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FIRST
SECTION
CASE OF KURBATOV v. RUSSIA
(Application
no. 44436/06)
JUDGMENT
STRASBOURG
2 October
2008
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 Kurbatov v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis, President,
Nina
Vajić,
Anatoly Kovler,
Elisabeth
Steiner,
Khanlar Hajiyev,
Dean
Spielmann,
Sverre Erik Jebens, judges,
and
Søren Nielsen,
Section Registrar,
Having
deliberated in private on 11 September 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 44436/06) 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 Mikhail
Anatolyevich Kurbatov (“the applicant”), on 1 October
2006.
- The
Russian Government (“the Government”) were represented by
Mr P. Laptev
and Mrs V. Milinchuk, former Representatives of the Russian
Federation at the European Court of Human Rights.
- On
18 January 2007 the
President of the First Section decided to communicate the complaint
concerning the length of the proceedings to the Government. It was
also decided to rule on the admissibility and merits of the
application at the same time (Article 29 § 3).
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1974 and lives in Moscow.
- The
applicant occupied a flat under a tenancy agreement.
- On
9 December 1992 the Lyublinskiy District Court of Moscow convicted
the applicant and sentenced him to a term of imprisonment.
- The
applicant served his sentence from 28 May 1992 to 25 May 2001.
- As
soon as he was released from prison the applicant returned to his
flat to discover that on 12 October 1992, during the pre-trial
investigation of his criminal case and his detention, A., acting on
the applicant's behalf in accordance with an allegedly false power of
attorney, privatised the above flat and on 18 November 1992 sold it
to I.
- On
17 December 2001 the applicant brought proceedings against A., I.,
the Moscow City Justice Department, the Municipal Housing Department
of Moscow, and the State-owned maintenance
company (Государственное
унитарное
предприятие
Дирекция
единого
заказчика
района
“Печатники”
г. Москвы
– “the maintenance company”)
seeking to challenge the power of attorney, the privatisation
agreement and the sale contract, and to recover the flat. A. was
subsequently excluded from the defendants as he had died on 12 August
1994.
- Eight
hearings fixed between 21 February 2002 and 21 November 2002 were
adjourned, mostly due to the necessity to obtain the applicant's
criminal file and to make inquiries with the maintenance company, the
Municipal Housing Department of Moscow, the Savings Bank, the Bureau
of Technical Inventory and the Moscow City Notary Chamber (Московская
городская
нотариальная
палата).
Some of the hearings were adjourned because the defendants failed to
appear.
- On
17 December 2002 the proceedings were suspended in order to conduct a
handwriting examination at the applicant's request. The documents
were submitted to the expert body on 13 March 2003.
- The
examination started on 13 April 2003 after the applicant made an
advance payment and was terminated by 16 May 2003.
- On
11 June 2003 the results of the expert examination were submitted to
the District Court, and on 16 June the proceedings were resumed.
- On
24 June 2003 the Lyublinskiy District Court of Moscow dismissed the
applicant's claims. The final text of the judgment was prepared and
sent to the applicant in August 2003, following which the applicant
lodged an appeal against it.
- On
2 October 2003 the Moscow City Court quashed the judgment and
remitted the case for a fresh examination.
- Of
seven hearings fixed between 3 February 2004 and 24 August 2004 one
was adjourned because the parties failed to appear; two because the
applicant could not attend; and three hearings were adjourned on the
initiative of the District Court due to the necessity to obtain, once
more, the applicant's criminal file and to make inquiries with the
maintenance company, the notary who certified
the disputed documents, the Moscow City Notary Chamber and the
Municipal Housing Department of the South East Administrative
Circuit of Moscow; and one hearing was adjourned because the judge
was involved in a different set of proceedings.
- On
17 September 2004 the Lyublinskiy District Court suspended the
proceedings following the defendants' request to conduct another
handwriting examination. However, following an appeal by the
applicant, on 26 November 2004 the Moscow City Court cancelled
the suspension.
- The
seven hearings fixed between 31 January 2005 and 4 July 2005 were all
adjourned on the initiative of the District Court due to the
necessity to obtain, for the third time, the applicant's criminal
file, to make further inquiries with the Federal Forensic
Examinations Centre (Российский
федеральный
центр
судебной
экспертизы
при
Министерстве
юстиции
Российской
Федерации),
the maintenance company and the Moscow City Notary Chamber, and
subsequently due to the failure of the above bodies to supply the
court with the replies to the above requests.
- On
25 July 2005 the Lyublinskiy District Court again dismissed the
applicant's claims. The final text of the judgment was prepared in
October 2005, following which the applicant lodged his appeal.
- Being
initially fixed for 19 January 2006, the appeal hearing was adjourned
until 4 April 2006, because the court had failed to inform the
defendants in due time of the contents of the applicant's appeal. On
4 April 2006 the Moscow City Court upheld the judgment on appeal.
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 and submitted that the proceedings
had not breached the reasonable time requirement of Article 6.
A. Admissibility
- The
Court reiterates that the proceedings commenced on 17 December
2001, when the applicant submitted his statement of claim to the
Lyublinskiy District Court of Moscow and ended on 4 April 2006 with
the final judgment of the Moscow City Court. The proceedings thus
lasted for approximately four years and three months. During this
period the case was determined by courts at two levels.
- 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
1. Submissions by the parties
- The
Government submitted that the proceedings in the applicant's case
were complex for the following reasons. First of all, a significant
number of persons and authorities were involved in the proceedings,
including A., I., the Moscow City Justice Department, the Municipal
Housing Department of Moscow and the maintenance
company. Secondly, the examination of the case required verification
of the genuineness of the applicant's signature on the disputed power
of attorney. In particular, on 17 December 2002 the
proceedings were suspended due to a handwriting examination following
the applicant's request. The examination started as soon as the
applicant made an advance payment on 13 April 2003 and was completed
by 11 June 2003. Thirdly, the domestic courts took active measures to
obtain the information necessary for the establishment of all the
circumstances of the case. The Government further submitted that the
applicant contributed to the length of the proceedings by lodging
appeals against the decisions of the District Court, and that by
contrast there were no substantial periods of inactivity attributable
to the domestic authorities.
- The
applicant drew the Court's attention to the following periods when
the domestic courts remained inactive. Firstly, after the
commencement of the handwriting examination on 17 December 2002 it
took the domestic court three months to send the case to an expert
body. The advance payment was made by the applicant as soon as he was
informed about this requirement. Secondly, it took the domestic court
almost three months to prepare the final text of the judgment of 24
June 2003 which prevented the applicant from lodging his appeal
earlier. Further, after the quashing of the judgment of 24 June 2003
on appeal on 2 October 2003 it took the domestic court four months
(until 3 February 2004) to fix the new hearing of the case. Thirdly,
the final text of the subsequent judgment of 25 July 2005 was
prepared only in October 2005, and the applicant could not lodge his
appeal until then. Further, the appeal hearing against the judgment
of 25 July 2005 initially scheduled for 19 January 2006 did not take
place until 4 April 2006 due to the failure on the part of the
domestic court to inform the defendants of the contents of his
appeal. Therefore, over eight months elapsed before the appeal
hearing did take place. Finally, in reply to the Government's
argument about the fact that the applicant appealed against the
decisions of the District Court and thus contributed to the
prolongation of the proceedings, the applicant submitted that he was
free to exercise his procedural rights. Besides, as a result of his
appeal the judgment of 24 June 2003 was found unlawful.
2. The Court's assessment
- 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 observes that the proceedings at issue were of some complexity,
given that the domestic court was confronted with facts dating back
to the beginning of the nineties, and that they required expert
examinations. However, 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.
- The
Court observes that the applicant's conduct did
not noticeably contribute to the length of the proceedings. In
particular, the applicant's belated advance payment for the expert
examination appointed on 17 December 2002 amounted
to a one-month delay, since the case was transmitted to the expert
body only on 13 March 2003. As to the Government's argument
that the applicant contributed to the delay in the proceedings by
appealing against the judgments of the District Court, the Court
reiterates that an applicant cannot be blamed for taking full
advantage of the resources afforded by national law in the defence of
his interests (see Angelova v. Russia, no. 33820/04, §
44, 13 December 2007).
- Turning to the conduct of the
domestic authorities, the Court notes that it led to some substantial
delays in the proceedings. The Court observes that between 21
February 2002 and 21 November 2002, 3 February 2004 and 24 August
2004, 31 January 2005 and 4 July 2005 the hearings were repeatedly
adjourned, mostly due to the necessity to make inquiries with various
State bodies. The Court notes, however, that on many occasions the
inquiries were made with the same bodies (some of them having
defendant status in the proceedings) on the same subject, both when
the case was examined by the District Court for the first time and
for the second time after its quashing on appeal by the City Court.
The Court also notes that the State bodies in question were not
particularly diligent in supplying the domestic court with the
requested information, and the domestic court did not avail itself of
the measures available to it under national law to discipline the
participants to the proceedings and to ensure that the case was heard
within a reasonable time (see Sokolov v. Russia, no. 3734/02,
§ 40, 22 September 2005).
- The
Court further observes several other delays attributable to the
domestic authorities. In particular, it took the domestic court three
months to transfer the case to the expert body when the court ordered
the handwriting examination on 17 December 2002 and ordered the
suspension of the proceedings. Further, it took the domestic court
three months to prepare the final text of the judgment of 24 June
2003 and another three months to prepare the final text of the
subsequent judgment of 25 July 2005, the first judgment being two
pages long and the second four pages long. After the quashing of the
judgment of 24 June 2003 on appeal on 2 October 2003 it took the
domestic court four months (until 3 February 2004) to fix the new
hearing of the case. Besides, a four-month delay occurred from
17 September 2004, when the domestic court again suspended the
proceedings until 26 November 2004 when following the applicant's
request the above decision was found unlawful. Finally, six months
elapsed from October 2005 when the applicant appealed against the
judgment of 25 July 2005 until the examination of the case on
appeal on 4 April 2006. The delay of all of the above amounted to
almost three and a half years.
- Having
examined all the material submitted to it and taking into account
what was at stake for the applicant, 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. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant further complained under Article 6 § 1 of the
Convention that the domestic court had failed to investigate the
circumstances of the issuing of the power of attorney. He further
alleged that the domestic court had violated the principle of
procedural parity because the burden of proof had been shifted to
him.
- The
Court has examined the remainder of the applicant's complaints and
considers that, in the light of all the material in its possession
and in so far as the matters complained of are within its competence,
they do not disclose any appearance of a violation of the rights and
freedoms set out in the Convention or its Protocols. It follows that
this part of the application should be declared inadmissible pursuant
to Article 35 §§ 3 and 4 of the Convention.
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.”
A. Damage
- The
applicant claimed 50,000 euros (EUR) in respect of non pecuniary
damage.
- The
Government considered this claim excessive.
- Making
its assessment on an equitable basis, the Court awards the applicant
EUR 1,500 in respect of non-pecuniary damage, plus any tax that may
be chargeable on that amount.
B. Costs and expenses
- The
applicant also claimed EUR 1,795 for the costs and expenses incurred
before the domestic courts and the Court.
- The
Government considered this claim excessive and unreasonable. In any
event, they considered that only EUR 425 should be paid to the
applicant since the remaining expenses related to the proceedings
before the domestic courts.
- According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regard being had to
the information in its possession and the above criteria, the Court
rejects the applicant's claim in so far as it relates to the costs
incurred in the domestic proceedings because there is no causal link
between the violation found and those expenses. As regards the
Strasbourg proceedings, the Court considers it reasonable to award
the sum of EUR 425 for the proceedings before the Court.
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 complaint concerning the excessive
length of the proceedings admissible and the remainder of the
application inadmissible;
- Holds that there has been a violation of Article
6 § 1 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 the following
amounts, to be converted into Russian roubles at the rate applicable
at the date of settlement:
(i) EUR
1,500 (one thousand five hundred euros) in respect of non pecuniary
damage, plus any tax that may be chargeable to the applicant;
(ii) EUR 425 (four hundred and twenty-five euros) in
respect of costs and expenses, plus any tax that may be chargeable to
the applicant;
(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 2 October 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
