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FIRST
SECTION
CASE OF KARTASHEV v. RUSSIA
(Application
no. 10994/05)
JUDGMENT
STRASBOURG
13
January 2011
This
judgment is final but it may be subject to editorial revision.
In
the case of Kartashev v. Russia,
The
European Court of Human Rights (First Section), sitting as a
committee composed of:
Sverre Erik Jebens,
President,
Anatoly Kovler,
George Nicolaou,
judges,
and André Wampach,
Deputy Section Registrar,
Having
deliberated in private on 9 December 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 10994/05) 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 Valeriy Vladimirovich
Kartashev (“the applicant”), on 4 February 2004.
- The
Russian Government (“the Government”) were represented by
Mrs V. Milinchuk, former Representative of the Russian Federation at
the European Court of Human Rights.
- On
16 November 2007 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.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1955 and lives in Kostroma.
- On
20 January 1999 the applicant lodged an action before the
Sverdlovskiy District Court of Kostroma (“the District Court”)
against the Kostroma Regional Military Commissariat seeking
compensation for damage caused to his health.
- The
first hearing scheduled for 17 March 1999 did not take place due to
the parties' failure to appear.
- On
14 May and 3 June 1999 the applicant informed the court that he would
not be available for a short period of time and requested that any
scheduled hearings be postponed.
- On
29 June 1999 the applicant amended his claims, following which the
hearing was adjourned to obtain additional evidence. Upon arrival of
the respondent's comments on the claim, on 16 September 1999 the
hearing was again adjourned to collect evidence.
- On
20 September 1999 the court granted the applicant's request for
assistance in obtaining certain documents from his former military
unit and sent an inquiry.
- On
3 May 2000 the court postponed the hearing pending the applicant's
convalescence.
- On
20 June 2000 the applicant again amended the claims, following which
the hearing was adjourned to obtain evidence from certain State
bodies.
- On
16 February 2001 the court granted the respondent's motion for
adjournment of the proceedings pending the outcome of an inquiry at
the Constitutional Court of Russia that concerned compliance of
relevant legal provisions with the Constitution. On 23 October 2001
the Kostroma Regional Court (“the Regional Court”)
dismissed the applicant's application for supervisory review of the
above decision.
- The
Government submitted that the Constitutional Court had ruled on the
relevant issues on 19 June 2002 and 25 March 2003.
- The
proceedings were resumed on 14 April 2005. Following the parties'
failure to appear at two hearings, on 29 April 2005 the court left
the claims without consideration. On 21 June 2005 this decision was
quashed for lack of proper notification of the parties, and the
proceedings were resumed.
- The
proceedings were stayed from 6 July to 17 November 2005 pending the
outcome of another inquiry with the Constitutional Court of Russia,
which was resolved on 7 October 2005.
- After
resumption of the proceedings the parties did not appear at two
hearings, and on 28 December 2005 the court again left the claims
without consideration.
- In
April and May 2006 the applicant requested that the above decision be
quashed and amended his claims. The proceedings resumed on 19 May
2006.
- Between
22 June and 31 August 2006 three hearings were adjourned at the
initiative of the respondent and for the public prosecutor's default
in appearance. The applicant in the meantime supplemented his claims
and motioned for examination of the case in his absence.
- On
14 September 2006 the District Court granted the applicant's claims
in part awarding him 1,008,083 Russian roubles (RUB) in damages and
RUB 14,049 in monthly payments of disability pension.
- On
29 November 2006 the Regional Court overturned the judgment for
errors of fact and ordered a new hearing. The appeal court also
issued a decision in respect of the president of the District Court
to reprimand him for breaches of procedural law and excessively long
examination of the case. In particular, the appeal court pointed out
that the applicant, or both parties, had not been duly notified of
the hearings of 17 March 1999, 14 and 21 April, 17 November and 28
December 2005. It also noted the large interval between the hearings
held in September 1999 and May 2000.
- In
December 2006 and February 2007 the applicant motioned for
examination of the case in his absence.
- On
25 December 2006 the court adjourned the hearing to allow the
respondent to obtain certain evidence.
- On
1 March 2007 the District Court again granted the claims in part,
awarding the applicant RUB 1,475,149 in damages and RUB 19,858 as
monthly payments.
- On
4 June 2007 the Regional Court upheld the judgment on appeal after
correcting an arithmetical error.
II. RELEVANT DOMESTIC LAW
- 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
- The
applicant complained that the length of the proceedings in his case
had breached the “reasonable time” requirement as
provided in Article 6 § 1 of the Convention, the relevant part
of 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 ...”
A. Admissibility
- The
Government argued that the complaint had been lodged out of time and
should be declared inadmissible in accordance with Article 35 § 1
of the Convention. They contended that in his application form the
applicant had complained about the decision to stay the proceedings
of 16 February 2001 which had been left in force by the
supervisory instance on 23 October 2001.
- The
applicant did not submit any specific comments.
- The
Court observes that in his application form the applicant had raised
a complaint concerning the domestic court's inactivity in his case
and mentioned specifically the last decision that had occurred by
that date, namely the decision of 16 February 2001. Given that the
proceedings were still pending after this date, the Court is
unconvinced that the six-month time-limit should be calculated from
that date or the date when the supervisory instance rejected the
application for supervisory review. It has been a long-standing
practice of the Court that the period covered by the reasonable time
guarantee in a particular case runs until the judgment is given by
the Court (see, among others, Bordikov v. Russia, no.
921/03, 8 October 2009 and Polonskiy
v. Russia, no. 30033/05, 19
March 2009).
- 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 asserted that the applicant's case had been complex and
that its length had been the result of the applicant's own actions,
namely failure to appear at hearings and requests to adjourn them, as
well as amendment of his claims on multiple occasions. They admitted
two significant intervals in the examination of the case caused by
pending inquiries at the Constitutional Court but stated that these
had been in the interests of fair resolution of the dispute and
necessary under national law.
- The
applicant maintained his complaint.
- The
Court observes that the proceedings in the applicant's case commenced
on 20 January 1999 and ended on 4 June 2007. They thus lasted
approximately eight years and five months, during which period the
domestic courts considered the claims twice at two levels of
jurisdiction.
- 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 considers that the applicant's case was not characterised by
particular complexity.
- Having
regard to the applicant's conduct, it accepts that on two occasions
he requested that the hearings be postponed and thus delayed the
proceedings by approximately six weeks. The Court is also mindful of
the fact that the applicant amended his claims at least four times
and required the court's assistance in collection of evidence. At the
same time, it 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).
- Turning
to the conduct of the authorities, the Court observes several
deficiencies in their handling of the case. It firstly notes that
according to the decision issued by the Kostroma Regional Court on 29
November 2006, the trial court had regularly failed to properly
notify the parties of the hearings. As a result, several hearings did
not take place and twice the claims were left without consideration
with subsequent applications for resumption of the proceedings, which
significantly held back the progress. Secondly, the Court takes
particular cognisance of the fact that the Government failed to
provide any explanation of the court's activity during the period
between 25 March 2003, when the last decision in a relevant case was
adopted by the Constitutional Court, and 14 April 2005, when the
proceedings stayed pending such decision were resumed. There is
nothing in the facts of the case or parties' submissions that would
justify these two years of inactivity.
- Finally,
the Court bears in mind that the applicant was in a vulnerable
position, given especially that the disability allowance at issue was
his principal source of income. It thus considers that the
authorities had an obligation to examine the applicant's claims with
special diligence.
- Regard
being had to the significant delays attributable to the authorities
and the importance of the outcome of the proceedings for the
applicant, the Court concludes that the “reasonable time”
requirement was breached in the present case.
- There
has accordingly been a violation of Article 6 § 1 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
applicant complained of lack of effective remedies against excessive
length of the proceedings in Russia. He 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 para. 25 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 para. 26 above).
- The
Court recalls that in the pilot judgment cited above it stated that
it would be unfair to request the applicants, whose cases had 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 no violation of the
substantive provision of the Convention.
- Finally,
on 23 September 2010 the Court decided that all new cases introduced
after the Burdov pilot judgment and falling within the scope
of the new domestic remedy had to be submitted in the first place to
the national courts (see Fakhretdinov and Others v. Russia (dec.),
no. 26716/09, § 32, 23 September 2010). The Court also stated
that its position may be subject to review in the future, depending
in particular on the domestic courts' capacity to establish
consistent practice under the new law in line with the Convention
requirements (ibid, § 33).
- Having
regard to these special circumstances, the Court does not find it
necessary to continue a separate examination of the complaint under
Article 13 in the present case (see,
among others, Kravchenko and Others v. Russia,
nos. 11609/05 et al., § 45, 16 September 2010).
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 10,000 euros (EUR) in respect of non-pecuniary
damage.
- The
Government did not provide any comments.
- The
Court accepts that the applicant suffered considerable distress and
frustration due to the undue length of examination of his claims and,
deciding on an equitable basis, awards the applicant EUR 5,500 in
respect of non-pecuniary damage.
B. Costs and expenses
- The
applicant also claimed 8,000 Russian roubles (RUB) to cover the cost
of translation of his observations to the Court. He supplied a
receipt from a professional translation bureau.
- The
Government did not comment.
- Regard
being had to the documents in its possession and to its case law, the
Court considers it reasonable to award the sum of EUR 200
covering the costs and expenses 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 application admissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- 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 5,500 (five thousand five hundred euros), plus any tax that may
be chargeable, in respect of non-pecuniary damage,
(ii)
EUR 200 (two hundred 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 13 January 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Sverre Erik Jebens Deputy Registrar President
