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ПОСТАНОВЛЕНИЕ ЕВРОПЕЙСКОГО СУДА ПО ПРАВАМ ЧЕЛОВЕКА ОТ 09.06.2005 <ДЕЛО КУЗИН (KUZIN) ПРОТИВ РОССИИ [АНГЛ.]

(по состоянию на 20 октября 2006 года)

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                    EUROPEAN COURT OF HUMAN RIGHTS
                                   
                             FIRST SECTION
                                   
                        CASE OF KUZIN v. RUSSIA
                      (Application No. 22118/02)
                                   
                             JUDGMENT <*>
                                   
                        (Strasbourg, 9.VI.2005)
                                   
   --------------------------------
       <*>  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 Kuzin v. Russia,
       The European Court of Human Rights (First Section), sitting  as
   a Chamber composed of:
       Mr C.L. Rozakis, President,
       Mrs S. Botoucharova,
       Mr A. Kovler,
       Mrs E. Steiner,
       Mr K. Hajiyev,
       Mr D. Spielmann,
       Mr S.E. Jebens, judges,
       and Mr S. Nielsen, Section Registrar,
       Having deliberated in private on 19 May 2005,
       Delivers  the  following judgment, which was  adopted  on  that
   date:
   
                               PROCEDURE
   
       1. The case originated in an application (No. 22118/02) 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 Sergey  Kuzin
   ("the applicant"), on 12 May 2002.
       2.  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  30  October 2003 the Court decided to  communicate  the
   application to the Government. Under the provisions of  Article  29
   з  3  of  the Convention, it decided to examine the merits  of  the
   application  at the same time as its admissibility. On 7  September
   2004  the  Court  requested  the Government  to  submit  additional
   observations on the admissibility and merits of the application.
   
                               THE FACTS
   
       4. The applicant was born in 1960 and lives in Moscow.
       First set of proceedings
       5.  On  15 June 1998 the applicant brought proceedings  against
   four publishing houses seeking recognition of his copyright and  an
   award  of  damages.  The  claim was lodged  with  the  Ostankinskiy
   District Court of Moscow.
       6.  On  5  November 1998 the claim was rejected on  the  ground
   that,  according  to  the rules governing jurisdiction,  it  should
   have  been  filed  with  another court. On  15  November  1998  the
   applicant filed a complaint with the Moscow City Court.
       7. The Moscow City Court on 10 December 1998 quashed the ruling
   of  5  November  1998  and remitted the case  to  the  Ostankinskiy
   District Court for consideration on the merits.
       8.  On 22 April 1999 the Ostankinskiy District Court ruled that
   the  case  should be remitted to the Meschanskiy District Court  of
   Moscow.  On  5  May 1999 the applicant filed a complaint  with  the
   Moscow City Court.
       9.  The Moscow City Court on 30 July 1999 quashed the ruling of
   22  April  1999 and remitted the case to the Ostankinskiy  District
   Court for consideration on the merits.
       10.  On 11 November 1999 a preliminary hearing was fixed for  6
   December  1999. However, the preparation of the case was  initially
   extended  to 31 January 2000 because of the defendants' failure  to
   appear  and  subsequently extended to 14 February 2000  because  of
   the judge's holiday leave.
       11.  On 14 February 2000 a hearing on the merits was fixed  for
   16  March  2000. That hearing did not take place because  the  case
   had been transferred to another judge.
       12.  On 10 August 2000 a hearing was fixed for 21 August  2000.
   It  was  initially postponed to 20 November 2000 because the  judge
   was  engaged in unrelated proceedings, and then to 18 December 2000
   because of the defendants' failure to appear.
       13.  The Ostankinskiy District Court on 18 December 2000  again
   ruled  that the case should be remitted to the Meschanskiy District
   Court.  On  12  February 2001 the applicant filed a complaint  with
   the Moscow City Court.
       14.  The Moscow City Court on 14 March 2001 quashed the  ruling
   of  18  December  2000  and remitted the case to  the  Ostankinskiy
   District Court for consideration on the merits.
       15. On 27 August 2001 a hearing on the merits was fixed for  29
   November 2001. However, it was first postponed to 28 December  2001
   and  then  to  4  January 2002 because the  judge  was  engaged  in
   unrelated proceedings.
       16.  On  4 January 2002 the hearing was postponed to 7 February
   2002  because of the parties' failure to appear. The applicant  did
   not appear on account of illness.
       17.  On  7 February 2002 the applicant's claim was left without
   consideration  on account of his second failure to  appear  at  the
   hearing.
       18. The Ostankinskiy District Court on 2 September 2002 quashed
   its  ruling  of  7 February 2002 on the grounds that the  applicant
   had  not  been notified about the hearing in due course. The  court
   fixed  a  new  hearing  on the merits for  23  September  2002.  It
   appears that the hearing did not take place.
       19. On 21 October 2002 the applicant received notification that
   the  hearing was fixed for 5 November 2002. The applicant could not
   appear   on   account  of  his  illness  and  informed  the   court
   accordingly.
       20.  On an unspecified date the case was transferred to another
   judge,  on  account  of the dismissal of the  judge  who  had  been
   dealing  with  the  case. A preliminary hearing was  fixed  for  17
   April 2003.
       21.  The  applicant attended the hearing on the last  mentioned
   date.  However, the judge informed him that she did  not  have  his
   case  file and did not know where it was. Following an unsuccessful
   two-hour  search  for the case file the applicant  was  advised  to
   leave.  It  later transpired that one of the clerks in the  court's
   registry  was  in  possession of the  case  file  as  he  had  been
   preparing a reply to a complaint lodged by the applicant.
       22.  On  24  June 2003 a preliminary hearing was fixed  for  18
   August  2003. However, preparation of the case was extended  to  22
   September 2003 because of the judge's sick leave.
       23. On 22 September 2003 a preliminary hearing was fixed for 23
   October 2003.
       24.  On  23  October 2003 the applicant's claims  against  each
   defendant  were  divided into four different sets  of  proceedings.
   Hearings  on  the  merits  of all four claims  were  fixed  for  26
   December 2003.
       25.  The  Ostankinskiy  District Court  partially  granted  the
   applicant's claim against the first defendant on 26 December  2003.
   As  the  court  received no confirmation that the other  defendants
   had  been  properly notified of the hearings, the hearings  on  the
   claims  against them were postponed to 30 January  2004,  4  and  5
   February  2004.  By three judgments delivered on the aforementioned
   dates,  the  court  partially granted the applicant's  claims.  The
   judgments were not appealed against and entered into force.
       Second set of proceedings
       26.  On  27  January 2002 the applicant filed two  applications
   with  the  Supreme  Court  of  Russia and  the  Moscow  City  Court
   respectively, seeking authorisation to study case files related  to
   previously  lodged applications for supervisory review  of  certain
   judgments  concerning  his  civil  claims.  The  applications  were
   refused  on  the  ground  that the legislation  in  force  did  not
   provide  for  the  possibility of studying case  files  related  to
   applications  for supervisory review, since it was an extraordinary
   remedy.  However, a reasoned reply would be sent to  the  applicant
   after delivery of a decision.
       27.  On  3  March  2002  the  applicant  filed  two  complaints
   concerning  the  refusals  with  the  court.  His  complaints  were
   rejected  by  a final ruling of the Moscow City Court  of  14  June
   2002.
   
                                THE LAW
   
        I. Alleged violation of Article 6 з 1 of the Convention
   
       28.  The applicant complained that the length of the first  set
   of  proceedings  had been incompatible with the  "reasonable  time"
   requirement  provided  in Article 6 з 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..."
       29.  The period to be taken into consideration began on 15 June
   1998  and  ended  on  5  February  2004,  when  the  last  judgment
   concerning  the applicant's claim was delivered. It thus  lasted  5
   years, 7 months and 20 days.
   
                           A. Admissibility
   
       30.  In their first submissions before the Court the Government
   maintained   that   the   complaint  was  premature   because   the
   proceedings were still pending.
       31.  Leaving aside the fact that the proceedings have now  come
   to  an  end,  the  Court recalls that according to  the  Convention
   organs'   constant  case-law,  complaints  concerning   length   of
   procedure  may  be  lodged  before the  final  termination  of  the
   proceedings  in  question (see, e.g., Todorov v.  Bulgaria  (dec.),
   No. 39832/98, 6 November 2003).
       32.  The Court finds 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
   
       33. The Government submitted that the delays in the examination
   of  the  applicant's claims were caused by the defendants'  failure
   to  appear at the hearings, for which the authorities could not  be
   held  responsible.  Other delays had been  caused  by  the  judges'
   participation  in  unrelated proceedings and the  transfer  of  the
   case from one judge to another.
       34.  The  applicant  contested the Government's  statement.  He
   contended  that  the  civil  proceedings  were  unreasonably   long
   because  the  domestic courts had failed to deal  with  his  claims
   diligently.
       35.  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 criteria established by  its
   case-law,  particularly the complexity of the case, the conduct  of
   the  applicant  and of 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).
       36.  The  Court  considers that the case was  not  particularly
   difficult  to  determine. Consequently, it takes the view  that  an
   overall  period  of more than five and a half years  in  one  court
   instance   could  not,  in  itself,  be  deemed  to   satisfy   the
   "reasonable time" requirement in Article 6 з 1 of the Convention.
       37.  As regards the conduct of the applicant and the defendants
   the  Court notes that between 15 June 1998 and 26 December 2003  no
   hearing  on  the merits of the applicant's claims was held.  During
   this  period the preliminary hearing fixed for 6 December 1999  was
   postponed  for about two months because of the defendants'  failure
   to  appear. For the same reason the hearing on the merits fixed for
   20  November  2000 was postponed for about one month.  The  hearing
   fixed for 4 January 2002 was also postponed for about one month  on
   account   of  the  parties'  failure  to  appear,  which   in   the
   applicant's case was caused by illness. In these circumstances  the
   Court  does  not  find it established that the applicant's  conduct
   delayed the proceedings in any significant way.
       38. As regards the conduct of the authorities the Court recalls
   that   the  case  was  repeatedly  adjourned  due  to  the  judges'
   participation  in other proceedings and the transfer  of  the  case
   from  one judge to another. Furthermore, delays occurred while  the
   national  courts  settled  disputes  of  jurisdiction.  The   Court
   recalls  that  it  is the States' duty to organise  their  judicial
   systems  in  such a way that their courts can meet the  requirement
   of  Article  6 з 1 (see Muti v. Italy, judgment of 23  March  1994,
   Series  A No. 281-C, з 15). In these circumstances the Court  finds
   that the significant delays which occurred in the present case  are
   attributable to the State.
       39.  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. Alleged violation of Article 13 of the Convention
   
       40. The applicant further complained of the fact that there was
   no  court  in Russia to which application could be made to complain
   of  the excessive length of proceedings. He relied on Article 13 of
   the Convention, which provides:
       "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. Admissibility
   
       41.  The Court finds that this complaint is not manifestly ill-
   founded within the meaning of Article 35 з 3 of the Convention.  No
   other  grounds for declaring it inadmissible have been established.
   It must therefore be declared admissible.
   
                               B. Merits
   
       42.  The  Government submitted that the applicant  had  had  an
   effective  remedy against the length of proceedings in the  present
   case.  In  particular,  after examining the applicant's  complaints
   the   Moscow  City  Court  quashed  a  number  of  rulings  by  the
   Ostankinskiy  District Court which had left the  applicant's  claim
   without   consideration.   They   further   contended   that    the
   Ostankinskiy  District  Court  had taken  appropriate  measures  to
   examine  the  applicant's claim, which had resulted  in  favourable
   judgments.
       43.  The  applicant challenged the Government's  arguments.  He
   submitted  that  his complaints against the aforementioned  rulings
   had  been  directed  at having his claims considered  by  a  proper
   court,  and  that quashing of the rulings had been of no  relevance
   to  the  length of the proceedings. He further contended  that  the
   Government had failed to indicate an effective remedy that  he  had
   had at his disposal.
       44.  The  Court  reiterates  that  Article  13  guarantees   an
   effective remedy before a national authority for an alleged  breach
   of  the  requirement under Article 6 з 1 to hear a  case  within  a
   reasonable time (see {Kudla} v. Poland, No. 30210/96, з  156,  ECHR
   2000-XI).  Furthermore, the Court recalls that an effective  remedy
   required by Article 13 of the Convention is intended to be  capable
   of  either  expediting the proceedings or providing  the  applicant
   with  adequate  redress for delays that have already occurred  (see
   {Kudla} v. Poland cited above, зз 157 - 159).
       45.  The  Court finds that the quashing of rulings  on  various
   procedural  issues  following  complaints  by  the  applicant   was
   irrelevant  for,  let alone capable of, expediting the  proceedings
   or   providing   him   with  redress  for  the   delays   occurred.
   Furthermore,  the  favourable outcome of the  proceedings  as  such
   cannot  be  considered  to constitute adequate  redress  for  their
   length  (see,  mutatis  mutandis, Byrn v.  Denmark,  No.  13156/87,
   Commission decision of 1 July 1992, Decisions and Reports (DR)  74,
   p.  5).  The  Court notes that the Government did not indicate  any
   other  remedy  that could have expedited the determination  of  the
   applicant's case or provided him with adequate redress  for  delays
   that  had already occurred (see Kormacheva v. Russia, No. 53084/99,
   29 January 2004, з 64).
       46.  Accordingly, the Court considers that in the present  case
   there  has  been  a  violation of Article 13 of the  Convention  on
   account  of  the  lack of a remedy under domestic law  whereby  the
   applicant could have obtained a ruling upholding his right to  have
   his case heard within a reasonable time, as set forth in Article  6
   з 1 of the Convention.
   
            III. Other alleged violations of the Convention
   
       47. The applicant made a number of complaints in respect of the
   second  set of proceedings. He complained under Articles 9  and  10
   of  the Convention about the refusal to grant him an opportunity to
   study  case  files.  Invoking  Articles  6  з  1  and  13  of   the
   Convention,  he  also  complained  about  the  dismissal   of   his
   subsequent complaints.
       48.   However,  in  the  light  of  all  the  material  in  its
   possession, and in so far as the matters complained of  are  within
   its  competence,  the  Court finds that they do  not  disclose  any
   appearance  of a violation of the rights and freedoms  set  out  in
   the Convention or its Protocols.
       49.  It  follows  that  this part of the  application  must  be
   declared inadmissible as being manifestly ill-founded, pursuant  to
   Article 35 зз 3 and 4 of the Convention.
   
            IV. Application of Article 41 of the Convention
   
       50. 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
   
       51. The applicant claimed 6,000 euros (EUR) in compensation for
   non-pecuniary damage.
       52.   The  Government  considered  this  claim  excessive   and
   unreasonable.  They noted that, in contrast to the Kormacheva  case
   where  the  Court had awarded EUR 3,000 (see Kormacheva v.  Russia,
   cited  above, зз 66 - 71), the proceedings in the present case  did
   not  concern matters of vital importance for the applicant, lengthy
   consideration of which could seriously aggravate his situation.
       53.  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 3,000 in respect of non-pecuniary  damage,  plus
   any tax that may be chargeable.
   
                         B. Costs and expenses
   
       54.  The  applicant  also claimed EUR 200  for  the  costs  and
   expenses  incurred before the domestic courts and  the  Court.  The
   applicant  did  not adduce any invoices supporting  the  claim.  He
   explained  that the expenses consisted of payment for  postal,  fax
   and e-mail services, printing and copying of documents.
       55. The Government made no specific comment in this regard.
       56. According to the Court's case-law, an applicant is entitled
   to  reimbursement of his costs and expenses only in so  far  as  it
   has  been  shown  that  these have been  actually  and  necessarily
   incurred  and  were reasonable as to quantum. In the present  case,
   regard  being  had  to the information in its  possession  and  the
   above criteria, the Court considers it reasonable to award the  sum
   of EUR 200 covering costs under all heads.
   
                          C. Default interest
   
       57.  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 complaints concerning the length of the  first
   set  of  proceedings and the lack of an effective remedy 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 that there has been a violation of Article 13 of  the
   Convention;
       4. Holds
       (a)  that the respondent State is to pay the applicant,  within
   three  months  from  the date on which the judgment  becomes  final
   according  to  Article  44  з  2 of the Convention,  the  following
   amounts:
           (i)  EUR  3,000 (three thousand euros) in compensation for
       non-pecuniary  damage,  to  be  converted  into  the  national
       currency of the respondent State at the rate applicable at the
       date of settlement;
           (ii)  EUR  200 (two hundred euros) in respect of costs and
       expenses,  to  be  converted into the national currency of the
       respondent  State  at  the  rate  applicable  at  the  date of
       settlement;
           (iii) any tax that may be chargeable on the above 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;
       5.  Dismisses the remainder of the applicant's claim  for  just
   satisfaction.
   
       Done  in  English,  and notified in writing  on  9  June  2005,
   pursuant to Rule 77 зз 2 and 3 of the Rules of Court.
   
                                                      Christos ROZAKIS
                                                             President
                                                                      
                                                       {Soren} NIELSEN
                                                             Registrar
   
   

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