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FIRST
SECTION
CASE OF PROKOPENKO v. RUSSIA
(Application
no. 8630/03)
JUDGMENT
STRASBOURG
3 May
2007
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 Prokopenko v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Mr C.L. Rozakis, President,
Mr L.
Loucaides,
Mrs N. Vajić,
Mr A.
Kovler,
Mrs E. Steiner,
Mr D. Spielmann,
Mr G.
Malinverni, judges,
and Mr S. Nielsen, Section
Registrar,
Having
deliberated in private on 5 April 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 8630/03) 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, Ms Larisa Grigoryevna
Prokopenko (“the applicant”), on 25 February 2003.
- The
Russian Government (“the Government”) were represented by
Mr P. Laptev, the Representative of the Russian Federation at the
European Court of Human Rights.
- On
30 September 2005 the Court decided to give notice of the application
to the Government. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the application at
the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1949 and lives in the town of Elektrostal in
the Moscow Region.
A. Labour dispute
- On
27 April 2002 the applicant sued her former employer, a private
company, for reinstatement, payment of wage arrears and compensation
for non-pecuniary damage.
- On
30 July 2002 the Elektrostal Town Court dismissed the action. On
the same day the applicant lodged before the Moscow Regional Court
her statement of appeal against the judgment.
- The Moscow Regional Court accepted the statement of
appeal and fixed a hearing for 12 September 2002. According to the
Government, on 5 September 2002 the Town Court summonsed the
parties for the appeal hearing. The Government provided the Court
with a copy of the covering letter of 5 September 2002 sent by
the Town Court to the Moscow Regional Court and the parties,
including the applicant. The letter indicated that the Town Court had
sent the case-file to the Regional Court and that the appeal hearing
had been fixed for 12 September 2002, at 10.30 a.m. The
Government also submitted copies of receipts issued by the local post
office on 5 September 2002 showing that it had accepted for delivery
eight registered letters from the Town Court.
- On
12 September 2002 the Moscow Regional Court, in the presence of the
defendant's representative, upheld the judgment of 30 July 2002. The
applicant did not attend the hearing. According to her, in the
evening of 12 September 2002 she discovered the letter with
summonses to the hearing of 12 September 2002 in her post box.
B. Housing dispute
- On
3 August 2000 the applicant sued her former employer for provision of
free housing. On 21 December 2000 the Elektrostal Town Court
dismissed the action. The judgment was upheld on appeal and became
final on 6 February 2001
- In
July 2004 the applicant again sued her former employer for provision
of free housing. On 24 November 2004 the Moscow Regional
Court, in the final instance, disallowed the action because the same
dispute between the same parties had been already determined by the
final judgment of 6 February 2001.
- In
2004 the applicant requested the Elektrostal Town Court to quash the
judgment of 21 December 2000, re-open the proceedings due to
newly-discovered evidence and re-examine her action. On 26
April 2004 the Moscow Regional Court, in the final instance,
dismissed request because there was no newly-discovered evidence in
the case.
II. RELEVANT DOMESTIC LAW
- The RSFSR Code of Civil Procedure of 11 June 1964 (in
force at the material time):
Article 106. Court summonses
“Parties and their representatives are to be
notified with court summonses of a date and place of a court hearing
or certain procedural actions ...
A summons is to be served on parties and their
representatives in such a way that they would have enough time to
appear at a hearing and prepare their case...
Where necessary, parties and their representatives...
may be summonsed by a phone call or a telegram.”
Article 108. Service of summonses
“Summonses are to be sent by mail or by courier. A
time when a summons was served on an addressee is to be recorded on
the summons and its copy which is to be returned to a court...”
Article 109. Receipt of summonses
“A summons is to be served on a person against
his/her signature made on a copy of the summons which is to be
returned to a court...”
Article 144. Court hearing
“A civil case is to be heard in a court session
with mandatory notification to all parties to the case...”
Article 157. Consequences of a parties' or
representatives' failure to attend a court hearing
“If a party to the case fails to appear and there
is no evidence that the party was duly summonsed, the hearing is to
be adjourned...”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the examination of the appeal without
giving her an effective opportunity to attend, had violated her right
to a fair hearing under 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 in good time. In any event, her
presence was not necessary as the appeal court could decide on the
basis of the case-file and the applicant's written submissions.
- The applicant averred that the Moscow Regional Court
had failed in its duty to inform her of the appeal hearing and the
Government did not present any evidence to the contrary. She further
claimed that summonses should have been served on her against her
signature or in such a manner which could have allowed the Moscow
Regional Court to conclude that she had, in fact, been summonsed but
had waived her right to be present. She also noted that it would have
taken her approximately two and a half hours to travel from her home
town to Moscow.
-
The Court observes that the Moscow Regional Court fixed one appeal
hearing, for 12 September 2002. The Government argued that the
applicant had been notified of that hearing by a letter sent to her
on 5 September 2002. They provided the Court with a copy of
that letter and copies of the receipts issued by the local post
office on 5 September 2002 (see paragraph 7 above).
- The
Court has no reason to doubt that the letter of 5 September 2002 was,
in fact, dispatched. However, the Government did not present any
evidence, such as an acknowledgment of receipt card, an envelope
bearing postmarks, etc., showing that it had reached the applicant in
good time. Having regard to the provisions of the Russian law on
service of courts summonses (see paragraph 12 above), the Court
considers that the Government should have been in possession of such
evidence. The failure on the Government's part to submit evidence
without a satisfactory explanation gives rise to the drawing of
inferences as to the ill-foundedness of their allegations. The Court
also does not lose sight of the fact that the summonses to the
hearing of 12 September 2002 were sent to the applicant merely a week
before that hearing. In these circumstances, the Court is not
persuaded that the domestic authorities had notified the applicant of
the appeal hearing in such a way as to provide her with an
opportunity to attend it and prepare her 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 Mokrushina
v. Russia, no. 23377/02, § 20 et seq., 5 October 2006).
- 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.
The Court has established that owing to belated notification the
applicant has been deprived of an opportunity to attend the appeal
hearing. The Court also notes that there is nothing in the appeal
judgment to suggest that the appeal court examined the question
whether the applicant had been duly summonsed and, if she had not,
whether the examination of the appeal should have been adjourned.
- 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, 10 and 17 of the Convention
that the labour proceedings had been excessively long, that all sets
of the proceedings to which she had been a party had been unfair in
that the domestic courts had incorrectly assessed the evidence,
applied the law and dismissed her arguments, that the text of the
judgment of 21 December 2000 had been forged, and that she had not
been provided with free legal aid.
- Having
regard to all the material in its possession, and in so far as these
complaints fall within its competence ratione materiae, 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 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
- 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 305,098.38 Russian roubles (RUR) and 37,000 euros
(EUR) in respect of pecuniary damage, of which RUR 305,098.38
represented wage arrears for the period after April 2002 and EUR
37,000 represented the market value of the flat which she had
expected to receive. The applicant also claimed EUR 9,000 in respect
of non-pecuniary damage.
- The
Government argued that there was no causal link between the alleged
violation and the pecuniary damage claimed. They further noted that
the applicant had not substantiated her claims which were
unreasonable and amounted to “illegitimate enrichment”.
- 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
suffered frustration and a feeling of injustice as a consequence of
the domestic authorities' failure to apprise her of the appeal
hearing in good time. The Court finds that the applicant suffered
non-pecuniary damage, which would not be adequately compensated by
the finding of a violation alone. However, the amount claimed by the
applicant appears to be excessive. Accordingly, making its assessment
on an equitable basis, it awards the applicant EUR 1,000, plus any
tax that may be chargeable on that amount.
B. Costs and expenses
- The
applicant also claimed RUR 2,481 for the costs and expenses incurred
before the Court. The sum represented postal expenses and fees for
translation services and preparation of documents.
- The
Government did not comment.
- According
to the Court's case-law, an applicant is entitled to reimbursement of
her 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 that the
sum claimed should be awarded in full, plus any tax that may be
chargeable on that amount.
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, the following
amounts:
(i) 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 the settlement;
(ii) RUR 2,481 (two thousand four hundred and eighty-one Russian
roubles) 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;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 3 May 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
