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FIRST
SECTION
CASE OF CHELIKIDI v. RUSSIA
(Application
no. 35368/04)
JUDGMENT
STRASBOURG
10
May 2012
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 Chelikidi v.
Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina Vajić,
President,
Anatoly Kovler,
Peer
Lorenzen,
Elisabeth Steiner,
Khanlar
Hajiyev,
Linos-Alexandre Sicilianos,
Erik Møse,
judges,
and André
Wampach, Deputy
Section Registrar,
Having
deliberated in private on 17 April 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 35368/04) 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 Larisa Dmitriyevna
Chelikidi (“the applicant”), on 5 September 2004.
- The
applicant was represented by Mr N. Gasparyan, a lawyer practising in
Georgiyevsk in the Stavropol Region. The Russian Government (“the
Government”) were represented by Mr G. Matyushkin,
Representative of the Russian Federation at the European Court of
Human Rights.
- The
applicant alleged that she had been denied access to a court.
- On
28 September 2009 the application was communicated 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 1956 and lives in Georgiyevsk.
A. Litigation against a private company
- On
17 September 2001 the applicant brought civil proceedings against the
joint stock company “Nov” (акционерное
общество
“Новь”),
subsequently known as the collective farm “Nov”
(сельскохозяйственная
артель
“Новь”),
seeking recovery of 100 tons of sunflower seeds under a supply
agreement.
- On
17 October 2001 the Georgiyevskiy Town Court granted the applicant’s
claim. The defendant was absent from the hearing.
- On
24 December 2001 the writ of execution was returned to the
Georgiyevskiy Town Court as it had not been possible to enforce it.
- On
13 March 2002, following a request by the defendant, the
Georgiyevskiy Town Court quashed the judgment of 17 October 2001 and
resumed the proceedings.
- On
22 October 2002 the applicant modified her claims and asked the court
to order the defendant to pay her 800,000 Russian roubles.
- On
17 December 2002 the Georgiyevskiy Town Court granted the applicant’s
claim. The judgment was not appealed against and became final.
- The
judgment could not be enforced because the defendant had insufficient
funds.
B. Action for compensation for the allegedly excessive
length of proceedings
- On
an unspecified date in June 2003 the applicant lodged a claim against
the Ministry of Finance seeking compensation for damages incurred
through the inappropriate administration of justice, notably the
excessive length of proceedings in respect of her claims against the
company. She argued that the courts had failed to observe the
time-limits prescribed by the Russian Code of Civil Procedure, which
had undermined the possibility of enforcement of the final judgment
in her favour.
- On
21 July 2003 the Basmannyj District Court of Moscow dismissed
the applicant’s claim without consideration on the merits.
Referring to Ruling no. 1-P, adopted by the Constitutional Court
on 25 January 2001 (see paragraph 18
below), the District Court noted that current laws did not determine
the grounds or procedure for adjudicating a claim for damages on
account of failure by the courts to comply with statutory
time-limits. In particular, the court noted as follows:
“According to Article 1 of the Code of Civil
Procedure of the Russian Federation, the rules of civil procedure in
federal courts of general jurisdiction are determined by the Russian
Constitution, the Judicial System Act, the Code of Civil Procedure
and other federal laws.
The law has not determined the territorial and
subject-matter jurisdiction over civil claims for compensation for
damage incurred in civil proceedings in cases where a dispute has not
been heard on the merits as a consequence of unlawful acts (or
failure to act) of a court (a judge), including breach of a
reasonable-time guarantee.
Pursuant to Article 134 § 1 (1) of the Code of
Civil Procedure of the Russian Federation, the judge shall dismiss a
statement of claim if the claim is subject to examination not in
civil proceedings but in another judicial procedure.”
- On
10 March 2004 the Moscow City Court upheld the decision of 21 July
2003 on appeal, finding as follows:
“In dismissing the claim with reference to Ruling
no. 1-P of 25 January 2001 of the Constitutional Court of the Russian
Federation, the court came to the correct conclusion that its
examination by a district court of general jurisdiction would only be
possible if a federal law determined that the district court of
general jurisdiction had territorial and subject-matter jurisdiction
over such claims.
At the present time, however, neither the Code of Civil
Procedure of the Russian Federation nor any other federal law ...
determines the territorial and subject-matter jurisdiction over
claims concerning compensation for damage caused by judicial acts not
touching upon the merits of the case.”
II. RELEVANT DOMESTIC LAW AND PRACTICE
- Article 1064 of the Civil Code contains general
provisions on liability for the infliction of damage. It establishes
that damage inflicted on the person or property of an individual must
be reimbursed in full by the person who inflicted the damage (Article
1064 § 1).
- Article 1070 of the Civil Code determines liability
for damage caused by the unlawful actions of law-enforcement
authorities or courts. In particular, it establishes that the federal
or regional treasury shall be liable for damage sustained by an
individual in the framework of the administration of justice provided
that the judge’s guilt has been established by a final criminal
conviction (Article 1070 § 2).
- By Ruling no. 1-P of 25 January 2001, the
Constitutional Court found that Article 1070 § 2 of the Civil
Code was compatible with the Constitution in so far as it provided
for special conditions in respect of State liability for damage
caused in the framework of the administration of justice. It
clarified, nevertheless, that the term “administration of
justice” did not cover judicial proceedings in their entirety,
but only extended to judicial acts touching upon the merits of a
case. Other judicial acts – mainly of a procedural nature –
fell outside the scope of the notion “administration of
justice”. State liability for damage caused by such procedural
acts or failures to act, such as a breach of the “reasonable
length” requirement of court proceedings, could arise even in
the absence of a final criminal conviction of a judge if the fault of
the judge had been established in civil proceedings. The
Constitutional Court emphasised, moreover, that the constitutional
right to compensation by the State for damage should not be tied in
with the personal fault of a judge. An individual should be able to
obtain compensation for any damage incurred through a violation by a
court of his or her right to a fair trial within the meaning of
Article 6 of the Convention. The Constitutional Court held that
Parliament should legislate on the grounds and procedure for
compensation by the State for damage caused by the unlawful acts or
failure to act of a court or judge and determine territorial and
subject-matter jurisdiction over such claims.
- Article
134 § 1 (1) of the Russian Code of Civil Procedure provides that
a civil claim must be dismissed by a judge, in particular, if it is
amenable to examination not in civil proceedings but in another
judicial procedure.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained, with reference to Articles 6 § 1
and 13 of the Convention, that she had been denied access to a court
in that the Moscow courts had refused to examine her claim against
the Ministry of Finance. Article 6 § 1 of the
Convention, in so far as relevant, reads as follows:
“In the determination of his civil rights and
obligations ... everyone is entitled to a fair ... hearing ... by [a]
... tribunal ...”
Article
13 of the Convention reads as follows:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
A. Submissions by the parties
1. The Government
- The
Government submitted that the applicant had failed to exhaust
domestic remedies. The Government stated, in particular, that prior
to bringing her claim against the Ministry of Finance the applicant
was required to seek the establishment of the guilt of the judge who
had examined her claim against the company by a court’s
sentence or by some other appropriate judicial decision. She should
also have sought prior assessment of the length of the proceedings
against the company by “some judicial body or by a qualified
judicial panel”.
- In
the Government’s view, there had been no violation of the
applicant’s right to a court. The domestic courts had dismissed
the applicant’s statement of claim because it contained defects
and fell short of the requirements of substantive and procedural law.
The Government maintained that the applicant had not attempted to
correct these defects.
2. The applicant
- The
applicant averred that compliance of the domestic court with the
reasonable-time requirement in examining her case against the company
could only have been established by the proceedings against the
Ministry of Finance which she had sought to initiate. However, in
breach of Article 6 of the Convention, the Russian courts had
refused to examine her claim, relying on the fact that the domestic
law had not determined territorial and subject-matter jurisdiction
over such claims.
B. Admissibility
- In
so far as the Government argue that the applicant did not exhaust
domestic remedies, the Court observes that there was no allegation of
criminally reprehensible conduct on the part of the judge who
examined the applicant’s claim against the company, and that
the institution of criminal proceedings was not a prerequisite for
the examination of the applicant’s claim in respect of damage
caused by the allegedly excessive length of the civil proceedings.
The Court further notes that the existence and extent of any such
damage, along with the fault of the judge, were precisely the issues
to be determined in the proceedings which the applicant had
unsuccessfully sought to institute. It follows that the Government’s
objection is without merit and that it must be dismissed (see, for
similar reasoning, Chernichkin v. Russia, no. 39874/03,
§ 23, 16 September 2010).
- 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.
C. Merits
- The
Court reiterates that Article 6 § 1 secures to
everyone the right to have any claim relating to his civil rights and
obligations brought before a court or tribunal. In this way, that
provision embodies the “right to a court”, of which the
right of access, that is, the right to institute proceedings before a
court in civil matters, constitutes one aspect only; however, it is
an aspect that makes it in fact possible to benefit from the further
guarantees laid down in paragraph 1 of Article 6 (see Sergey
Smirnov v. Russia, no. 14085/04, § 25, 22 December
2009, and Teltronic-CATV v. Poland, no. 48140/99, § 45,
10 January 2006).
- The
“right to a court” is not absolute, but may be subject to
limitations. The Court must be satisfied that the limitations applied
do not restrict or reduce the access afforded to the individual in
such a way or to such an extent that the very essence of that right
is impaired. Furthermore, the Court underlines that a limitation will
not be compatible with Article 6 § 1 unless it
pursues a legitimate aim and there is a reasonable relationship of
proportionality between the means employed and the legitimate aim
sought to be achieved (see Sergey Smirnov, cited above,
§§ 26-27; Jedamski and Jedamska v. Poland,
no. 73547/01, § 58, 26 July 200; and Kreuz
v. Poland, 19 June 2001, no. 28249/95, §§ 54
and 55, ECHR 2001-VI).
- Finally,
the Court further reiterates that it is not its task to take the
place of the domestic courts. It is primarily for the national
authorities, notably the courts, to resolve problems of
interpretation of domestic legislation. The Court’s role is
confined to ascertaining whether the effects of such an
interpretation are compatible with the Convention (see Société
Anonyme Sotiris and Nikos Koutras Attee v. Greece, no. 39442/98,
§ 17, ECHR 2000 XII).
- In
the instant case the applicant attempted to sue the Ministry of
Finance for damage incurred by the allegedly excessive length of the
civil proceedings in her dispute with a private company. The
possibility of lodging such claims was provided for in Articles 1064
and 1070 of the Civil Code of the Russian Federation (see paragraphs
16 and 17 above). The
Constitutional Court clarified that State liability for damage caused
by any violations of the litigant’s right to a fair trial,
including a breach of the reasonable-time guarantee, would arise even
if the fault of the judge was established in civil – rather
than criminal – proceedings, and that the right to compensation
by the State for the damage should not be tied in with the personal
fault of a judge (see paragraph 18 above). It
also held that an individual should be able to obtain compensation
for any damage incurred through a violation of his or her right to a
fair trial within the meaning of Article 6 of the Convention. It
follows that the applicant’s claim concerning her civil rights
of a pecuniary nature should have been amenable to examination in
civil proceedings.
- The
domestic courts dismissed the applicant’s claim on the ground
that the legislature had not yet determined jurisdiction over such
claims. This limitation on the right to a court excluded any
possibility of having such a claim examined and, accordingly,
undermined the essence of the applicant’s right of access to a
court. The Government did not offer any justification for the lack of
legislation governing the procedure for examination of such claims.
- The
Court has previously found a violation of Article 6 § 1 of the
Convention on account of the State’s prolonged and unexplained
failure to provide a legislative framework, which deprived the
applicant of a procedural opportunity to bring a similar claim for
compensation, and to obtain its examination on the merits (see
Chernichkin, cited above, §§ 28 30,
16 September 2010, and, most recently, Ryabikina v.
Russia, no. 44150/04, §§ 28-30, 7 June
2011).
- Having
regard to its case-law on the subject, and the material submitted by
the parties, 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.
- Accordingly,
the Court finds that the applicant was denied the right of access to
a court and that there has been a violation of Article 6 § 1 of
the Convention in that regard.
- The
Court further notes that the applicant’s complaint under
Article 13 of the Convention concerns the same facts as those
examined under Article 6 of the Convention. Having regard to its
findings under the latter provision, the Court considers that it is
unnecessary to examine the Article 13 complaint separately.
II. 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 considered that the applicant’s claim was excessive.
- The
Court considers that the applicant must have suffered distress and
frustration as a result of the refusal of the domestic courts to
entertain her claim. In these circumstances, the Court considers that
the applicant’s suffering and frustration cannot be compensated
by a mere finding of a violation. The particular amount claimed is,
however, excessive. Making its assessment on an equitable basis, the
Court awards the applicant EUR 6,000 for non-pecuniary damage, plus
any tax that may be chargeable on the above amount.
B. Costs and expenses
- The
applicant did not claim costs and expenses. Accordingly, there is no
call to make an award under this head.
C. Default interest
- The
Court considers it appropriate that the default interest rate 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 application admissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds that the complaint under Article 13
of the Convention raises no separate issue;
- 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, EUR 6,000 (six
thousand euros), plus any tax that may be chargeable, in respect of
non-pecuniary damage, to be converted into Russian roubles at the
rate applicable on 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 10 May 2012, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Nina Vajić
Deputy Registrar President
