FIRST SECTION

CASE OF AKHMATOVA v. RUSSIA

(Application no. 22596/04)

JUDGMENT

STRASBOURG

21 October 2010

This judgment is final but it may be subject to editorial revision.

In the case of ,
The European Court of Human Rights (First Section), sitting as a Committee composed of:
	Nina Vajić, President,
	Anatoly Kovler,
	Dean Spielmann, judges,
and André WampachDeputy Section Registrar,
Having deliberated in private on 30 September 2010,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 22596/04) 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 Lyudmila Demyanovna Akhmatova (“the applicant”), on 7 June 2004.
2.  The Russian Government (“the Government”) were initially represented by Mr A. Savenkov, former acting Representative of the Russian Federation at the European Court of Human Rights, and then by their representative Mr G. Matyushkin.
3.  On 11 March 2008 the President of the First Section decided to give notice of the application to the Government. In accordance with Protocol No. 14, the application was allocated to a Committee. It was also decided that the Committee would rule on the admissibility and merits of the application at the same time (Article 29 § 1 of the Convention).
THE FACTS
I.  THE CIRCUMSTANCES OF THE CASE
4.  The applicant was born in 1944 and lives in Okha of the Sakhalin Region.
5.  The applicant was employed as head of the legal department at a branch of a state-owned oil company. On 29 May 1998 the employer informed the applicant that she was dismissed from her position following staff reduction.
A.  Proceedings before the first instance court
6.  On 30 June 1998 the applicant brought a court action against her former employer before the Okha Town Court of the Sakhalin Region (“the Town Court”). She submitted that her dismissal had been unlawful as de facto she had been dismissed following the reorganisation of the company. She sought to change the ground of her dismissal and to obtain compensation for non-pecuniary damage.
7.  The first hearing of her case was scheduled for 7 July 1999. On that date the applicant did not appear at the court hearing as she had not received the summons. On an unspecified date the prosecutor joined the proceedings.
8.  On 14 July 1999 she changed the subject-matter of her claim against the former employer, now seeking reinstatement in her previous post, salary arrears and compensation for non-pecuniary damage sustained as a result of her dismissal.
9.  The hearings scheduled for 12 October and 9 November 1999 did not take place as the judge was involved in different proceedings.
10.  On 9 November 1999 the applicant brought a separate court action against her new employer.
11.  Between 1998 and 2000 the applicant’s claim against the oil company was examined by judges Ch. and Sh. respectively. In 2000 the case was transferred to judge S.
12.  On 24 March 2000 the applicant requested the court’s assistance in obtaining certain evidence.
13.  On 22 January and 16 March 2001 the applicant complained to the president of the Sakhalin Regional Court (“the Regional Court”) of the trial court’s inactivity in her case.
14.  On 19 April 2001 the Town Court granted the respondent’s motion to adjourn the case until 18 July 2001, the date of the hearing of the applicant’s claim against her new employer, and ordered the parties to submit documents relevant to the case. The applicant appealed against this decision. She also requested that her case be re-assigned to another judge as judge S. had been on vacation.
15.  On 10 May 2001 the president of the Regional Court informed the applicant that in order to speed up the proceedings her case had been reallocated to judge P. and a hearing had been scheduled for 23 May 2001.
16.  On 5 June 2001 the Regional Court set aside the decision of 19 April 2001 on appeal and remitted the matter to the Town Court.
17.  On an unspecified date the applicant complained to the Prosecutor’s Office of the Sakhalin Region of lengthy examination of her case.
18.  On 8 August 2001 the prosecutor confirmed that there had indeed been periods of inactivity in the examination of the case between 1998 and 2000. He informed the applicant that the case was set down for examination on 3 September 2001.
19.  On 10 August 2001 the prosecutor replied to the applicant’s complaint that the president of the Regional Court had been informed about the delays in the examination of her case. He also advised her to forward her complaints to the Higher Board of Judicial Qualifications.
20.  On 3 September 2001 the Town Court allowed the applicant’s objection to judge S. and adjourned the examination of the case.
21.  On 26 October 2001 the applicant requested that the examination of her case be postponed until her claim against her new employer had been considered by an appeal court. On 16 May 2002 the applicant requested resumption of the proceedings.
22.  On 11 December 2002 the applicant’s case was reassigned to judge Z.
23.  On 4 January and 24 March 2003 the hearings were adjourned to give the parties time to secure further evidence. On 24 March 2003 the applicant increased her claim for non-pecuniary damage.
24.  On 16 April 2003 the applicant withdrew her claim for modification of the ground of dismissal and on the same date the Town Court discontinued the proceedings in this respect. The hearing was adjourned to enable the respondent to secure additional evidence.
25.  The hearing of 25 September 2003 was adjourned following the respondent’s representative’s failure to appear.
26.  The examination of the case resumed on 1 October 2003.
27.  On 7 October 2003 the Town Court, under the presidency of judge Z., concluded that the applicant had failed to comply with a one-month statutory time‑limit and dismissed her claim.
B.  Proceedings before the appeal court
28.  On 22 October 2003 the applicant submitted her grounds of appeal against the judgment of 7 October 2003 and her remarks on the record of proceedings.
29.  On 7 November 2003 the respondent and the prosecutor filed their comments on the applicant’s grounds of appeal.
30.  On 14 November 2003 the trial court sent the parties a letter notifying them of the appeal hearing scheduled for 9 December 2003.
31.  On 21 November 2003 the applicant complained to the president of the Regional Court that the Town Court had failed to communicate to her the respondent’s and the prosecutor’s observations and therefore had placed her at a significant disadvantage vis-à-vis the respondent.
32.  On 9 December 2003 the Regional Court upheld the judgment of 7 October 2003. The court heard the respondent’s representative and the prosecutor and indicated that “the applicant maintained her claims in the hearing”. According to the applicant, she had not been notified of the appeal hearing and therefore could not attend it. There is no indication in the text of the decision that the court verified whether the parties had been duly summoned to the hearing.
33.  On 25 May 2004 the Regional Court refused the applicant’s request to transfer the case for consideration by the supervisory instance. In particular, the court noted that the failure to communicate to the applicant the respondent’s and prosecutor’s observations on her grounds of appeal did not constitute sufficient ground for quashing of the previous judgments as the said observations had not contained any new arguments and, in any event, the law did not envisage the applicant’s further comments.
II.  RELEVANT DOMESTIC LAW
34.  The Russian Code of Civil Procedure of 2002 provides that the parties are notified of and called to a hearing by means of summons, sent by registered post. Where necessary, the parties may be summonsed by a phone call or a telegram. Summons should be served on the parties in such a way as to enable them to have enough time to prepare the case and to appear at the hearing in due time (Section 113). If a party to the case fails to appear and there is no evidence that the party has been duly summoned, the hearing has to be adjourned (Section 354). The appeal court delivers its judgment in accordance with the rules established for the first-instance courts (Section 360).
35.  Section 344 of the same Code provides that the observations pertaining to grounds of appeal should be lodged together with their copies in a number that is equal to the number of involved parties.
36.  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.
37.  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 ON ACCOUNT OF EXCESSIVE LENGTH OF PROCEEDINGS
38.  The applicant complained that the length of the proceedings in her case was incompatible with the “reasonable time” requirement as provided in Article 6 § 1 of the Convention. The relevant part 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 ...”
A.  Admissibility
39.  The Government submitted that the complaint should be rejected as manifestly ill-founded in accordance with Article 35 §§ 3 and 4. They did not elaborate on their argument.
40.  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
41.  The Government disagreed with the complaint. They argued that the case had been complex concerning interpretation of the labour law. They contended that a sizable period of the delay had been attributable to the applicant who had amended her claims on a few occasions, appealed the trial court’s intermediary decisions, challenged the judge and requested the court’s assistance in recovery of evidence. According to the Government, the length was also justified by such factors as the court’s insufficient staff numbers and significant case load. They also suggested that the applicant had lodged her action on 21 July 1998.
42.  The applicant maintained her complaint.
43.  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,  [GC], no. 30979/96, § 43, ECHR 2000-VII).
44.  The Court accepts that the applicant brought her claim before the trial court on 30 June 1998 as evidenced by the post stamp on the envelope in which her statement of claim was sent to the court. It further observes that the proceedings ended on 9 December 2003. Thus, the aggregate length of the proceedings amounts approximately to five years and five months, during which the domestic courts considered the case at two levels of jurisdiction.
45.  The Court considers that the applicant’s case was not characterised by particular complexity concerning a rather straightforward claim for reinstatement in post, salary arrears and non-pecuniary damage.
46.  Insofar as the applicant’s behaviour is concerned, the Court accepts that the applicant delayed the proceedings by seven months by requesting an adjournment until her claim in different proceedings had been considered by an appeal court (see paragraph 21 above). It also takes cognisance of the fact that the applicant indeed changed and supplemented her claims on a few occasions and challenged the judge, which to some extent contributed to the overall length of the proceedings. At the same time, the Court 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 appear to be insignificant.
47.  Turning to the conduct of the authorities, the Court notes firstly that the first hearing of the applicant’s case was scheduled only a year after her claim was lodged in June 1998. It further observes that only one hearing was held in 1999, while two other hearings scheduled for that year did not take place due to the judge’s unavailability. It appears that no hearings were scheduled in the period between November 1999 and April 2001, and only after the latter date did the trial court begin to examine the case at somewhat regular intervals. The Court also notes that the trial court’s procrastination was confirmed in the replies of the prosecutor’s office and the higher court to the applicant’s complaints (see paras. 15, 18 and 19 above). 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 , 23 March 1994, § 15, Series A no. 281-C). Accordingly, it does not find the court’s insufficient staff numbers and significant case load, cited above by the Government, to be objective factors justifying lengthy delays in the proceedings.
48.  Regarding what was at stake for the applicant, the Court observes that the applicant’s claims concerned the subject of employment, which required particular diligence on the part of the domestic authorities (see, among many other authorities, Buchholz v. Germany, 6 May 1981, § 597, Series A no. 42).
49.  Regard being had to the substantial delays attributed to the authorities and the applicant’s high stake in the case, the Court finds that there was a violation of Article 6 § 1 of the Convention on account of the excessive length of the proceedings.
II.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF VIOLATION OF THE RIGHT TO AN ADVERSARIAL TRIAL
50.  The applicant complained that the appeal proceedings in her case had breached her right to an adversarial trial enshrined in the fair hearing guarantees of Article 6 § 1 of the Convention, by way of the courts’ failure to communicate to her the respondent company’s and prosecutor’s observations on her grounds of appeal and to duly summon her to the appeal hearing. The relevant part of the provision reads as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
A.  Admissibility
51.  The Government argued that the complaint of the court’s failure to communicate the other parties’ observations on the applicant’s grounds of appeal is outside the Court’s jurisdiction ratione materiae as it had been duly considered by the national court in supervisory instance and the applicant was substantially complaining about the outcome of the proceedings. As to the complaint of failure to duly summon to the appeal hearing, the Government submitted that the applicant had not exhausted the available domestic remedies, namely, application for supervisory review.
52.  The Court rejects the Government’s argument concerning its competence as consideration of a complaint by a national court does not automatically exclude the Court’s examination. In addition, it is clear from the case file that the applicant had set out a separate grievance as described above. In respect of the applicant’s alleged failure to exhaust the available domestic remedies, the Court has previously found that supervisory review in Russia is not an effective domestic remedy to be exhausted before bringing a complaint to Strasbourg (see, among other authorities, Berdzenishvili v. Russia (dec.), no. 31697/03, 29 January 2004). The Government did not supply any new argument capable of changing the Court’s opinion.
53.  The Court notes that these complaints are not inadmissible on any other grounds. They must therefore be declared admissible.
B.  Merits
54.  The Government submitted that the prosecutor and the respondent company had not enclosed copies of their observations on the grounds of appeal. They admitted that the case file did not contain any indication that any copies of such observations had been forwarded to the applicant. They further submitted that examination of the case in the appeal hearing in the applicant’s absence had not run counter to the provisions of the national law, especially considering that the applicant had failed to inform the court of the reasons of her absence. Moreover, the appeal court did not examine any complex points of law and fact in the hearing and largely based its reasoning on the findings made by the lower court and the applicant’s grounds of appeal.
55.  The applicant maintained her complaints.
56.  The Court will firstly examine the complaint of the failure to duly summon the applicant to the appeal hearing. It reiterates that the obligation under Article 6 § 1 to hold a public hearing is not an absolute one. Thus, a hearing may be dispensed with if a party unequivocally waives his or her right thereto and there are no questions of public interest making a hearing necessary (see, among other authorities, , 21 February 1990, § 66, Series A no. 171-A; and , 24 June 1993, § 58, Series A no. 263). The Court has previously found that the Russian legal provisions enabling the court to proceed with examination of the appeal if a party did not appear in the hearing after having been duly notified thereof were not incompatible with the fair trial guarantees of Article 6 § 1 (see , no. 72701/01, § 20, 15 March 2005). At the same time, it deemed that the right to a fair and public hearing would be devoid of substance if a party to the case were not apprised of the hearing in such as way as to have an opportunity to attend it (ibidem, § 21).
57.  Turning to the present case, the Court observes that the appeal court had no evidence that the applicant had received the summons in a timely manner, nor did it examine this question prior to the hearing on the merits. Therefore, the applicant was deprived of the opportunity to attend the appeal hearing, which breached her right to an adversarial trial. There has, accordingly, been a violation of Article 6 § 1.
58.  Regard being had to the fact that the national law did not give the applicant a right to further comment on the adversary parties’ observations, the failure to duly summon her to the appeal hearing effectively eliminated any opportunity for her to respond to them. Taking into account these circumstances and the finding of a violation above, the Court considers that it is not necessary to examine whether, in this case, there has also been a violation of Article 6 § 1 on account of failure to communicate to the applicant the observations on her grounds of appeal.
III.  ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION ON ACCOUNT OF UNREASONABLE LENGTH OF PROCEEDINGS
59.  The applicant further complained that she had not had an effective remedy against the 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
60.  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.
61.  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
62.  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, 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 paragraph 36 above).
63.  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 paragraph 37 above).
64.  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.
65.  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.
66.  Having regard to these special circumstances, while the Court considers this complaint admissible, it does not find it necessary to continue a separate examination of the complaint under Article 13 in the present case.
IV.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION
67.  Lastly, the applicant complained of erroneous application of the law in her case by the domestic courts.
68.  Having regard to all the materials in its possession, and in so far as this complaint falls 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 §§ 3 and 4 of the Convention.
V.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
69.  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
70.  The applicant claimed 21,211 euros (EUR) in respect of pecuniary damage and EUR 100,000 in respect of non-pecuniary damage.
71.  The Government contested the claims as unsubstantiated and excessive.
72.  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, it awards the applicant EUR 5,800 in respect of non-pecuniary damage.
B.  Costs and expenses
73.  The applicant also claimed 6,210 Russian roubles (RUB) (app. EUR 160) for the costs and expenses incurred in the domestic proceedings and before the Court.
74.  The Government accepted the amount of RUB 636 (app. EUR 16) as justified for the costs and expenses incurred before the Court.
75.  The Court notes that the applicant submitted several postal receipts for shipments to Strasbourg for the total amount of approximately EUR 16. It observes that the remainder of the claimed amount consists of expenses incurred in the civil dispute where the applicant was a claimant. Regard being had to the documents in its possession and to its case-law, the Court rejects the claim for costs and expenses in the domestic proceedings and considers it reasonable to award the sum of EUR 16 for the proceedings before the Court.
C.  Default interest
76.  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 complaints concerning length of the proceedings, the right to an adversarial trial and lack of an effective remedy against the unreasonable length of the proceedings admissible and the remainder of the application inadmissible;

2.  Holds that there has been a violation of Article 6 § 1 of the Convention on account of the unreasonable length of the proceedings;

3.  Holds that there has been a violation of Article 6 § 1 of the Convention on account of the failure to duly summon her to the appeal hearing;

4.  Holds that there is no need for separate examination of the complaint under Article 6 § 1 of the Convention concerning failure to communicate to her the observations on her grounds of appeal;

5.  Holds that there is no need for separate examination of the complaint under Article 13 of the Convention;

6.  Holds
(a)  that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into Russian roubles at the rate applicable at the date of settlement:
(i) EUR 5,800 (five thousand eight hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 16 (sixteen euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
(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;

7.  Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 21 October 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	André Wampach	Nina Vajić
	Deputy 	President