EUROPEAN COURT OF HUMAN RIGHTS
FIRST SECTION
CASE OF TUSASHVILI v. RUSSIA
(Application No. 20496/04)
JUDGMENT <*>
(Strasbourg, 15.XII.2005)
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<*> This judgment will become final in the circumstances set
out in Article 44 з 2 of the Convention. It may be subject to
editorial revision.
In the case of Tusashvili v. Russia,
The European Court of Human Rights (First Section), sitting as
a Chamber composed of:
Mr C.L. Rozakis, President,
Mr P. Lorenzen,
Mrs {N. Vajic} <*>,
--------------------------------
<*> Здесь и далее по тексту слова на национальном языке набраны
латинским шрифтом и выделены фигурными скобками.
Mrs S. Botoucharova,
Mr A. Kovler,
Mrs E. Steiner,
Mr K. Hajiyev, judges,
and Mr S. Nielsen, Section Registrar,
Having deliberated in private on 24 November 2005,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
1. The case originated in an application (No. 20496/04) 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 Yegrezi
Levanovich Tusashvili ("the applicant"), on 10 June 2000.
2. The applicant was represented by Mr V.N. Voblikov. The
Russian Government ("the Government") were represented by Mr P.
Laptev, Representative of the Russian Federation at the European
Court of Human Rights.
3. On 18 June 2004 the Court decided to communicate the
application. Applying Article 29 з 3 of the Convention, it decided
to rule on the admissibility and merits of the application at the
same time.
THE FACTS
The circumstances of the case
4. The applicant was born in 1939 and lives in Bilibino,
Chukotka Region.
5. The applicant submitted that on 30 December 1998 he had
instituted proceedings against the district and regional pension
authorities and the district social security authority (Управление
пенсионного фонда РФ по Билибинскому району Чукотского АО,
Отделение Пенсионного фонда РФ по ЧАО и Отдел социальной защиты
населения Администрации Билибинского района) for the recovery of
arrears of his old-age pension which had accrued between 1993 and
1998 in the amount of 2,020.64 Russian roubles (RUR). He also
claimed that the amount should be index-linked. The Government
submitted that the claim had been received by the court on 10
February 1999. They enclosed no supporting documents.
6. On 1 June 1999 the Bilibino District Court stayed the
proceedings on the grounds that the applicant had amended the
claim. The Chukotka Regional Court quashed the ruling to stay the
proceedings on 14 October 1999 and ordered the examination of the
claim on the merits.
7. Between 14 October 1999 and 21 March 2001 the hearings were
adjourned three times: on 11 April 2000 because the judge was on a
mission, on 15 December 2000 on account of the parties' failure to
appear at the hearing, and on 19 March 2001 on account of a
failure to notify them about the next hearing. The applicant
submitted that on 15 December 2000 his representative had arrived
at the court by the scheduled time, but the judge had not opened
the hearing. His representative's request for information about
the reasons for the failure to hold a hearing had been refused.
8. On 21 March 2001 the Bilibino District Court partially
granted the claim. On 2 April 2001 the Bilibino District
Prosecutor lodged an appeal against the judgment on behalf of the
applicant.
9. On 19 July 2001 the Chukotka Regional Court quashed the
judgment and referred the case back for a fresh examination on the
grounds, inter alia, that the applicant had not appeared at the
hearing and there was no evidence that he had been duly notified
about it.
10. The Government submitted that after the case file had been
received on 9 August 2001 by the Bilibino District Court, on 17
August 2001 the judge had ordered that the case should be prepared
for hearing and requested the parties to submit their pleadings.
The applicant stated that the requested information had been
submitted on 24 August 2001.
11. On 7 October 2002 the hearing was adjourned because the
judge was on a mission. On 1 December 2002 the case was
transferred to another judge.
12. According to the Government, the case was not examined in
2002 because the local pension authorities were in the process of
reorganisation and the court had to establish the proper
defendant.
13. On 10 July 2003 the Bilibino District Court granted the
applicant's claim against the local pension authority (Управление
пенсионного фонда РФ по Билибинскому району Чукотского АО) for
recovery of the arrears of his old-age pension with index-linking
and awarded him RUR 13,333.89 (approximately EUR 387). The court
dismissed the claim against the other defendants. The Chukotka
Regional Court upheld the judgment on 25 September 2003. The
judgment was executed on 3 November 2003.
THE LAW
I. Alleged violation of Article 6 з 1 of the Convention
14. The applicant complained that the length of the proceedings
had been incompatible with the "reasonable time" requirement, as
provided in Article 6 з 1 of the Convention, in particular because
the dispute concerned payment of an old-age pension, which
constituted his sole source of income.
Article 6 з 1, in so far as relevant, 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..."
15. The Court is satisfied that the proceedings were instituted
on 30 December 1998 since this date is confirmed by the reference
in the appeal lodged by the Bilibino District Prosecutor on 2
April 2001. The period to be taken into consideration began on 30
December 1998 and ended on 25 September 2003. It thus lasted 4
years, 8 months and 26 days for two levels of jurisdiction.
A. Admissibility
16. The Government claimed that the application was submitted
outside the six-month time-limit provided by Article 35 з 1 of the
Convention, as it had been lodged on 2 April 2004, whereas the
final domestic decision had been delivered on 25 September 2003.
17. The applicant contested the Government's assertion and
indicated that in his letter of 10 June 2000 he had stated the
subject matter of his complaint. He had filled in the application
form as soon as he received it from the Registry of the Court.
18. The Court notes that in his introductory letter of 10 June
2000 the applicant stated the subject of the present complaint.
However, the application form was sent to him by the Registry of
the Court only on 22 October 2003. This distinguishes the present
case from Gaillard v. France (dec.), No. 47337/99, 11 July 2000,
where, because of a significant delay between the receipt of the
introductory letter and the application form, the Court calculated
the six-month period from the latter date. Therefore, although the
formal application form was not submitted until 2 April 2004, the
Court accepts 10 June 2000 as the date on which the present
application was lodged with it. Accordingly, the Court finds that
the applicant has complied with the six-month time-limit as
required by Article 35 з 1 of the Convention.
19. The Court notes that this complaint is not manifestly ill-
founded within the meaning of Article 35 з 3 of the Convention. It
further notes that it is not inadmissible on any other grounds. It
must therefore be declared admissible.
B. Merits
20. The Government submitted that the delays in the examination
of the applicant's claims were partly attributable to the fact
that the applicant had amended his claim a number of times. They
were also attributable to the complexities faced by the courts in
determining the proper defendant in the case because of the
reorganisation of the local pension authorities at the relevant
time. The courts had also encountered certain difficulties in
deciding on the applicant's claim for index-linking, since the
relevant calculations were not precisely defined in domestic
legislation.
21. The applicant challenged the Government's submissions. He
stated that he had only amended his claim once, in June 1999. He
further contended that the courts had not had to make any special
efforts either to establish who the proper defendant was or to
deal with his claim for index-linking, because the issue was
straightforward and that, furthermore, the Bilibino District Court
had to date considered over two thousand similar claims and
encountered no apparent difficulty with the matter. In sum, the
proceedings had lasted an unreasonably long time.
22. 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, з 43, ECHR 2000-VII).
(a) Complexity of the case
23. The Court finds that the case, which concerned recovery of
old-age pension arrears with index-linking, even though it
involved a disagreement as to who was the proper defendant, was
not particularly complex. Consequently, the Court takes the view
that an overall period of 4 years, 8 months and 26 days could not,
for this reason, be deemed to satisfy the "reasonable time"
requirement in Article 6 з 1 of the Convention.
(b) Conduct of the applicant
24. The Court considers that the amendment by the applicant of
his claim on 1 June 1999 did not contribute to any significant
delays in the proceedings, in particular because the ruling of the
Bilibino District Court to stay the proceedings on this ground was
later quashed by the Chukotka Regional Court. As regards the
applicant's alleged failure to appear at the hearing on 15
December 2000, the Court notes that the relevant facts are in
dispute between the parties. However, even assuming that both the
applicant and his representative had failed to appear at the
hearing on 15 December 2000, the case was adjourned until 19 March
2001 - that is, for no longer than approximately three months -
which by no means justifies the total length of the proceedings in
the present case. There is no evidence that the applicant
otherwise contributed to the delays in the proceedings.
(c) Conduct of the domestic authorities
25. The Court notes that on 11 April 2000 a hearing was
adjourned for over eight months because the judge was on a
mission. In this connection, the Court reiterates that it is the
States' duty to organise their judicial systems in such a way that
their courts can meet the requirements of Article 6 з 1 (see Muti
v. Italy, judgment of 23 March 1994, Series A No. 281-C, з 15).
The Court further notes a period of approximately two years
between August 2001 and July 2003 when no hearings on the merits
were held, including another adjournment of the case on 7 October
2002 because the judge was on a mission. The Court reiterates that
certain types of cases, for example those concerning civil status
and capacity or employment disputes, generally require particular
diligence on the part of the domestic courts (see Bock v. Germany,
judgment of 29 March 1989, Series A No. 150, p. 23, з 49, and
Ruotolo v. Italy, judgment of 27 February 1992, Series A No. 230-
D, p. 39, з 17). The Court finds this principle to be equally
applicable to the present dispute as it concerned the payment of
arrears of an old-age pension, which constituted the principal
source of income for the applicant. Accordingly, the Court finds
the length of the civil proceedings in the present case excessive,
and the delays which occurred are attributable to the State.
(d) Conclusion
26. The foregoing considerations are sufficient to enable the
Court to conclude that the applicant's case was not heard within a
reasonable time. There has accordingly been a violation of Article
6 з 1 of the Convention.
II. Other alleged violations of the Convention
A. Admissibility
27. The applicant complained under Article 1 of Protocol No. 1
that a certain amount of his pension had not been duly paid to him
between 1993 and 1998.
Article 1 of Protocol No. 1 reads as follows:
"Every natural or legal person is entitled to the peaceful
enjoyment of his possessions. No one shall be deprived of his
possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law.
The preceding provisions shall not, however, in any way impair
the right of a State to enforce such laws as it deems necessary to
control the use of property in accordance with the general
interest or to secure the payment of taxes or other contributions
or penalties."
28. The Court notes, however, that the applicant's claim for
recovery of the unpaid pension was granted by the final judgment
of the Chukotka Regional Court on 25 September 2003. Accordingly,
the applicant can no longer claim to be a "victim" of the alleged
violation.
29. It follows that this part of the application must be
rejected pursuant to Article 35 зз 3 and 4 of the Convention.
III. Application of Article 41 of the Convention
30. 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
31. The applicant claimed 15,000 euros (EUR) in respect of non-
pecuniary damage.
32. The Government considered this claim to be excessive and
unreasonable.
33. The Court accepts that the applicant suffered distress,
anxiety and frustration caused by the unreasonable length of the
proceedings. Making its assessment on an equitable basis, the
Court awards EUR 1,500 in respect of non-pecuniary damage, plus
any tax that may be chargeable.
B. Costs and expenses
34. The applicant also claimed reimbursement of the costs and
expenses incurred in the proceedings before the Court. In
particular, he claimed EUR 1,230 as remuneration for his
representative in accordance with the contract of 19 May 2000. He
also claimed reimbursement of the expenses relating to his
representation before the Court, such as payment for postal and
computer services, printing and copying of documents, travel and
accommodation expenses. The applicant submitted, however, that at
present he could not quantify such expenses.
35. The Government contested those claims. They submitted that
the expenses claimed could not be considered "real" since the
performance of the contract of 19 May 2000 between the applicant
and his representative might only "happen in the future".
36. The Court has to establish, first, whether the costs and
expenses indicated by the applicant were actually incurred and,
second, whether they were necessary (see McCann and Others v. the
United Kingdom, judgment of 27 September 1995, Series A No. 324, з
220).
37. The Court notes that under the contract of 19 May 2000 the
applicant agreed to pay his representative a fee amounting to EUR
1,230 for his representation before the Court, provided the
representative duly performed his contractual obligations until
the delivery by the Court of the final judgment concerning the
present application and subject to payment by the Russian
Federation of the just satisfaction award, should it be granted by
the Court. The contract thus clearly stipulated that the applicant
was to pay his representative EUR 1,230. The Court is satisfied
that from the standpoint of the Convention these costs are real.
The fact that the applicant was not required to pay the fee in
advance does not affect this conclusion.
38. Further, it has to be established whether the costs and
expenses incurred by the applicant for legal representation were
necessary. The Court notes that this case was not particularly
complex. It therefore finds excessive the amount which the
applicant claims in respect of his legal costs and expenses and
considers that it has not been demonstrated that they were all
necessarily and reasonably incurred. In particular, the Court
finds excessive the amount which the applicant claims in respect
of his representative's remuneration, taking into account the
amount of legal work required in this case. As regards other
expenses claimed by the applicant, the Court notes that he has
neither quantified the amount nor submitted any receipts or other
vouchers on the basis of which such amount could be substantiated.
39. In these circumstances, and having regard to the fact that
part of the application is declared inadmissible, the Court is
unable to award the totality of the amount claimed. Deciding on an
equitable basis and having regard to the details of the claims
submitted by the applicant, it awards him the sum of EUR 825,
together with any value-added tax that may be chargeable.
C. Default interest
40. 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 excessive length of
the proceedings admissible and the remainder of the application
inadmissible;
2. Holds that there has been a violation of Article 6 з 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 з 2 of the Convention, EUR 1,500 (one
thousand five hundred euros) in respect of non-pecuniary damage
and EUR 825 (eight hundred and twenty-five euros) in respect of
costs and expenses, to be converted into Russian roubles at the
rate applicable at the date of settlement, plus any tax that may
be chargeable on these amounts;
(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;
4. Dismisses the remainder of the applicant's claim for just
satisfaction.
Done in English, and notified in writing on 15 December 2005,
pursuant to Rule 77 зз 2 and 3 of the Rules of Court.
Christos ROZAKIS
President
{Soren} NIELSEN
Registrar
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