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FIRST SECTION
CASE OF GASANOVA v. RUSSIA
(Application no. 23310/04)
JUDGMENT
STRASBOURG
30 April
2009
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 Gasanova 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 7 April 2009,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
- The case originated in an
application (no. 23310/04) 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
Mikhaylovna Gasanova (“the applicant”), on 5 June 2004.
- The Russian Government (“the Government”)
were initially represented by Ms V. Milinchuk, former representative
of the Russian Federation at the European Court of Human Rights, and
subsequently, by Mr G. Matyushkin, their Representative.
- On 7 March 2008
the President of the First Section 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 FACTS
THE CIRCUMSTANCES OF THE CASE
- The applicant was born in 1935 and lives in
Mendeleyevo, a town in the Moscow Region.
- In
1995 the applicant brought a court action against a housing
maintenance service. Throughout the proceedings she represented
herself. She claimed compensation for damages sustained as a result
of poor quality repairs carried out by the respondent in her flat and
requested that the works be done again. She also claimed penalties
for the delays in the reparation of her flat. In course of the
proceedings the applicant amended her claims.
A. First examination of the case
- On
27 November 1995 the Solnechnogorskiy Town Court of the Moscow Region
(“the Town Court”) dismissed her claim. On 6 February
1996 the Moscow Regional Court (“the Regional Court”)
upheld that judgment.
B. Supervisory review and second examination of the
case
- On
28 May 1996 the Presidium of the Regional Court quashed the judgment
of 27 November 1995 and remitted the case for a fresh examination to
the first-instance court.
- In
the meantime the administration of the Solnechnogorskiy District
transferred the municipal housing into the authority of a municipal
enterprise, Mendeleyevo Service.
- On
10 October 1997 the Town Court granted the applicant's claim in part.
On 18 February 1998 the Regional Court upheld that judgment.
C. Supervisory review and third examination of the case
- On
13 January 1999 the Presidium of the Regional Court quashed the
judgment of 10 October 1997 and remitted the case for a new
examination to the Town Court. It held in particular that the
lower courts had failed to establish the proper defendant in the
case. It also indicated that in order to decide on the penalties the
first-instance court had to establish whether the parties had
previously set any deadlines for the repairs.
- On
5 March 1999 the Town Court set the examination of the case for 9
April 1999. Between April and October 1999 six hearings were
scheduled, however they were adjourned mainly because the respondent
and the third party failed to appear.
- On
26 October 1999 the Town Court established that the municipal
enterprise Mendeleyevo Service was the proper respondent in the case
and ordered it to repair the applicant's flat. It awarded the
applicant penalties for the delays in the repair of her flat and
compensation for non-pecuniary damage. Furthermore, it held that the
respondent had been in bad faith in opposing a correct and quick
examination of the case and ordered it to pay the applicant
compensation for the lost time.
- On
2 February 2000 the Regional Court quashed the judgment of 26 October
1999 and remitted the case to the first-instance court for a fresh
examination. It found that the Town Court had not indicated in its
decision which repairs had to be done in the applicant's flat, it had
not followed the Presidium's decision of 13 January 1999 and it had
not given reasons for its conclusions as regards the respondent's bad
faith in delaying the proceedings.
D. Fourth examination of the case
- On
3 May 2000 the Town Court set the examination of the case for 29 June
2000. Between June and December 2000 nine hearings were scheduled.
Three of them did not take place because the respondent failed to
appear, one hearing was postponed because the applicant did not
appear and three hearings were adjourned either because the applicant
asked for additional time to amend her claims or because the
respondent asked for additional time to submit evidence. One hearing
was postponed in order to call an expert to trial.
- On
19 December 2000 the Town Court held that since the maintenance
service no longer existed it was impossible for it to repair the
applicant's flat. Therefore, it awarded the applicant the money
necessary for such repairs and compensation for non-pecuniary damage.
It also ordered the respondent to replace some equipment in the
applicant's flat. It further established that the parties had not
concluded any written contract in respect of the repairs in the flat
and had not set any time-limits; therefore there was no call to award
the applicant any penalties in that respect. On the same date the
Town Court decided to examine the applicant's claim for payment of
penalties for the delayed replacement of sanitary equipment and for
compensation for loss of time in separate proceedings.
- On
18 April 2001 the Regional Court quashed the judgment of 19 December
2000 and referred the case to the first-instance court for a new
examination on the ground that the
first-instance court had failed to follow its decision of 2 February
2000.
E. Fifth examination of the case
- On
6 August 2001 the case was adjourned until 26 September 2001 because
the parties failed to appear.
- According
to the Government, on 26 September 2001 the
proceedings were discontinued at the applicant's request, however on
16 January 2002 the Presidium of the Regional Court quashed that
decision in supervisory review on the prosecutor's application. The
Government did not provide the Court with copies of those decisions.
- On
15 February 2002 the Town Court set the examination of the case for
13 March 2002. On that date the case was adjourned until 11 April
2002 because the parties failed to appear.
- On 11 April 2002 the Town Court left the applicant's
claim unexamined on the ground that she had failed to appear at two
hearings.
- On 16 January 2003 the applicant requested the Town
Court to reinstate the time-limit for lodging an appeal against the
decision of 11 April 2002. In her appeal she claimed that she
had failed to appear at two hearings because she had not been duly
notified of them and that she had not received a copy of the decision
of 11 April 2002. On 21 January 2003 the Town Court granted her
appeal, quashed the decision of 11 April 2002 and scheduled the
examination of the case for 12 March 2003. On that date the case was
again adjourned because the parties failed to appear.
- On 29 May 2003 the case was adjourned until 23 July
2003 because the judge was on sick leave. On that date the applicant
amended her claims. She submitted that since the examination of the
case was very lengthy, she had repaired her flat at her own expense
and she requested the court to reimburse her those expenses. On the
same date the case was adjourned until 25 August 2003. The next three
hearings were adjourned either because the respondent company did not
appear or because it asked for additional time to submit evidence and
comments on the applicant's claims.
- On 24 November 2003 the Town Court ordered the
municipal enterprise Mendeleyevo Service to reimburse the applicant
for the repair expenses and pay her non-pecuniary damage sustained as
a result of poor-quality repair works. Furthermore, it ordered the
defendant to replace the sanitary installations in the applicant's
flat. It dismissed the remainder of the applicant's claims.
- On 16 March 2004 the Regional Court upheld the
judgment of 24 November 2003.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION IN RESPECT OF THE LENGTH OF THE PROCEEDINGS
- The applicant complained that the length of the
proceedings in her case 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 proceedings commenced in 1995, when the applicant
lodged her claim with the Town Court. However, the Court has
competence ratione temporis to examine only the period after 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. Furthermore, only those periods when the case was actually
pending before the domestic courts, that is the periods when there
was no effective judgment in the determination of the merits of the
applicant's dispute and when the authorities were under an obligation
to pass such a judgment, should be taken into account (see, for
example, Skorobogatova v. Russia, no. 33914/02, § 39, 1
December 2005 with further references). In the present case the
proceedings were pending from 13 January 1999, when the Presidium of
the Regional Court quashed the judgment of 10 October 1997, until 16
March 2004, when the Regional Court adopted a final decision in the
case. Taking into account the above, the period to be considered is
approximately five years and two months. During
that period the case was examined three times 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 particularly complex. The
proceedings were adjourned several times in order to call experts and
third parties to the hearing, three times at the applicant's request
to give her time to amend her claims and gather evidence, and three
times at the respondent's request. Moreover, the respondent had been
reorganised in the course of the proceedings and the courts had had
to establish its legal successor. The Government further
claimed that the case was adjourned five times because of the
applicant's failure to appear, which resulted in four months' delay.
On 11 April 2002 the claim was left unexamined because the applicant
failed to appear at two hearings. The applicant did not appeal
against that decision, but requested that the proceedings be resumed
only on 16 January 2003. As a result, the proceedings were delayed by
nine months. The domestic courts conducted the proceedings properly.
The hearings were scheduled at regular intervals. Only on two
occasions was the case adjourned because the judge was on sick leave
and was busy in unrelated proceedings. The case was examined several
times. The decisions of lower courts were quashed because the case
involved complex legal issues and facts, but not because of serious
mistakes committed by judges.
- The
applicant's main argument was that the domestic courts had not
conducted the proceedings properly. On 13 January 1999 the Presidium
of the Regional Court should have decided her case, instead of
sending the case for a fresh examination.
- 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 is ready to agree with the Government that the proceedings at
issue were of a certain complexity. 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 she did not
contest the Government's submissions regarding the delays which
occurred because of her failure to appear at hearings. Therefore, the
Court may conclude she may be deemed responsible for four months'
delay. However, the Court cannot agree that the applicant should be
held responsible for the delays occurred as a result of the decision
of 11 April 2002. It observes that on 21 January 2003 the Regional
Court quashed that decision on the applicant's appeal, having found
that the she had failed to appear at two hearings for valid reasons.
In sum, 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 in several rounds of
proceedings. However, the Court does not share the Government's view
that the quashing of the lower courts' decisions was not the result
of mistakes committed by the judges. The Court observes that on 13
January 1999 the supervisory court quashed the decisions of lower
courts on the ground of serious shortcomings and it gave them
detailed indications as to how to proceed with the case. However, the
Town Court had failed to implement those instructions and the appeal
court quashed its decision of 26 October 1999 on those grounds. It
had also pointed out other shortcomings in the reasoning of the Town
Court's judgment. In the next round of proceedings the Town Court had
not followed the appeal court's indications, which led to a new round
of proceedings. The Court considers that the shifting
of the case between several levels of
jurisdictions several times was the main reason for the
lengthy examination of the case. Those delays are entirely
attributable to the domestic authorities and their failure to examine
the case properly. 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).
- Finally,
the Court observes that the applicant was already very elderly when
she brought her action and her claim concerned her flat. The Court is
of the opinion that the nature of the dispute and the applicant's
advanced age 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
VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicant lastly complained that the proceedings against the housing
maintenance service had been unfair because the domestic courts had
not granted her claims in full. Having regard to all the material in
its possession, and in so far as this complaint falls within its
competence, the Court finds that it does 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 242,393 Russian roubles (RUB) in respect of
pecuniary damage which included the compensation for the repairs
which she had carried out in her flat together with indexation in
accordance with the refinancing rate of the Russian Central Bank. She
also claimed 10,000 euros (EUR) in respect of non-pecuniary
damage.
- The
Government contested her claims. They submitted that the applicant
had failed to prove a causal relationship between the length of
proceedings in her case and her claims.
- 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, the Court considers that the
applicant must have sustained non-pecuniary damage resulting from the
lengthy examination of her case. Ruling on an equitable basis, it
awards award her EUR 2,400 under that
head, plus any tax that may be chargeable on that amount.
B. Costs and expenses
- The applicant also claimed RUB 74,466 for expenses
related to legal representation in the domestic proceedings. In
support of her claim she submitted a contract concluded between her
and a certain A. Under that contract A. was to provide the applicant
with legal support for any claims the applicant would bring before
the courts. The applicant also claimed RUB 428 for postal expenses
incurred before the Court.
- The Government contested these claims.
- 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, the Court notes that
throughout the proceedings the applicant represented herself. The
contract concluded with A. indicated that the latter would provide
the applicant with legal advice for any claims brought by the
applicant before courts. The Court considers that from that document
it is not clear that the applicant has paid for legal advice related
to the proceedings examined in the present case. Regard being had to
the information in its possession and the above criteria, the Court
rejects the claim for costs and expenses in the domestic proceedings.
On the other hand the Court considers it reasonable to award the
applicant EUR 10 in respect of postal expenses occurred before the
Court, plus any tax that may be chargeable on that amount.
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
2,400 (two thousand four hundred euros) in respect of non-pecuniary
damage and EUR 10 (ten euros) in respect of costs and expenses, plus
any tax that may be chargeable on those amounts, 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
amounts 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 30 April 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
