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FIRST
SECTION
CASE OF KOLKOVA v. RUSSIA
(Application
no. 20785/04)
JUDGMENT
STRASBOURG
13 January
2011
This
judgment is final but it may be subject to editorial revision.
In the case of Kolkova v. Russia,
The
European Court of Human Rights (First Section), sitting as a
Committee composed of:
Nina Vajić,
President,
Anatoly Kovler,
Giorgio Malinverni,
judges,
and André Wampach,
Deputy Section Registrar,
Having
deliberated in private on 9 December 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 20785/04) 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 Svetlana Gennadyevna
Kolkova (“the applicant”), on 21 April 2004.
- The
Russian Government (“the Government”) were represented by
Mr G. Matyushkin, Representative of the Russian Federation at the
European Court of Human Rights.
- On
17 December 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.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1971 and lives in Astrakhan.
- On
24 October 2001 the applicant lodged a paternity and alimony suit
against Yu. before the Petrogradskiy District Court of St Petersburg.
- At
the first hearing that took place on 22 April 2002 the court granted
the respondent’s motion for transfer of the case to the Nevskiy
District Court of St Petersburg (“the District Court”).
According to the Government, the applicant’s representative
left this decision to the court’s discretion.
- After
holding a meeting with the parties on 9 September 2002, the court
scheduled the first hearing for 6 November 2002. However, on that
date the hearing was adjourned to 4 February 2003 to give the
applicant time to procure additional evidence. The hearing of 4
February 2003 did not take place due to the respondent’s
illness.
- On
29 July 2003 the applicant and the respondent requested that the
hearing be postponed due to their illness and the respondent’s
counsel’s vacation.
- The
hearing of 7 October 2003 did not take place due to the judge’s
involvement in different proceedings and the respondent’s
inability to appear due to a business trip.
- The
hearing of 27 November 2003 was adjourned due to the applicant’s
misconduct in the courtroom. The judge summoned the police who took
the applicant to a police station for questioning and released soon
afterwards. On an unspecified date the authorities instituted
criminal proceedings against her.
- The
hearing of 11 February 2004 did not take place due to the judge’s
illness. At the next hearing of 21 April 2004 the court granted the
applicant’s motion for an outpatient DNA testing and stayed the
proceedings. After the applicant challenged the decision to stay the
proceedings, the case was remitted to the District Court for repeat
examination of her motion for a DNA testing. The next hearing
scheduled for 5 October 2004 was adjourned to obtain medical evidence
in respect of the respondent.
- The
hearing of 14 December 2004 was adjourned due to the respondent’s
default in appearance and lack of results for the court’s
inquiry.
- On
19 December 2004 the investigator imposed on the applicant an
undertaking not to leave. Ten days later he put the applicant on the
wanted list and stayed the preliminary investigation.
- The
hearings of 15 March and 9 June 2005 did not take place due to the
judge’s illness.
- On
26 May 2005 the applicant asked to postpone the hearing due to her
own illness.
- On
30 June 2005 the District Court left the claims without consideration
ruling that the parties had failed to appear in court twice for no
plausible reasons. This decision was overturned on the applicant’s
appeal on 22 July 2005 for unspecified reasons.
- Once
back to the District Court, the case was assigned to a different
judge due to the termination of the previous judge’s term in
office.
- At
the next hearing of 24 November 2005 the court again ordered a DNA
testing and stayed the proceedings.
- On
28 February 2006 the respondent motioned for transfer of the case to
the Khabarovsk Region where he had relocated.
- On
12 April 2006 the applicant motioned for transfer of the case to
Astrakhan where she had relocated with her child.
- On
19 May 2006 the District Court sent a letter rogatory to a competent
Astrakhan court asking that the latter order a local expert bureau to
take the applicant’s and her child’s blood samples and
send them to an expert bureau in St Petersburg. A similar letter
rogatory was sent to a court in the Khabarovsk Region in respect of
the respondent. However, the parties never appeared at the expert
bureaus.
- On
15 February 2007 the District Court declared the investigator’s
decision to put the applicant on the wanted list unlawful. Both this
decision and the decision to stay the investigation were revoked on 6
April 2007 by the higher investigation body. Subsequently, the
investigation against the applicant was resumed and stayed on several
occasions.
- The
parties did not appear at the next court hearing scheduled for
21 February 2007.
- On
20 March 2007 the court ordered an expert examination of the medical
documents. It also decided that the parties should have their blood
samples taken in St Petersburg and sent a letter rogatory to an
Astrakhan court for questioning of certain witnesses.
- The
next hearing scheduled for 13 September 2007 was adjourned to give
the applicant time to obtain additional evidence.
- The
hearing of 26 September 2007 did not take place as the parties did
not appear. The hearing of 31 October 2007 was adjourned to obtain
additional evidence. The court also sent another letter rogatory for
questioning of a certain witness and an inquiry in respect of the
respondent. On this date and then on 11 January 2008 the court
ordered additional expert examinations and stayed the proceedings.
- On
10 July 2008 the District Court dismissed the applicant’s
claims as unfounded. On 13 November 2008 the St Petersburg City Court
decided that the applicant had not been duly notified of the date and
whereabouts of the expert examination scheduled for 15 April 2008,
set the judgment aside on appeal and required a new hearing.
- On
1 December 2008 the District Court sent the case materials for the
DNA testing and notified the parties of its date and whereabouts.
However, on 12 January and 17 February 2009 only the respondent
appeared at the expert bureau.
- On
18 February 2009 the District Court again disallowed the applicant’s
claims as unfounded. The judgment was upheld on appeal by the St
Petersburg City Court on 21 April 2009.
- The
Government submitted that the authorities were considering
termination of the criminal proceedings against the applicant as
time-barred.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the civil proceedings in her
case had been incompatible with the “reasonable time”
requirement as provided in Article 6 § 1 of the Convention, the
relevant part of 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 ...”
A. Admissibility
- The
Government submitted that the complaint was manifestly ill-founded
and should be rejected in accordance with Article 35 § 3 and 4
of the Convention.
- The
Court notes that this complaint does not appear to be 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 argued that the length of the proceedings at issue had
been the result of the complexity of the case and the applicant’s
own behaviour that manifested itself in repeated failure to appear at
the hearings and for expert examinations.
- The
applicant retorted that she could not appear for expert examinations
scheduled to take place in St Petersburg because she had been put on
the wanted list. As to the decision to revoke this measure in April
2007, the relevant documents had not been forwarded to the local
police of the area and thus she still could not come.
- The
Government replied that the applicant had been aware of the criminal
proceedings against her and could have cleared the grounds for the
decision to put her on the wanted list and to stay the proceedings.
In any event, she did not appear for the expert examination that was
fixed to take place in Astrakhan, her actual place of residence,
either.
- The
Court observes that the proceedings in the applicant’s case had
commenced on 24 October 2001 and ended on 21 April 2009. They thus
lasted approximately for seven years and six months, during which
period the courts considered her case three times at two levels of
jurisdiction.
- 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 firstly observes that the applicant’s case had not been
complex having involved a claim for determination of paternity and
alimony.
- Having
regard to the applicant’s conduct, it notes that the court
hearings had to be adjourned on several occasions due to the
applicant’s failure to appear, illness or misconduct, which in
total led to a delay of approximately eight months. In addition, the
Court finds it most striking that the applicant never appeared at a
DNA testing examination scheduled by the trial court multiple times
at her own request, including in the town of her actual residence. It
is not convinced by the applicant’s argument that the reason
for this was her inability to travel due to the placement on the
wanted list since, as it was pointed out by the Government, it had
been open to her to make this measure no longer necessary or at least
to appear for the examination in her own town.
- Turning
to the conduct of the authorities, the Court observes that an
approximate delay of six months occurred as a result of the judge’s
illness and involvement in different proceedings. Otherwise, it finds
that both the court and the expert authorities involved in the
proceedings exhibited the necessary promptness dealing with the case
without idling for any considerable length of time.
- Regard
being had to the applicant’s own lack of due diligence in the
proceedings and the authorities’ expedition in dealing with the
case, as well as to the levels of jurisdiction involved, the Court
finds that the “reasonable time” requirement was not
breached in the present case.
- There
has accordingly been no violation of Article 6 § 1 of the
Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant also complained under Articles 5 and 10 about the police
actions on 27 November 2003 and under Article 8 of a violation of her
right to respect for private and family life alleging that the court
had attempted to obtain confidential data from her medical records.
She further referred to Articles 13 and 14 to complain of lack of
effective remedies and discrimination on the basis of her gender and
socioeconomic status.
- Regarding
the complaints under Articles 5, 8 and 10, there is no evidence that
the applicant raised them before a domestic court. These complaints
should accordingly be rejected under Article 35 § 1 of the
Convention.
- As
to the complaints under Article 13 and 14, they are neither
sufficiently made-out nor substantiated. Therefore, they should be
rejected under Article 35 §§ 3 and 4 of the Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning the length of
the proceedings admissible and the remainder of the application
inadmissible;
- Holds that there has been no violation of
Article 6 § 1 of the Convention.
Done in English, and notified in writing on 13 January 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Nina Vajić Deputy Registrar President
