NIKOLAY KOZLOV v. RUSSIA - 7531/05 - Chamber Judgment [2015] ECHR 689 (16 July 2015)

In the case of Nikolay Kozlov v. Russia,

The European Court of Human Rights (First Section), sitting as a Chamber composed of:

          Isabelle Berro, President,
          Elisabeth Steiner,
          Julia Laffranque,
          Paulo Pinto de Albuquerque,
          Erik Møse,
          Ksenija Turković,
          Dmitry Dedov, judges,
and Søren Nielsen, Section Registrar,

Having deliberated in private on 23 July 2015,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 7531/05) 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, Mr Nikolay Vasilyevich Kozlov (“the applicant”), on 20 January 2005.

2. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.

3. The applicant alleged, in particular, that he had been denied access to a court.

4. On 10 November 2010 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1960 and lives in Cheboksary.

A. Proceedings for recovery of the applicant’s remuneration

6. In 2001 the applicant obtained an award of remuneration arrears in the proceedings against a private company that went under insolvency administration. On 15 May 2003 the applicant sued the insolvency manager of the company seeking the recovery of the remuneration awarded to him by the court.

7. On 30 November 2004 the Novocheboksarskiy Town Court of the Republic of Chuvashiya dismissed the applicant’s claim. The applicant appealed.

8. On 12 January 2005 the Supreme Court of the Republic of Chuvashiya upheld the judgment of 30 November 2004.

B. Action for compensation for the excessive length of proceedings

9. On 3 July 2004 the applicant lodged a claim with the Supreme Court of the Republic of Chuvashiya against the Novocheboksarskiy Town Court seeking recovery of non-pecuniary damages for excessively long examination of his claim against the insolvency manager.

10. On 8 July 2004 the Supreme Court of the Republic of Chuvashiya returned the applicant’s claim on the ground that it did not have jurisdiction to examine it. The court directed the applicant to lodge the claim with a district court. The applicant appealed.

11. On 17 August 2004 the Supreme Court of Russia amended the decision of 8 July 2004 and dismissed the applicant’s claim without consideration on the merits on the ground that it could not be examined in the course of civil proceedings. The relevant part of the decision reads as follows:

“... According to Article 16 of the Federal Law “On the Status of Judges in the Russian Federation” a judge could only be held responsible for actions committed in the course of administration of justice if he or she had been convicted of abuse of powers ... Since the issue of holding a judge responsible for an opinion expressed or a decision taken while administering justice could only be resolved in the course of the procedure established by law, the disputes of such kind could not be examined by courts in the course of civil proceedings.

With regard to the issue of compensation for damages caused by unlawful actions ... of a judge in cases when the judge’s fault had been established in the course of other type of proceedings than criminal, the issues of the basis for and the procedure of compensation by the state of the damage caused by unlawful actions ... which manifested themselves, among other things, in the breach of [the requirement of] the reasonable length of court proceedings ... are at present not determined by law [as well as] the courts’ jurisdiction in such cases.”

12. In the meantime on an unspecified date the applicant lodged with the Leninskiy District Court of Cheboksary, as advised by the Supreme Court of the Republic of Chuvashiya (see paragraph 10 above), a claim against the Treasury of the Russian Federation and the Novocheboksarskiy Town Court seeking non-pecuniary damages for the excessive length of the civil proceedings in his case.

13. On 15 July 2004 the District Court dismissed the applicant’s claim without examination on the merits. The court noted that the procedure for challenging the actions of a judge required a special legal framework which had not yet been set up. The applicant appealed. The relevant part of the decision reads as follows:

“... Taking into account the nature of the judiciary and the constitutional immunity of the judge, the procedure of appeal against the judge’s acts not resulting in the decision on the merits of a case required an adoption of special legislation. Currently there is no legislative framework in this respect ...”

14. On 23 August 2004 the Supreme Court of the Republic of Chuvashiya dismissed the applicant’s appeal. It stated that procedural rules for resolution of the issue raised by the applicant had not yet been established. The relevant part of the decision reads as follows:

“... Taking into account the material law providing responsibility of the judges and judiciary, disputes arising from the applicant’s claim could be resolved only in the course of the civil proceedings established by law. On the date of adoption of the decision disputed by the applicant, the legislator did not provide any legal framework for such cases ...”

II. RELEVANT DOMESTIC LAW

15. For relevant provisions of the Russian law relating to the access to a court see Chernichkin v. Russia (no. 39874/03, §§ 14-15, 16 September 2010) and to judicial immunity see Sergey Zubarev v. Russia (no. 5682/06, § 12, 5 February 2015).

16. 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 on State liability for the damage caused in the framework of administration of justice. It clarified, nevertheless, that the term “administration of justice” did not cover the 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 the damage caused by such procedural acts or failures to act, such as a breach of the reasonable length of court proceedings, could arise even in the absence of a final criminal conviction of a judge if the fault of the judge has been established in civil proceedings. The Constitutional Court emphasised, moreover, that the constitutional right to compensation by the State for the 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 the damage caused by unlawful acts or failures to act of a court or a judge and determine territorial and subject-matter jurisdiction over such claims.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AS TO THE LACK OF ACCESS TO A COURT

17. The applicant complained under Article 6 § 1 of the Convention that he had been denied access to a court because the domestic courts had refused to examine his claim for damages due to an alleged excessive length of court proceedings against the Novocheboksarskiy Town Court. Article 6 of the Convention in the relevant part provides as follows:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

A. Submissions by the parties

18. The Government submitted that the applicant had failed to exhaust domestic remedies. They referred to a new remedy introduced by Federal Laws nos. 68-03 and 69-03 in the wake of the pilot judgment adopted in the case of Burdov v. Russia (no. 2), no. 33509/04, ECHR 2009. Those statutes, which entered into force on 4 May 2010, set up a new remedy enabling those concerned to seek compensation for damage sustained as a result of excessive delays in judicial proceedings and/or enforcement of court judgments against the State. In accordance with their transitional provisions, all individuals who have complained to the European Court of Human Rights that their right to a trial within a reasonable time has been violated may claim compensation in the domestic courts under the legislation within six months of its entry into force, provided that the European Court has not ruled on the admissibility of the complaint. The applicant did not, however, avail himself of that possibility.

19. The applicant maintained his complaint.

B. The Court’s assessment

1. Admissibility

20. The Court takes cognisance of the existence of the remedy introduced in the wake of the pilot judgment adopted in the case of Burdov (no. 2) (cited above). In the above pilot judgment the Court stated that it would be unfair to request the applicants, whose cases have already been pending for many years in the domestic system and who have come to seek relief at the Court, to bring again their claims before domestic tribunals (Burdov (no. 2), cited above, § 144). In line with this principle, and having regard to the specific circumstances of the case, namely the denial of access to a court with a claim for compensation in respect of an excessive length of proceedings some six years before the introduction of the new remedy, the Court decides to examine the present application on its merits. However, the fact of examination of the present case on its merits should in no way be interpreted as prejudging the Court’s assessment on the quality of the remedy.

21. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and that it is not inadmissible on any other grounds. It must therefore be declared admissible.

2. Merits

22. The Court reiterates that Article 6 § 1 of the Convention 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).

23. The right of access to the courts secured by Article 6 § 1 of the Convention is not absolute, but may be subject to limitations; these are permitted by implication since the right of access by its very nature calls for regulation by the State. In this respect, the Contracting States enjoy a certain margin of appreciation, although the final decision as to the observance of the Convention’s requirements rests with the Court. It must be satisfied that the limitations applied do not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore, a limitation will not be compatible with Article 6 § 1 if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved. If the restriction is compatible with these principles, no violation of Article 6 will arise (see Prince Hans-Adam II of Liechtenstein v. Germany [GC], no. 42527/98, § 44, ECHR 2001-VIII).

24. Turning to the circumstances of the present case, the Court observes that the applicant claimed the damage caused by the allegedly excessive length of civil proceedings in his dispute. The domestic courts refused to entertain the applicant’s claims not because of the judicial immunity from liability for actions taken in a professional capacity in the course of the administration of justice (compare, Sergey Zubarev, cited above, §§ 31-32, and Gryaznov v. Russia, no. 19673/03, § 78, 12 June 2012), but rather on the grounds that the legislature had not yet determined jurisdiction over such claims concerning the judicial acts, falling outside the scope of the notion “administration of justice”. The possibility of lodging such claims was envisaged in Articles 1064 and 1070 of the Civil Code of the Russian Federation (see paragraph 15 above). The Constitutional Court clarified that State liability for the 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 16 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. The Constitutional Court further stated that Parliament should legislate on the grounds and procedure for this kind of compensation. It follows that the applicant’s claim concerned his civil rights of a pecuniary nature and should have been amenable to examination in civil proceedings.

25. 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; Ryabikina v. Russia, no. 44150/04, §§ 28-30, 7 June 2011; Chelikidi v. Russia, no. 35368/04, §§ 26-34, 10 May 2012; and Zakharova v. Russia, no. 17030/04, §§ 46-51, 24 October 2013).

26. Having regard to this case-law 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.

27. 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.

II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

28. The applicant also alleged violations of his right to a fair hearing within a reasonable time and his right of access to a court, as well as a lack of effective remedies in this respect. He relied on Articles 6 § 1 and 13 of the Convention. Having regard to all the material in its possession, the Court finds that, in so far as these complaints fall 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 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

29. 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

30. The applicant claimed 90,000 euros (EUR) in respect of non-pecuniary damage.

31. The Government considered that the applicant’s claim was excessive.

32. The Court considers that the applicant must have suffered distress and frustration as a result of the refusal of the domestic courts to consider his 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

33. The applicant did not claim costs and expenses. Accordingly, there is no call to make an award under this head.

C. Default interest

34. 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,

1. Declares the applicant’s complaint concerning the lack of access to a court admissible and the remainder of the application inadmissible;

2. Holds that there has been a violation of Article 6 § 1 of the Convention;

3. 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 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.

4. Dismisses, unanimously, the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 16 July 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Søren Nielsen Isabelle Berro
Registrar President

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