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FIRST
SECTION
CASE OF GUSAK v. RUSSIA
(Application
no. 28956/05)
JUDGMENT
STRASBOURG
7 June 2011
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 Gusak v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina Vajić,
President,
Anatoly Kovler,
Elisabeth
Steiner,
Khanlar Hajiyev,
George
Nicolaou,
Mirjana Lazarova Trajkovska,
Julia
Laffranque, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 17 May 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 28956/05) 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 Larisa Aleksandrovna
Gusak (“the applicant”), on 27 May 2005.
- The
applicant was represented by Mr A. Gusak. The Russian Government
(“the Government”) was represented by Mr G. Matyushkin,
Representative of the Russian Federation at the European Court of
Human Rights.
- The
applicant alleged, in particular, that neither she nor her
representative had been duly summoned to an appeal hearing in her
case and that the appeal was considered in their absence.
- On
20 March 2009 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 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1940 and lives in Sochi.
A. First set of proceedings
- On
13 May 2002 the applicant’s husband entered into an agreement
with a building company. Under the terms of the contract the company
had to build within twelve months an individual house in accordance
with the approved project, and the applicant’s husband had
to pay them the price of the house in monthly instalments.
- On
25 January 2003 the applicant’s husband died.
- The
building company sued the applicant and her daughter (heirs to the
applicant’s husband) seeking to recover the contract arrears
and to invalidate their title to the unfinished construction project.
- On
20 December 2004 the Tsentralniy District Court of Sochi (“the
District Court”) granted the company’s claims. The
applicant appealed. The appeal hearing was scheduled for 21 April
2005.
- During
the hearing of 21 April 2005 the Krasnodar Regional Court (“the
Regional Court”) decided to postpone the appeal hearing at the
request of the plaintiff. The applicant’s representative was
present. According to the applicant, the Regional Court did not
specify the date of the next hearing.
- On
27 April 2005 the court notified the applicant that the hearing had
been adjourned to 12 May 2005. The applicant received that
notification on 12 May 2005, the very date of the hearing. The
postmark on the envelope submitted by the applicant showed that it
had reached her on 12 May 2005. The Regional Court upheld the
judgment on appeal in the absence of the applicant and her
representative. It follows from the appeal decision of 12 May
2005 that the other party was present at the hearing and made oral
submissions.
- On
9 June 2005 the applicant requested the Regional Court to re-examine
the case, alleging that she had not been duly notified of the appeal
hearing of 12 May 2005.
- On
29 September 2005 the Regional Court dismissed the applicant’s
request, finding that the materials of the case contained evidence
that she had been properly notified. However, the Regional Court did
not specify what evidence the case file contained.
B. Second set of proceedings
- In
1999 the applicant’s husband joined a building partnership with
a view to acquiring a flat. From 1999 to 2002 he paid construction
fees.
- Following
her husband’s death in January 2003 the applicant brought
proceedings against the partnership, seeking to join it as a member
in her husband’s stead.
- On
17 October 2003 the District Court granted the applicant’s
claim. On 2 December 2003 the Regional Court upheld that judgment on
appeal.
- On
10 June 2004 the Presidium of the Regional Court quashed the above
decisions by way of supervisory review and remitted the case for a
fresh examination.
- On
19 April 2005 the District Court granted the applicant’s claim.
However, on 21 June 2005 the Regional Court quashed the judgment on
appeal and remitted the case for a fresh examination.
- On
21 August 2006 the District Court dismissed the applicant’s
claims. On 26 October 2006 the Regional Court upheld the judgment on
appeal.
II. RELEVANT DOMESTIC LAW
- The
Code of Civil Procedure of the Russian Federation (“the CCP”,
in force from 1 February 2003) reads as follows:
Article 113. Court summons and notifications
“1. Parties ... are to be summoned to
court by a letter sent via registered mail with an acknowledgment of
receipt, a court summons with an acknowledgment of receipt, a
telegram, by phone or fax or by any other means of communication
which guarantees recording of the fact that the court summons or
notifications were received by the parties.
2. A court summons is one of the forms of
court notification. Parties are notified by court summons of the date
and place of a court hearing or of particular procedural actions ...
3. A summons or another form of notification
is to be served on parties in such a way [as to ensure] that they
have enough time to prepare their case and to appear at the hearing.
4. A court notification addressed to a party
is to be sent to the address indicated by that party or his/her
representative. If the party does not reside at the indicated
address, the court summons may be sent to his or her place of work
...”
Article 115. Service of court summons and
notifications
“1. Court summons and other
notifications are to be sent by mail or delivered by a person
authorised by the court to deliver them. The time of service is to be
recorded as laid down by post office regulations or on a document
which is to be returned to the court.
2. With a party’s consent, a judge can
serve him/her with summons or notifications to be delivered to
another party. A person authorised by the judge to deliver a court
summons or another notification is to return a counterfoil of the
summons or a copy of the notification bearing the addressee’s
signature recording receipt.”
Article 116. Receipt of a court summons
“1. A court summons ... to a person is
to be served on him or her against his or her signature on a
counterfoil of the summons, which is to be returned to the court ...”
Article 343. Actions of the first-instance court upon
receipt of the statement of appeal
“1. Upon the receipt of the statement
of appeal ... the judge shall:
1) send to the parties copies of the
statement of appeal and the enclosed written documents not later than
the day after their receipt;
2) notify the parties of the time and place
of the appeal hearing ...”
Article 354. Consequences of failure of parties and
representatives to attend an [appeal] hearing
“1. If a party to the case fails to
appear and there is no evidence that the party was duly summoned, the
hearing is to be adjourned ...”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION ON
ACCOUNT OF THE ALLEGED NON-NOTIFICATION OF THE APPLICANT OF THE
APPEAL HEARING
- The
applicant complained that neither she nor her representative had been
afforded an opportunity to attend the appeal hearing of 12 May 2005,
in breach of Article 6 § 1 of the Convention,
which reads, in so far as relevant, as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair and public hearing
... by [a] ... tribunal ...”
- The
Government claimed that the applicant had been notified of the appeal
hearing of 12 May 2005 in good time and that the summons had been
sent to the parties to the dispute on 27 April 2005. In support of
their submissions, they provided the Court with a copy of the
notification letter addressed, inter alia, to the applicant,
with a stamp of dispatch on 27 April 2005. The Government further
noted that the applicant’s allegation about the belated
notification was examined by the domestic court. However, the
applicant failed to produce in support of her allegations a
certificate from the postal service confirming that the summons had
not been delivered to her address or that it had been delivered in
such a way that she had not had enough time to prepare for the appeal
hearing. Therefore, the court had found that the applicant had been
duly notified of the appeal hearing. The Government also noted that
the fact that the other party appeared at the appeal hearing proved
that the parties had been duly summoned to the hearing.
- The
applicant maintained that the domestic courts had failed in
their duty to inform her of the appeal hearing, that she received the
notification only on 12 May 2005, and that the Government had not
provided any evidence to the contrary. She noted that since the
distance between her place of residence and the venue of the hearing
was approximately 300 km she had had no opportunity to attend the
hearing in person or to ensure the participation of her
representative. The applicant also submitted that the requirement
to prove non-receipt of the notification was absurd, since neither
domestic law nor the Court’s case-law imposed such a duty on
litigants.
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- The
Court reiterates that the entitlement to a “public hearing”
in Article 6 § 1 necessarily implies a right to
an “oral hearing” (see Fredin v. Sweden
(no. 2), 23 February 1994, §§ 21-22, Series A
no. 283-A). The right to a public hearing would be devoid of
substance if a party to the case were not apprised of the hearing in
such a way so as to have an opportunity to attend it, should he or
she decide to exercise the right to appear established in the
domestic law (see Yakovlev v. Russia, no. 72701/01,
§§ 21, 15 March 2005).
- The
Court observes that the Russian CCP provides for oral hearings
before courts of appeal and that the jurisdiction of appellate courts
is not limited to matters of law but also extended to factual issues.
However, the parties’ attendance is not mandatory and, if
a party does not appear at the hearing without a valid reason after
it had been duly notified thereof, the court could proceed with
the examination of the appeal. The analysis of the provisions of
Russian law on the service of court summons suggests that, whichever
specific form of the parties’ notification is chosen,
the domestic courts should be in possession of evidence
confirming the receipt of such notification by the addressee;
otherwise the hearing is to be adjourned. It follows that the
Government should have been in possession of such evidence. The
Government provided a copy of the notification letter dispatched on
27 April 2005. However, the Government did not present any evidence,
such as an acknowledgement of receipt or an envelope bearing
postmarks or similar showing that it had reached the applicant in
good time. At the same time, the postmark on the envelope submitted
by the applicant showed that it had reached her on 12 May 2005,
on the very date of the appeal hearing.
- The
Court recalls that Article 6 cannot be construed as conferring
on litigants an automatic right to obtain a specific form of service
of court documents, such as by registered mail (see Bogonos v. Russia
(dec.), no. 68798/01, 5 February 2004). Nevertheless,
the Court considers that in the interests of the administration
of justice a litigant should be summoned to a court hearing in
such a way as not only to have knowledge of the date and the place
of the hearing, but also to have enough time to prepare his case and
to attend the court hearing. A formal dispatch of a notification
letter without any confidence that it will reach the applicant in
good time cannot be considered by the Court as proper notification.
Moreover, the Court observes that there is nothing in the text of the
appeal judgment to suggest that the appeal court examined the
question whether the applicant had been duly summoned, and, if she
had not been, whether the examination of the appeal should have been
adjourned. It follows that the domestic authorities failed to
demonstrate that they had taken a reasonable effort to duly summon
the applicant to the hearing (see by contrast Babunidze v. Russia
(dec.), no. 3040/03, 15 May 2007).
In these circumstances the Court accepts the applicant’s
allegation that the domestic courts had failed in their duty to
inform her of the appeal hearing. The Court also does not lose sight
of the fact that the other party took part in the appeal hearing and
made oral submissions. The participation in the hearing enabled the
other party to submit observations on the applicant’s appeal
submissions, observations which were not communicated to the
applicant and to which she could not reply orally.
- The Court points out that it has frequently found
violations of Article 6 § 1 of the Convention in
cases raising issues similar to the one in the present case
(see, among other authorities, Yakovlev v. Russia,
cited above, §§ 19 et seq.; Groshev v. Russia,
no. 69889/01, §§ 27 et seq., 20 October 2005;
Mokrushina v. Russia, no. 23377/02, §§ 20
et seq., 5 October 2006; and Prokopenko v. Russia,
no. 8630/03, §§ 17 et seq., 3 May 2007).
- Having
examined the materials in its possession, the Court notes that
the Government have not put forward any fact or argument capable
of persuading it to reach a different conclusion in the present case.
The Court has established that owing to the belated notification the
applicant was deprived of the opportunity to attend the appeal
hearing.
- It
follows that there has been a violation of the applicant’s
right to a fair hearing under Article 6 § 1 of the Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant complained under Article 6 of the Convention and Article 1
of Protocol No.1 to the Convention that that both sets of the
proceedings to which she had been a party had been unfair in that the
domestic courts had incorrectly assessed the evidence, dismissed her
arguments, failed to give reasons for their decisions and to make
available to her copies of certain documents, and that the final
judgement in her second case had been quashed by way of supervisory
review. She also complained under Article 6 § 2 of the
Convention that the domestic court had not presumed her husband
innocent, because it had made reference to the fact that the former
had obtained a certain document by abusing his official position.
- Having
regard to all the material in its possession and in so far as the
complaints fall within its competence, 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 manifestly ill-founded,
pursuant to Article 35 §§ 3 (a) 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 18,371 euros (EUR) and EUR 187,727 in respect of
pecuniary damage, representing the amount recovered from the
applicant by virtue of the court judgment and the market value of the
flat. She also claimed EUR 20,000 in respect of non-pecuniary damage.
- The
Government submitted that the applicant’s claims were excessive
and unsubstantiated.
- 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
suffered frustration and a feeling of injustice as a consequence of
the domestic authorities’ failure to apprise her of the appeal
hearing of 12 May 2005 in good time. The Court finds that the
applicant suffered non-pecuniary damage which would not be adequately
compensated by the finding of a violation alone. Having regard to the
nature of the violation found and making its assessment on an
equitable basis, the Court awards the applicant EUR 1,800, plus
any tax that may be chargeable on that amount.
B. Costs and expenses
- The
applicant also claimed 28,140.60 Russian roubles for costs and
expenses. The sum represented travel expenses of the applicant’s
representative incurred for attendance at domestic court hearings,
fees for translation and statistical data services.
- The
Government submitted that these expenses were unsubstantiated.
- 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
considers it reasonable to award the sum of EUR 128 for the
costs and expenses incurred by the applicant in the proceedings
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
1. Declares the complaint concerning the domestic
authorities’ failure to apprise the applicant of the appeal
hearing in good time 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 of
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
on the date of settlement:
(i) EUR
1,800 (one thousand eight hundred euros) in respect of non-pecuniary
damage, plus any tax that may be chargeable on that amount;
(ii) EUR 128
(one hundred and twenty-eight euros) in respect of costs and
expenses, plus any tax that may be chargeable to the applicant on
that amount;
(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 7 June 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Nina
Vajić
Registrar President
