[New search]
[Contents list]
[Printable RTF version]
[Help]
FIRST
SECTION
CASE OF ITSLAYEV v. RUSSIA
(Application
no. 34631/02)
JUDGMENT
STRASBOURG
9 October
2008
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 Itslayev 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 André Wampach, Deputy
Section Registrar,
Having
deliberated in private on 18 September 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 34631/02) 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 Dokka Saydaminovich
Itslayev (“the applicant”), on 23 August 2002.
2. The
applicant was represented before the Court by himself and by
lawyers of the Memorial Human Rights Centre. The
Russian Government (“the Government”) were represented by
Mr P. Laptev, former Representative of the Russian Federation at the
European Court of Human Rights.
- The
applicant alleged that he had been denied effective access to a court
with regard to his action for recovery of wage arrears contrary to
Article 6 § 1 of the Convention.
- On
6 July 2005 the Court decided to communicate the complaint concerning
the alleged lack of access to a court 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 1959. Formerly a resident of the village of
Goyskoye of the Urus-Martan District in the Chechen Republic, he is
currently living in the town of Nazran in Ingushetiya. He is a lawyer
at the Memorial Human Rights Centre.
A. Background to the case
- In
April 1996 the applicant was appointed head of the administration of
Goyskoye. In June 1996 the district administration stopped paying his
salary because of lack of funds.
- In
August 1996 Chechen rebel fighters took power in Grozny, the capital
of the Chechen Republic.
- In
December 1999 the Russian federal government regained control over
the Urus-Martan District. In spring 2000 the district administration
was re-established and the applicant applied for payment of his
salary. He states that the administration promised to pay his salary
as soon as the money arrived from the federal budget.
- In
December 2000 the Urus-Martan Town Court (“the Town Court”)
started functioning, but it was located in Gudermes, the
administrative centre of the Gudermes District of Chechnya, about 80
km from Goyskoye. The applicant submitted that he could not go to
Gudermes to lodge his claim because of the poor overall security
situation and a curfew imposed by the military. Moreover, he had no
money for travel and accommodation there.
- On
25 June 2001 the applicant again applied to the district
administration for payment of his salary. On 15 July 2001 he received
a reply from the head of the administration dated 4 July 2001 in
which the latter informed him that the salary would be paid as soon
as funds were available.
- Sometime
after July 2001 the Town Court moved from Gudermes to Urus-Martan.
B. Proceedings over the salary arrears
- On
9 October 2001 the applicant brought a court action with the Town
Court against the district administration for payment of salary
arrears over the period between June 1996 and April 1997.
- On
the same date he lodged a formal request for reinstatement of
time-limits for lodging his claim. It read as follows:
“Courts
started functioning in the Chechen Republic in December 2000.
Therefore, I could lodge a claim against the administration of the
Urus-Martan District for salary arrears due for my work as head of
administration of Goyskoye in 1996 only from that moment. However, in
the beginning the court was located in Gudermes and it was difficult
to go there because of numerous checkpoints, curfew and lack of money
for travel. Furthermore, on numerous occasions I have applied to the
administration of the Urus-Martan District with requests to pay me
the salary arrears, considering that my claims were lawful. On 4 July
2001 I received a letter signed by the head of the administration of
the Urus-Martan District, from which it emerged that the payment of
salary arrears had again been postponed. Until the last moment I
hoped that the salary arrears would be paid to me voluntarily, as it
was an obligation of any state authority.
For the above reasons I missed the time-limits for
lodging a claim against the administration of Urus-Martan for salary
arrears.
Taking into consideration the above statements and in
accordance with Article 105 of the Code of Civil Procedure of RSFSR I
request [the Town Court] to restore the procedural time-limit for
lodging a claim for salary arrears.”
- On
16 October 2001 the Town Court held a hearing in the applicant’s
case. According to the record of the hearing, the applicant gave the
following explanation as regards his failure to comply with the
time limits:
“I applied to a court only on 9 October 2001 as I
did not know that law established the time-limits for applying to a
court. I request the court to reinstate the time-limits for applying
to a court and to recover salary arrears ...”
The
defendant accepted the applicant’s salary claims only for the
period between June and August 1996 and submitted that the applicant
would receive the arrears as soon as funds were available.
On
the same date the Town Court adopted a judgment in the case, which in
its relevant part provided as follows:
“... [Mr Itslayev] applied to the court only on 9
October 2001 because he did not know that law established the
time-limits for applying to a court and he requests the court to
reinstate the time-limit for applying to the court and to recover
salary arrears ...
The defendant’s representative submitted that ...
the Administration of the Urus Martan District agreed to pay the
applicant salary arrears for the period between June and August 1996
as soon as the funds were available.
Having regard to the parties’ submissions and
having read the materials of the case, the court comes to the
following conclusion:
... According to Article 211 of the Labour Code of the
Russian Federation an application concerning the settlement of a
labour dispute is to be lodged with a district court within three
months of the date when an employee knew or should have known about
the violation of his right. In violation of this statutory provision,
the applicant did not apply to a court between December 2000, when
the courts started functioning in Chechnya, and 9 October 2001. The
court considers that the applicant’s arguments that he had
missed the time-limits because the head of administration of the
Urus Martan District had promised to pay him salary and that he
was not aware of time-limits are unsubstantiated.
Therefore the court comes to a conclusion that the
applicant missed the time-limit without any valid reason and that
there are no grounds to restore it.”
- The
applicant alleged that the presiding judge had relied on an order
from “higher” authorities not to accept claims similar to
that of the applicant’s for examination on the merits and that
he had to seek advice from judge B. of the Supreme Court of the
Chechen Republic (“the Supreme Court”). The applicant
also indicated that the presiding judge had been appointed for a
period of one year and therefore he could not be considered
independent.
- The
applicant provided the Court with a copy of the decision delivered by
the Town Court on 17 October 2001 in a case of a certain M., who had
claimed from the district administration salary arrears due to his
wife. He submitted that his wife had been killed in April 2001 and
that he was in a very difficult financial situation because he had
borrowed money to bury her. The Town Court restored the time-limit
for lodging his claim and examined it on the merits. It held as
follows:
“...
the court finds that the plaintiff missed the time-limit for a valid
reason, because no courts were functioning in Chechnya between August
1996 and December 2000, and between January and July 2001 the court
was based in Gudermes and he could not have applied there for lack of
funds ...”
- On
6 November 2001 the applicant lodged an appeal with the Supreme Court
against the judgment of 16 October 2001. In so far as he contested
the application of time-limits in his case, the applicant made two
arguments.
In
the first place he submitted that he had applied for the
reinstatement of time-limits because the Town Court requested him to
do so. However, Article 211 of the Labour Code could not be applied
in his case, as the anti terrorist operation was still going on
in the Chechen Republic. On 15 July 2001 he had received a
letter from the head of the district administration by which he was
informed that his salary arrears would be paid as soon as funds were
available. Therefore his right had been infringed at the end of July.
The three-month time-limit had started to run from the end of July
and he had applied to the court in due time.
Secondly,
assuming that he had missed the time-limit, the Town Court could and
should in accordance with Article 105 of the Code of Civil Procedure
accept that he had missed the time-limit for valid reasons which were
as follows:
“(a) I was appointed head of a rural
administration in April 1996 and worked in this position in very
difficult conditions, sometimes at risk to my life.
(b) I think that it is a matter of honour for
the Russian state to pay at least salary arrears to heads of
administrations of communities which were appointed in that period
and who had worked with federal authorities.
(c) On numerous occasions I have applied
orally to the Administration of Urus Martan. And when I was told
that there were no funds, that I would have to wait and that I would
be paid, I continued to wait, believing the authorities and
understanding the situation which existed in the Republic.
(d) The Town Court should not have punished
me, as it did, and taken the side of those who in that period killed
and continue to kill people who work for the state. As a matter of
fact, the Urus-Martan Town Court have now punished me for my work for
the state in 1996.
(e) There existed no legal conditions in the
Chechen Republic to apply Article 211 of the Labour Code in labour
disputes involving state authorities because of the circumstances
which existed in previous years.”
The
applicant requested the appeal court to take into account the above
circumstances, to quash the judgment of 16 October 2001 and deliver a
new decision in his case.
- On
26 February 2002 the Supreme Court, comprising judges B. and A. and
presided over by Judge S., upheld the judgment of 16 October 2001. It
held as follows:
“... Having regard to the materials of the case
and to the submissions by the plaintiff, the Civil Chamber finds that
the judgment is lawful and reasoned.
According to Article 211 of the Labour Code of the
Russian Federation an application concerning the settlement of a
labour dispute is to be lodged with a court within three months of
the date when an employee knew or should have known about the
violation of his right. However, since December 2000 the plaintiff
has not made such an application to a court.
The [Town] court has thoroughly examined the submitted
evidence and reasonably found that the reasons advances by the
plaintiff for missing the time-limit were not valid and refused to
restore the time-limit.”
The
applicant was present at the hearing. He alleged that Judge B., to
whom, the Town Court judge had allegedly referred, was a member of
the court. Furthermore, according to the applicant, his appeal was
not examined in a public hearing, but took place in one of the rooms
in the Supreme Court building.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- Article
211 of the Russian Labour Code of 1971 (in force at the material
time) provided in its relevant part that an application concerning
the settlement of a labour dispute had to be lodged with a district
court within three months of the date when an employee knew or should
have known about the violation of his right. In instances where the
periods established in that Article lapsed for justifiable reasons,
they could be reinstated by a court.
20. Article
105 of the Russian Civil Procedure Code of 1964 (in force at the
material time) provided in its relevant parts that in cases where
individuals missed the statutory time-limits for reasons which the
court considered valid, the time-limits could be restored by a court.
An application for reinstatement of time-limits had to be lodged with
a court with jurisdiction to take a procedural decision on the
matter, and had to be examined in a hearing. A claim in respect of
which the time-limits had expired had to be lodged together with the
application for reinstatement of the time-limits.
- Ruling
of the plenary session of the Supreme Court of the Russian Federation
of 22 December 1992 No. 16 (applied until 17 March 2004) “On
Some Issues related to the Application by Courts of the Russian
Federation of Legislation when resolving Labour Disputes”
provided in relevant parts of paragraph
8 that a judge could not refuse to accept a claim for consideration
on the ground of expiration of time-limits, as Article 211 of the
Labour Code did not provide for such a possibility. Where a court
considered that the time-limits had not been respected for valid
reasons, it had to restore them. In cases where a court, after having
thoroughly examined the materials of the case, established that the
time-limits had not been complied with for a non-valid reason, it had
to dismiss the claim.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION IN RESPECT OF THE APPLICANT’S RIGHT OF ACCESS TO A
COURT
- The
applicant complained that his action for the
payment of his salary had been dismissed as lodged out of time. The
Court considers that this complaint falls to be examined under
Article 6 § 1 of the Convention, which, in so far as relevant,
reads as follows:
“In the determination of his civil rights and
obligations ... everyone is entitled to a ... hearing ... by [a] ...
tribunal ...”
A. Admissibility
- The Government submitted that the complaint was
incompatible ratione materiae with the provisions of the
Convention on the ground Article 6 § 1 was not applicable to the
proceedings between the applicant and the district administration.
They referred to the Court’s judgment in the case of Pellegrin
v. France ([GC], no. 28541/95, ECHR
1999-VIII).
- The
applicant contested their arguments.
25. The
Court reiterates that Article 6 § 1 secures to everyone “the
right to a court” of which the
right of access, that is the right to institute proceedings before
courts in civil matters constitutes one aspect only (see Golder
v. the United Kingdom, judgment of 21 February 1975, Series A
no. 18, § 36). This right extends
only to disputes (“contestations”)
over “civil rights and obligations” which can be said, at
least on arguable grounds, to be recognised under domestic law (see,
among other authorities, James and
Others v. the United Kingdom,
judgment of 21 February 1986, Series A no. 98, pp. 46-47, § 81).
The dispute must be genuine and serious;
it may relate not only to the actual existence of a right but also to
its scope and the manner of its exercise. The outcome of the
proceedings must be directly decisive for the right in question, mere
tenuous connections or remote consequences not being sufficient to
bring Article 6 § 1 into play (see, for instance, Werner
v. Austria, judgment of 24 November
1997, Reports 1997-VII,
§ 34).
- In
the above-mentioned Pellegrin judgment the Court held that the
employment disputes between the authorities and public servants,
whose duties typify the specific activities of the public service, in
so far as the latter is acting as the depository of public authority
responsible for protecting the general interests of the State, are
not “civil” and are excluded from the scope of Article 6
§ 1 of the Convention.
- However, in a recent judgment (Vilho Eskelinen and
Others v. Finland [GC], no. 63235/00, § 62, 19 April
2007) the Court established two criteria of applicability of Article
6 to such disputes. According to this judgment Article 6 under its
“civil” head shall be applicable to all disputes
involving civil servants, unless the national law expressly excludes
access to a court for the category of staff in question, and this
exclusion is justified on objective grounds.
28. Turning to the facts of the present
case, the Court firstly notes that it was common ground that
the applicant had raised a genuine and serious dispute over a “right”
within the meaning of Article 6 § 1. The only issue is whether
the right in question was a “civil” one.
- The
Court observes that the dispute in the present case concerned the
applicant’s right to claim the salary arrears. Under
national law the applicant had a right to bring proceedings against
his employer and to claim his salary. He
made use of that right and introduced an action against his employer.
The domestic courts dismissed his claim on the ground that it was
time-barred. They did not find that the domestic law excluded access
to a court to the post which the applicant had occupied. Accordingly,
the dispute between the
applicant and the district administration over the salary arrears
involved determination of a “civil right” and Article 6 §
1 is applicable to the proceedings
in the present case.
- The
Court considers 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
- According
to the Government, the national courts refused to examine the
applicant’s claim in substance because of his failure to comply
with the statutory time-limit for lodging his claim. They applied
Article 211 of the Russian Labour Code of 1971 (see “Relevant
Domestic Law and Practice”) and considered that the applicant
should have brought his action within a three-month period which
started to run in December 2000, the date on which courts of general
jurisdiction started functioning in the Chechen Republic. The
applicant did not lodge his claim until 9 October 2001.The courts
refused to restore the time-limit because the applicant failed to
advance any valid reason for missing it. The applicant’s right
of access to a court had not been infringed.
- The
applicant contested the Government’s submissions. Firstly, the
Town Court had infringed domestic law because it had applied a
time-limit on its own initiative. Secondly, the national courts had
wrongly applied provisions governing application of time-limits. They
had considered that the time-limit had started to run in December
2000, when the Town Court had started to function in Gudermes.
However, that court had not been accessible to him, as it had been
dangerous to go there and he had no means for travel. In the case of
a different person, the Town Court had restored the time-limits
having found that the court had not been accessible to the plaintiff
(see paragraph 16 above). The domestic courts could have suspended
the running of the time-limit as the situation which existed in
Chechnya at the material time could be considered exceptional.
Finally, he could not be obliged to apply to a court situated in a
different district.
- The
Court reiterates that the right of access to a court secured by
Article 6 § 1 is not absolute but may be subject to limitations;
these are permitted by implication since the right of access by its
very nature calls for regulation by the State, which may vary in time
and in place according to the needs and resources of the community
and of individuals. In laying down such regulation, the Contracting
States enjoy a certain margin of appreciation, but the final decision
as to observance of the Convention’s requirements rests with
the Court. Limitations on the right to a court are compatible
with Article 6 only if they do not restrict or reduce the access left
to the litigant in such a way or to such an extent that the very
essence of the right is impaired; lastly such limitations will not be
compatible with Article 6 § 1 if they do not pursue a legitimate
aim or if there is not a reasonable relationship of proportionality
between the means employed and the aim sought to be achieved (see
Ashingdane v. the United Kingdom, judgment of 28 May 1985,
Series A no. 93, § 57).
- Furthermore,
it is not the Court’s task to take the
place of the domestic courts. It is primarily for the national
authorities, notably the courts, to resolve problems of
interpretation of domestic legislation. The Court’s role is
confined to ascertaining whether the effects of such an
interpretation are compatible with the Convention (see Edificaciones
March Gallego S.A. v. Spain,
judgment of 19 February 1998, Reports
1998-I, p. 290, § 33). This applies in particular to the
interpretation by courts of rules of a procedural nature such as
time-limits governing the filing of documents or lodging of appeals
(see, among other authorities, Pérez
de Rada Cavanilles v. Spain,
judgment of 28 October 1998, Reports
1998-VIII, § 43).
- Turning
to the present case the Court firstly notes that the requirement to
lodge a judicial claim within a statutory time-limit is not in itself
incompatible with Article 6 § 1 of the Convention. The Court has
held on numerous occasions that such a requirement pursued a
legitimate aim of proper administration of justice and of compliance,
in particular, with the principle of legal certainty (see, for
example, Pérez de Rada Cavanilles, cited above,
§ 45, and Miragall Escolano and Others v. Spain,
no. 38366/97, § 33, ECHR 2000-I). The Court considers that
there is no reason to find otherwise in the present case. However,
the manner in which the time-limits were applied to the applicant in
the particular circumstances of the case is a relevant factor in
determining whether or not he enjoyed an effective access to a court.
- The
applicant firstly argued that the Town Court had infringed the
domestic law by raising the issue of the time-limits on its own
initiative. The Court observes that on 9
October 2001 the applicant lodged a formal request for the
reinstatement of time-limits in accordance with Article 105 of the
Code of Civil Procedure in force at the material time (see “Relevant
Domestic Law and Practice”). In that request he expressly
acknowledged that he had missed the statutory time-limit for lodging
his action. He signed the request and submitted it together with his
statement of claim. Under Article 105 the domestic courts had to
examine such a request at the hearing, as they did in the present
case. It follows that the applicant raised the issue of time-limits
on his own initiative and that the domestic courts acted in
accordance with law.
- The
applicant further argued that the domestic court had wrongly applied
the time-limit, refused to reinstate it or to suspend it, in spite of
the fact that he had missed it for valid reasons. The Court observes
that the domestic courts had carefully examined the reasons referred
to by the applicant at two levels of jurisdiction and found that they
had not been such as to justify his failure to lodge his action in
due time. In doing so they relied on the
relevant provisions of the domestic law and practice. Having regard
to the judgment of 16 October 2001 and the appeal decision of
26 February 2002, the Court considers that those decisions do
not appear arbitrary or unreasonable. The Court notes that the
domestic courts took into account the fact that no courts were
functioning in Chechnya until December 2000 and calculated the
three-month time-limits from that date. Furthermore, the fact that in
the case of M. (see § 16 in the Facts) the Town Court allowed
the request for the reinstatement of time-limits is not relevant to
the present case, as there is no evidence that the applicant was in a
similar situation to M. Finally, the applicant argued that he could
not be obliged to lodge his action in a court situated in a different
district. It is true that between December 2000 and July 2001 the
only possibility for the applicant to lodge his claim was to apply to
the Town Court situated in Gudermes. The Court considers that Russian
authorities could have experienced some difficulties in putting a
judicial system in place in the Chechen Republic at the time of
events. However, there had been a court to which the applicant could
have applied. The Court considers that the fact that the applicant
had to apply to a court situated in a different district did not put
an excessive burden on him and did not affect his right of access to
a court.
- Accordingly,
having regard to the above considerations and taking into account the
legitimate aim served by the statutory time-limits for lodging claims
and the margin of appreciation accorded to States in regulating the
right of access to a court, the Court considers that in the present
case the applicant did not suffer a disproportionate restriction on
his right of access to a court and finds that there was no violation
of Article 6 § 1 of the Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant further complained under Article 6 § 1 of the
Convention that the Town Court had not been independent and
impartial, had not been established in accordance with law, that the
hearing before the appeal court had not been public and oral, and
that the proceedings had been unreasonably long. He complained under
Article 1 of Protocol No. 1 to the Convention that his property
rights had been violated as he had not received salary arrears as a
result of the domestic courts’ failure to examine his claim.
- Having
regard to all the material in its possession, and in so far as these
complaints fall within its competence, 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.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning the lack of
effective access to court admissible and the remainder of the
application inadmissible;
- Holds that there has been no violation of
Article 6 § 1 of the Convention in respect of the applicant’s
right of access to a court;
Done in English, and notified in writing on 9 October 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Christos
Rozakis
Deputy Registrar President
