Постановление Европейского суда по правам человека от 01.04.2010 «Дело Георгий Николаевич Михайлов (georgiy nikolayevich mikhaylov) против России» [англ.]

Город принятия

EUROPEAN COURT OF HUMAN RIGHTS
FIFTH SECTION
CASE OF GEORGIY NIKOLAYEVICH MIKHAYLOV v. RUSSIA
(Application No. 4543/04)
JUDGMENT*
(Strasbourg, 1.IV.2010)
____________________________
*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 Georgiy Nikolayevich Mikhaylov v. Russia,

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

Peer Lorenzen, President,

Renate Jaeger,

Karel Jungwiert,

Rait Maruste,

Anatoly Kovler,

Mirjana Lazarova Trajkovska,

Zdravka Kalaydjieva, judges,

and Claudia Westerdiek, Section Registrar,

Having deliberated in private on 9 March 2010,

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

PROCEDURE
1. The case originated in an application (No. 4543/04) 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, Mr Georgiy Nikolayevich Mikhaylov ("the applicant"), on 24 January 2004.

2. The applicant was represented by Mr O. Gorev, a lawyer practising in Frankfurt am Main. The Russian Government ("the Government") were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.

3. On 21 October 2008 the Court declared the application partly inadmissible and decided to communicate the complaints concerning access to the appeal court, the length of the civil proceedings and the alleged interference with the applicant's right to property to the Government. It also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3).

THE FACTS
I. The circumstances of the case
A. Background of the case
4. The applicant was born in 1944 and lives in St. Petersburg.

5. In 1979 the applicant was convicted of engaging in an illegal business activity and sentenced to four years' imprisonment. The court also ordered the confiscation of his property, namely an art collection. As part of this collection allegedly disappeared, in 1985 the applicant was convicted of fraudulent theft of State property.

6. In 1989 both judgments were quashed and the proceedings against the applicant were terminated on the ground that no criminal offence had been committed.

7. Between 1989 and 1998 the applicant unsuccessfully tried to recover his art collection.

B. First-instance proceedings
8. In July 1998 the applicant lodged a claim with the Oktyabrskiy District Court of St. Petersburg ("the district court") against the local departments of the Ministries of Justice, the Interior and Finance and the St. Petersburg Prosecutor's Office, seeking compensation for the pecuniary and non-pecuniary damage caused by the confiscation of his property.

9. On 22 July 1998 the district court scheduled a hearing on 1 December 1998.

10. On 1 December 1998 the district court held a hearing, acceded to the defendant's requests and postponed the proceedings until 18 May 1999.

11. On 19 February 1999 criminal proceedings were instituted against third persons for misappropriation of the applicant's art collection; on an unspecified date the applicant was granted victim status in the criminal case.

12. Between 18 May and 31 August 1999 the district court postponed hearings on four occasions at the defendants' request.

13. On 31 August 1999 the district court granted the applicant's request to hear three witnesses and postponed the hearing until 16 September 1999.

14. On 16 September 1999 the district court heard two witnesses, granted the applicant's request to summon two other witnesses and postponed the hearing until 17 December 1999.

15. On 17 December 1999 the hearing was postponed because the judge was ill.

16. On 12 January 2000 the hearing was postponed because of the applicant's absence.

17. On 20 January 2000 the district court heard two witnesses and postponed the hearing until 22 February 2000 at the applicant's request.

18. On 22 February 2000 the hearing was postponed because the judge was ill; a new hearing was scheduled on 9 June 2000.

19. Between 9 June and 17 October 2000 hearings were postponed on three occasions at the applicant's request.

20. On 17 October 2000 the hearing was postponed until 21 November 2000 pending receipt of information from other courts confirming the applicant's claims.

21. On 21 November 2000 the district court granted the applicant's application to request materials from the criminal case in which the applicant had been granted victim status in substantiation of his pecuniary damage claims; the hearing was postponed until 13 February 2001.

22. The 13 February 2001 hearing was postponed until 26 April 2001 because of the applicant's absence.

23. The 26 April 2001 hearing was postponed because of a defendant's absence.

24. On 12 July 2001 the applicant requested the district court to amend his statement of claims; the hearing was rescheduled on 20 November 2001.

25. On 20 November 2001 the hearing was postponed because of a defendant's absence and the applicant's failure to submit an additional list of his lost property.

26. On 12 March 2002 the applicant provided the district court with an additional list of his lost property; the hearing was postponed because of the defendants' absence.

27. On 10 September 2002 a hearing was postponed because of the applicant's and defendants' absence.

28. On 13 February 2003 a hearing was postponed because the defendants had not been notified of it and failed to appear.

29. On 26 February 2003 the district court held a hearing and dismissed the applicant's claim. The court orally delivered only the operative part of the judgment, without providing any reasons.

C. Ensuing events
30. On 11 July 2003 the applicant appealed against the judgment of 26 February 2003. In his appeal he mentioned that the full text of the judgment had not yet been prepared and that therefore his appeal was preliminary and would be amended.

31. On the same day the applicant complained to the St. Petersburg City Court ("the city court") that the full text of the judgment of 26 February 2003 had still not been prepared, whereas Article 199 of the Code of Civil Procedure ("CCP") provided that a reasoned judgment was to be finalised within five days.

32. On 22 July 2003 the city court informed the applicant that Judge K. (the presiding judge in his case) was on holiday and that the full text of the judgment of 26 February 2003 would be drafted as soon as possible.

33. On 25 July 2003 the district court received the applicant's appeal.

34. On 1 September 2003 the district court dismissed the applicant's appeal on the ground of his failure to respect the ten-day time-limit prescribed by law. It mentioned that the applicant's appeal had been received on 25 July 2003, whereas the judgment had been given on 26 February 2003.

35. On 4 September 2003 the applicant was informed that the full text of the judgment had been finalised on 3 September 2003.

36. The applicant appealed against the decision of 1 September 2003. He claimed that, under Article 338 of the CCP, an appeal was to be lodged within ten days of the adoption of a final version of the judgment in issue. In his case, the final version of the judgment had been created on 3 September 2003, that is, two days after his appeal was rejected. He therefore applied for a renewal of the above time-limit.

37. On 29 October 2003 the city court rejected the applicant's appeal against the decision of 1 September 2003, having found no reason to quash it on account of a violation of Article 199 of the CCP by the district court.

38. The text of the judgment of 26 February 2003 bears a court's stamp confirming that it became final on 29 October 2003.

39. The applicant did not pursue supervisory review proceedings.

II. Relevant domestic law
Code of Civil Procedure of the Russian Federation (CCP)
40. A court may restore a procedural term established by a federal law after its expiry if it finds that reasons for failure to comply with such a term were valid (Article 112 § 1). A request to restore the term after its expiry must be lodged with the court before which the procedural act in question should have been performed, and must be examined at a court hearing. Parties to the proceedings are to be notified of the time and place of the hearing, but their failure to attend it does not preclude the court from deciding upon the issue (Article 112 § 2). The necessary procedural act in respect of which the procedural term has expired, such as lodging a complaint, or submission of documents, must be performed simultaneously with the lodging of the request for restoration of the term (Article 112 § 3). The court's ruling on the restoration of (or refusal to restore) the procedural term may be appealed against (Article 112 § 4 as in force at the material time).

41. A judgment must be delivered immediately after the examination of a civil case. The preparation of a reasoned judgment may be postponed for not more than five days after the examination of a case; however, the first-instance court must pronounce the operative part of the judgment at the same hearing in which the examination of the case is completed (Article 199 of the CCP).

42. An appeal in a civil case may be lodged within ten days of the delivery of a first-instance judgment in its final form (Article 338 of the CCP).

43. An appeal statement is to be returned to the appellant where (i) a judge's instructions concerning an appeal statement have not been complied with; or (ii) the term for lodging an appeal has expired, provided that restoration of the term concerned has not been requested (Article 342 § 1 of the CCP).

THE LAW
I. Alleged violations of Article 6 § 1 of the Convention
44. The applicant complained about lack of access to the appeal court in his civil case and the length of the civil proceedings. He relied on Article 6 § 1 of the Convention, which reads, in so far as relevant, as follows:

"1. In the determination of his civil rights and obligations... everyone is entitled to a fair... hearing within a reasonable time by a... tribunal..."
A. Submissions by the parties
45. The Government contested the applicant's arguments. They emphasised at the outset that pursuant to domestic regulations case materials in civil cases were to be kept in archives for five years, and explained that the applicant's case materials had been destroyed. They further submitted that, although the time-limit for preparation of a reasoned judgment in the applicant's case had not been respected, the judge responsible for it had been dismissed from office. The delay in preparation of the reasoned judgment amounted to six months and five days. The applicant's appeal statement had been returned to him because it had not contained a request to restore the time-limits in keeping with Articles 112 and 342 § 1 of the CCP. The proceedings had been lengthy because of objective factual circumstances. The applicant's civil case had been particularly complex: the civil case had been closely linked to the criminal investigation and hearings had been postponed on several occasions to obtain the criminal case materials; the defendants had been State agencies; the applicant had confirmed that the case had been complex as he had amended his statement of claims and had not attended every hearing. In the Government's submission, the applicant's civil case had been examined within four years and seven months. A period of inactivity of the district court of one year, five months and twenty-one days had been attributable to the applicant. A delay of four months and eighteen days had been attributable to the judge's illness; moreover, the judge had been disciplined for protracting the case and dismissed from office. The length of the proceedings would have been shorter had the applicant not contributed to the delays. The Government further claimed that the applicant had not requested supervisory review of the rulings of 1 September and 29 October 2003 or complained about the excessive length of his civil proceedings to the Judiciary Qualification Board. In sum, the Government claimed that there had been no violation of the applicant's rights under Article 6 § 1 of the Convention.

46. The applicant maintained his claims. He submitted that he had waited nine months to receive the text of the judgment. The applicant also asserted that the length of the proceedings had been excessive and that he had attended every hearing he had been notified of.

B. The Court's assessment
1. Admissibility
47. In so far as the Government may be understood to claim that the applicant's failure to complain to the Judiciary Qualification Board about the excessive length of the civil proceedings amounted to non-exhaustion of domestic remedies, the Court notes that it has already found that an application to the Judiciary Qualification Board is not an effective remedy against the excessive length of proceedings (see Kormacheva v. Russia, No. 53084/99, §§ 61 and 62, 29 January 2004, and Falimonov v. Russia, No. 11549/02, § 50, 25 March 2008). It therefore dismisses the Government's objection.

48. In so far as the Government may be understood to plead non-exhaustion as regards the applicant's failure to apply for supervisory review of the rulings of 1 September and 29 October 2003, the Court reiterates that supervisory review in civil proceedings under Russian law is not an effective remedy to be exhausted (see Tumilovich v. Russia (dec.), No. 47033/99, 22 June 1999, and Denisov v. Russia (dec.), No. 33408/03, 6 May 2004). The Court thus dismisses the Government's objection.

49. The Court notes that the applicant's complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that they are not inadmissible on any other grounds and must therefore be declared admissible.

2. Merits
(a) Access to court
50. 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 it embodies the "right to a court", of which the right of access, that is the right to institute proceedings before courts in civil matters, constitutes one aspect (see Golder v. the United Kingdom, 21 February 1975, §§ 35 - 36, Series A No. 18).

51. The Court further reiterates