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FIRST SECTION
CASE OF VOLOVICH v. RUSSIA
(Application no. 10374/02)
JUDGMENT
STRASBOURG
5 October 2006
This judgment will become
final in the circumstances set out in Article 44 § 2
of the Convention. It may be subject to editorial revision.
In the case of Volovich v. Russia,
The European Court of Human Rights (First Section), sitting as a
Chamber composed of:
Mr C.L. Rozakis,
President,
Mrs N. Vajić,
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 14 September 2006,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
- The case originated in an
application (no. 10374/02) 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 Mikhail
Borisovich Volovich (“the applicant”), on 4 December
2001.
- The Russian Government (“the Government”)
were represented by Mr P. Laptev, the Representative of the Russian
Federation at the European Court of Human Rights.
- On 4 April 2005
the Court decided to communicate the application. Applying Article 29
§ 3 of the Convention, it decided to rule on the admissibility
and merits of the application at the same time.
THE FACTS
- The applicant was born in 1950 and lives in
Yekaterinburg. He suffers from an occupational disease.
- On 15 May 1997 the applicant sued his former employers,
private companies, for compensation for health damage. The
Zheleznodorozhniy District Court of Yekaterinburg registered his
statement of claim and listed the first preliminary hearing for
9 July 1997. Another preliminary hearing was held on 4 September
1997.
- Of six hearings listed between 5 February 1998 and 13
June 2000 two hearings were adjourned because the judge was ill or
involved in other proceedings and two hearings were postponed for
provision of additional evidence and obtaining statements by
witnesses.
- In June 1999 and January 2000 the applicant asked the
District Court to order expert medical examinations. The examinations
were not ordered because the applicant withdrew his requests.
- On 13 June 2000 the Zheleznodorozhniy District Court
dismissed the applicant's action as unsubstantiated.
- That judgment was quashed on appeal by the Sverdlovsk
Regional Court on 1 August 2000. The case was remitted for a fresh
examination to the District Court.
- It appears that the District Court received the
case-file on 3 October 2000 and listed a hearing for 30 November
2000. At that hearing the applicant amended his claims and
requested the District Court not to perform a medical examination.
- Between 16 January and 5 June 2001 the District Court
listed three hearings. All of the hearings were adjourned because the
judge was ill or involved in other unrelated proceedings.
- On 5 June 2001 the Zheleznodorozhniy District Court
ordered a medical examination of the applicant. The court noted that
the defendants should bear the expenses of the examination and stayed
the proceedings pending completion. The applicant appealed
against that decision, claiming that the examination was not
necessary.
- The Sverdlovsk Regional Court upheld the decision of 5
June 2001 on 7 August 2001.
- On 9 July 2002 the Zheleznodorozhniy District Court
sent the case-file and the applicant's medical records to the
Moscow-based Federal expert council on occupational diseases
(Федеральный
экспертный
совет по профзаболеваниям).
- In November 2002 the council informed the applicant
that the examination had not been carried out because it had not been
paid for.
- The examination was performed on 10 April 2003 by the
Russian Academy of the medical sciences. The expert report
was sent to the District Court on 16 April 2003. A month later the
District Court received the case-file.
- On 23 May 2003 the case was assigned to another judge
and a hearing was fixed for 18 June 2003. Between 18 June
and 4 August 2003 the District Court fixed two hearings which were
adjourned because the defendants defaulted and the judge was ill.
- On 4 August 2003 the Zheleznodorozhniy District Court
dismissed the applicant's claims.
- That judgment was upheld on 2 October 2003 by the
Sverdlovsk Regional Court.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The applicant complained that the length of the
proceedings had been incompatible with the “reasonable time”
requirement, provided in Article 6 § 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...”
- The Government contested that argument.
- The period to be taken into consideration began on 5
May 1998, when the Convention entered into force in respect of
Russia. However, in assessing the reasonableness of the time that
elapsed after that date, account must be taken of the state of
proceedings at the time.
The period in question ended on 2 October 2003 with the final
judgment of the Sverdlovsk Regional Court. It thus lasted
approximately five years and five months before two levels of
jurisdiction.
A. Admissibility
- 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
- The Government argued that the case was complex. The
District Court had to order expert examinations and collect necessary
medical data. The applicant had contributed to the delay in the
proceedings by challenging the results of the expert examination.
There had been certain difficulties in financing the work of the
experts.
- The applicant averred that he had withdrawn his
requests for expert examinations as he had considered them futile.
The expert examination had been performed upon the District Court's
own initiative. The defendants had possessed the necessary data for
the examinations but had refused to submit it to the District Court.
The District Court had not taken any steps to force the defendants to
provide evidence.
- 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).
- The Court agrees that the proceedings at issue were of
some complexity as they required the taking of an expert opinion and
examination of voluminous medical data. The Court considers that the
task of the courts was rendered more difficult by these factors,
although it cannot accept that the complexity of the case, taken on
its own, was such as to justify the overall length of the
proceedings.
- As to the applicant's conduct, the Government claimed
that the applicant had contributed to the delay in the proceedings by
asking for an expert examination and then by challenging its results.
In this respect, the Court notes that the sole examination which was
performed in the course of the proceedings was initiated by the
District Court. The applicant never challenged the results of that
examination. He merely appealed against the decision by which the
examination had been ordered (see paragraph 12 above). In any event,
irrespective of the reasons for the applicant's objection to the
expert examination, the delay incurred therefrom was negligible.
- The Court observes, however, that substantial periods
of inactivity, for which the Government have not submitted any
satisfactory explanation, are attributable to the domestic
authorities. It took the District Court several months to fix
hearings. For example, no hearings appear to have been listed between
5 February and 10 September 1998 and between 10 June 1999 and 18
January 2000. The aggregated length of the delays occasioned by the
judge's absence and his participation in unrelated proceedings
amounted to approximately twelve months. Another delay of
approximately two months was caused by the transfer of the case-file
from the Regional to the District courts (see paragraph 10 above).
- The Court also notes that it took the domestic
authorities approximately twenty-one months to order an expert
examination and obtain its results. In particular, almost a year
elapsed between 7 August 2001, when the Regional Court, in the final
instance, authorised an expert examination, and 9 July 2002, when the
expert council received the case-file and medical data (see
paragraphs 14 and 15 above). Another delay of approximately four
months was caused by the defendants' failure to pay for the
examination. The Court reiterates in this respect that the principal
responsibility for the delay due to the expert opinions rests
ultimately with the State (see Capuano v. Italy, judgment of
25 June 1987, Series A no. 119, § 32). It was incumbent on
the domestic court to ensure that the defendants had promptly paid
for the expert examination and that the examination had been
performed without delay.
- Having regard to the overall length of the proceedings
and the circumstances of the case, the Court concludes that the
applicant's case was not examined within a “reasonable time”.
There has accordingly been a breach of Article 6 § 1.
II. OTHER
ALLEGED VIOLATIONS OF THE CONVENTION
- The applicant finally complained under Articles 4 §
2, 6, 10, 13 and 14 of the Convention that he earned less than
several years before and that he was currently unemployed, that the
courts had not applied international treaties and misinterpreted the
law, that experts had not provided him with information he had asked
for, and that he had been discriminated against on the ground of his
profession. However, having regard to all the material in its
possession, and in so far as these complaints fall within the Court's
competence, it finds that they do not disclose any appearance of a
violation of the rights and freedoms set out in the Convention or its
Protocols. It follows that this part of the application must be
rejected as being manifestly ill-founded, pursuant to Article 35 §§
3 and 4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- 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
- The applicant claimed 978,144.78 Russian roubles (RUR)
in respect of pecuniary damage, representing wage losses (RUR
912,819.98) and outstanding insurance payments made to the Pension
Fund (RUR 65,324.80). He also claimed 300,000 euros in respect
of non-pecuniary damage.
- The Government contested these claims. They argued
that no causal link existed between the alleged violation and the
pecuniary damage claimed by the applicant. The claims in respect of
non-pecuniary damage were excessive and unreasonable.
- The Court does not discern any causal link between the
violation found and the pecuniary damage alleged; it therefore
rejects this claim. On the other hand, the Court accepts that the
applicant suffered distress, anxiety and frustration because of
unreasonable length of the proceedings in his case. Making its
assessment on an equitable basis and taking into account relevant
aspects, such as the nature of the dispute and what was at stake for
the applicant, the Court awards him EUR 4,400 under that head, plus
any tax that may be chargeable on the above amount.
B. Costs and expenses
- The applicant also claimed RUR 548 for the costs and
expenses incurred before the Court.
- The Government noted that the applicant had
substantiated his claim and it may be granted.
- 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 claimed
under this head, plus any tax that may be chargeable on this amount.
C. Default interest
- 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
- Declares the complaint concerning the excessive
length of the proceedings admissible and the remainder of the
application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention on account of the excessive length of
the proceedings in the applicant's case;
- Holds
(a) that the respondent State is to pay the applicant,
within three months from the date on which the judgment becomes final
in accordance with Article 44 § 2 of the
Convention, the following amounts:
(i) EUR 4,400 (four thousand and four hundred euros) in respect of
non-pecuniary damage, to be converted into Russian roubles at the
rate applicable at the date of the settlement;
(ii) RUR 548 (five hundred and forty-eight Russian roubles) in
respect of costs and expenses;
(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;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 5 October 2006, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
