EUROPEAN COURT OF HUMAN RIGHTS
FIRST SECTION
CASE OF SUKHORUBCHENKO v. RUSSIA
(Application No. 69315/01)
JUDGMENT <*>
(Strasbourg, 10.II.2005)
In the case of Sukhorubchenko v. Russia,
--------------------------------
<*> 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,
Mrs {N. Vajic} <*>,
Mrs S. Botoucharova,
Mr A. Kovler,
Mr K. Hajiyev,
Mr S.E. Jebens, judges,
and Mr S. Nielsen, Section Registrar,
--------------------------------
<*> Здесь и далее по тексту слова на национальном языке набраны
латинским шрифтом и выделены фигурными скобками.
Having deliberated in private on 20 January 2005,
Delivers the following judgment, which was adopted on the last-
mentioned date:
PROCEDURE
1. The case originated in an application (No. 69315/01) 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 Aleksey
Petrovich Sukhorubchenko, on 11 January 2001.
2. The Russian Government ("the Government") were represented
by their Agent, Mr P. Laptev, Representative of the Russian
Federation at the European Court of Human Rights.
3. The applicant alleged, in particular, a violation of his
right to a court under Article 6 з 1 of the Convention because of
excessively long examination of his claim and the lack of
effective remedies against the delays, as required by Article 13
of the Convention. He also complained under Article 1 of Protocol
No. 1 that the length of the proceedings had made the enforcement
impossible.
4. The application was allocated to the First 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. By a decision of 15 January 2004, the Court declared the
application partly admissible.
6. The applicant and the Government each filed observations on
the merits (Rule 59 з 1).
7. On 1 November 2004 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).
THE FACTS
I. The circumstances of the case
8. The applicant was born in 1954 and lives in the town of
Shakhty in the Rostov-on-Don Region.
A. The applicant's claim against an investment company
9. In 1994 the applicant deposited his savings with "Hermes-
Finance", a Russian investment company. In 1995, when the
applicant came to Moscow to recover his deposit, he found the
company's offices closed.
10. On 12 August 1995 the applicant lodged a civil action
against the company in the Taganskiy District Court of Moscow. The
court disallowed the applicant's action for lack of territorial
jurisdiction.
11. On 31 October 1995 the applicant brought an action against
the company before the Khoroshevskiy District Court of Moscow.
Citing lack of territorial jurisdiction, on 17 November 1995 the
Khoroshevskiy District Court transferred the case to the
Tushinskiy District Court of Moscow. The Government submitted that
there was no indication in the case-file of the receipt of the
claim by the Tushinskiy District Court. The applicant challenged
this statement, referring to the "forwarding note" of 17 November
1995, from the Khoroshevskiy District Court to the Tushinskiy
District Court, which had been copied to him.
12. On 14 February 1996 the applicant sent a letter to the
Tushinskiy District Court with a request to explain the delay in
examination of his case. No answer was given.
13. In April 1996 the applicant lodged yet another action
against the company with the Moscow City Court. It was not
accepted for lack of hierarchical jurisdiction.
14. On 27 June 1996 the applicant brought an action against the
company before the Supreme Court of the Russian Federation. On 9
August 1996 the Supreme Court forwarded the applicant's statement
of claim to the Moscow City Court, which, in turn, sent the claim
on 22 August 1996 to the Tushinskiy District Court of Moscow.
15. On 5 May 1998 the Convention entered into force in respect
of the Russian Federation.
B. Proceedings on the applicant's claims
16. The parties offered different versions of further
proceedings.
1. The applicant's submissions
17. On 8 June 1998 the applicant received a summons to appear
before the Tushinskiy District Court of Moscow on the same day at
2.10 p.m. The summons was delivered by regular mail and put in his
letter box.
18. On 29 September 1998 the applicant found in his letter box
a summons to appear before the Tushinskiy District Court of Moscow
on 21 September 1998.
19. On 25 November 1998, on coming home from the office, the
applicant found in his letter box a summons to appear before the
Tushinskiy District Court of Moscow on 26 November 1998 at 2 p.m.
20. The applicant submitted to the Court copies of the above
summonses certified by a notary public.
21. The applicant did not receive any further summonses or
communications from the Tushinskiy District Court.
22. On 29 March 2000 the applicant sent a letter to the
Tushinskiy District Court, requesting it to account for the delay
in the proceedings. On 13 April 2000 the applicant's letter was
returned to him with a handwritten request to specify the date
when the action had been lodged. The applicant wrote the date on
the same letter and sent it back on 20 April 2000. No answer was
received.
2. The Government's submissions
23. The Government denied the applicant's submission that the
hearings had been listed for 8 June and 29 [sic] September 1998 as
not supported with the case-file materials.
24. According to them, the first hearing on the applicant's
claim was fixed for 22 October 1998. As the parties failed to
appear, the hearing was adjourned until 26 November 1998. The
applicant was advised of the new date and he received the summons
on 30 November 1998.
25. On 26 November 1998 the hearing was adjourned until 24
December 1998, as both parties were absent. The applicant received
the notice about the adjournment on 21 December 1998.
26. On 24 December 1998 the Tushinskiy District Court of Moscow
left the applicant's claim "without examination", finding as
follows:
"The parties failed to appear twice, on 26 November and 24
December 1998; they were notified of the hearing date; the
plaintiff does not ask for a default judgment, he did not produce
the original documents and receipts, the copies submitted are not
properly certified; the court does not consider it possible to
examine the case on the basis of the materials in the file."
27. The decision indicated that an appeal lay to the city court
against it within ten days.
28. At the Court's request, the Government enclosed a copy of
the decision of 24 December 1998 with their additional
observations of 19 April 2004.
29. In support of their statements the Government produced the
front and back pages of the case-file.
30. The front page contains the name of the court, the names of
the parties and the following handwritten notes:
"Received: 21 September 1998.
Examined: 22 October 1998 at 2.15 p.m.
26 November 1998 at 2 p.m.
24 December 1998 at 9.10 a.m.
filed on 19 February 1999."
31. The back page contains the following handwritten notes:
"Summons for 26 November 1998
Summons for 24 December 1998
[Copy of the decision sent] to the plaintiff on 19 February
1999
24 February 1999 - Archive."
II. Relevant domestic law
32. Article 99 of the Russian Civil Procedure Code of 11 June
1964 (in force at the material time) provided that civil cases
were to be prepared for a hearing no later than seven days after
the action had been lodged with the court. In exceptional cases,
this period could be extended for up to twenty days. Civil cases
were to be examined no later than one month after the preparation
for the hearing had been completed.
33. Article 106 provided that summonses were to be served on
the parties and their representatives in such way so that they
would have enough time to appear timely at the hearing and prepare
their case. If necessary, the parties could be summoned by a phone
call or a telegram.
34. Article 221 з 5 provided that the court could make an
interim decision to leave the claim "without examination"
(определение об оставлении заявления без рассмотрения), in
particular, if the parties had not waived their right to be
present and had failed to appear for the second time and the court
did not consider it possible to determine the claim on the basis
of the case-file. Article 222 required the judge to include in the
decision specific instructions on how to eliminate the obstacles
to the examination of the claim. Upon removal of the circumstances
on which the decision to leave the claim without examination was
founded, an interested party could request the court to resume the
proceedings. The court could reverse its decision to leave the
claim without examination if the parties proved that they had had
valid reasons for the absence.
35. Article 213 required a copy of an interim decision to leave
the claim without examination to be sent to the absent party no
later than three days after it had been made.
THE LAW
I. Alleged violation of Article 6 з 1 of the Convention
36. The applicant complained under Article 6 з 1 of the
Convention that his claim had not been determined within a
"reasonable time". Article 6 з 1 provides as follows:
"In the determination of his civil rights and obligations...,
everyone is entitled to a... hearing within a reasonable time by
[a]... tribunal..."
A. Arguments by the parties
37. The applicant submitted that between his first application
to the Tushinskiy District Court on 12 August 1995 and the present
date he had only received three summons (8 June, 29 September and
25 November 1998) and his returned request to explain the delay in
the proceedings (on 13 April 2000). He only became aware of the
decision of 24 December 1998 upon receipt of the Government's
observations on 3 July 2003. He considered that at present it
would be irrational to apply to the Tushinskiy District Court with
a request to resume the proceedings because the defendant had
meanwhile divested itself of its assets and made enforcement
impossible.
38. The Government, in their observations on the admissibility
and merits of the application of 1 July 2003, acknowledged that
the length of the civil proceedings in the applicant's case had
been in breach of the "reasonable time" requirement of Article 6 з
1.
39. In their additional observations of 19 April 2004, the
Government submitted that the applicant had failed to prove that a
copy of the decision of 24 December 1998 had not been served on
him. In particular, the applicant failed to obtain a certificate
from the Moscow postal service showing that no registered mail
enclosing a copy of that decision had been sent to him. In this
connection, the Government invited the Court to reconsider the
issue of the applicant's compliance with the six-months rule in
Article 35 з 1 of the Convention. They contended that there had
been no violation of the applicant's rights.
40. The Court will examine the Government's preliminary
objection as to the compliance with the six-months rule together
with the merits of the application.
B. Compliance with Article 6 з 1 of the Convention
1. Right of access to a court
41. The Court reiterates that the procedural guarantees laid
down in Article 6 secure 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, judgment of 21 February 1975,
Series A No. 18, pp. 13 - 18, зз 28 - 36).
42. The Court observes that the applicant in the present case
had the possibility of lodging a civil action against the
defaulting financial institution; after several unsuccessful
attempts, his claim against the investment company was accepted
for examination by the Tushinskiy District Court. Although the
parties suggested different dates as the starting date of the
proceedings, the Court, as it has already noted in its decision as
to the admissibility of the application of 19 January 2004, does
not consider it necessary to determine the exact date, that period
lying, in any event, outside its competence ratione temporis. In
this context it is sufficient to establish that on the date when
the Convention entered into force in respect of Russia, the
applicant's claim had been pending for some time before the
district court.
43. The institution of proceedings does not, in itself, satisfy
all the requirements of Article 6 з 1. The Court recalls that the
Convention is intended to guarantee not rights that are
theoretical or illusory but rights that are practical and
effective. The right of access to a court includes not only the
right to institute proceedings but also the right to obtain a
"determination" of the dispute by a court. It would be illusory if
a Contracting State's domestic legal system allowed an individual
to bring a civil action before a court without ensuring that the
case would be determined by a final decision in the judicial
proceedings. It would be inconceivable for Article 6 з 1 to
describe in detail procedural guarantees afforded to litigants -
proceedings that are fair, public and expeditious - without
guaranteeing the parties that their civil disputes will be finally
determined (see Multiplex v. Croatia, No. 58112/00, з 45, 10 July
2003; {Kutic} v. Croatia, No. 48778/99, з 25, ECHR 2002-II). The
Court has found a violation of the right of access to a court in
cases where the proceedings, including their enforcement stage,
were stayed for a significant period of time by operation of law
(see Multiplex v. Croatia, cited above, зз 53 - 55; {Kutic} v.
Croatia, cited above, зз 32 - 33; Immobiliare Saffi v. Italy [GC],
No. 22774/93, з 70, ECHR 1999-V).
44. In the present case the proceedings were stayed on 24
December 1998 after the Tushinskiy District Court of Moscow had
decided to leave the applicant's claim "without examination"
because the parties had not appeared on two occasions, the
applicant had not waived his right to be present and the case had
not been ready for examination on the basis of the available
materials. The Court will first examine whether the decision to
stay the proceedings impaired the applicant's right of access to a
court.
45. As regards the factual circumstances of the case, the
Government's submissions as to the hearing dates appear to be
inconsistent or incomplete. While they did not contest the
authenticity of the three copy summonses produced by the
applicant, they denied that any hearings had been listed for the
dates to which the summonses referred. It further appears that the
only source of the Government's information about the proceedings
at issue is the handwritten notes on the front and back covers of
the case-file. While the Contracting States enjoy a wide margin of
appreciation in determining logistical arrangements for the
administration of justice, the keeping of accurate court records
is one of the foundations of the fair hearing guarantees enshrined
in Article 6 з 1 of the Convention. In the instant case the
accuracy of these records is open to doubt. Although the
Government previously accepted that the proceedings had begun in
1996, there are no notes related to the period between 1996 and 21
September 1998 on which date the file was "received" from an
unidentifiable place (see paragraph 30 above). Nor is there any
mention of the hearings listed for July and September 1998, in
respect of which the applicant has submitted certified copy
summonses. Finally, it does not appear that copies of the
summonses were kept in the case-file.
46. Furthermore, the Government did not indicate whence they
obtained information about the delivery dates of the summonses.
They were not sent by registered mail or in any other traceable
manner and the decision of 24 December 1998 did not state whether
and when the summonses had been served on the applicant, limiting
the scope of the inquiry to the finding that the summonses had
been despatched.
47. In these circumstances, the Court lends more credence to
the applicant's factual submissions because the dates suggested by
him match the postmarks of the Shakhty post office, stamped on the
envelopes in which the summonses had been sent.
48. The Court observes that the applicant received three
summonses, two of which were belated and the last one afforded him
less than a day to reach Moscow, more than a thousand kilometres
from his town. However, at no point in time did he inform the
district court registry, by mail or phone, of the belated service
of summons, this being a valid reason for his absence. Moreover,
each summons contained a printed reminder that the applicant was
to submit the original documents to the court. The applicant did
not comply with this request. The Court recalls in this context
that it is incumbent on the interested party to display special
diligence in the defence of his interests (see Teuschler v.
Germany (dec.), No. 47636/99, 4 October 2001). It considers that,
in the circumstances of the present case, the authorities'
assumption that the applicant had lost interest in pursuing his
claim had a sufficient basis and that the decision of 24 December
1998 did not as such violate the applicant's right of access to a
court.
49. The Court further notes that the decision of 24 December
1998 did not entail the conclusive termination of the proceedings.
It rather had suspensive effect as the proceedings could be
resumed if it were quashed by a higher court or if the same
district court determined that the parties had had valid reasons
for the absence. It is therefore necessary to ascertain whether
the applicant was afforded an adequate opportunity to ensure
continuation or resumption of the proceedings.
50. The Court notes, firstly, that the decision of 24 December
1998 was not sent to the applicant within three days upon its
delivery as required by the domestic law (see paragraph 35 above).
Instead, it took the district court almost two months to despatch
it. The Government did not offer any explanation for this delay.
Furthermore, they did not produce any evidence, apart from a
handwritten note on the back page of the file, showing that on 19
February 1999 the decision had indeed been served on the
applicant. The Court distinguishes therefore the present
application from those cases in which the Government supported
their assertions with a copy of the cover letter accompanying the
document sent to the applicant (see Novoselov v. Russia (dec.),
No. 66460/01, 8 July 2004; Bogonos v. Russia (dec.), No. 68798/01,
5 February 2004).
51. Furthermore, the nature of the applicant's written inquiry
of 29 March 2000 about the state of the proceedings made it
sufficiently clear to the domestic authorities that the applicant
was not aware of the existence or contents of the decision of 24
December 1998. However, after he had supplied, at the court
registry's request, the information required for identification of
the proceedings, no response was given. Indeed, it does not appear
that after 19 February 1999 any steps were taken to inform the
applicant of the decision taken. Finally, it is to be noted that
the Government did not enclose a copy of the decision of 24
December 1998 with their memorandum of 1 July 2003 and it was not
until 19 April 2004 that its text was made available to the Court
and to the applicant.
52. As regards the Government's preliminary objection, having
regard to the foregoing, the Court considers that they did not
produce any new piece of evidence, warranting a fresh
consideration of their objection as to the compliance with the six-
months rule, which the Court had already dismissed in the decision
as to the admissibility of the present application on 15 January
2004.
53. As regards the merits of the complaint, the Court considers
that a litigant's right of access to a court would be illusory if
he or she were to be kept in the dark about the developments in
the proceedings and the court's decisions on the claim, especially
when such decisions are of the nature to bar further examination,
as happened in the present case. The decision in question was not
sent to the applicant within the time-limit established in the
domestic law, if at all, and his further attempts to obtain any
information on the status of his claim proved to be futile. As a
consequence, he did not take cognisance of the existence of the
decision of 24 December 1998 until more than four and a half years
later when the Government first mentioned it in their memorandum.
54. The Court finds therefore that the long period during which
the applicant was prevented from having his civil claim determined
by the domestic court as a consequence of the defective
notification entailed a violation of Article 6 з 1 of the
Convention.
2. Length of proceedings
55. The Court notes that all delays in the proceedings during
the period under consideration are due to the defective service of
the decision of 24 December 1998. The Court has already taken this
aspect into account in its examination of the applicant's right of
access to a court above. Having regard to its findings on that
point, it considers that the issue of the length of the
proceedings must be regarded as having been absorbed by the issue
of access to a court.
56. The Court therefore finds that it is not necessary to
examine separately the issue of the length of the proceedings.
II. Alleged violation of Article 13 of the Convention
57. The applicant complained that no effective remedy had been
available to him before a national authority to challenge the
excessive duration of the civil proceedings brought by him. He
relied on Article 13 of the Convention, which is worded as
follows:
"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."
58. The Government, in their observations on the admissibility
and merits of the application of 1 July 2003, accepted that there
had been a violation of Article 13. In their additional
observations of 19 April 2004 they did not express any opinion on
the matter.
59. The applicant maintained his claims.
60. The Court recalls that, as regards the right of access to a
court, Article 6 з 1 is to be considered as constituting a lex
specialis in relation to Article 13 (see, most recently, Jalloh v.
Germany (dec.), No. 54810/00, 26 October 2004; Carnduff v. the
United Kingdom (dec.), No. 18905/02, 10 February 2004). In view of
its finding of a violation of the applicant's right of access to a
court and its decision not to examine the length issue separately,
the Court does not consider it necessary to examine the complaint
under Article 13 of the Convention.
III. Alleged violation of Article 1 of Protocol No. 1
61. The applicant complained that the excessively long
examination of his claim against the investment company deprived
him of an opportunity to recover the deposited money because the
company had meanwhile hidden its assets. He invoked Article 1 of
Protocol No. 1 which 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."
62. The Government, in their observations on the admissibility
and merits of the application of 1 July 2003, accepted that there
had been a violation of Article 1 of Protocol No. 1. In their
additional observations of 19 April 2004 they did not express any
opinion on the matter.
63. The applicant made no further comments on this aspect of
the case.
64. The Court observes that in the present case the applicant's
"possession" for the purposes of Article 1 of Protocol No. 1 was
the amount which he had deposited with a private investment
company. His title to that amount was never challenged, but he was
unable to recover it because the investment company had
disappeared without a trace. The Court recalls that the State
cannot be normally held responsible for acts or omissions of a
private company. Accordingly, to substantiate his property
complaint the applicant has to prove that he has lost the chance
of recovering his deposit or a certain part of it and that the
loss of opportunity could be ascribed to a State act or omission
(see Krivonogova v. Russia (dec.), No. 74694/01, 1 April 2004).
65. The Court notes that the loss alleged by the applicant is
based on the assumption that, had the award in his favour been
made within a "reasonable time", the enforcement would have been
more effective. However, no evidence has been adduced to support
this hypothesis. On the contrary, the Court observes that the
company offices had closed long before the applicant lodged his
claim and therefore the length of the proceedings does not appear
to have had a decisive impact on the company's realisable assets.
It further recalls that Article 1 of Protocol No. 1 does not
oblige a State to maintain the purchasing power of amounts
deposited with financial institutions (see Ryabykh v. Russia, No.
52854/99, з 63, ECHR 2003-X; Appolonov v. Russia (dec.), No.
47578/01, 29 August 2002).
66. Having regard to the particular circumstances of the case,
the Court finds that there has been no violation of Article 1 of
Protocol No. 1.
IV. Application of Article 41 of the Convention
67. 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
68. The applicant claimed 5,500,000 Russian roubles and
1,000,000 US dollars as compensation for pecuniary and non-
pecuniary damage.
69. The Government contested these claims as unsubstantiated
and excessive. They considered that a token amount would
constitute equitable satisfaction for the non-pecuniary damage
suffered by the applicant.
70. The Court does not discern any causal link between the
violation found and the pecuniary damage alleged by the applicant.
It makes no award in this respect. However, it considers that the
applicant may be considered to have suffered some non-pecuniary
damage as a result of the breach of his right of access to a court
which cannot be compensated by the Court's finding of a violation.
The particular amount claimed is, however, excessive. Making its
assessment on an equitable basis, as required by Article 41 of the
Convention, the Court awards the applicant the sum of 1,500 euros
("EUR"), plus any tax that may be chargeable on that amount.
B. Costs and expenses
71. The applicant did not claim costs and expenses and,
accordingly, there is no cause to make an award under this head.
C. Default interest
72. 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 as a consequence of the defective service of the
court decision of 24 December 1998;
2. Holds that no separate examination of the issue of the
length of proceedings is required;
3. Holds that no separate examination of the complaint under
Article 13 of the Convention is required;
4. Holds that there has been no violation of Article 1 of
Protocol No. 1;
5. 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 1,500 (one
thousand five hundred euros) in respect of non-pecuniary damage,
to be converted into Russian roubles 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;
6. Dismisses the remainder of the applicant's claim for just
satisfaction.
Done in English, and notified in writing on 10 February 2005,
pursuant to Rule 77 зз 2 and 3 of the Rules of Court.
Christos ROZAKIS
President
{Soren} NIELSEN
Registrar
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