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FIRST
SECTION
CASE OF ORLOVA v. RUSSIA
(Application
no. 21088/06)
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 Orlova v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina Vajić,
President,
Anatoly Kovler,
Elisabeth
Steiner,
Khanlar Hajiyev,
Sverre Erik
Jebens,
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. 21088/06) 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 Tamara
Nikolayevna Orlova (“the applicant”), on 7 May 2006.
- The
Russian Government (“the Government”) were represented by
Ms V. Milinchuk, former Representative of the Russian Federation at
the European Court of Human Rights.
- On
2 April 2007 the Court
decided to give notice of the application to the Government. It was
also decided to rule on the admissibility and merits of the
application at the same time (Article 29 § 3).
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1937 and lives in St Petersburg.
- In
February 1998 she lodged a court action against her brother and the
St Petersburg Committee on Land Management with the Vyborgskiy
District Court of St Petersburg (“the District Court”).
She claimed that her brother had unlawfully acquired the title deeds
to a plot of land adjacent to her house and had destroyed her garden.
In the course of the proceedings the applicant amended her claim
several times.
A. Decision to leave the applicant’s claim
without examination
- On
20 July 1998 Judge A. accepted the case for examination. Several
hearings were scheduled in 1998 and in the first half of 1999. They
were adjourned either because the parties failed to appear or because
the judge was on sick leave.
- On
8 June 1999 the District Court refused to examine the case on the
grounds that the applicant had failed to appear at two court
hearings. The applicant requested the District Court to reinstate the
proceedings as she had not been duly notified of the hearings. On 28
June 1999 the proceedings were reinstated.
B. Suspension of the proceedings pending an expert
study
- The
first hearing in the reinstated proceedings was scheduled for
22 September 1999. On that date the applicant amended her claim
and the case was adjourned. The hearing of 21 October 1999 was
adjourned because the judge was on sick leave and that of 14 December
1999 because she was involved in unrelated proceedings.
- In
2000 several hearings were adjourned for a variety of reasons.
- On
4 July 2000 the judge ordered an expert’s report at the
applicant’s request, and suspended the proceedings.
C. Decision to terminate the proceedings in the case
- On
5 March 2001 the expert’s report was finished and the
proceedings were resumed. Several hearings were scheduled in the
remaining part of 2001 at regular intervals but most of them were
adjourned for various reasons.
- In
2002, the hearing of 29 March did not take place because the judge
was involved in unrelated proceedings. The next hearing, scheduled
for 29 May, was adjourned because the judge was on a training course.
- Several
hearings were scheduled in 2003. Of them, the hearing of 4 June
did not take place, because the representative of the Committee on
Land Management failed to appear. The next hearing was scheduled for
16 September, but it was postponed because the judge was on sick
leave. The hearing of 2 December 2003 did not take place because the
judge was involved in unrelated proceedings.
- In
2004, the hearing of 11 February was postponed because the applicant
was sick. The next hearing was scheduled for 12 May; however, it did
not take place due to the defendants’ failure to appear. The
next hearing was scheduled for 22 September, but the representative
of the Committee on Land Management did not appear and requested that
the case go ahead in his absence. However, the judge postponed the
examination of the case until 30 November 2004. On that date the
hearing was adjourned because the defendant’s representative
failed to attend. The hearing of 21 December 2004 did not take place
because the judge was involved in unrelated proceedings.
- Several
hearings were scheduled in the first half of 2005. They were
adjourned for a variety of reasons.
- On
1 June 2005 the District Court terminated the proceedings in the case
on the grounds that the applicant’s claim could not be examined
within civil proceedings. On 31 August 2005 the St Petersburg City
Court (“the City Court”) quashed the decision of 1 June
2005, on the applicant’s appeal, having found that that
decision had not corresponded to the circumstances of the case and
had been made in violation of procedural rules. Furthermore, the City
Court drew the District Court’s attention to the fact that the
proceedings had already lasted for seven years and that such a
duration could be said to have violated the applicant’s right
to examination of her claims within a reasonable time. The City Court
remitted the case for a fresh examination to the first-instance
court.
D. Determination of the applicant’s claim
- On
10 November 2005 the District Court heard the case and dismissed the
applicant’s action in full. On 3 March 2006 City Court
upheld that judgment on appeal.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the domestic courts had failed to examine
her claim within a reasonable time. The Court will examine that
complaint 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 ... hearing within a
reasonable time by [a] ... tribunal ...”
- The
proceedings commenced in February 1998, when the applicant lodged her
claim with the District Court. However, the Court will only consider
the period of the proceedings which began on 5 May 1998, when the
Convention entered into force in respect of Russia. In assessing the
reasonableness of the time that elapsed after that date, account must
be taken of the state of proceedings at the time. The period in
question ended on 3 March 2006 with the decision of the City Court.
Thus the Court has competence ratione temporis to examine the
period of approximately seven years and ten months.
During that period the case was examined at two levels of
jurisdiction.
A. Admissibility
- The
Government submitted that the applicant had not exhausted available
domestic remedies. She could have used such domestic remedies to
speed up the proceedings in her case or to receive redress for the
lengthy examination of her case. They claimed that the applicant
could have complained about the judge in charge of the case to the
board of judges or asked to have her replaced, she could have
appealed against the decisions of the District Court to postpone the
hearings, she could also have asked the judge to replace the expert
if she considered that the timescale for the filing of the expert’s
report was too long, she could have appealed against the final
decision in her case at a supervisory review hearing and, finally,
she could have appealed to the President of the District Court.
- The
applicant did not comment on this particular part.
- The
Court reiterates that under Article 1 of the Convention the primary
responsibility for implementing and enforcing the rights and freedoms
guaranteed by the Convention is laid on the national authorities. The
machinery of complaint to the Court is thus subsidiary to national
systems safeguarding human rights. This subsidiary character is
articulated in Articles 13 and 35 § 1 of the Convention.
23. The purpose of Article 35 § 1,
which sets out the rule on exhaustion of domestic remedies, is to
afford the Contracting States the opportunity of preventing or
putting right the violations alleged against them before those
allegations are submitted to the Court (see, among other authorities,
Selmouni v. France
[GC], no. 25803/94, § 74, ECHR 1999-V). The rule in Article 35 §
1 is based on the assumption, reflected in Article 13 (with which it
has a close affinity), that there is an effective domestic remedy
available in respect of the alleged breach of an individual’s
Convention rights (see
Kudła v. Poland [GC], no.
30210/96, § 152, ECHR 2000-XI).
- The
only remedies which Article 35 of the Convention requires to be
exhausted are those that relate to the breaches alleged and at the
same time are available and sufficient. The existence of such
remedies must be sufficiently certain not only in theory but also in
practice, failing which they will lack the requisite accessibility
and effectiveness (see, inter alia, Vernillo v. France,
judgment of 20 February 1991, Series A no. 198, pp. 11 12,
§ 27; Dalia v. France, judgment of 19 February 1998,
Reports of Judgments and Decisions 1998 I, pp. 87-88, §
38; and Mifsud v. France (dec.) [GC], no. 57220/00,
ECHR 2002-VIII).
- The
Court notes that the Government did not, however, indicate whether
and, if so, how the applicant could obtain relief either preventive
or compensatory by having recourse to the judge in charge of the
case, higher judicial or other authorities. It was not suggested that
any of the remedies referred to by the Government or a combination of
them, could have expedited the determination of the applicant’s
claims or provided her with adequate redress for delays that had
already occurred. Nor did the Government supply any example from
domestic practice showing that, by using those means, it was possible
for the applicant to obtain such relief (see, mutatis mutandis,
Kudła, cited above, § 159). For these reasons, the
Government’s plea of inadmissibility on the ground of
non-exhaustion of domestic remedies must be dismissed.
- The
Court considers that the application 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 firstly argued that the length of proceedings in the
present case was due to the particular complexity of the case. They
further submitted that the applicant had caused some delays in the
proceedings. She amended her claim, requested an expert’s
report, insisted on the examination of the expert and of witnesses
and appealed against the first-instance judgments. The applicant
and/or the defendants had failed to appear at several hearings and on
some occasions they had asked to adjourn the hearings. The Government
accepted, however, that the applicant had been present at most of the
hearings. They also pointed out that the case had been examined by
domestic courts several times. The hearings had been scheduled
regularly and the domestic courts had not caused any substantial
delays in the proceedings.
- The
applicant contested the Government’s submissions. She
considered that the case was not complex. She submitted that ten
hearings had not taken place due to the domestic court’s
failure to duly notify the parties and fourteen hearings had not
taken place either because the judge was on sick leave, was busy in
other proceedings, was on training or because the court’s
registrar was absent.
- 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). In addition, only delays attributable to the
State may justify a finding of a failure to comply with the
“reasonable time” requirement (see Pedersen and
Baadsgaard v. Denmark [GC], no. 49017/99, § 49, ECHR
2004-XI).
- The
Court accepts that the proceedings at issue were of a certain
complexity as they concerned property claims, involved three parties
and required an expert’s report. However, the Court cannot
accept that the complexity of the case, taken on its own, was such as
to justify the overall length of proceedings.
- As
to the applicant’s conduct, the Court is not convinced by the
Government’s arguments that the applicant should be held
responsible for amending her claim, requesting an expert opinion, the
examination of the expert and witnesses and for lodging appeals. It
has been the Court’s constant approach that an applicant cannot
be blamed for taking full advantage of the resources afforded by the
national law in the defence of his interests (see, mutatis
mutandis, Yağcı and Sargın v. Turkey,
judgment of 8 June 1995, Series A no. 319-A, § 66).
Furthermore, the Government accepted that the applicant had been
present at most of the hearings. Accordingly, the Court considers
that the applicant was not responsible for any substantial delays in
the proceedings.
- As
regards the conduct of judicial authorities, the Court notes the
Government’s argument that the domestic courts had examined the
case several times. However, the Court considers that the fact
that the courts heard the case several times did not absolve them of
complying with the reasonable-time requirement of Article 6 § 1
(see Litoselitis v. Greece, no. 62771/00, § 32, 5
February 2004).
- The
Court further notes that the parties agreed that the defendants had
failed to appear at numerous hearings and thus caused certain delays
in proceedings. However, the Government submitted that they had been
duly notified of the hearings and the applicant argued that the
courts had failed to duly inform them. The Court considers that it is
not necessary to examine why the defendants failed to appear, as
there are sufficient elements to conclude that the responsibility for
most of delays in the proceedings, in any event, lies with the
domestic authorities.
- The
Court observes that several hearings (14 December 1999, 29 March
and 29 May 2002, 2 December 2003 and 21 December 2004) did not take
place because the judge was involved in unrelated proceedings or was
on a training course. In this connection, the Court recalls that it
is for Contracting States to organise their legal systems in such a
way that their courts can guarantee the right of everyone to obtain a
final decision within a reasonable time (see, for instance, Löffler
v. Austria, no. 30546/96, § 21, 3 October 2000).
Therefore, the delays resulting from the judge’s absence from
the hearings are imputable to the State.
- Furthermore,
the Court is particularly struck by the fact that after several years
of proceedings, on 1 June 2005, the District Court held that the
applicant’s claim was not of a civil nature and that it was
therefore not competent to examine the case. On 31 August 2005 the
City Court quashed that decision as unlawful and drew the District
Court’s attention to the fact that the proceedings had been
very long and could be in breach of the applicant’s right to
examination of her claim within a reasonable time. The Court
considers that the District Court’s decision resulted in a
significant delay in the examination of the case.
- Finally,
the Court observes that the applicant was already very elderly when
she brought her action and her claim concerned a plot of land which
she used as a garden. The Court is of the opinion that the nature of
the dispute and the applicant’s advanced age called for
particular diligence on the part of the domestic courts.
- In
the light of the criteria laid down in its case-law and having regard
to all the circumstances of the case, in particular to the delays
which occurred before the District Court, 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. 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 100,000 euros (EUR) in respect of non pecuniary
damage.
- The
Government contested the claim.
- The
Court considers that the applicant must have suffered distress and
frustration resulting from the excessive length of proceedings.
Making its assessment on an equitable basis, it awards her EUR 3, 600
in respect of non-pecuniary damage, plus any tax that may be
chargeable on that amount.
B. Costs and expenses
- The
applicant also claimed 10,055 Russian roubles for the costs and
expenses incurred before the domestic courts and before the Court.
- The
Government contested the claim.
- According
to the Court’s case-law, an applicant is entitled to the
reimbursement of 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 sum of EUR 275 covering costs
under all heads.
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
(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 settlement:
(i) EUR
3,600 (three thousand six hundred euros) in respect of non-pecuniary
damage, plus any tax that may be chargeable on that amount;
(ii) EUR
275 (two hundred and seventy-five euros) in respect of costs and
expenses, plus any tax that may be chargeable to the applicant on
that amount;
(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 9 October 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Nina Vajić
Deputy
Registrar President
