[New search]
[Contents list]
[Printable RTF version]
[Help]
FIRST
SECTION
CASE OF UTYUZHNIKOVA v. RUSSIA
(Application
no. 25957/03)
JUDGMENT
STRASBOURG
7 October
2010
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 Utyuzhnikova v.
Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis,
President,
Anatoly Kovler,
Elisabeth
Steiner,
Dean Spielmann,
Sverre Erik
Jebens,
Giorgio Malinverni,
George Nicolaou,
judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 16 September 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 25957/03) 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 Irina Utyuzhnikova (“the
applicant”), on 30 June 2003.
- 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
9 March 2007 the President of the First Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1968 and lives in Irkutsk.
- In
1989 the applicant’s husband received a fatal work-related
injury. In 1990 the applicant was granted compensation by her
husband’s former employer, a private company (“the
company”).
- On
10 March 1997 the applicant brought court proceedings against the
company, following numerous re-calculations of the amount to be paid
and regular failures of the company to effectuate the payments. In
particular, she sought compensation of pecuniary and non-pecuniary
damage, penalties for the belated payments and indexation of such
payments and re-calculation of monthly payments with subsequent
indexation.
- On
11 February 1998 the Oktyabrskiy District Court of Irkutsk (“the
District Court”) granted the applicant’s claims in part.
The judgment was set aside on appeal on 26 June 1998 by the Irkutsk
Regional Court (“the Regional Court”) which required a
new hearing of the case. The appeal court also issued a special
statement reprimanding the judge in charge of the applicant’s
case for erroneous application of the law that resulted in the
quashing of the judgment and delays in the proceedings.
- Once
back at the trial court, the case was assigned to judge V., and on 7
December 1998 it was transferred for unspecified reasons to judge T.
- On
16 December 1998 the hearing did not take place as the respondent
failed to appear.
- On
24 March 1999 the hearing again did not take place due to the judge’s
illness.
- On
13 August 1999 the respondent’s representative requested to
adjourn the proceedings as he was ill. The proceedings were adjourned
to 18 October 1999 with account of the judge’s vacation.
The parties were requested to provide some additional evidence.
- On
18 October 1999 the proceedings again were adjourned at the
respondent’s representative’s request. The respondent was
notified that in the event of a default in appearance on 30 November
1999 the case would be examined in its absence.
- On
30 November 1999 the court invited the applicant to provide some
additional evidence and adjourned the hearing to 7 February 2000.
- On
7 February 2000 at the applicant’s request the hearing was
adjourned to 21 April 2000. On the latter date the hearing did not
take place as the judge was away for training.
- The
hearing of 7 June 2000 did not take place due to the judge’s
illness.
- On
28 October 2000 the case was transmitted back to judge V.
- On
27 December 2000 the hearing was adjourned to 14 February 2001 at the
respondent’s representative’s request.
- On
22 February 2001 the applicant submitted the amended claims and
calculations.
- On
27 June 2001 the hearing was adjourned as the respondent’s
representative requested the court to obtain certain evidence.
- From
31 July to 10 December 2001 no hearings were scheduled due to the
judge’s illness and subsequent vacation.
- On
25 January 2002 the hearing did not take place as the applicant’s
representative failed to appear.
- The
hearing of 4 March 2002 was adjourned on account of a need to obtain
certain evidence.
- On
10 April 2002 the case was transferred to judge P., again for
unspecified reasons. A hearing was scheduled for 29 August 2002.
- Between
29 August and 15 October 2002 three hearings did not take place due
to the applicant’s failure to appear.
- On
13 November 2002 the District Court granted the applicant’s
claims in part awarding her a lump sum of 7,311 Russian roubles
(RUB), RUB 3,600 in penalties and RUB 3,600 in legal expenses.
- On
3 April 2003 the Regional Court upheld the judgment.
- On
17 November 2003 the proceedings were deemed enforced in the part
concerning the amount of RUB 7,311.
- On
13 December 2005 the District Court discontinued the enforcement
proceedings against the company in the part concerning the remainder
of the award due to the fact that the company had been liquidated in
October 2005 and had no assets to cover the applicant’s claims.
- It
appears that the applicant did not appeal against this decision.
II. RELEVANT DOMESTIC LAW
- Federal
Law № 68-ФЗ of 30
April 2010 (in force as of 4 May 2010) provides that in case of a
violation of the right to trial within a reasonable time or of the
right to enforcement of a final judgment, the Russian citizens are
entitled to seek compensation of the non-pecuniary damage. Federal
Law № 69-ФЗ
adopted on the same day introduced the pertinent changes in the
Russian legislation.
- Section
6.2 of the Federal Law № 68-ФЗ
provides that everyone who has a pending application before the
European Court of Human Rights concerning a complaint of the nature
described in the law has six months to bring the complaint to the
domestic courts.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the excessive length of the proceedings in
her case breached the “reasonable time” requirement as
provided 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
Court observes that the proceedings commenced on 10 March 1997 and
ended on 3 April 2003. However, the part of the proceedings that
occurred before 5 May 1998, the date of entry of the Convention into
force in respect of Russia, has to be excluded from the overall
length. Thus, the aggregate length of the proceedings within the
Court’s jurisdiction ratione temporis amounts to four
years and eleven months, when the domestic courts examined the
applicant’s claims twice at two levels of jurisdiction.
A. Admissibility
- The
Government submitted that the complaint was manifestly ill founded
and requested to reject it in accordance with Article 35 §§
3 and 4 of the Convention.
- 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 disagreed with the complaint. In particular, they
submitted that the applicant’s case had been complex as
evidenced by the fact that the domestic courts had had to consider it
twice. They argued that a certain delay was attributable to the
applicant herself because she had appealed the judgments, amended her
claims and requested to adjourn the proceedings or failed to appear
in hearings. In addition, the delays had been caused by the repeated
transfer of the case to different judges, their vacation, training
and sick leaves, as well as by the conduct of the respondent.
According to the Government, the authorities had made an effort to
speed up the proceedings, in particular, by issuing the reprimanding
statement of 26 June 1998.
- The
applicant maintained her complaint. In particular, she pointed out
that after the remittal of the case to the first instance no hearings
were held in 1998, and between 1999 and 2001 the court held only one
hearing each year.
- 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, among other
authorities, Zimmermann and Steiner v. Switzerland, 13 July
1983, p. 11, § 24, Series A no. 66; see also Pélissier
and Sassi v. France [GC], no. 25444/94, § 67, ECHR
1999-II).
- The
Court considers that the applicant’s case was not complex, even
though it did require accurate arithmetical calculations.
- Insofar
as the applicant’s behaviour is concerned, the Court accepts
that at the applicant’s request or following her failure to
appear the court adjourned its hearings on five occasions (see paras.
14, 21, 24 above). As to the applicant’s alleged delaying of
the proceedings by lodging complaints to the higher courts and
amending her claims, it reiterates that an applicant cannot be blamed
for taking full advantage of the resources afforded by the national
law in defence of his interests (see, mutatis mutandis, Yağcı
and Sargın v. Turkey, 8 June 1995, § 66, Series A no.
319 A). In any event, the delays caused by such actions on the
part of the applicant appear to be insignificant.
- Turning
to the conduct of the authorities, the Court recalls that in the
course of the proceedings four hearings were cancelled or adjourned
due to the responsible judge’s unavailability for various
reasons and that the case was transferred three times to a different
judge, which further inhibited progress. It is also mindful of the
gap in the proceedings that occurred between 31 July and 10 December
2001 when no hearings were scheduled due to the judge’s illness
and vacation. In this respect, the Court reiterates that it is the
States’ duty to organise their judicial systems in such a way
that their courts can meet the requirements of Article 6 §
1 (see Muti v. Italy, 23 March 1994, § 15,
Series A no. 281-C). Accordingly, the Court does not find the
judge’s absences to be objective factors justifying significant
delays in the proceedings.
- The
Court further recalls that six hearings in the course of the
proceedings were adjourned at the request of the respondent or
following the respondent’s representative’s failure to
appear. With regard to the respondent’s behaviour, the Court
refers to its settled case-law to the effect that “parties’
attitude does not dispense the courts from ensuring the expeditious
trial required by Article 6 § 1” (see, among many other
authorities, Unión Alimentaria Sanders S.A. v. Spain, 7
July 1989, § 35, Series A no. 157). In the applicant’s
case the domestic courts had an opportunity to discipline the
defaulting respondent but failed to do so despite their threat to
that effect (see Salmanov v. Russia, no. 3522/04, § 87,
31 July 2008).
- Lastly,
the Court takes cognisance of the significant intervals between the
scheduled hearings and notes in particular that during almost five
years the domestic courts only held nine hearings in total.
- Regard
being had to all the circumstances of the case, in particular, the
relative simplicity of the case and the significant delays attributed
to the judicial authorities, the Court concludes that there has been
a breach of the “reasonable time” requirement.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
applicant further complained that she had not had an effective remedy
against the allegedly unreasonable length of the proceedings in her
case. She relied on Article 13 of the Convention, which reads as
follows:
“Everyone
whose rights and freedoms as set forth in [the] Convention are
violated shall have an effective remedy before a national authority
notwithstanding that the violation has been committed by persons
acting in an official capacity.”
A. Admissibility
- The
Government submitted that the complaint was manifestly ill-founded
and requested to reject it in accordance with Article 35 §§
3 and 4 of the Convention.
- 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
Court takes cognisance of the existence of a new remedy introduced by
the federal laws № 68-ФЗ
and № 69-ФЗ in the
wake of the pilot judgment adopted in the case of Burdov v. Russia
(no. 2) (no. 33509/04, ECHR
2009 ...). These statutes, which entered into force on 4 May
2010, set up a new remedy which enables those concerned to seek
compensation for the damage sustained as a result of unreasonable
length of the proceedings (see para. 30 above).
- The
Court observes that in the present case the parties’
observations in respect of Article 13 arrived before 4 May 2010 and
did not contain any references to the new legislative development.
However, it accepts that as of 4 May 2010 the applicant has had a
right to use the new remedy (see para. 31 above).
- The
Court recalls that in the pilot judgment cited above it stated that
it would be unfair to request the applicants whose cases have already
been pending for many years in the domestic system and who have come
to seek relief at the Court to bring again their claims before
domestic tribunals (Burdov (no. 2), cited above, §
144). In line with this principle, the Court decided to examine the
present application on its merits and found a violation of the
substantive provision of the Convention.
- However,
the fact of examination of the present case on its merits should in
no way be interpreted as prejudging the Court’s assessment on
the quality of the new remedy. It will examine this question in other
cases more suitable for this analysis. It does not consider the
present case as such, particularly in view of the fact that the
parties’ observations were made with account of the situation
that had existed before the introduction of the new remedy.
- Having
regard to these special circumstances, while the Court considers this
complaint admissible, it does not find it necessary to continue its
separate examination in the present case.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant also complained under Article 6 § 1 of the Convention
about the outcome of the proceedings in her case and under Article 1
of Protocol No. 1 of the Convention of unlawful interference with her
possessions by the State, referring to the failure to fully enforce
the judgment in her favour.
- Having
regard to all the materials in its possession, and in so far as these
complaints fall within its competence, the Court finds that there is
no appearance of a violation of the rights and freedoms set out in
these provisions in that respect. It follows that this part of the
application must be rejected as being manifestly ill-founded,
pursuant to Article 35 §§ 1, 3 and 4 of
the Convention.
IV. 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 21,380 Russian roubles (RUB) as inflation losses
resulting from belated payment of her allowance for the period from 1
December 1992 to 1 December 1995 and RUB 367,719 as penalty for the
belated payment of her allowance for the period from 1 December 1995
to 1 March 2000 in respect of pecuniary damage. In total the
claimed amount is approximately equal to 10,200 euros (EUR). The
applicant also claimed RUB 27,462 (approximately EUR 718) in respect
of non-pecuniary damage.
- The
Government made no comment on the amounts claimed.
- In
respect of the claim for pecuniary damage, the Court does not discern
any causal link between the violation found and the damage alleged;
it therefore rejects this claim.
- In
respect of the claim for non-pecuniary damage, the Court finds that
it is reasonable to assume that the applicant suffered some distress
and frustration caused by the unreasonable length of the proceedings.
Deciding on an equitable basis, the Court awards the applicant EUR
750 under this head.
B. Costs and expenses
- The
applicant also claimed RUB 3,280 (approximately EUR 85) for the costs
and expenses incurred before the domestic courts and before the
Court.
- The
Government made no comment on the amount claimed.
- The
Court notes that the applicant failed to submit any evidence to
support her claim. Regard being had to this fact, the Court rejects
the claim for costs and expenses altogether.
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 complaints concerning the excessive
length of the proceedings and lack of an effective remedy admissible
and the remainder of the application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds that there is no need for separate
examination of the complaint under Article 13 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 EUR 750 (seven hundred and
fifty euros), plus any tax that may be chargeable, in respect of
non-pecuniary damage, to be converted into Russian roubles at the
rate applicable at 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;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 7 October 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
