FIRST SECTION

CASE OF KARTASHEV v. RUSSIA

(Application no. 10994/05)

JUDGMENT

STRASBOURG

13 January 2011

This judgment is final but it may be subject to editorial revision.

In the case of Kartashev v. Russia,
The European Court of Human Rights (First Section), sitting as a committee composed of:
	Sverre Erik Jebens, President,
	Anatoly Kovler,
	George Nicolaou, judges,
and André Wampach, Deputy Section Registrar,
Having deliberated in private on 9 December 2010,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 10994/05) 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 Valeriy Vladimirovich Kartashev (“the applicant”), on 4 February 2004.
2.  The Russian Government (“the Government”) were represented by Mrs V. Milinchuk, former Representative of the Russian Federation at the European Court of Human Rights.
3.  On 16 November 2007 the President of the First Section decided to give notice of the application to the Government. In accordance with Protocol No. 14, the application was allocated to a Committee.
THE FACTS
I.  THE CIRCUMSTANCES OF THE CASE
4.  The applicant was born in 1955 and lives in Kostroma.
5.  On 20 January 1999 the applicant lodged an action before the Sverdlovskiy District Court of Kostroma (“the District Court”) against the Kostroma Regional Military Commissariat seeking compensation for damage caused to his health.
6.  The first hearing scheduled for 17 March 1999 did not take place due to the parties' failure to appear.
7.  On 14 May and 3 June 1999 the applicant informed the court that he would not be available for a short period of time and requested that any scheduled hearings be postponed.
8.  On 29 June 1999 the applicant amended his claims, following which the hearing was adjourned to obtain additional evidence. Upon arrival of the respondent's comments on the claim, on 16 September 1999 the hearing was again adjourned to collect evidence.
9.  On 20 September 1999 the court granted the applicant's request for assistance in obtaining certain documents from his former military unit and sent an inquiry.
10.  On 3 May 2000 the court postponed the hearing pending the applicant's convalescence.
11.  On 20 June 2000 the applicant again amended the claims, following which the hearing was adjourned to obtain evidence from certain State bodies.
12.  On 16 February 2001 the court granted the respondent's motion for adjournment of the proceedings pending the outcome of an inquiry at the Constitutional Court of Russia that concerned compliance of relevant legal provisions with the Constitution. On 23 October 2001 the Kostroma Regional Court (“the Regional Court”) dismissed the applicant's application for supervisory review of the above decision.
13.  The Government submitted that the Constitutional Court had ruled on the relevant issues on 19 June 2002 and 25 March 2003.
14.  The proceedings were resumed on 14 April 2005. Following the parties' failure to appear at two hearings, on 29 April 2005 the court left the claims without consideration. On 21 June 2005 this decision was quashed for lack of proper notification of the parties, and the proceedings were resumed.
15.  The proceedings were stayed from 6 July to 17 November 2005 pending the outcome of another inquiry with the Constitutional Court of Russia, which was resolved on 7 October 2005.
16.  After resumption of the proceedings the parties did not appear at two hearings, and on 28 December 2005 the court again left the claims without consideration.
17.  In April and May 2006 the applicant requested that the above decision be quashed and amended his claims. The proceedings resumed on 19 May 2006.
18.  Between 22 June and 31 August 2006 three hearings were adjourned at the initiative of the respondent and for the public prosecutor's default in appearance. The applicant in the meantime supplemented his claims and motioned for examination of the case in his absence.
19.  On 14 September 2006 the District Court granted the applicant's claims in part awarding him 1,008,083 Russian roubles (RUB) in damages and RUB 14,049 in monthly payments of disability pension.
20.  On 29 November 2006 the Regional Court overturned the judgment for errors of fact and ordered a new hearing. The appeal court also issued a decision in respect of the president of the District Court to reprimand him for breaches of procedural law and excessively long examination of the case. In particular, the appeal court pointed out that the applicant, or both parties, had not been duly notified of the hearings of 17 March 1999, 14 and 21 April, 17 November and 28 December 2005. It also noted the large interval between the hearings held in September 1999 and May 2000.
21.  In December 2006 and February 2007 the applicant motioned for examination of the case in his absence.
22.  On 25 December 2006 the court adjourned the hearing to allow the respondent to obtain certain evidence.
23.  On 1 March 2007 the District Court again granted the claims in part, awarding the applicant RUB 1,475,149 in damages and RUB 19,858 as monthly payments.
24.  On 4 June 2007 the Regional Court upheld the judgment on appeal after correcting an arithmetical error.
II.  RELEVANT DOMESTIC LAW
25.  Federal Law № 68-ФЗ of 30 April 2010 (in force as of 4 May 2010) provides that in case of a violation of the right to trial within a reasonable time or of the right to enforcement of a final judgment, the Russian citizens are entitled to seek compensation of the non-pecuniary damage. Federal Law № 69-ФЗ adopted on the same day introduced the pertinent changes in the Russian legislation.
26.  Section 6.2 of the Federal Law № 68-ФЗ provides that everyone who has a pending application before the European Court of Human Rights concerning a complaint of the nature described in the law has six months to bring the complaint to the domestic courts.
THE LAW
I.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
27.  The applicant complained that the length of the proceedings in his case had breached the “reasonable time” requirement as provided in Article 6 § 1 of the Convention, the relevant part of 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 ...”
A.  Admissibility
28. The Government argued that the complaint had been lodged out of time and should be declared inadmissible in accordance with Article 35 § 1 of the Convention. They contended that in his application form the applicant had complained about the decision to stay the proceedings of 16 February 2001 which had been left in force by the supervisory instance on 23 October 2001.
29.  The applicant did not submit any specific comments.
30.  The Court observes that in his application form the applicant had raised a complaint concerning the domestic court's inactivity in his case and mentioned specifically the last decision that had occurred by that date, namely the decision of 16 February 2001. Given that the proceedings were still pending after this date, the Court is unconvinced that the six-month time-limit should be calculated from that date or the date when the supervisory instance rejected the application for supervisory review. It has been a long-standing practice of the Court that the period covered by the reasonable time guarantee in a particular case runs until the judgment is given by the Court (see, among others, Bordikov v. Russia, no. 921/03, 8 October 2009 and Polonskiy v. Russia, no. 30033/05, 19 March 2009).
31.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B.  Merits
32.  The Government asserted that the applicant's case had been complex and that its length had been the result of the applicant's own actions, namely failure to appear at hearings and requests to adjourn them, as well as amendment of his claims on multiple occasions. They admitted two significant intervals in the examination of the case caused by pending inquiries at the Constitutional Court but stated that these had been in the interests of fair resolution of the dispute and necessary under national law.
33.  The applicant maintained his complaint.
34.  The Court observes that the proceedings in the applicant's case commenced on 20 January 1999 and ended on 4 June 2007. They thus lasted approximately eight years and five months, during which period the domestic courts considered the claims twice at two levels of jurisdiction.
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 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, § 43, ECHR 2000-VII).
36.  The Court considers that the applicant's case was not characterised by particular complexity.
37.  Having regard to the applicant's conduct, it accepts that on two occasions he requested that the hearings be postponed and thus delayed the proceedings by approximately six weeks. The Court is also mindful of the fact that the applicant amended his claims at least four times and required the court's assistance in collection of evidence. At the same time, it reiterates that an applicant cannot be blamed for taking full advantage of the resources afforded by the national law in defence of his interests (see, mutatis mutandis, Yağcı and Sargın v. Turkey, 8 June 1995, § 66, Series A no. 319‑A).
38.  Turning to the conduct of the authorities, the Court observes several deficiencies in their handling of the case. It firstly notes that according to the decision issued by the Kostroma Regional Court on 29 November 2006, the trial court had regularly failed to properly notify the parties of the hearings. As a result, several hearings did not take place and twice the claims were left without consideration with subsequent applications for resumption of the proceedings, which significantly held back the progress. Secondly, the Court takes particular cognisance of the fact that the Government failed to provide any explanation of the court's activity during the period between 25 March 2003, when the last decision in a relevant case was adopted by the Constitutional Court, and 14 April 2005, when the proceedings stayed pending such decision were resumed. There is nothing in the facts of the case or parties' submissions that would justify these two years of inactivity.
39.  Finally, the Court bears in mind that the applicant was in a vulnerable position, given especially that the disability allowance at issue was his principal source of income. It thus considers that the authorities had an obligation to examine the applicant's claims with special diligence.
40.  Regard being had to the significant delays attributable to the authorities and the importance of the outcome of the proceedings for the applicant, the Court concludes that the “reasonable time” requirement was breached in the present case.
41.  There has accordingly been a violation of Article 6 § 1 of the Convention.
II.  ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
42.  The applicant complained of lack of effective remedies against excessive length of the proceedings in Russia. He relied on Article 13 of the Convention, which reads 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.”
A.  Admissibility
43.  The Government submitted that the complaint was manifestly ill-founded and requested to reject it in accordance with Article 35 §§ 3 and 4 of the Convention.
44.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B.  Merits
45.  The Court takes cognisance of the existence of a new remedy introduced by the federal laws № 68-ФЗ and № 69-ФЗ in the wake of the pilot judgment adopted in the case of Burdov v. Russia (no. 2) (no. 33509/04, ECHR 2009‑...). These statutes, which entered into force on 4 May 2010, set up a new remedy which enables those concerned to seek compensation for the damage sustained as a result of unreasonable length of the proceedings (see para. 25 above).
46.  The Court observes that in the present case the parties' observations in respect of Article 13 arrived before 4 May 2010 and did not contain any references to the new legislative development. However, it accepts that as of 4 May 2010 the applicant has had a right to use the new remedy (see para. 26 above).
47.  The Court recalls that in the pilot judgment cited above it stated that it would be unfair to request the applicants, whose cases had already been pending for many years in the domestic system and who have come to seek relief at the Court, to bring again their claims before domestic tribunals (Burdov (no. 2), cited above, § 144). In line with this principle, the Court decided to examine the present application on its merits and found no violation of the substantive provision of the Convention.
48.  Finally, on 23 September 2010 the Court decided that all new cases introduced after the Burdov pilot judgment and falling within the scope of the new domestic remedy had to be submitted in the first place to the national courts (see Fakhretdinov and Others v. Russia (dec.), no. 26716/09, § 32, 23 September 2010). The Court also stated that its position may be subject to review in the future, depending in particular on the domestic courts' capacity to establish consistent practice under the new law in line with the Convention requirements (ibid, § 33).
49.  Having regard to these special circumstances, the Court does not find it necessary to continue a separate examination of the complaint under Article 13 in the present case (see, among others, Kravchenko and Others v. Russia, nos. 11609/05 et al., § 45, 16 September 2010).

III.  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 10,000 euros (EUR) in respect of non-pecuniary damage.
52.  The Government did not provide any comments.
53.  The Court accepts that the applicant suffered considerable distress and frustration due to the undue length of examination of his claims and, deciding on an equitable basis, awards the applicant EUR 5,500 in respect of non-pecuniary damage.
B.  Costs and expenses
54.  The applicant also claimed 8,000 Russian roubles (RUB) to cover the cost of translation of his observations to the Court. He supplied a receipt from a professional translation bureau.
55.  The Government did not comment.
56.  Regard being had to the documents in its possession and to its case law, the Court considers it reasonable to award the sum of EUR 200 covering the costs and expenses for the proceedings before the Court.
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 application admissible;

2.  Holds that there has been a violation of Article 6 § 1 of the Convention;

3.  Holds that there is no need for separate examination of the complaint under Article 13 of the Convention;

4.  Holds
(a)  that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into Russian roubles at the rate applicable at the date of settlement:
(i) EUR 5,500 (five thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage,
(ii) EUR 200 (two hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses,
(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 13 January 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	André Wampach	Sverre Erik Jebens	Deputy Registrar	President