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FIRST
SECTION
CASE OF KIRILL MARCHENKO v. RUSSIA
(Application
no. 5507/06)
JUDGMENT
STRASBOURG
9 October 2008
FINAL
09/01/2009
This judgment may be
subject to editorial revision.
In the case of Kirill Marchenko 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 André
Wampach, Deputy
Section Registrar,
Having
deliberated in private on 18 September 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 5507/06) 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 Kirill
Aleksandrovich Marchenko (“the applicant”), on 5 January
2006.
- The
applicant was represented by the International Protection Centre. 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
26 March 2007 the Court
decided to give notice of the application 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
Government objected to the joint examination of the admissibility and
merits of the application. The Court examined and dismissed their
objection.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1977 and lives in Moscow.
- The
applicant’s father owned a flat in Moscow. In June 1993, a
certain K., acting on behalf of the applicant’s father, sold
the flat to L. In October 1993 the applicant’s father died.
Later, L. made a gift of that flat to her son.
- In
February 1995 the applicant lodged a court action with the Butyrskiy
District Court of Moscow (“the District Court”) against
K. and L. and L.’s son, seeking annulment of the contract of
sale of his father’s flat. The Moscow department of housing
policy, the registration service and the notary who had certified the
power of authority delivered by the applicant’s father were
invited as third parties to the proceedings.
A. First examination of the case
- Between
1995 and 1997 several hearings were listed, but they were adjourned
for various reasons. In 1998 the examination of the case was
postponed several times because the third parties or the defendants
failed to appear. According to the Government,
the hearing of 23 December was adjourned until 29 December because
the applicant failed to appear.
- On
29 December 1998 the District Court adjourned the applicant’s
action generally on the grounds that the parties had failed to attend
two court hearings. The applicant applied for reinstatement of the
case on the grounds that he had not been duly summoned to the
hearings. On 20 January 1999 the District Court quashed the
decision of 29 December 1998, having found that the applicant had had
a valid reason for failing to appear. It reinstated the case and
scheduled the hearing for 23 March 1999.
- In
1999 several hearings were adjourned for various reasons. On 26 May
the case was adjourned until 14 July because the judge was involved
in unrelated proceedings. According to the Government, the hearings
of 30 November and 10 December did not take place because the
applicant did not attend them.
- In
2000 the hearings were postponed several times because the defendants
or the third parties failed to appear.
- On
13 March 2001 the applicant amended his claims. On the same date the
District Court appointed, at his request, an expert examination of
the power of authority signed by his father and suspended the
proceedings pending the expert study.
- On
4 June 2001 the proceedings were resumed and the hearing was fixed
for 20 July 2001. On that date, according to the Government, the
hearing did not take place because the applicant did not appear.
- At
the hearing of 5 September 2001 the applicant rejected the expert
study and returned to his initial claims. On the same date the
District Court dismissed his claims in full. On 22 February 2002 the
Moscow City Court (“the City Court”) quashed that
judgment, finding that the first-instance court had failed to
establish all relevant facts of the case. It remitted the case for a
fresh examination to a different panel of the first-instance court.
B. Second examination of the case
- In
the second round of proceedings, the District Court accepted the case
for examination on 26 September 2002. The first hearing was fixed for
15 November 2002. On that date the hearing was adjourned until 10
January 2003 because the parties failed to appear.
- In
2003 six hearings were scheduled. Of these, the
hearing of 6 August was adjourned until 29 October because the
parties did not appear. However, on that date the defendants
did not appear and the case was postponed until 20 January 2004.
- In
2004 eight hearings were listed. Of these, at least five hearings
were adjourned because the defendants failed to appear. On 30 June
the court heard the parties and adjourned the case until 10 August at
the applicant’s request. On that date the applicant amended his
claims. This time he requested that the defendants be evicted from
the flat in question.
- On
1 October 2004 the District Court adjourned the case generally on the
grounds that the parties failed to appear at the hearings. On 5
October 2004 the District Court quashed that decision, having found
that the applicant had received a delayed notification about the
hearing. It reinstated the proceedings and fixed the hearing for 22
October 2004.
19. In
2005 three hearings were listed. The hearings of 28 January and
1 March were adjourned because the defendants failed to appear
and because the judge was on leave.
- On
22 April 2005 the District Court examined the case in the absence of
the defendants and dismissed the applicant’s action.
Both the applicant and his
representative were present. The applicant appealed against
that judgment.
- The
applicant submitted that on the morning of 5 July 2005 his mother had
received a summons from the City Court. It said that the appeal
hearing had been listed for 5 July 2005. By that time the applicant
had already gone to work.
- On
5 July 2005 the City Court heard the case in the absence of the
defendants and the applicant. The applicant’s grandmother,
acting on his behalf, maintained his claims. On the same date the
City Court upheld the judgment of 22 April 2005.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the domestic courts had failed to examine
his claim within a reasonable time. The Court will examine that
complaint under 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
proceedings commenced in February 1995, when the applicant lodged his
claim with the District Court. However, the Court will only consider
the period of the proceedings which began on 5 May 1998, when the
Convention entered into force in respect of Russia. In assessing the
reasonableness of the time that elapsed after that date, account must
be taken of the state of proceedings at the time. The period in
question ended on 5 July 2005 with the decision of the City Court.
Thus the Court has competence ratione temporis to examine the
period of approximately seven years and two months. During that
period the case was examined at two levels of jurisdiction.
A. Admissibility
- 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 firstly argued that the case was factually complex. They
further submitted that numerous hearings had been adjourned due to
the defendants’ failure to appear in spite of the proper
notification. The applicant had also contributed to the length of the
proceedings by failing to appear at several hearings, but also by
amending his claims on several occasions; he requested an expert
study and appealed against the first instance court decisions.
The domestic courts had conducted the proceedings properly. The
hearings had been scheduled at regular intervals. The domestic courts
had examined the case at several levels. Some delays had occurred
when the case had been reassigned to different judges. However, those
delays had been justified because three judges had resigned and some
of them had been on sick leave. Moreover, the judges had had a
significant workload.
- The
applicant contested the Government’s submissions. He argued
that the case was not very complex. The proceedings had to be
conducted with special diligence as they concerned his deceased
father’s flat. He admitted that he had failed to attend several
hearings, but stated that this was mainly due to late notifications.
Most of the hearings had not taken place because the defendants and
the third parties had not been duly summoned or had failed to appear
by their own fault. The authorities had not taken appropriate
measures to discipline them. Several substantial delays in the
proceedings were attributable to the domestic courts.
- 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 Pedersen and
Baadsgaard v. Denmark [GC], no. 49017/99, § 49, ECHR
2004-XI).
- The
Court is ready to accept that the proceedings at issue were of a
certain complexity, as they concerned property claims and involved
several parties. However, the Court cannot accept that the complexity
of the case, taken on its own, was such as to justify the overall
length of proceedings.
- As
regards the applicant’s conduct, the Court notes that the
parties are in dispute as to whether the applicant was at fault when
he had failed to appear at several hearings. It considers that it is
not necessary to determine whether or not the applicant had been duly
summoned to those hearings, because, in any event, the resulting
delays were not very significant. Furthermore, the Court is not
convinced by the Government’s arguments that the applicant
should be held responsible for amending his claims, requesting an
expert opinion and lodging appeals. It has been the Court’s
constant approach that an applicant cannot be blamed for taking full
advantage of the resources afforded by the national law in the
defence of his interests (see, mutatis mutandis, Yağcı
and Sargın v. Turkey, judgment of 8 June 1995, Series A
no. 319-A, § 66). Accordingly, the Court considers that the
applicant was not responsible for any substantial delays in the
proceedings.
- As
regards the conduct of the judicial authorities, the Court notes the
Government’s argument that during the period under
consideration the domestic authorities examined the case twice at two
levels. The Court observes in this respect that the second round of
proceedings was due to the District Court’s failure to
establish all relevant facts of the case during the first examination
of the case. In any event, the fact that the domestic courts heard
the case several times did not absolve them from complying with the
reasonable time requirement of Article 6 § 1 (see Litoselitis
v. Greece, no. 62771/00, § 32, 5 February 2004).
- The
Court further notes that the parties agreed that the defendants and
third parties had failed to appear at numerous hearings and thus had
caused certain delays in proceedings. However, the Government
submitted that they had been duly notified of the hearings and the
applicant argued that the courts had failed to duly inform them. The
Court considers that it is not necessary to examine why the
defendants and third parties failed to appear, as there are
sufficient elements to conclude that the responsibility for most of
delays in the proceedings, in any event, lies with the domestic
authorities.
- The
Court observes that on two occasions, on 29 December 1998 and 1
October 2004 the District Court adjourned the case generally on the
grounds that the applicant had failed to appear at hearings. Later it
quashed those decisions and had reinstated the proceedings, having
found that the applicant had not been duly summoned to the hearings.
Those adjournments resulted in significant delays.
- The
Court further observes that after the quashing on 22 February 2002 of
the judgment of 5 September 2001, the District Court accepted the
case for examination only on 26 September 2002 and fixed the first
hearing for 15 November 2002. In 2003 and 2004 only six and eight
hearings were scheduled respectively. Therefore, the Court cannot
agree with the Government that the proceedings had been conducted
properly.
- The
Court also notes the Government’s argument that the delays in
the proceedings were caused to a certain extent by the judges’
significant workload and the reassignment of the case to different
judges. In this respect the Court reiterates that it is for
Contracting States to organise their legal systems in such a way that
their courts can guarantee the right of everyone to obtain a final
decision within a reasonable time (see, for instance, Löffler
v. Austria, no. 30546/96, § 21, 3 October 2000). Therefore,
the delays referred to by the Government are imputable to the State.
- Finally,
the Court observes that an important property interest was at stake
for the applicant in the present case. The Court is of the opinion
that the nature of the dispute called for particular diligence on the
part of the domestic courts.
- In
the light of the criteria laid down in its case-law and having regard
to all the circumstances of the case, 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 complained under Article 6 that he could not attend the
appeal hearing of 5 July 2005 due to the late notification. He also
complained about the outcome of the proceedings.
- Having
regard to all the material in its possession, and in so far as these
complaints fall within its competence ratione materiae, the
Court finds that 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 must be
rejected as being manifestly ill-founded, 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 20,000 euros (EUR) in respect of non pecuniary
damage.
- The
Government contested the claim.
- The
Court considers that the applicant must have suffered distress and
frustration resulting from the excessive length of proceedings in his
case. Making its assessment on an equitable basis, it awards him
EUR 3,600 under that head, plus any tax that may be chargeable
on that amount.
B. Costs and expenses
- The
applicant did not make any claim in respect of costs and expenses.
Accordingly, there is no call to make an award in this respect.
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, EUR 3,600 (three thousand
six hundred 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 9 October 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Christos
Rozakis
Deputy Registrar President
