Постановление Европейского суда по правам человека от 22.12.2009 «Дело Горовая (gorovaya) против России» [англ.]

Город принятия

EUROPEAN COURT OF HUMAN RIGHTS
FIRST SECTION
CASE OF GOROVAYA v. RUSSIA
(Application No. 20882/04)
JUDGMENT*
(Strasbourg, 22.XII.2009)
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*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 Gorovaya v. Russia,

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

Nina {Vajic}*, President,

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*Здесь и далее по тексту слова на национальном языке набраны латинским шрифтом и выделены фигурными скобками.

Anatoly Kovler,

Elisabeth Steiner,

Khanlar Hajiyev,

Dean Spielmann,

Sverre Erik Jebens,

Giorgio Malinverni, judges,

and {Soren} Nielsen, Section Registrar,

Having deliberated in private on 3 December 2009,

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

PROCEDURE
1. The case originated in an application (No. 20882/04) 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 Valentina Ivanovna Gorovaya ("the applicant"), on 23 April 2004.

2. The applicant was represented by Mr A.V. Kiryanov, a lawyer practising in Taganrog. The Russian Government ("the Government") were represented by Mr P. Laptev and Mrs V. Milinchuk, the former representatives of the Russian Federation at the European Court of Human Rights.

3. On 20 November 2006 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).

4. On 3 December 2009 the Chamber decided that in the interests of the proper administration of justice, the proceedings in the present case should be conducted simultaneously with those in the cases of Makarova v. Russia and MP Kineskop v. Russia (applications Nos. 20886/04 and 16141/05) (Rule 42).

THE FACTS
I. The circumstances of the case
5. The applicant was born in 1951 and lives in Sochi, in the Krasnodar Region.

6. On 31 July 1998 the applicant, together with three other plaintiffs, Mr Kesyan, Ms Makarova and MP Kineskop, all represented by the same lawyer, filed an action against the Rostov Regional Department of the Federal Treasury and Mrs O. seeking compensation for pecuniary and non-pecuniary damage on account of the unlawful seizure of goods.

A. First round of court proceedings
7. The first hearing was scheduled for 22 September 1998 but was adjourned owing to the judge's leave. The following hearing on 28 December 1998 did not take place owing to the defendants' failure to appear in court.

8. On 11 February 1999, at the plaintiffs' request, the District Court ordered an expert examination and stayed the proceedings.

9. In September 1999 the experts' report was received. In October and November 1999 the applicant's representative amended the claims.

10. On 25 November 1999 the court proceedings were resumed.

11. Between 25 November 1999 and 3 October 2000 the District Court listed eight hearings, of which three were adjourned because the defendants failed to attend and five because none of the parties attended.

12. By a decision of 3 October 2000, the District Court declined to examine the applicant's claims on the merits on the ground of her repeated failure to appear in court.

13. On 9 July 2001 the applicant's representative requested that the decision of 3 October 2000 be set aside for the reason that neither he, nor the applicant had been duly notified of the hearings. By a decision of 12 July 2001, the District Court allowed the request and resumed the proceedings.

14. By a decision of 5 September 2001, the District Court invited the Taganrog Custom Service to join the civil proceedings as a third party.

15. Upon the third party's request of 10 October 2001, the proceedings were stayed because a related administrative case had been pending before another court. On 30 September 2002 they were resumed.

16. Between 30 September and 20 December 2002, three hearings were adjourned because the parties had failed to attend.

17. On 20 December 2002 the District Court declined to examine the applicant's claims on the merits on the ground of her repeated failure to appear in court.

18. The proceedings were resumed on 23 January 2004, at the request of the applicant's representative of 19 January 2004, because neither he, nor the applicant had been properly summoned to the hearings.

19. Of ten hearings listed between 20 February and 16 November 2004, four hearings were adjourned owing to Mrs O.'s absence, two owing to the parties' absence, one at the request of the applicant's representatives and two because the presiding judge was on leave.

20. By a judgment of 16 November 2004, the Kuybyshevskiy District Court dismissed the applicant's claim. On 16 February 2005 the Rostov Regional Court quashed the judgment of 16 November 2004 on appeal and remitted the matter to the first-instance court for fresh examination.

B. Second round of court proceedings
21. The Kuybyshevskiy District Court listed the first hearing for 18 May 2005. Of three hearings fixed between 18 May and 28 June 2005, two were adjourned because the defendants failed to attend and one was adjourned at the defendants' request.

22. On 28 June 2005, at the plaintiffs' request, the District Court ordered an expert examination and stayed the proceedings.

23. The proceedings were later resumed and by a judgment of 15 December 2005 the Kyubyshevskiy District Court allowed the applicant's action in part. The judgment of 15 December 2005 was upheld on appeal by the Rostov Regional Court on 8 February 2006.

II. Relevant domestic law
24. The Code of Civil Procedure of the Russian Federation, which has been in force since 1 February 2003, provides as follows:

Article 113. Court notices and summons
"1. The parties to the proceedings, as well as witnesses, experts, specialists and interpreters, shall be summoned to a hearing by a letter sent by registered mail with an acknowledgment of receipt, by court summons with an acknowledgment of receipt, by telegram, by phone or fax or by any other means which can guarantee a record of the fact that the summons was sent and was received by the party...

3. Summons shall be served on the parties in such a way that they have enough time to prepare their case and appear at the hearing."
Article 222. Ground for leaving the case without consideration on merits
"A court shall leave a case without examination on the merits if the parties to the proceedings have failed to attend at least two scheduled hearings."
Article 223. Procedure and consequences of leaving the case without consideration on merits
"1. Where a case is left without examination on the merits, the proceedings shall be discontinued by a decision of the court...

3. The court shall revoke its decision if the party concerned adduces evidence disclosing a valid excuse for not attending the hearing(s)."
THE LAW
I. Alleged violation of Article 6 § 1 of the Convention
25. The applicant complained that the length of the proceedings 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..."
26. The Government contested that argument.

A. Admissibility
27. The Government submitted that the applicant failed to exhaust the following domestic remedies which had been available to her in respect of the excessive length of court proceedings: (1) a complaint to the Judges' Qualification Board of the Rostov Regional Court; (2) an appeal against the District Court's decisions to adjourn hearings and the decisions to carry out the expert examinations, which could have been lodged in accordance with the Code of Civil Procedure; (3) an application to the judge to replace the experts, if she had considered the expert examinations to have taken an unreasonably long time; and (4) a complaint to the competent court that the judgment had not been executed.

28. The Court notes that the Government did not indicate whether and, if so, how the applicant could have obtained relief - either preventive or compensatory - by having recourse to the first three suggested remedies. In particular, the Government failed to spell out how a complaint to the Rostov Regional Qualification of Judges Board could have expedited the impugned proceedings (see Kormacheva v. Russia, No. 53084/99, §§ 61 - 64, 29 January 2004, and Mikhaylovich v. Russia, No. 30019/05, § 21, 12 February 2009). The Government also failed to refer to provisions of the Code of Civil Procedure which would have allowed the applicant to appeal against the adjournment of the hearings. Furthermore, the Government failed to explain why, in order to ensure the right to a fair trial within a reasonable time, the applicant should have appealed against the court's decisions to carry out the expert examinations requested by all the plaintiffs, including herself (see §§ 7 and 21 above) and how replacing the experts could have accelerated the completion of the examinations. As to the fourth and last avenue of redress suggested by the Government, it should be noted that any issue of the non-enforcement of a final judgment is beyond the scope of the present case. The Court therefore dismisses the Government's non-exhaustion plea.

29. It further notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits
30. The period to be taken into consideration began on 31 July 1998 when the applicant lodged her action with the Kuybyshevskiy District Court and ended on 8 February 2006 with the final judgment of the Rostov Regional Court. It thus lasted approximately seven years and seven months at two levels of jurisdiction.

31. 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).

32. It is noted that in the present case the Government argued that the domestic courts examined the applicant's claim within a reasonable time. They relied on three groups of arguments, which will be examined below.

1. Complexity of the case
33. First of all, the Government indicated that there had been a large number of participants, that is to say four plaintiffs, two defendants and one third party, and that the plaintiffs, their representatives and witnesses had all resided in other regions. The District Court had had to rely on the assistance of the competent court of a neighbouring region in order to take evidence from the witnesses residing there.

34. They further pointed to the considerable financial value of the plaintiffs' claims which had meant that the District Court had had to check the veracity of a significant amount of material. The conducting of the two expert examinations had been a further complicating factor.

35. Finally, the Government stated that the parallel progression of a related administrative case, the outcome of which was of significant importance for the resolution of the present civil dispute, had rendered the stay of the civil proceedings unavoidable and that domestic courts at two levels of jurisdiction had been involved in the examination of the case.

36. The Court accepts the Government's argument that the proceedings in question were rather complex as regards the procedural and factual aspects. However, taken on its own, the complexity of the civil dispute cannot justify the seven years and seven months taken for its judicial examination (see Kesyan v. Russia, cited above, § 54).

2. The conduct of the applicant and her representatives
37. The Government asserted that though the participants' efforts to ensure the best representation of their interests were understandable, the manner in which the applicant and her representative had exercised their procedural rights had contributed to the prolongation of the proceedings. They referred, in particular, to the requests by the applicant's representative to conduct the two expert examinations and to take the evidence from witnesses residing in another region.

38. They also imputed to the applicant's representatives a repeated failure to appear in court and lack of diligence in keeping up with developments in the proceedings. The former factor had twice resulted in the proceedings being discontinued and the latter had been a cause for their belated resumption (see §§ 11 - 13 and 16 - 18). Together, both factors had caused a delay of approximately two years and six months.

39. As regards the applicant's procedural applications, the Court finds that they were not abusive, frivolous or vexatious but were legitimate and aimed at obtaining additional evidence. It has been the Court's consistent approach that an applicant cannot be criticised for taking full advantage of resources afforded by national law in the defence of his or her interests, even if it results in a certain increase in the length of the proceedings (see, mutatis mutandis, {Yagci} and {Sargin} v. Turkey, 8 June 1995, § 66, Series A No. 319-A and {Surmeli} v. Germany [GC], No. 75529/01, § 131, ECHR 2006-VII). The opposite approach would render the concept of litigation meaningless.

40. The Court cannot accept the Government's further argument that the applicant's representatives continually failed to attend the hearings and then failed to enquire about the progress of the proceedings. It is noted that the national law explicitly provides for an obligation on the part of the domestic courts to inform the parties, in a proper manner, of the dates of scheduled hearings (see § 23 above). In the present case, the District Court twice discontinued the proceedings on the ground that the applicant's representatives had failed to appear in court, although that was, in fact, owing to its own failure to notify them of the hearings (see §§ 12 and 17 above). In such circumstances,