeal court did not examine any complex
points of law and fact in the hearing and largely based its reasoning
on the findings made by the lower court and the applicant’s
grounds of appeal.
- The
applicant maintained her complaints.
- The
Court will firstly examine the complaint of the failure to duly
summon the applicant to the appeal hearing. It reiterates that the
obligation under Article 6 § 1 to hold a public hearing is not
an absolute one. Thus, a hearing may be dispensed with if a party
unequivocally waives his or her right thereto and there are no
questions of public interest making a hearing necessary (see, among
other authorities, Håkansson and Sturesson v. Sweden,
21 February 1990, § 66, Series A no. 171-A; and Schuler-Zgraggen
v. Switzerland, 24 June 1993, § 58, Series A no. 263). The
Court has previously found that the Russian legal provisions enabling
the court to proceed with examination of the appeal if a party did
not appear in the hearing after having been duly notified thereof
were not incompatible with the fair trial guarantees of Article 6 §
1 (see Yakovlev v. Russia, no. 72701/01, § 20, 15
March 2005). At the same time, it deemed that the right to a fair and
public hearing would be devoid of substance if a party to the case
were not apprised of the hearing in such as way as to have an
opportunity to attend it (ibidem, § 21).
- Turning
to the present case, the Court observes that the appeal court had no
evidence that the applicant had received the summons in a timely
manner, nor did it examine this question prior to the hearing on the
merits. Therefore, the applicant was deprived of the opportunity to
attend the appeal hearing, which breached her right to an adversarial
trial. There has, accordingly, been a violation of Article 6 §
1.
- Regard
being had to the fact that the national law did not give the
applicant a right to further comment on the adversary parties’
observations, the failure to duly summon her to the appeal hearing
effectively eliminated any opportunity for her to respond to them.
Taking into account these circumstances and the finding of a
violation above, the Court considers that it is not necessary to
examine whether, in this case, there has also been a violation of
Article 6 § 1 on account of failure to communicate to the
applicant the observations on her grounds of appeal.
III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION ON
ACCOUNT OF UNREASONABLE LENGTH OF PROCEEDINGS
- The
applicant further complained that she had not had an effective remedy
against the unreasonable length of the proceedings in her case. She
relied on Article 13 of the Convention, which reads as follows:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
A. Admissibility
- The
Government submitted that the complaint was manifestly ill founded
and requested to reject it in accordance with Article 35 §§
3 and 4 of the Convention.
- 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
Court takes cognisance of the existence of a new remedy introduced by
the federal laws № 68-ФЗ
and № 69-ФЗ in the
wake of the pilot judgment adopted in the case of Burdov v. Russia
(no. 2) (no. 33509/04, ECHR
2009 ...). These statutes, which entered into force on 4 May
2010, set up a new remedy which enables those concerned to seek
compensation for the damage sustained as a result of unreasonable
length of the proceedings (see paragraph 36 above).
- The
Court observes that in the present case the parties’
observations in respect of Article 13 arrived before 4 May 2010 and
did not contain any references to the new legislative development.
However, it accepts that as of 4 May 2010 the applicant has had a
right to use the new remedy (see paragraph 37 above).
- The
Court recalls that in the pilot judgment cited above it stated that
it would be unfair to request the applicants whose cases have already
been pending for many years in the domestic system and who have come
to seek relief at the Court, to bring again their claims before
domestic tribunals (Burdov (no. 2), cited above, §
144). In line with this principle, the Court decided to examine the
present application on its merits and found a violation of the
substantive provision of the Convention.
- However,
the fact of examination of the present case on its merits should in
no way be interpreted as prejudging the Court’s assessment on
the quality of the new remedy. It will examine this question in other
cases more suitable for this analysis. It does not consider the
present case as such, particularly in view of the fact that the
parties’ observations were made with account of the situation
that had existed before the introduction of the new remedy.
- Having
regard to these special circumstances, while the Court considers this
complaint admissible, it does not find it necessary to continue a
separate examination of the complaint under Article 13 in the present
case.
IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- Lastly,
the applicant complained of erroneous application of the law in her
case by the domestic courts.
- Having
regard to all the materials in its possession, and in so far as this
complaint falls within its competence, the Court finds that there is
no appearance of a violation of the rights and freedoms set out in
these provisions in that respect. 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.
V. 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 21,211 euros (EUR) in respect of pecuniary damage
and EUR 100,000 in respect of non-pecuniary damage.
- The
Government contested the claims as unsubstantiated and excessive.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim. On
the other hand, it awards the applicant EUR 5,800 in respect of
non-pecuniary damage.
B. Costs and expenses
- The
applicant also claimed 6,210 Russian roubles (RUB) (app. EUR 160) for
the costs and expenses incurred in the domestic proceedings and
before the Court.
- The
Government accepted the amount of RUB 636 (app. EUR 16) as justified
for the costs and expenses incurred before the Court.
- The
Court notes that the applicant submitted several postal receipts for
shipments to Strasbourg for the total amount of approximately EUR 16.
It observes that the remainder of the claimed amount consists of
expenses incurred in the civil dispute where the applicant was a
claimant. Regard being had to the documents in its possession and to
its case-law, the Court rejects the claim for costs and expenses in
the domestic proceedings and considers it reasonable to award the sum
of EUR 16 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 complaints concerning length of the
proceedings, the right to an adversarial trial and lack of an
effective remedy against the unreasonable 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 on account of the unreasonable length of
the proceedings;
- Holds that there has been a violation of Article
6 § 1 of the Convention on account of the failure to duly summon
her to the appeal hearing;
- Holds that there is no need for separate
examination of the complaint under Article 6 § 1 of the
Convention concerning failure to communicate to her the observations
on her grounds of appeal;
- Holds that there is no need for separate
examination of the complaint under Article 13 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months,
the following amounts, to be converted into Russian roubles at the
rate applicable at the date of settlement:
(i)
EUR 5,800 (five thousand eight hundred euros), plus any tax that may
be chargeable, in respect of non-pecuniary damage;
(ii)
EUR 16 (sixteen euros), plus any tax that may be chargeable to the
applicant, in respect of costs and expenses;
(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 21 October 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Nina Vajić
Deputy Registrar President
