FIRST SECTION

CASE OF KUDINOVA v. RUSSIA

(Application no. 44374/04)

JUDGMENT

STRASBOURG

2 November 2006

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 Kudinova v. Russia,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
	Mr	 President,
	Mrs	
	Mr	
	Mrs	
	Mr	
	Mr	
	Mr	 judges,
and Mr  , Section Registrar,
Having deliberated in private on 12 October 2006,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in  against  lodged with the  of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by .
2.  The Russian Government (“the Government”) were represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights.
3.  On  the Court decided to communicate the application. Applying Article 29 § 3 of the Convention, it decided to rule on the admissibility and merits of the application at the same time.
THE FACTS
4.  The applicant was born in 1970 and lives in St. Petersburg.
5.  On 1 March 1994 a State-owned construction company “Lengidroenergospetsstroy” (промышленное строительно-монтажное объединение «Ленгидроэнергоспецстрой», hereinafter “LenGESS”) and a private investment company “Severo-Zapadniy Soyuz” (АОЗТ ТПК «Северо-Западный Союз», hereinafter “SZS”) signed a contract, pursuant to which the LenGESS undertook to build a block of flats in St. Petersburg and the SZS was to finance the construction in part. By way of consideration, the SZS was to receive title to a certain number of flats in the completed construction. In order to raise funds, the SZS collected money from private investors who were to become the eventual owners of the flats.
6.  On 22 July 1994 the applicant signed a contract for the purchase of a flat with the SZS.  Seven days later she paid the stipulated price in full.
7.  It appears that, once the block of flats had been built, the LenGESS refused to transfer the stipulated number of flats to the SZS, claiming that the funding raised by the latter had been insufficient. In December 1997, the SZS sued the LenGESS before the Kuybyshevskiy District Court of St. Petersburg, seeking enforcement of the 1994 contract.
8.  On 22 June 1998 the applicant entered the proceedings before the Kuybyshevskiy District Court as a co-plaintiff against the LenGESS, seeking to obtain title to the flat for which she had paid.
9.  On 15 March 1999 the Kuybyshevskiy District Court issued a charging order in respect of the flat at the applicant’s request.
10.  The Kuybyshevskiy District Court fixed a hearing for 24 December 1999; it was subsequently adjourned until 28 February 2000.
11.  On 10 May 2000 the Kuybyshevskiy District Court discontinued the proceedings, finding that it had no jurisdiction to entertain the claim and that the dispute was to be adjudicated by commercial courts.
12.  On 29 June 2000 the St. Petersburg City Court granted appeals by the SZS, the applicant and the other co-plaintiffs, quashed the decision of 10 May 2000 and remitted the matter to the Kuybyshevskiy District Court for examination on the merits. It also issued a “special finding” (частное определение) concerning the judge of the Kuybyshevskiy District Court to whom the case had been assigned, in which it noted her manifest failure to observe the rules of civil procedure as regards compliance with procedural time-limits.
13.  On 17 November 2000, 7 February, 23 March and 1 June 2001 hearings before the Kuybyshevskiy District Court were held.
14.  On 22 June 2001 the Kuybyshevskiy District Court lifted the charging order of 15 March 1999. The applicant was not informed of it.
15.  On 28 September 2001 the Kuybyshevskiy District Court of St. Petersburg delivered the judgment. The claims of all plaintiffs were dismissed on the ground that they had never paid any sums directly to the LenGESS.
16.  On 24 October 2001 the applicant learned that on 22 June 2001 the District Court had lifted the charging order. Two days later she requested the Kuybyshevskiy District Court to extend the time-limit for lodging an appeal against the decision of 22 June 2001.  On 12 November 2001 the Kuybyshevskiy District Court refused her request. The decision was upheld on appeal on 21 March 2002.
17.  The applicant, among others, appealed against the judgment of 28 September 2001.
18.  The Kuybyshevskiy District Court listed an appeal hearing for 13 November 2001 and sent the case-file to the city court. It appears that the district court had not determined certain issues concerning court fees by 13 November 2001 and for that reason the city court had to adjourn the appeal hearing and send the case-file back to the district court. A new appeal hearing was fixed for 21 March 2002.
19.  On 21 March 2002 the St. Petersburg City Court quashed the judgment of 28 September 2001 and remitted the case to the Kuybyshevskiy District Court.
20.  On 29 May, 27 June and 14 September 2002 the Kuybyshevskiy District Court held further hearings.
21.  Meanwhile, on 10 September 2002 the St. Petersburg Commercial Court opened bankruptcy proceedings in respect of the SZS.
22.  On 24 September 2002 the Kuybyshevskiy District Court referred the claim against the LenGESS to the St. Petersburg Commercial Court. It held that the dispute involving legal entities was to be adjudicated by a commercial court.
23.  On 3 December 2002 the St. Petersburg Commercial Court discontinued the proceedings, holding that the matter was to be examined in the bankruptcy proceedings initiated on 10 September 2002.
24.  On 11 March 2003 the Appeals Division of the St. Petersburg Commercial Court quashed the decision of 3 December 2002 and remitted the case to the first instance division for examination on the merits.
25.  On 26 May 2003 the St. Petersburg Commercial Court referred the case to the Kuybyshevskiy District Court, noting that the dispute involved individuals and that it was therefore appropriate for determination by a court of general jurisdiction.
26.  On 18 August 2003 the Kuybyshevskiy District Court received the case-file. On 6 October and 23 December 2003 hearings were held.
27.  On 23 December 2003 the court fixed a new hearing date for 2 March 2004.
28.  Between 2 March and 24 December 2004 the Kuybyshevskiy District Court scheduled eight hearings, at least half of them were adjourned for various reasons.
29.  On 27 May 2005 the Kuybyshevskiy District Court awarded the applicant USD 29,450 and dismissed the remainder of her claims.
30.  On 10 August 2005 the St. Petersburg City Court upheld the judgment of 27 May 2005 on appeal.
THE LAW
I.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
31.  The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, provided 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...”
32.  The Government claimed that the proceedings had been very complex: interests of many companies and individuals had been involved. There were valid reasons for the adjournment of the proceedings: judges’ sick leaves, courts’ orders for obtaining additional evidence, the parties’ failure to attend, etc. The length of the proceedings was accounted for by the courts’ aspiration to examine the case thoroughly.
A.  Admissibility
33.  The Court observes that the period to be taken into consideration began on 22 June 1998 when the applicant entered the proceedings before the Kuybyshevskiy District Court of St. Petersburg and ended on 10 August 2005 with the final judgment of the St. Petersburg City Court. It thus lasted for approximately seven years and two months.
34.  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
35.  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).
36.  The Court has found a violation of Article 6 § 1 of the Convention in a case, which concerned the same proceedings finding as follows:
“Turning to the present case, the Court observes substantial delays caused by the divergent rulings on the courts’ competence to hear matters involving both commercial companies and private individuals. These rulings caused unnecessary repetitive referrals of the claim from courts of general jurisdiction to commercial courts and vice versa... The Court also notes that the failure to comply with domestic time-limits was acknowledged by a ‘special finding’ of the St. Petersburg City Court. However, five years after that finding the matter is still before the first-instance court.” (see Baburin v. Russia, no. 55520/00, § 42, 24 March 2005)
37.  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.
38.  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 ALLEGED VIOLATIONS OF THE CONVENTION
39.  The applicant finally complained about the unfairness of the decisions of 22 June 2001 and 21 March 2002 concerning the charging order in respect of the flat and about incorrect interpretation of domestic law and assessment of evidence by the domestic courts. However, having regard to all the material in its possession, 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
40.  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
41.  The applicant claimed 4,200 US dollars (USD) and 4,500 Russian roubles (RUR) in respect of compensation for pecuniary and EUR 36,000 in respect of compensation for non-pecuniary damage.
42.  The Government contested these claims as excessive and unsubstantiated.
43.  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, the Court considers that the applicant must have sustained non-pecuniary damage. Ruling on an equitable basis, it awards her EUR 3,000 under that head, plus any tax that may be chargeable.
B.  Costs and expenses
44.  The applicant also claimed RUR 500 for the costs and expenses incurred before the Court.
45.  The Government contested the claim, indicating that only those expenses which had been incurred by the applicant should be reimbursed.
46.  According to the Court’s case-law, an applicant is entitled to reimbursement of his 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 considers it reasonable to award the applicant the sum of EUR 14 under this head, plus any tax that may be chargeable.
C.  Default interest
47.  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
1.  Declares the complaint concerning the excessive length of the proceedings admissible and the remainder of the application inadmissible;

2.  Holds that there has been a violation of Article 6 § 1 of the Convention;

3.  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, the following amounts, to be converted into Russian roubles at the rate applicable at the date of the settlement:
(i) EUR 3,000 (three thousand euros) in respect of non-pecuniary damage;
(ii) EUR 14 (fourteen euros) in respect of costs and expenses;
(iii) any tax that may be chargeable on the above amounts;
(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;

4.  Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 2 November 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Søren Loukis
	Registrar	President