EUROPEAN COURT OF HUMAN RIGHTS
FIRST SECTION
CASE OF YEMANAKOVA v. RUSSIA
(Application No. 60408/00)
JUDGMENT <*>
(Strasbourg, 23.IX.2004)
In the case of Yemanakova v. Russia,
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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.
The European Court of Human Rights (First Section), sitting as
a Chamber composed of:
Mr C.L. Rozakis, President,
Mr P. Lorenzen,
Mr G. Bonello,
Mrs {N. Vajic} <**>,
Mrs S. Botoucharova,
Mr A. Kovler,
Mr V. Zagrebelsky, judges,
and Mr S. Nielsen, Section Registrar,
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<**> Здесь и далее по тексту слова на национальном языке
набраны латинским шрифтом и выделены фигурными скобками.
Having deliberated in private on 2 September 2004,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
1. The case originated in an application (no. 60408/00) 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 Ukrainian national, Yulia
Aleksandrovna Yemanakova ("the applicant"), on 7 July 2000.
2. The applicant, who had been granted legal aid, was
represented by Ms O. Panchenko, a lawyer practising in Berdyansk,
Ukraine. The Russian Government ("the Government") were
represented by Mr. P.A. Laptev, the Representative of the Russian
Federation at the European Court of Human Rights.
3. The applicant alleged that the proceedings in a civil case
to which she was a party were unreasonably long, in violation of
Article 6 з 1 of the Convention. She also submitted that she had
no effective remedies against the alleged violation, in breach of
Article 13 of the Convention.
4. The application was allocated to the Second Section of the
Court (Rule 52 з 1 of the Rules of Court). Within that Section,
the Chamber that would consider the case (Article 27 з 1 of the
Convention) was constituted as provided in Rule 26 з 1.
5. On 1 November 2001 the Court changed the composition of its
Sections (Rule 25 з 1). This case was assigned to the newly
composed First Section (Rule 52 з 1)
6. By a decision of 6 November 2003 the Court declared the
application admissible.
7. The applicant and the Government each filed observations on
the merits (Rule 59 з 1).
THE FACTS
I. The circumstances of the case
8. The applicant was born in 1919 and lives in Berdyansk,
Ukraine.
9. The facts of the case are partially disputed by the parties.
They may be summarised as follows.
1. The initial set of proceedings in 1990 - 1992
10. The applicant's father was subjected to repression in 1929
- 1930 as a rich peasant ("kulak"). In 1930 the family property,
including a two-storey house in Sorochinsk, Orenburg Region,
Russia, was confiscated. In 1989 the applicant's father was
rehabilitated post mortem. The family house remains intact in
Sorochinsk, where it is used by the Sorochinsk Veterinary College
to house its employees. At some point during the proceedings the
families who lived in the house were permitted to acquire their
flats.
11. The applicant lives in Berdyansk, Ukraine, and the train
journey to Sorochinsk takes about two and a half days.
12. In 1990 the applicant and her sister, Mrs Mikhaylishina,
initiated proceedings to have their property right to the house
recognised. On 26 October 1990 the Sorochinsk Town Court rejected
their request and advised them to seek compensation for the
property from the Orenburg Regional financial department. It
appears that the department refused their request for
compensation.
13. In January 1992 the applicant's sister died and the
applicant remained the sole party to the proceedings.
2. Proceedings in 1992 - 2002
14. At some point in March 1992 the applicant submitted new
claims to the Leninskiy District Court of Orenburg. On 24
September 1992 the Leninskiy District Court rejected both her
complaint about the decision of the Regional financial department
and her civil claim to have her property right to the house
confirmed. On 6 May 1993 the Orenburg Regional Court quashed the
decision of 24 September 1992 and remitted the case to the
District Court. On 15 September 1993 the Leninskiy District Court
ordered the transfer of the case to the Sorochinsk Town Court
which had territorial jurisdiction for the dispute over the
building.
15. On 20 January 1995 the Head of the Sorochinsk Town
administration issued an order, requesting the Veterinary College
to pay the applicant the maximum compensation allowed by the
national legislation, which would later be reimbursed to the
College by the regional budget. The order was never complied with.
On 10 April 1995 the Sorochinsk Town Court ordered the closure of
the civil case as the applicant had been awarded the compensation.
On 25 September 1995 the Presidium of the Orenburg Regional Court,
acting by way of supervisory review, quashed the order of 10 April
1995 and returned the case to the Town Court.
16. On 27 December 1995 the Sorochinsk Town Court rejected the
applicant's claim against the Town administration as having no
basis in the national legislation and because she had already been
awarded the compensation. On 9 April 1996 the Orenburg Regional
Court quashed the judgment and remitted the case.
17. On 24 July 1996 the Sorochinsk Town Court confirmed that
the applicant's family had been the owners of the property and
that the confiscation had taken place, but rejected the
applicant's claim to have the house returned. On 27 August 1996
the Orenburg Regional Court quashed this judgment and remitted the
case.
18. On 13 February 1997 the Sorochinsk Town Court again
confirmed the family's previous ownership of the property and the
fact of confiscation, but rejected the applicant's claim to have
the house returned. On 24 April 1997 the Orenburg Regional Court
quashed this judgment. The applicant was then informed that the
Orenburg Regional Court would consider her case as the first
instance court.
19. On 28 April 1998 the Civil College of the Orenburg Regional
Court rejected the applicant's claim for compensation filed
against the Regional financial department and refused to return
the house in natura. It ordered the Sorochinsk Town administration
to pay the applicant the maximum compensation for the confiscated
property in the amount of RUR 8,349 (100 "units" of the minimum
monthly wage), plus travel expenses and legal fees in the amount
of RUR 3,540. The applicant submits that she was served with the
decision on 6 May 1998.
20. On 7 May 1998 the applicant received RUR 3,540,
representing travel fees and legal costs, at the Town
administration.
21. On 14 May 1998 the applicant lodged a cassation appeal with
the Orenburg Regional Court, which was to be forwarded together
with the case file to the Supreme Court. The applicant then wrote
to the Orenburg Regional Court to inquire about the progress of
the case on 21 August 1998 and 24 March 1999, but received no
reply. She also wrote directly to the Supreme Court on several
occasions, including on 21 August and 26 November 1998, 6 May, 21
June, 2 August, 18 August and 16 December 1999. She received
standard replies from the Supreme Court on 5 November 1998, 19
July 1999 and 19 January 2000, stating that her appeal could not
be considered as no case file had been attached. On at least one
occasion, in May 1999, the applicant copied the decisions of the
courts and her appeal and forwarded the copies to the Supreme
Court herself. Her letters to other bodies, including the Ministry
of Justice, the High Qualification Board of Judges, the
President's administration, the Constitutional Court, prosecutors'
offices of various levels were either not answered or forwarded to
the Orenburg Regional Court. The applicant submits that she was
not aware of any procedural orders issued by the Regional Court in
respect of her appeal.
22. According to the Government's submissions filed after the
communication of the complaint, the Orenburg Regional Court
pronounced its judgment on 28 April 1998 in short form (without
reasoning), and then on 29 April 1998 in full. The decision was
served on the applicant on 6 May 1998. She thus missed the ten-
days time-limit for filing a cassation appeal, which was
eventually lodged on 15 May and arrived at the Orenburg Regional
Court on 25 May 1998. As a result, on 1 June 1998 the Regional
Court issued a procedural order adjourning her appeal and
requesting the applicant to submit reasons for the delay. This
decision was forwarded to the applicant by a letter of 3 June
1998.
23. On 21 June 1998 the Orenburg Regional Court again adjourned
the appeal and requested reasons for the delay from the applicant.
A letter, dated by mistake 21 July 1998, was sent to the
applicant. The applicant failed to respond.
24. The Government also submit that the court decision was
executed in full in April 2000, when the sum of RUR 8,349 (one
hundred minimum monthly wages) was transferred to a new account
opened in the applicant's name in the Sorochinsk branch of
Sberbank. The applicant was informed accordingly by a letter. The
applicant had already received the RUR 3,539 to cover her travel
expenses.
25. In February 2004, upon the Court's request, the Government
submitted copies of documents supporting their submissions. These
included, notably, the Orenburg Regional Court's decision of 1
June 1998, a letter from the same court dated 21 July 1998
informing the applicant about the adjournment and documents from
the Sorochinsk Town Administration concerning execution of the
judgment in April 2000.
26. The applicant claims that she did not receive the letters
of 3 June and 21 June (July) 1998. With respect to the award, the
applicant submits that she only learned of the transfer to a bank
account opened in her name in 2002, after receipt of the
Government's memorandum.
3. New proceedings in 2002
27. The complaint was communicated to the Russian Government in
September 2001.
28. On 21 January 2002 the Presidium of the Orenburg Regional
Court, acting upon the Regional Prosecutor's application for
supervisory review, quashed and remitted for procedural reasons
the decision of the Sorochinsk Town Court of 26 October 1990. On
30 January 2002 the applicant was informed of this.
29. On 12 February 2002 the Sorochinsk Town Court issued an
order by which the applicant and her sister were instructed to
update their claim of 1990 and to submit the applicant's sister's
birth certificate before 15 March 2002. On 13 February 2002 the
order was forwarded to the applicant. On 26 April 2002 the
applicant replied to the Sorochinsk Town Court that her sister had
died in 1992 and forwarded a copy of her death certificate. On 16
May 2002 the judge of the Town Court confirmed receipt of her
letter and again requested her to update the claim initially
submitted in August 1990 and to clarify if she wanted the case to
be reviewed in her absence. It appears that a court hearing was
scheduled for 22 August 2002. The applicant responded in July 2002
that she was not interested in a new review of the case, since it
had lost its meaning. Her new claims against the defendants had
been submitted in 1992 to the Sorochinsk Town Court, and these
proceedings were the issue of her complaint.
30. On 18 September 2002 the Orenburg Regional Court issued an
information note, stating that the hearing in the applicant's
claim against the Sorochinsk Town administration was adjourned to
27 September 2002, due to the non-appearance of the claimant. On
14 October 2002 the applicant requested the court to terminate
these proceedings.
II. Relevant domestic law
31. Section 283 of the Civil Procedural Code then in force
provided that cassation appeals are submitted through the court
which acted as the court of first instance. Submission of the
appeal directly to the cassation instance cannot prevent its
consideration.
32. Section 284 (1) set a one month time-limit for review of
cassation appeals by the Supreme Court.
THE LAW
I. Alleged violation of Article 6 з 1 of the Convention
33. The applicant complained under Article 6 з 1 of the
Convention that the length of proceedings in her case was in
violation of the "reasonable time" requirement. Article 6 з 1 of
the Convention, in so far as relevant, provides:
"In the determination of his civil rights and obligations ...,
everyone is entitled to a ... hearing within a reasonable time by
[a] ... tribunal..."
34. The Government submitted that the applicant's cassation
appeal was adjourned on 1 June 1998 due to her failure to comply
with the time-limit. The applicant was informed of this by letters
of 3 and 21 June 1998. Whether she received the decision in
question was, in the Government's opinion, irrelevant for the
calculation of the length of the proceedings. Moreover, the
decision of 28 April 1998 was executed, partly in May 1998 and
finally in April 2000, when the award was transferred to the
applicant's bank account.
35. The applicant submitted that before receipt of the
Government's memorandum in 2002 she was not aware of the decision
of the Orenburg Regional Court to adjourn and to stay her
cassation appeal. She stressed that in 1998 - 2002 no authority
informed her of this decision either. She further submitted that
the execution of the decision of 28 April 1998 in respect of part
of the award had never been communicated to her, and she had only
learned of it from the Government's memorandum in 2002. The
documents proving the adjournment and execution were first
presented by the Government in February 2004. The applicant
considered that this period should be included in the overall
length of proceedings.
A. Period to be taken into consideration
36. The Convention entered into force in respect of Russia on 5
May 1998. The Court is not competent to examine complaints
relating to the events that occurred prior to that date. However,
in cases where it can, by reason of its competence ratione
temporis, only examine part of the proceedings, it may take into
account, in order to assess their length, the stage reached in the
proceedings at the beginning of the period under consideration
(see, among other authorities, Wojnowicz v. Poland, no. 33082/96,
21 September 2000, з 46).
37. The proceedings in question started in March 1992, when the
applicant applied to the Leninskiy District Court of Orenburg. The
date of termination of the proceedings is disputed by the parties.
The question is not, however, whether the proceedings at issue
took place, but whether and when the applicant was notified of
them.
38. The Court recalls its case-law in relation to calculation
of the six-month period, according to which the object and purpose
of Article 35 з 1 of the Convention are best served by counting as
running from the date of service of the written document in cases
where the applicant is entitled, pursuant to domestic law, to be
served with a written copy of the final domestic decision,
irrespective of whether that judgment was previously delivered
orally (see the Worm v. Austria judgment of 29 August 1997,
Reports of Judgments and Decisions 1997-V, p. 1547, з 33;
Drosopoulos v. Greece (dec.), no. 40442/98, 7 December 2000).
39. The Court is of the opinion that its case-law as set out
above applies by analogy. If these principles are applicable where
a party to the proceedings, being generally aware of the nature of
the decision, can still be allowed to obtain a written copy of
that decision before the prescription period starts to run, it
should be even more so in cases where there is no reason to
believe that the party has been at all aware of such proceedings.
The Court notes, in particular, that the applicant continued to
address the Orenburg Regional Court, the Supreme Court and other
authorities with requests concerning her cassation complaint in
June 1998 - 2000. However, apart from copies of letters of 1 and
27 June (July) 1998, submitted by the Government in February 2004,
and which the applicant claims she had never received, no other
evidence has been submitted which would allow the Court to
conclude that the applicant was indeed notified of these
proceedings. From the nature of the applicant's requests to the
Orenburg Regional Court, the Supreme Court and other authorities
it should have been clear that the applicant was not aware of the
decision to adjourn the cassation appeal. It does not appear,
however, that after 21 June 1998 any steps were taken to inform
the applicant properly.
40. Taking into account the above considerations as well as the
particular circumstances of the present case - namely, the
substantial distance between Orenburg and the applicant's place of
residence in Ukraine, the overall length of proceedings by that
date as well as the applicant's age - the Court finds it
established that the applicant was not properly informed of the
decision of the Orenburg Regional Court of 1 June 1998 to adjourn
her cassation appeal at least until February 2002, when she
received a copy of the Government's memorandum.
41. Accordingly, the period under consideration started on 5
May 1998, when the Convention entered into force in respect of
Russia. At that date, the proceedings had already lasted from
March 1992, with an interval from 10 April until 25 September
1995, when no proceedings were pending. The proceedings ended in
February 2002, when the applicant was informed of their outcome.
The Court is thus required to consider a length of three years and
ten months, which itself followed some six years of proceedings
before 5 May 1998.
B. Reasonableness of the length of proceedings
42. According to the Court's case-law, the reasonableness of
the length of proceedings must be assessed in the light of the
particular circumstances of the case and having regard to the
criteria laid down by the Court, in particular the complexity of
the case and the conduct of the applicant and of the authorities
dealing with the case (see, among many other authorities,
Frydlender v. France [GC], no. 30979/96, з 43, ECHR 2000-VII).
43. As to the complexity of the case, the Court observes that
it involved some complexity, originating in the events of 1930. At
the same time the Court notes the modest size of the disputed
property, the limited number of documents in the case-file and the
absence of any witnesses to be heard. In view of the above, the
Court cannot conclude that the nature of the legal or factual
issues examined would warrant the opinion that the case was of
such complexity as to justify the length of the proceedings.
44. The Court observes that almost the whole period under
consideration was covered by the failure to notify the applicant
of the adjournment of her cassation appeal after 1 June 1998, at
least until February 2002. During this period, there was no
activity on the part of the judicial authorities whatever.
45. Having regard to the above, as well as the applicant's
personal circumstances and what was at stake for her, the Court
considers that the proceedings in the present case were not dealt
with within the "reasonable time" referred to in Article 6 з 1.
There has accordingly been a violation of Article 6 з 1 of the
Convention.
II. Alleged violation of Article 13 of the Convention
46. The applicant also complained that she had no effective
remedy against the delays in the procedure. The Court has examined
this complaint under 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."
47. The applicant submitted that she had no effective remedies
against the delays in the proceedings. She stressed that her
numerous requests to various judicial and administrative
authorities concerning the lack of information on her case have
been left without substantive answers.
48. The Government did not address the issue of effective
remedies in their submissions.
49. 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 [GC], no. 30210/96, з 156,
ECHR 2000-XI). It notes that the Government did not indicate any
remedy that could have expedited the determination of the
applicant's case or provided her with adequate redress for delays
that had already occurred (see Kormacheva v. Russia, no. 53084/99,
29 January 2004, з 64).
50. 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 her right to have
her case heard within a reasonable time, as set forth in Article 6
з 1 of the Convention.
III. Application of Article 41 of the Convention
51. 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
52. The applicant claimed that as a result of the lengthy
proceedings she was deprived of a judicial decision in a dispute
concerning her father's house. The applicant requested
compensation for pecuniary damage in the amount of EUR 25,540. She
also claimed EUR 100,000 in compensation for non-pecuniary damage
for the moral suffering caused to her through the absence of a
final judicial decision.
53. The Government considered these claims to be excessive and
unreasonable.
54. The Court notes that the decision of April 1998 in the
applicant's favour was executed and the sum awarded by the
national court was transferred to an account opened in the
applicant's name. It therefore rejects the applicant's claim for
pecuniary damage. On the other hand, the Court accepts that the
applicant suffered distress, anxiety and frustration exacerbated
by the unreasonable length of the proceedings. Making its
assessment on an equitable basis, it awards the applicant EUR
1,000 in respect of non-pecuniary damage.
B. Costs and expenses
55. In addition to the expenses covered by the legal-aid
scheme, the applicant claimed a total of UAH 260 for fees and
costs incurred in the proceedings before the Court.
56. The Government made no specific comment in this regard.
57. The Court notes that it has granted the applicant legal aid
under the Court's legal-aid scheme for the submission of her
observations and additional comments and secretarial expenses. The
applicant submitted no justification for additional legal
expenses. Accordingly, the Court is not required to make an award
under this head.
C. Default interest
58. 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. Holds that there has been a violation of Article 6 з 1 of
the Convention;
2. Holds that there has been a violation of Article 13 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
according to Article 44 з 2 of the Convention, EUR 1,000 (one
thousand euros) in respect of non-pecuniary damage, to be
converted into Ukrainian hryvnas at the rate applicable at the
date of settlement, plus any tax that may be chargeable;
(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 the remainder of the applicant's claim for just
satisfaction.
Done in English, and notified in writing on 23 September 2004,
pursuant to Rule 77 зз 2 and 3 of the Rules of Court.
Christos ROZAKIS
President
{Soren} NIELSEN
Registrar
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