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FIRST
SECTION
CASE OF TATYANA MAKAROVA v. RUSSIA
(Application
no. 20886/04)
JUDGMENT
STRASBOURG
22
December 2009
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 Tatyana Makarova 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,
Dean
Spielmann,
Sverre Erik Jebens,
Giorgio
Malinverni, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 3 December 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 20886/04) 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 Tatyana
Nikolayevna Makarova (“the applicant”), on 23 April 2004.
- The
applicant was represented by Mr A.V. Kiryanov, lawyer practising in
Taganrog. The Russian Government (“the
Government”) were represented by Mr P. Laptev and Mrs V.
Milinchuk, the former representatives of the Russian Federation at
the European Court of Human Rights.
- On
20 November 2006 the
President of the First Section 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).
- On
3 December 2009 the Chamber decided that, in the interests of the
proper administration of justice, the proceedings in the present case
should be conducted simultaneously with those in the cases of
Gorovaya v. Russia and MP Kineskop v. Russia
(applications nos. 20882/04
and 16141/05) (Rule 42).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1960 and lives in Sochi, in the Krasnodar
Region.
- On
31 July 1998 the applicant, together with three other plaintiffs,
Mr
Kesyan, Ms Gorovaya and MP Kineskop, all represented by the same
lawyer, filed an action against the Rostov Regional Department of the
Federal Treasury and Mrs O. seeking compensation for pecuniary and
non-pecuniary damage on account of the unlawful seizure of goods.
A. First round of court proceedings
-
The first hearing was scheduled for 22 September 1998 but was
adjourned owing to the judge's leave. The following hearing on
28 December 1998 did not take place owing to the defendants'
failure to appear in court.
- On
11 February 1999, at the plaintiffs' request, the District Court
ordered an expert examination and stayed the proceedings.
- In
September 1999 the experts' report was received. In October and
November 1999 the applicant's representative amended the claims.
-
On 25 November 1999 the court proceedings were resumed.
-
Between 25 November 1999 and 3 October 2000 the District Court listed
eight hearings, of which three were adjourned because the defendants
failed to attend and five because none of the parties attended.
-
By a decision of 3 October 2000, the District Court declined to
examine the applicant's claims on the merits on the ground of her
repeated failure to appear in court.
-
On 9 July 2001 the applicant's representative requested that the
decision of 3 October 2000 be set aside for the reason that neither
he, nor the applicant had been duly notified of the hearings. By a
decision of 12 July 2001, the District Court allowed the request
and resumed the proceedings.
-
By a decision of 5 September 2001, the District Court invited the
Taganrog Custom Service to join the civil proceedings as a third
party.
-
Upon the third party's request of 10 October 2001, the proceedings
were stayed because a related administrative case had been pending
before another court. On 30 September 2002 they were resumed.
-
Between 30 September and 20 December 2002, three hearings were
adjourned because the parties had failed to attend.
-
On 20 December 2002 the District Court declined to examine the
applicant's claims on the merits on the ground of her repeated
failure to appear in court.
-
The proceedings were resumed on 23 January 2004, upon the request of
the applicant's representative of 19 January 2004, because neither
he, nor the applicant had been properly summoned to the hearings.
-
Of ten hearings listed between 20 February and 16 November 2004, four
hearings were adjourned owing to Mrs O.'s absence, two owing to the
parties' absence, one at the request of the applicant's
representative and two because the presiding judge was on leave.
-
By a judgment of 16 November 2004, the Kuybyshevskiy District Court
dismissed the applicant's claim. On 16 February 2005
the Rostov Regional Court quashed the judgment of 16 November 2004 on
appeal and remitted the matter to the first-instance court for fresh
examination.
B. Second round of court proceedings
-
The Kuybyshevskiy District Court listed the first hearing for 18 May
2005. Of three hearings fixed between 18 May and 28 June 2005, two
were adjourned because the defendants failed to attend and one was
adjourned at the defendants' request.
-
On 28 June 2005, at the plaintiffs' request, the District Court
ordered an expert examination and stayed the proceedings.
-
The proceedings were later resumed and, by a judgment of 15 December
2005, the Kyubyshevskiy District Court allowed the applicant's action
in part. The judgment of 15 December 2005 was upheld on
appeal by the Rostov Regional Court on 8 February 2006.
II. RELEVANT DOMESTIC LAW
-
The Code of Civil Procedure of the Russian Federation, which has been
in force since 1 February 2003, provides as follows:
Article 113. Court notices and summons
“1. The parties to the
proceedings, as well as witnesses,
experts, specialists and interpreters, shall
be summoned to a hearing by a letter sent by registered mail with an
acknowledgment of receipt, by court summons with an acknowledgment of
receipt, by telegram, by phone or fax or by any other means which can
guarantee a record of the fact that the summons was sent and was
received by the party...
3. Summons shall be served on the
parties in such a way that they have enough time to prepare their
case and appear at the hearing.”
Article 222. Ground for leaving the case without
consideration on merits
“A
court shall leave a case without examination on the merits if the
parties to the proceedings have failed to attend at least two
scheduled hearings.”
Article 223. Procedure and consequences of leaving
the case without consideration on merits
“1. Where a case is left without examination on
the merits, the proceedings shall be discontinued by a decision of
the court...
3. The court shall revoke its
decision if the party concerned adduces evidence disclosing a valid
excuse for not attending the hearing(s).”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the proceedings had been
incompatible with the “reasonable time” requirement, laid
down 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...”
- The
Government contested that argument.
- The
period to be taken into consideration began on 31 July 1998 when the
applicant lodged her action with the Kuybyshevskiy District Court and
ended on 8 February 2006 with the final judgment of the Rostov
Regional Court. It thus lasted for approximately seven years and
seven months at two levels of jurisdiction.
A. Admissibility
- The
Court notes 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 stated that the national authorities can be held liable
only for a delay of nine months and twenty-four days. They argued
that the overall length of the court proceedings was mainly
attributable to the complexity of the case and to the conduct of the
applicant and her representative. According to the Government, the
proceedings had been complex due to the large number of participants,
that is to say four plaintiffs, two defendants and one third party,
and the need to conduct two expert examinations. They further
asserted that, though the applicant's efforts to ensure the best
representation of her interests were understandable, the manner in
which she had exercised her procedural rights had undoubtedly
contributed to the prolongation of the proceedings. The Government
also imputed to the applicant a failure to enquire promptly about
developments in the proceedings. In particular, the request by the
applicant's representative asking the District Court to set aside
their decision of 3 October 2000 to discontinue the proceedings was
only submitted on 9 July 2001. Then, only on 19 January 2004 did the
applicant's representative request that the proceedings discontinued
by the District Court's decision of 20 December 2002 be resumed.
-
The applicant maintained her complaint.
-
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).
-
The Court is not convinced by the Government's argument that the
above-mentioned number of parties and the conducting of the two
expert examinations can sufficiently substantiate the complex nature
of the dispute. In any event, the Court is of the view that the
complexity of the case, taken on its own, cannot justify the seven
years and seven months of the proceedings.
-
As to the applicant's conduct in the present case, nothing indicates
that her procedural requests were abusive, frivolous or vexatious.
She cannot be criticised for amending her claims and seeking to
obtain additional evidence, or, in other words, for taking full
advantage of the resources afforded by national law in the defence of
her interests, even though that resulted in an increase in the length
of the proceedings (see, mutatis mutandis, Yağcı
and Sargın v. Turkey, 8 June 1995, § 66, Series A no.
319 A and Sürmeli v. Germany [GC], no. 75529/01, §
131, ECHR 2006 VII). The opposite approach would render the
concept of litigation meaningless.
34.
The Court cannot accept the Government's further argument that the
applicant and her representative did not enquire duly about the
progress of the proceedings. The Court notes that the national law
explicitly provides for an obligation on the part of the domestic
courts to inform the parties, in a proper manner, of the dates of
hearings (see § 24 above). In the present case, the District
Court twice discontinued the proceedings on the ground of the
applicant's repeated failure to appear in court, although this was,
in fact, owing to its own failure to notify her of the scheduled
hearings (see § 12 and § 17 above). In such circumstances,
the time that elapsed while she waited in vain for the court summons
and the time that elapsed before the discontinued proceedings were
resumed cannot be imputable to the applicant.
-
With regard to the national authorities' conduct, the Court
reiterates that it is incumbent on the
respondent State to organise its legal system in such a way as to
enable its courts to comply with the requirements of
Article 6 §
1 (see, Sürmeli, cited above, § 129).
Referring to the above findings, the Court concludes that on several
occasions the District Court failed to properly inform the applicant
and her representative of the scheduled hearings and that the result
was an aggregate delay of at least two years. The Court further notes
that the examination of the case was substantially prolonged in
consequence of the defendants' failure to attend a number of
hearings. It is not critical to establish whether that was caused by
their own fault or by the negligent notification by the District
Court. The Court is of the opinion that, in any event, the delay is
to be imputable to the respondent State, as the domestic authorities
either failed to ensure that the participants were duly
notified or to take the appropriate procedural
measures that are available under the national law.
- Having
examined all the materials submitted and the existing case-law on the
subject, 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 2,000 euros (EUR) in respect of non-pecuniary
damage sustained as a result of a violation of her right to a fair
trial within a reasonable time.
- The
Government submitted that the claim was excessive and unreasonable
and if the Court were to find a violation of the Convention, this
would, in itself, be sufficient just satisfaction.
- The
Court considers that the applicant must have sustained non-pecuniary
damage, which would not be adequately
compensated by the finding of a violation alone. The Court
considers that it should award the full sum claimed.
B. Costs and expenses
- The
applicant did not claim reimbursement of her costs and expenses
incurred before the domestic authorities and the Court. Accordingly,
the Court does not make any award under this head.
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;
3. Holds
(a) that
the respondent State is to pay the applicant, within three months of
the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 2,000 (two
thousand euros), plus any tax that may be chargeable, in respect of
non-pecuniary damage, to be converted into Russian roubles at the
rate applicable on the date of settlement;
(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.
Done in English, and notified in writing on 22 December 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Nina Vajić Registrar President
