FIRST SECTION

CASE OF SUBBOTKIN v. RUSSIA

(Application no. 837/03)

JUDGMENT

STRASBOURG

12 June 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 Subbotkin 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 Søren Nielsen, Section Registrar,
Having deliberated in private on 22 May 2008,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 837/03) 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, Mr Gennadiy Petrovich Subbotkin (“the applicant”), on 10 October 2002.
2.  The Russian Government (“the Government”) were represented by Mr P. Laptev and subsequently by Mrs V. Milinchuk, the Representatives of the Russian Federation at the European Court of Human Rights.
3.  On 12 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 applicant and the Government each filed observations.
4.  On 2 February 2007 the Court put additional questions to the parties. The Government did not file additional observations.
THE FACTS
5.  The applicant was born in 1951 and lives in the town of Dudinka in the Taymyr (Dolgano-Nenetskiy) Autonomous District in the Krasnoyarsk Region.
6.  On 4 June 1997 the Dudinka Town Court reinstated the applicant in his position as the head of a permanent commission of the Taymyr District Legislative Assembly and awarded him wage arrears and compensation for non-pecuniary damage. That judgment was upheld on appeal and became final on 5 November 1997.
7.  Enforcement proceedings were instituted, but on 16 December 1997 a deputy Prosecutor General of the Russian Federation, Mr Davydov, suspended the enforcement proceedings and notified the Dudinka Town Court of his decision.
8.  On 20 September 2001 the applicant lodged an action with the Tverskoy District Court of Moscow against the deputy Prosecutor General of the Russian Federation. He argued that the decision to suspend the enforcement proceedings had been unlawful. He also sought compensation for non-pecuniary damage.
9.  On 20 November 2001 the Tverskoy District Court held a hearing. Both the applicant and his representative were present. The hearing was adjourned until 13 December 2001.
10.  The applicant's representative attended the hearing on 13 December 2001. At the same hearing the Tverskoy District Court pronounced judgment, dismissing the applicant's claims.
11.  The applicant's representative appealed against the judgment to the Moscow City Court. He complained that the judgment was unfair and that the District Court had not given the applicant's arguments due consideration.
12.  According to the Government, on 13 March 2002 the Moscow City Court sent a letter to the applicant notifying him that an appeal hearing had been listed for 10 April 2002. The Government provided the Court with a copy of that letter. The letter was not signed and bore a handwritten note indicating that it had been sent on “13 March 2001”. According to the applicant, neither he nor his representative was informed about the hearing of 10 April 2002.
13.  On 24 April 2002 the Moscow City Court, in the presence of the representative of the Prosecutor General's office, upheld the judgment of 13 December 2001. According to the applicant, he and his representative were not summonsed to the hearing of 24 April 2002. They learned about it in May 2002 when they received the judgment of 24 April 2002.
THE LAW
I.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
14.  The applicant complained that the examination of the appeal without giving him an effective opportunity to attend had violated his 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
15.  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
16.  The Government claimed that the applicant had been notified of the appeal hearing of 10 April 2002 in good time. In any event, the applicant's presence was not necessary as the appeal court could decide on the basis of the case file and his written submissions.
17.  The applicant averred that the Moscow City Court had failed in its duty to inform him of the appeal hearings and the Government did not present any evidence to the contrary.
18.  The Court observes that the Moscow City Court fixed two appeal hearings, on 10 and 24 April 2002. The Government claimed that the applicant had been notified of the hearing of 10 April 2002 by a letter sent to him on 13 March 2002. However, the Court observes that the Government did not present any evidence showing that the letter had in fact been dispatched and that it had reached the applicant. Furthermore, the Court finds it peculiar that the letter was not signed, that it did not bear any registration number or date and that the only note showing that it had been sent indicated an incorrect date and had been handwritten by an unknown person. As concerns the hearing of 24 April 2002, the Government did not dispute that the applicant and his representative had not been summonsed to it. The Court has no reason to conclude otherwise. In these circumstances, the Court is not persuaded that the Moscow City Court had notified the applicant and/or his representative of the appeal hearings in such a way as to provide them with an opportunity to attend those hearings.
19.  The Court 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; and Groshev v. Russia, no. 69889/01, § 27 et seq.,20 October 2005).
20.  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 the absence of notification the applicant has been deprived of an opportunity to attend the appeal hearings. 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 he had not, whether the examination of the appeal should have been adjourned.
21.  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
22.  The applicant complained under Article 6 § 1 of the Convention that the Tverskoy District and Moscow City courts had misdirected themselves in law and had incorrectly assessed the facts.
23.  The Court reiterates that, in accordance with Article 19 of the Convention, its only task is to ensure the observance of the obligations undertaken by the Parties in the Convention. In particular, it is not competent to deal with an application alleging that errors of law or fact have been committed by domestic courts, except when it considers that such errors might have involved a possible violation of any of the rights and freedoms set out in the Convention in respect of which the applicant has complied with all other criteria of admissibility, set out in the Convention. The Court refers on this point to its established case-law (see Schenk v. Switzerland, judgment of 12 July 1988, Series A no. 140, p. 29, § 45).
24.  In the light of the foregoing consideration, the Court finds that the reasons on which the national courts based their conclusions in the applicant's case are sufficient to exclude a finding that the way in which they established and assessed the evidence and applied the domestic law was unfair or arbitrary. It follows that this complaint 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
25.  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
26.  The applicant claimed an unspecified amount, representing wage arrears for the period from February 1997 to December 1999, in respect of pecuniary damage. He further claimed 500,000 US dollars in respect of non-pecuniary damage.
27.  The Government argued that there was no causal link between the alleged violation and the claim in respect of pecuniary damage. They further stated that the claims were excessive and unreasonable.
28.  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 him 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 appears excessive. Making its assessment on an equitable basis, the Court awards the applicant EUR 1,000, plus any tax that may be chargeable on that amount.
B.  Costs and expenses
29.  The applicant did not seek reimbursement of costs and expenses relating to the proceedings before the domestic courts or the Convention organs and this is not a matter which the Court has to examine of its own motion (see Motière v. France, no. 39615/98, § 26, 5 December 2000).
C.  Default interest
30.  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 domestic authorities' failure to apprise the applicant of the appeal hearings in good time 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, 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, plus any tax that may be chargeable;
(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount 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 12 June 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Søren Christos 
	Registrar	President