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FIFTH
SECTION
CASE OF GEORGIY NIKOLAYEVICH MIKHAYLOV v. RUSSIA
(Application
no. 4543/04)
JUDGMENT
STRASBOURG
1 April
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 Georgiy Nikolayevich
Mikhaylov v. Russia,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Renate
Jaeger,
Karel Jungwiert,
Rait Maruste,
Anatoly
Kovler,
Mirjana Lazarova Trajkovska,
Zdravka
Kalaydjieva, judges,
and Claudia
Westerdiek, Section
Registrar,
Having
deliberated in private on 9 March 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 4543/04) 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, Mr Georgiy Nikolayevich
Mikhaylov (“the applicant”), on 24 January 2004.
- The
applicant was represented by Mr O. Gorev, a lawyer practising in
Frankfurt am Main. The Russian Government (“the Government”)
were represented by Mr G.
Matyushkin, Representative of the Russian Federation at the
European Court of Human Rights.
- On
21 October 2008 the Court declared the application partly
inadmissible and decided to communicate the complaints concerning
access to the appeal court, the length of the civil proceedings and
the alleged interference with the applicant's right to property to
the Government. It also decided to examine the merits of the
application at the same time as its admissibility (Article 29 §
3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. Background of the case
- The
applicant was born in 1944 and lives in St. Petersburg.
- In
1979 the applicant was convicted of engaging in an illegal business
activity and sentenced to four years' imprisonment. The court also
ordered the confiscation of his property, namely an art collection.
As part of this collection allegedly disappeared, in 1985 the
applicant was convicted of fraudulent theft of State property.
- In
1989 both judgments were quashed and the proceedings against the
applicant were terminated on the ground that no criminal offence had
been committed.
- Between
1989 and 1998 the applicant unsuccessfully tried to recover his art
collection.
B. First-instance proceedings
- In
July 1998 the applicant lodged a claim with the Oktyabrskiy District
Court of St. Petersburg (“the district court”) against
the local departments of the Ministries of Justice, the Interior and
Finance and the St. Petersburg Prosecutor's Office, seeking
compensation for the pecuniary and non-pecuniary damage caused by the
confiscation of his property.
- On 22 July 1998 the district court scheduled a hearing
on 1 December 1998.
- On
1 December 1998 the district court held a hearing, acceded to the
defendant's requests and postponed the proceedings until 18 May 1999.
- On
19 February 1999 criminal proceedings were instituted against third
persons for misappropriation of the applicant's art collection; on an
unspecified date the applicant was granted victim status in the
criminal case.
- Between 18 May and 31 August 1999 the district court
postponed hearings on four occasions at the defendants' request.
- On 31 August 1999 the district court granted the
applicant's request to hear three witnesses and postponed the hearing
until 16 September 1999.
- On 16 September 1999 the district court heard two
witnesses, granted the applicant's request to summon two other
witnesses and postponed the hearing until 17 December 1999.
- On
17 December 1999 the hearing was postponed because the judge was ill.
- On 12 January 2000 the hearing was postponed because
of the applicant's absence.
- On
20 January 2000 the district court heard two witnesses and postponed
the hearing until 22 February 2000 at the applicant's request.
- On
22 February 2000 the hearing was postponed because the judge was ill;
a new hearing was scheduled on 9 June 2000.
- Between 9 June and 17 October 2000 hearings were
postponed on three occasions at the applicant's request.
- On 17 October 2000 the hearing was postponed until 21
November 2000 pending receipt of information from other courts
confirming the applicant's claims.
- On 21 November 2000 the district court granted the
applicant's application to request materials from the criminal case
in which the applicant had been granted victim status in
substantiation of his pecuniary damage claims; the hearing was
postponed until 13 February 2001.
- The 13 February 2001 hearing was postponed until 26
April 2001 because of the applicant's absence.
- The 26 April 2001 hearing was postponed because of a
defendant's absence.
- On 12 July 2001 the applicant requested the district
court to amend his statement of claims; the hearing was rescheduled
on 20 November 2001.
- On 20 November 2001 the hearing was postponed because
of a defendant's absence and the applicant's failure to submit an
additional list of his lost property.
- On 12 March 2002 the applicant provided the district
court with an additional list of his lost property; the hearing was
postponed because of the defendants' absence.
- On 10 September 2002 a hearing was postponed because
of the applicant's and defendants' absence.
- On 13 February 2003 a hearing was postponed because
the defendants had not been notified of it and failed to appear.
- On
26 February 2003 the district court held a hearing and dismissed the
applicant's claim. The court orally delivered only the operative part
of the judgment, without providing any reasons.
C. Ensuing events
- On 11 July 2003 the applicant appealed against the
judgment of 26 February 2003. In his appeal he mentioned that
the full text of the judgment had not yet been prepared and that
therefore his appeal was preliminary and would be amended.
- On the same day the applicant complained to the St.
Petersburg City Court (“the city court”) that the full
text of the judgment of 26 February 2003 had still not been prepared,
whereas Article
199 of the Code of Civil
Procedure (“CCP”) provided that a reasoned judgment was
to be finalised within five days.
- On
22 July 2003 the city court informed the applicant that Judge K. (the
presiding judge in his case) was on holiday and that the full text of
the judgment of 26 February 2003 would be drafted as soon as
possible.
- On
25 July 2003 the district court received the applicant's appeal.
- On 1 September 2003 the district court dismissed the
applicant's appeal on the ground of his failure to respect the
ten-day time-limit prescribed by law. It mentioned that the
applicant's appeal had been received on 25 July 2003, whereas the
judgment had been given on 26 February 2003.
- On 4 September 2003 the applicant was informed that
the full text of the judgment had been finalised on 3 September 2003.
- The
applicant appealed against the decision of 1 September 2003. He
claimed that, under Article 338 of the CCP, an appeal was to be
lodged within ten days of the adoption of a final version of the
judgment in issue. In his case, the final version of the judgment had
been created on 3 September 2003, that is, two days after his
appeal was rejected. He therefore applied for a renewal of the above
time-limit.
- On
29 October 2003 the city court rejected the applicant's appeal
against the decision of 1 September 2003, having found no reason to
quash it on account of a violation of Article 199 of the CCP by the
district court.
- The text of the judgment of 26 February 2003 bears a
court's stamp confirming that it became final on 29 October 2003.
- The
applicant did not pursue supervisory review proceedings.
II. RELEVANT DOMESTIC LAW
Code of Civil Procedure of the Russian Federation (CCP)
- A
court may restore a procedural term established by a federal law
after its expiry if it finds that reasons for failure to comply with
such a term were valid (Article 112 § 1). A request to restore
the term after its expiry must be lodged with the court before which
the procedural act in question should have been performed, and must
be examined at a court hearing. Parties to the proceedings are to be
notified of the time and place of the hearing, but their failure to
attend it does not preclude the court from deciding upon the issue
(Article 112 § 2). The necessary procedural act in respect of
which the procedural term has expired, such as lodging a complaint,
or submission of documents, must be performed simultaneously with the
lodging of the request for restoration of the term (Article 112 §
3). The court's ruling on the restoration of (or refusal to restore)
the procedural term may be appealed against (Article 112 § 4 as
in force at the material time).
- A
judgment must be delivered immediately after the examination of a
civil case. The preparation of a reasoned judgment may be postponed
for not more than five days after the examination of a case; however,
the first instance court must pronounce the operative part of
the judgment at the same hearing in which the examination of the case
is completed (Article 199 of the CCP).
- An appeal in a civil case may be lodged within ten
days of the delivery of a first-instance judgment in its final form
(Article 338 of the CCP).
- An
appeal statement is to be returned to the appellant where (i) a
judge's instructions concerning an appeal statement have not been
complied with; or (ii) the term for lodging an appeal has expired,
provided that restoration of the term concerned has not been
requested (Article 342 § 1 of the CCP).
THE LAW
I. ALLEGED VIOLATIONS OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained about lack of access to the appeal court in his
civil case and the length of the civil proceedings. He relied on
Article 6 § 1 of the Convention, which
reads, in so far as relevant, as follows:
“1. In the determination of his civil
rights and obligations ... everyone is entitled to a fair ... hearing
within a reasonable time by a ... tribunal ...”
A. Submissions by the parties
- The
Government contested the applicant's arguments. They emphasised at
the outset that pursuant to domestic regulations case materials in
civil cases were to be kept in archives for five years, and explained
that the applicant's case materials had been destroyed. They further
submitted that, although the time-limit for preparation of a reasoned
judgment in the applicant's case had not been respected, the judge
responsible for it had been dismissed from office. The delay in
preparation of the reasoned judgment amounted to six months and five
days. The applicant's appeal statement had been returned to him
because it had not contained a request to restore the time-limits in
keeping with Articles 112 and 342 § 1 of the CCP. The
proceedings had been lengthy because of objective factual
circumstances. The applicant's civil case had been particularly
complex: the civil case had been closely linked to the criminal
investigation and hearings had been postponed on several occasions to
obtain the criminal case materials; the defendants had been State
agencies; the applicant had confirmed that the case had been complex
as he had amended his statement of claims and had not attended every
hearing. In the Government's submission, the applicant's civil case
had been examined within four years and seven months. A period of
inactivity of the district court of one year, five months and
twenty-one days had been attributable to the applicant. A delay of
four months and eighteen days had been attributable to the judge's
illness; moreover, the judge had been disciplined for protracting the
case and dismissed from office. The length of the proceedings would
have been shorter had the applicant not contributed to the delays.
The Government further claimed that the applicant had not requested
supervisory review of the rulings of 1 September and 29 October 2003
or complained about the excessive length of his civil proceedings to
the Judiciary Qualification Board. In sum, the Government claimed
that there had been no violation of the applicant's rights under
Article 6 § 1 of the Convention.
- The
applicant maintained his claims. He submitted that he had waited nine
months to receive the text of the judgment. The applicant also
asserted that the length of the proceedings had been excessive and
that he had attended every hearing he had been notified of.
B. The Court's assessment
1. Admissibility
- In so far as the Government may be understood to claim
that the applicant's failure to complain to the Judiciary
Qualification Board about the excessive length of the civil
proceedings amounted to non-exhaustion of domestic remedies, the
Court notes that it has already found that an application to the
Judiciary Qualification Board is not an effective remedy against the
excessive length of proceedings (see Kormacheva v. Russia,
no. 53084/99, §§ 61 and 62, 29 January 2004, and
Falimonov v. Russia, no. 11549/02, § 50, 25 March
2008). It therefore dismisses the Government's objection.
- In
so far as the Government may be understood to plead non-exhaustion as
regards the applicant's failure to apply for supervisory review of
the rulings of 1 September and 29 October 2003, the Court reiterates
that supervisory review in civil proceedings under Russian law is not
an effective remedy to be exhausted (see Tumilovich v. Russia
(dec.), no. 47033/99, 22 June 1999, and Denisov
v. Russia (dec.), no. 33408/03, 6 May 2004). The Court
thus dismisses the Government's objection.
- The
Court notes that the applicant's complaints are not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that they are not inadmissible on any
other grounds and must therefore be declared admissible.
2. Merits
(a) Access to court
- The
Court reiterates that Article 6 § 1 secures to everyone the
right to have any claim relating to his civil rights and obligations
brought before a court or tribunal. In this way it embodies the
“right to a court”, of which the right of access, that is
the right to institute proceedings before courts in civil matters,
constitutes one aspect (see Golder v. the United Kingdom,
21 February 1975, §§ 35-36, Series A no. 18).
- The
Court further reiterates that, whilst the Convention does not provide
any right to an appeal in civil cases, if a right of appeal is
provided in domestic law, Article 6 § 1 applies to such
appellate procedures (see Delcourt v. Belgium, 17 January
1970, § 25, Series A no. 11). The right of access to an appeal
court is not absolute and the State, which is permitted to place
limitations on the right of appeal, enjoys a certain margin of
appreciation in relation to such limitations (see Brualla Gomez de
la Torre v. Spain, 19 December 1997, § 33, Reports
of Judgments and Decisions 1997-VIII, and De Ponte Nascimento
v. the United Kingdom, (dec.), no. 55331/00, 31
January 2002). The Court reiterates, however, that the limitations in
question must pursue a legitimate aim and there must be a reasonable
relationship of proportionality between the means employed and the
aim sought to be achieved (see Levages Prestations Services v.
France, 23 October 1996, § 40, Reports 1996-V).
- Turning
to the circumstances of the present case, the Court points out that
under domestic law the applicant was entitled to lodge a regular
appeal against the first-instance judgment in his civil case within
ten days from the delivery of the text of the first-instance judgment
in its final form (see paragraph 42 above). It reiterates in this
respect that the rules governing the formal steps to be taken in
lodging an appeal are aimed at ensuring the proper administration of
justice. Litigants should expect the existing rules to be applied.
However, the rules in question, or the application thereof, should
not prevent persons amenable to the law from making use of an
available remedy (see Société Anonyme Sotiris and
Nikos Koutras Attee v. Greece, no. 39442/98, § 20, ECHR
2000 XII).
- The
reason why the applicant's appeal was not examined by the domestic
courts is that the district court found that the applicant had failed
to comply with the time-limit for lodging his appeal. The Court
observes in this connection that it is not its task to take the place
of the domestic courts. It is primarily for the national authorities,
notably the courts, to resolve problems of interpretation of domestic
legislation. The role of the Court is limited to verifying whether
the effects of such interpretation are compatible with the Convention
(see Maresti v. Croatia, no.
55759/07, § 36, 25 June 2009).
- However,
the right to the effective protection of the courts entails that the
parties to civil proceedings must be able to avail themselves of the
right to lodge an appeal from the moment they can effectively apprise
themselves of court decisions which may infringe their legitimate
rights or interests (see Miragall Escolano and Others v. Spain,
nos. 38366/97, 38688/97, 40777/98, 40843/98, 41015/98, 41400/98,
41446/98, 41484/98, 41487/98 and 41509/98, § 37, ECHR 2000 I).
Given that the applicant was not able to become acquainted with the
district court's reasoned judgment before 4 September 2003 (see
paragraph 35 above), he cannot not be said to have had an effective
right to appeal against it prior to that date.
- In
the Court's opinion, the fact that the applicant had no opportunity
to study the text of the first-instance judgment prior to lodging his
appeal is difficult to reconcile with Article 6 of the Convention,
which, according to the Court's established case-law, embodies as a
principle linked to the proper administration of justice the
requirement that court decisions should adequately state the reasons
on which they are based (see García Ruiz v. Spain
[GC], no. 30544/96, § 26, ECHR 1999-I, and Angel Angelov
v. Bulgaria, no. 51343/99, § 38, 15 February 2007).
- It
is true that the Government argued that the applicant could have
gained access to appeal proceedings by filing a specific request for
restoration of the procedural term for lodging an appeal. The Court
notes that it is not entirely clear whether the applicant actually
missed the term in question since, first, the reasoned judgment in
its final form was prepared only on 3 September 2003 and, secondly,
the judgment became final on 29 October 2003 (see paragraph 38
above). Supposing, however, for argument's sake, that the term for
lodging an appeal expired before 25 July 2003, as suggested by the
district court (see paragraph 34 above), the Court observes that in
his appeal statement and complaint to the city court of 11 July
2003 the applicant referred to the district court's failure to
provide him with the reasoned text of the judgment within the term
established by law and unequivocally stated that he wished to appeal
against the judgment in question (see paragraphs 30 and 31 above).
Therefore the applicant may be considered to have made an implied
request to restore the procedural term. To assume the contrary would,
in the Court's view, be excessively formalistic. Furthermore, given
that the manner in which the court proceedings had been administered
contributed to the applicant's failure to comply with a time-limit
for lodging an appeal, it was for the national courts to restore the
time-limit in question on their own motion.
- In
sum, the Court concludes that the district court interpreted a
procedural rule on time-limits in such a way as to prevent the
applicant's appeal being examined on the merits, with the effect that
the latter's right to the effective protection of the courts was
infringed (see, mutatis mutandis, Zvolský and
Zvolská v. the Czech Republic, no. 46129/99, § 51,
ECHR 2002-IX, and Fetaovski v. “the former Yugoslav Republic
of Macedonia”, no. 10649/03, § 39, 19 June 2008).
- Lastly, the Court observes that the Government
admitted the district court judge's failure to comply with a legal
requirement to produce a reasoned judgment within five days from the
date of its pronouncement. It follows that the applicant was
prevented from effectively exercising his right to appeal solely
because of the district court's failure to perform its duty and
provide him with a finalised text of the judgment in a timely
fashion.
- All in all, having regard to the circumstances of the
case as a whole, the Court finds that the applicant did not enjoy a
practical, effective right of access to court.
- There
has accordingly been a violation of Article 6 § 1 of the
Convention on account of lack of access to court.
(b) Length of proceedings
- The
Court will now examine whether the length of the civil proceedings
instituted by the applicant was “reasonable”. It points
out that the parties made no submissions as to the exact period to be
taken into consideration. It considers that the relevant period
started in July 1998, when the applicant brought his claims before
the district court. In the absence of the parties' submissions as to
the exact date on which the proceedings ended, the Court is ready to
accept that they were pending until the date when the judgment of 26
February 2003 became final. Given that the official stamp on the text
of the first-instance judgment defines the date in question as 29
October 2003 (see paragraph 38 above), the Court finds that the
overall length of the proceedings amounts to almost five years and
three months.
- The
Court notes that the prevailing part of this period relates to the
examination of the applicant's civil case in the first instance and
points out that the first-instance proceedings could not be regarded
as completed until the moment when a party to the proceedings has an
opportunity to become acquainted with a reasoned written text of the
first-instance decision, irrespective of whether it was previously
delivered orally (see, mutatis mutandis, Soares Fernandes
v. Portugal, no. 59017/00, § 17, 8 April 2004, and Groshev
v. Russia, no. 69889/01, § 22, 20 October 2005). It
concludes, therefore, that the first-instance proceedings ended on 4
September 2003, when the applicant was informed that the text of the
judgment of 26 February 2003 had been finalised on 3 September
2003. The overall length of examination of the applicant's civil case
in the first instance amounted to five years and one month.
- The
Court reiterates that the reasonableness of the length of proceedings
coming within the scope of Article 6 § 1 must be assessed in
each case according to the particular circumstances. The Court has to
have regard, inter alia, to the complexity of the factual or
legal issues raised by the case, to the conduct of the applicant and
the competent authorities and to what was at stake for the former
(see 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,
no. 49017/99, § 44, 19 June 2003).
- Turning
to the circumstances of the present case, the Court considers that
the applicant's civil dispute was not particularly complex. It is not
convinced by the Government's argument that the fact that the
defendants were State agencies could in any manner add to the
complexity of the proceedings for compensation for pecuniary and
non-pecuniary damage. Further, the Court notes that the applicant did
amend his statement of claims on one occasion (see paragraph 24
above). However, it is not persuaded that this factor in itself
rendered the task of the district court more difficult. In any event,
assuming that the applicant's civil proceedings were not
straightforwardly simple, the Court cannot accept that the complexity
of the case, taken on its own, was such as to justify the overall
length of the proceedings (see Malinin v. Russia (dec.), no.
58391/00, 8 July 2004, and Ivanov v. Russia (dec.), no.
31266/02, 5 October 2006).
- As
to the applicant's conduct, the Court notes that on three occasions
delays were caused by the applicant's failure to appear (see
paragraphs 16, 22 and 27 above). It observes at the same
time that the hearing of 10 September 2002 would most likely
have been postponed even if the applicant had attended it, owing to
the defendants' absence. It follows that the total delay incurred as
a result of the applicant's failure to appear in the court room
amounted to less than four months.
- As
regards the delays caused by the applicant's requests to summon
witnesses, as well as his requests for information on the criminal
case in which he was victim (see paragraphs 13, 14, 21 and 20), the
Court reiterates that the applicant cannot be blamed for taking full
advantage of the resources afforded by national law in the defence of
his interests (see, among other authorities, Patta v. the Czech
Republic, no. 12605/02, § 69, 18 April 2006, and
Stojanov v. “the former Yugoslav Republic of Macedonia”,
no. 34215/02, § 56, 31 May 2007). Accordingly, it finds no
reason to conclude that the applicant's behaviour was dilatory.
- The
Court further observes that substantial periods of inactivity for
which the Government have not submitted any satisfactory explanation
are attributable to the domestic authorities. For example, the
Government failed to provide any justification for the delay from
July 1998, when the applicant lodged his claim, to 1 December 1998
when the district court held its first hearing in the case (see
paragraph 9 above). Further delays in the proceedings were due to
infrequent hearings scheduled with significant intervals of sometimes
several months (see Falimonov, cited above, § 57). The
Government did not explain why no hearings had been scheduled between
1 December 1998 and 18 May 1999, 26 April and 12 July 2001, 12 July
and 20 November 2001, 20 November 2001 and 12 March 2002, 12 March
and 10 September 2002 and 10 September 2002 and 13 February 2003.
- The
Court also considers that the domestic authorities were responsible
for a substantial delay in the proceedings caused by the defendants'
failure to attend hearings (see paragraphs 12, 23, 25, 26 and 28
above). The Government have not provided any information suggesting
that the domestic authorities took adequate steps in order to ensure
the defendants' presence, or reacted in any way to the defendants'
behaviour, or used the measures available to them to discipline the
participants to the proceedings and ensure that the case be heard
within a reasonable time (see Kesyan v. Russia, no. 36496/02,
§ 58, 19 October 2006).
- Moreover,
the Court cannot but be struck with the fact that it took the
district court more than six months to prepare the text of the
first instance judgment. It takes note of the Government's
submission that this delay was in breach of domestic rules and
considers that it is clearly attributable to the State.
- Lastly, the Court reiterates that the dispute in the
present case concerns compensation for pecuniary and non-pecuniary
damage caused by confiscation of the applicant's property in the
course of criminal proceedings that were discontinued for lack of a
crime. In such circumstances it cannot be said that the issue at
stake for the applicant was of no particular importance.
- In
the light of the foregoing considerations, the Court finds that the
applicant's civil case was not heard within a “reasonable
time”. There has accordingly been a violation of Article 6 §
1 of the Convention on account of the excessive length of civil
proceedings.
II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO
THE CONVENTION
- The
applicant complained that refusal to admit his
appeal against the judgment in his civil case had deprived him of the
right to the peaceful enjoyment of his possessions, in breach of
Article 1 of Protocol No. 1, which reads, in so far as relevant, as
follows:
“Every ... person is entitled to the peaceful
enjoyment of his possessions...”
- The
Government contested that argument.
- The
applicant maintained his complaint and submitted that he had lost
property of considerable value because of the State agencies'
actions.
- The Court has already examined the applicant's
complaint concerning the lack of access to the appeal court under
Article 6 of the Convention. In view of its conclusion that there has
been a violation of that provision, it finds that no separate issue
arises under Article 1 of Protocol No. 1.
III. 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.”
- The
applicant did not submit a claim for just satisfaction. Accordingly,
the Court considers that there is no call to award him any sum on
that account.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention on account of lack of access to court;
- Holds that there has been a violation of Article
6 § 1 of the Convention on account of the excessive length of
civil proceedings;
- Holds that no separate issue arises under
Article 1 of Protocol No. 1 to the Convention.
Done in English, and notified in writing on 1 April 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer
Lorenzen Registrar President
