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FIRST
SECTION
CASE OF BEZYMYANNAYA v. RUSSIA
(Application
no. 21851/03)
JUDGMENT
STRASBOURG
22
December 2009
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 Bezymyannaya v.
Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina Vajić,
President,
Anatoly Kovler,
Elisabeth
Steiner,
Khanlar Hajiyev,
Sverre Erik
Jebens,
Giorgio Malinverni,
George Nicolaou,
judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 3 December 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 21851/03) 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, Ms Galina Aleksandrovna
Bezymyannaya (“the applicant”), on 5 June 2003.
- The
applicant was represented by Mr I. Skripnichenko, a lawyer practising
in Belgorod. The Russian Government (“the Government”)
were represented by Mr P. Laptev, former Representative of the
Russian Federation at the European Court of Human Rights.
- The
applicant alleged, in particular, that she had been denied effective
access to a court due to the domestic courts' refusal to examine the
merits of her claim.
- On
22 June 2006 the President of the First Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1973 and lives in the town of Belgorod in the
Belgorod Region.
- On
29 December 1992 the applicant's husband bought municipal property,
including the premises of a former restaurant. According to the
applicant, several years later her husband, fearing for his life and
for the safety of his family, signed a contract with a number of
individuals, transferring title to the restaurant building to them.
- On
5 May 2002 the applicant, in the interests of her minor child, lodged
an action against her husband, seeking invalidation of the contract.
She claimed that her husband had acted ultra vires while
signing the contract, as he had not been the sole owner of the
building. A part of the building had belonged to their minor child.
- The Sverdlovskiy District Court of Belgorod accepted
the claim for examination and listed a hearing. However,
on 13 August 2002 it transferred the case to the Commercial Court of
the Belgorod Region for further adjudication. The relevant part of
the decision read as follows:
“By virtue of paragraph 1 of Section 4 of the Code
of Commercial Procedure of the Russian Federation, which entered into
force on 6 August 2002, the present case falls into the jurisdiction
of a commercial court.
Under Article 7 of the Federal Law “On Putting
into Operation the Code of Commercial Procedure of the Russian
Federation” cases which are in the process of adjudication by
courts of general jurisdiction and which, according to the Code of
Commercial Procedure..., have been placed under the jurisdiction of
commercial courts, should be transferred by courts of general
jurisdiction, with the plaintiff's consent, to commercial courts
within two weeks after paragraph 1 of Section 4 of the Code of
Commercial Procedure has entered into force... If the plaintiff does
not consent to the transfer of the case from the court of general
jurisdiction to the commercial court, the court of general
jurisdiction discontinues the proceedings in the case at issue
because the case is not within the jurisdiction of the court of
general jurisdiction.
At the hearing the plaintiff, [the applicant],
consented, which she had confirmed in writing, to the transfer of the
case to the commercial court.
The court finds it necessary to transfer the case
pertaining to the [applicant's] action against [her husband]... to
the Commercial Court of the Belgorod Region.”
An
appeal against the District Court's decision could have been lodged
before the Belgorod Regional Court within ten days.
- On 17 October 2002 the Commercial Court of the Belgorod
Region discontinued the proceedings because it found that it had no
jurisdiction over the claim.
- On
10 December 2002 the Appeal Division of the Commercial Court of the
Belgorod Region upheld the decision of 17 October 2002, endorsing the
reasons given by the Commercial Court. On 24 March 2003 the Federal
Commercial Court of the Central Circuit, in the final instance,
upheld the decisions of 17 October and 10 December 2002.
II. RELEVANT DOMESTIC LAW
- The RSFSR Code of Civil Procedure of 11 June 1964 (in
force at the material time) provided that a case accepted for
consideration by a court in compliance with the jurisdictional rules
was to be examined on its merits, even if it subsequently fell under
another court's jurisdiction. A case could only be transferred to
another court if: (a) it was considered that another court could
examine the case faster and more correctly, particularly if another
court sat in the place where the majority of items of evidence was
situated; (b) if a respondent whose place of residence had previously
been unknown asked the court to transfer his or her case to the court
at the place of his or her residence; (c) if, after one or several
judges had stepped down from the case, a further change of judge in
that court was no longer possible; and (d) if, during the examination
of the case, it became apparent that the case had been accepted for
examination in violation of jurisdictional rules (Article 122).
- The
Russian Code of Commercial Procedure of 24 July 2002 provides that a
commercial court should return a statement of claims to a plaintiff,
if, when deciding whether to accept the action for adjudication, it
establishes that the case does not fall within its jurisdiction
(Article 129). If, however, a commercial court accepts the case for
adjudication and subsequently discovers that it has no jurisdiction
over the claim, it should discontinue the proceedings and issue a
decision, explaining the reasons for discontinuation (Article 150).
If the proceedings were discontinued, an individual is barred from
bringing before a commercial court an action between the same parties
on the same subject matter and based on the same grounds (Article 151
§ 3).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained under Article 6 § 1 of the Convention that
the domestic courts had refused to examine the merits of her action
against her husband, thus denying her access to court. Article 6 §
1 of the Convention, in so far as relevant, reads as follows:
“In the determination of his civil rights and
obligations ... everyone is entitled to a fair ... hearing ... by an
independent and impartial tribunal established by law.”
A. Submissions by the parties
- In
their sole line of argument, the Government submitted that the
applicant had failed to exhaust domestic remedies. In particular, the
Government stressed that the applicant could have lodged an appeal
with the Belgorod Regional Court against the District Court decision
of 13 August 2002 or could have challenged that District Court
ruling by way of lodging a supervisory-review application. They
further cited the Constitutional Court of the Russian Federation as
an alternative remedy which the applicant had failed to employ. The
Government did not comment on the merits of the applicant's
complaint.
- The
applicant maintained her complaints, arguing that the domestic courts
were better placed to interpret the rules on the limitations to their
judicial powers, including the jurisdiction clauses. She stressed
that it had been open to the domestic courts, in case of a doubt or
legal lacuna, to ask a higher-instance court or the Constitutional
Court of the Russian Federation to clarify the jurisdictional matter.
While consenting to the transfer of her case to the Commercial Court,
she had no reason to doubt the correctness of the District Court
decision and she could not foresee the subsequent commercial courts'
refusal to examine her action. Therefore, she did not appeal against
the District Court decision of 13 August 2002 within the ten-day
time-limit established by the RSFSR Code of Civil Procedure.
B. The Court's assessment
1. Admissibility
- The
Court notes that the Government listed three possible avenues of
exhaustion which could have been employed by the applicant, in
particular an appeal to the Belgorod Regional Court, a supervisory
review application and a complaint to the Constitutional Court of the
Russian Federation. In this connection the Court will first reiterate
the principles which govern the application of the rule on exhaustion
of the domestic remedies.
(a) General principles
- The
Court reiterates that the rule of exhaustion of domestic remedies
referred to in Article 35 of the Convention obliges those seeking to
bring their case against the State before the Court to use first the
remedies provided by the national legal system. Consequently,
States are dispensed from answering before the Court for their acts
before they have had an opportunity to put matters right through
their own legal system. The rule is based on the assumption,
reflected in Article 13 of the Convention - with which it has close
affinity -, that there is an effective remedy available in respect of
the alleged breach in the domestic system whether or not the
provisions of the Convention are incorporated in national law.
In this way, it is an important aspect of the principle that the
machinery of protection established by the Convention is subsidiary
to the national systems safeguarding human rights (see Handyside
v. the United Kingdom, 7 December 1976, § 48, Series A
no. 24).
- Under
Article 35 of the Convention, normally recourse should be had by an
applicant to remedies which are available and sufficient to afford
redress in respect of the breaches alleged. The existence of
the remedies in question must be sufficiently certain not only in
theory but also in practice, failing which they will lack the
requisite accessibility and effectiveness (see, inter alia,
Vernillo v. France, 20 February 1991, § 27, Series A no.
198, and Johnston and Others v. Ireland, 18 December 1986, §
22, Series A no. 112). Article 35 also requires that the complaints
made before the Court should have been made to the appropriate
domestic body, at least in substance and in compliance with the
formal requirements and time-limits laid down in domestic law and,
further, that any procedural means that might prevent a breach of the
Convention should have been used (see Cardot v. France,
19 March 1991, § 34, Series A no. 200).
- Furthermore,
in the area of the exhaustion of domestic remedies, there is a
distribution of the burden of proof. It is incumbent on the
Government claiming non-exhaustion to satisfy the Court that the
remedy was an effective one available in theory and in practice at
the relevant time, that is to say, that it was accessible and was
capable of providing redress in respect of the applicant's complaints
and offered reasonable prospects of success. However, once this
burden of proof has been satisfied it falls to the applicant to
establish that the remedy advanced by the Government had in fact been
used or was for some reason inadequate and ineffective in the
particular circumstances of the case, or that there existed special
circumstances absolving him or her from the requirement.
- The
Court would emphasise that the application of the rule must make due
allowance for the fact that it is being applied in the context of
machinery for the protection of human rights that the Contracting
Parties have agreed to set up. Accordingly, it has recognised
that the rule of domestic remedies must be applied with some degree
of flexibility and without excessive formalism (see Cardot,
cited above, § 34). It has further recognised that the
rule of exhaustion is neither absolute nor capable of being applied
automatically; in reviewing whether it has been observed it is
essential to have regard to the particular circumstances of each
individual case (see Van Oosterwijck v. Belgium, 6 November
1980, § 35, Series A no. 40). This means amongst other
things that it must take realistic account not only of the existence
of formal remedies in the legal system of the Contracting Party
concerned but also of the general legal and political context in
which they operate as well as the personal circumstances of the
applicants (see Akdivar and Others v. Turkey, 16 September
1996, §§ 65-68, Reports of Judgments and Decisions
1996 IV).
(b) Application of the general principles
to the present case
- Turning to the present case, the Court first
reiterates the Government's argument that a complaint to the
Constitutional Court could have provided the applicant with redress
for the alleged violation of her rights. In this connection, the
Court observes that the decisive question in assessing the
effectiveness of a remedy concerning a complaint of denial of access
to court is whether the applicant could have raised that complaint
before the Constitutional Court in order to obtain direct and timely
redress, and not merely an indirect protection of the rights
guaranteed in Article 6 § 1 of the Convention. The
remedy can be either preventive or compensatory in nature (see, among
other authorities, Koval v. Ukraine, no. 65550/01, § 94,
19 October 2006). The Court notes that the Government did not explain
how a complaint to the Constitutional Court could have offered the
aforementioned preventive or compensatory redress or both for
allegations of denial of access to a court which had been contrary to
Article 6 of the Convention. Furthermore, they did not indicate
whether the applicant could have directly lodged a complaint with the
Constitutional Court, without the formal institution of the
proceedings being dependent on a preliminary examination of the
complaint by the Secretariat of the Constitutional Court, whether the
Constitutional Court had the jurisdiction to quash the decision of
the court of general jurisdiction and to examine the merits of the
applicant's action and whether the Constitutional Court's finding of
a violation of the applicant's rights could have given rise to a
retrial directly, without the applicant being obliged to lodge an
application for a retrial with a competent judicial authority (see
Feldek v. the Slovak Republic (dec.), no. 9032/95, 15 June
2000, in which the Court, on the basis of the Government's negative
answers to all those questions, found that the Constitutional Court
could not be considered an effective domestic remedy). Accordingly,
the Court does not find that the Government have discharged the
burden upon them of proving that a complaint to the Constitutional
Court was accessible to the applicant and capable of providing
redress in respect of her Convention complaint.
- As to the Government's further argument pertaining to
a supervisory review application, the Court reiterates that it has
already found in a number of cases against Russia that
supervisory-review proceedings are not an effective remedy for the
purpose of Article 35 § 1 of the Convention (see Tumilovich
v. Russia (dec.), no. 47033/99, 22 June 1999, and, more
recently, Gusinskiy v. Russia (dec.), no. 70276/01, 22 May
2003). In particular, the Court held that under the RSFSR Code of
Civil Procedure, in force at the material time, the power to
institute supervisory-review proceedings was discretionary, that is
to say it was solely for the State official concerned to decide
whether or not a particular case warranted a supervisory review (see
Ryabykh v. Russia, no. 52854/99, § 34, ECHR 2003 IX).
It follows that supervisory-review proceedings could not have been
set in motion by a party and that that “remedy” was not
accessible to applicants (see, for similar reasoning, Russian
Conservative Party of Entrepreneurs and Others v. Russia, nos.
55066/00 and 55638/00, § 88, ECHR 2007 I). The Court sees
no reason to depart from that finding in the present case and rejects
this aspect of the Government's non-exhaustion objection.
- As
to the third avenue allegedly open to the applicant, the Government
insisted that an appeal against the District Court's decision of 13
August 2002 before the Belgorod Regional Court could have been an
effective remedy for the applicant's complaint about the District
Court's refusal to examine the merits of her action. At the same time
the applicant, without disputing the effectiveness of that “remedy”
per se, argued that she had had no reason to make use of that
avenue when she had still been able to employ it, that is within ten
days after the decision of 13 August 2002 had been issued. In
the applicant's opinion, the decision of 13 August 2002 had not yet
barred her access to a court as she had still had legitimate
expectation that her action would be examined by the competent
judicial authority.
- In
this connection, the Court reiterates that on 13 August 2002 the
Sverdlovskiy District Court transferred the applicant's case to the
Commercial Court for examination on the merits. The transfer was made
with the applicant's consent. At the same time the District Court
noted that should the applicant refuse the transfer, the proceedings
in her case would be discontinued (see paragraph 8 above).
- The
Court observes that the decision to transfer the applicant's action
to the Commercial Court was based on the District Court's assessment
of the procedural rules governing the subject matter over which it
had jurisdiction. The Court subscribes to the general assumption that
domestic courts are better schooled in and more able to interpret
complex and rather technical legal rules defining the jurisdictional
limits of their judicial power. In such a situation it is not
surprising that the applicant did not lodge an appeal against the
decision of 13 August 2002, seeing no reason to doubt the correctness
of the District Court's finding and consenting to the transfer of the
case, particularly so when she was faced with a dilemma: either to
proceed with her action in another court or to endure the closing of
the proceedings (see paragraph 8 above). In reaching this conclusion
the Court attributes particular weight to the fact that the District
Court grounded its decision of 13 August 2002 on interpretation of
the legal act which had entered into force only a week before (see
paragraph 8 above). Furthermore, the Government did not
argue that the District Court's interpretation of the jurisdictional
parameters of its powers had been so manifestly incorrect that it had
become absolutely evident to the applicant that the transfer of her
case to the Commercial Court would result in the discontinuation of
the proceedings (see, for similar reasoning, Hajiyev v.
Azerbaijan, no. 5548/03, § 43, 16 November 2006). In
fact, the Government have never identified the court, either District
or Commercial, which had the authority to examine the applicant's
case.
- In
addition, the Court observes that it was not until 17 October
2002, the date on which the Commercial Court's decision on
discontinuation of the proceedings was issued, that the applicant
could finally foresee the consequences of her decision to consent to
the transfer of the case from the District Court to the Commercial
Court. However, by that time the avenue of appeal against the
decision of 13 August 2002 was no longer open to her as the ten-day
time-limit envisaged for institution of appeal proceedings had
expired. The Court is mindful of the fact that in these circumstances
the applicant still tried to avail herself of the judicial
protection. She appealed against the Commercial Court's decision of
17 October 2002 to a higher-ranking court and subsequently, being
unsuccessful in her appeal, challenged the latter court's decision.
In these circumstances the Court finds that the applicant cannot be
said to have failed to exhaust domestic remedies by not bringing a
formal appeal against the decision of 13 August 2002. It follows
that the complaint cannot be declared inadmissible for non-exhaustion
of domestic remedies.
- The
Court further notes that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention and that
it is not inadmissible on any other grounds. It must therefore be
declared admissible.
Merits
- The
Court considers firstly that the restriction on the applicant's
ability to take legal proceedings must be considered from the
perspective of the right of access to a court. It reiterates that
Article 6 § 1 secures to everyone the right to have any
claim relating to his or her civil rights and obligations brought
before a court or tribunal. The Court observes that it would be
inconceivable that Article 6 § 1 should describe in detail the
procedural guarantees afforded to parties in a pending lawsuit
without also protecting the right of access to a court which makes it
in fact possible to benefit from such guarantees. The fair, public
and expeditious characteristics of judicial proceedings are of no
value at all if there are no judicial proceedings (see Golder
v. the United Kingdom, 21 February 1975, Series A no.
18, §§ 31-39). The Convention is intended to guarantee not
rights that are theoretical or illusory but rights that are practical
and effective. This is particularly true of the right of
access to the courts in view of the prominent place held in a
democratic society by the right to a fair trial (see Airey
v. Ireland, 9 October 1979, Series A no. 32, § 24).
A restrictive interpretation of the right of access to a court
guaranteed by Article 6 § 1 would not be consonant with the
object and purpose of the provision (see De Cubber v. Belgium,
26 October 1984, Series A no. 86, § 30).
- The
Court further reiterates that the “right to a court” is,
however, not absolute. The right by its very nature calls for
regulation by the State and may be subject to limitations (see
Ashingdane v. the United Kingdom, 28 May 1985, Series A
no. 93, § 57). At the same time, these limitations must not
restrict or reduce a person's access in such a way or to such an
extent that the very essence of the right is impaired. Lastly, such
limitations will not be compatible with Article 6 § 1 if they do
not pursue a legitimate aim or if there is not a reasonable
relationship of proportionality between the means employed and the
aim sought to be achieved (see Levages Prestations Services v.
France, 23 October 1996, Reports of Judgments and Decisions
1996-V, § 40, and Luordo v. Italy, no. 32190/96, §
85, ECHR 2003-IX).
- Turning
to the facts of the present case, the Court observes that, following
the District Court's decision of 13 August 2002, the applicant's
civil action by which she sought the invalidation of the contract was
transferred to the Commercial Court on the ground that the subject
matter of the action was outside the District Court's judicial power.
In its turn, the Commercial Court, whose decision was subsequently
endorsed by the two higher-instance courts, decided that it also
lacked authority to adjudicate the applicant's case and that the
District Court should have taken jurisdiction over the matter. As a
result the proceedings in the applicant's case were discontinued.
- The
Court reiterates that it is not its task to take the place of the
domestic courts. It is primarily for the national authorities,
notably the courts, to resolve problems of interpretation of domestic
legislation. The role of the Court is limited to verifying whether
the effects of such interpretation are compatible with the
Convention. This applies in particular to the interpretation by
courts of rules of a procedural nature (see Miragall Escolano and
Others v. Spain, no. 38366/97, §§ 33-39, ECHR 2000-I).
- The
Court accepts that the rules on jurisdictional parameters to judicial
powers of various courts within the entire network of the State's
judicial system are undoubtedly designed to ensure the proper
administration of justice. Those concerned must expect those rules to
be applied. However, the rules in question, or the application of
them, should not prevent litigants from making use of an available
remedy (see, mutatis mutandi, Leoni v. Italy, no.
43269/98, § 23, 26 October 2000).
- In
the present case the Court adheres to the applicant's description of
the situation in which she found herself as a result of the domestic
courts' interpretation of the jurisdictional parameters to their
authority. She was locked in a vicious circle where the national
courts were pointing at each other and refusing to hear her case in
view of the alleged limitations on their judicial powers. The
domestic courts virtually left the applicant, through no fault of her
own, in a judicial vacuum (see, mutatis mutandis, Marini v.
Albania, no. 3738/02, § 122, ECHR 2007 XIV
(extracts)). In this regard the Court is also mindful of the fact
that the Government did not advance any justification for the
domestic courts' actions and did not indicate any legitimate aim it
could have possibly pursued. The Court, however, is not prepared to
substitute the Government on that account (see, for similar
reasoning, Dunayev v. Russia, no. 70142/01, § 37, 24 May
2007). It therefore finds that there has been an unjustified
infringement of the very essence of the applicant's right to a
tribunal.
- There
has accordingly been a violation of Article 6 § 1 of the
Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
35. The
Court has examined the other complaints submitted by the applicant.
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 1,515,150 euros (EUR) in respect of pecuniary
damage, representing the cost of the building, the title to which had
been ceded by the applicant's husband. She further claimed
EUR 1,000,000 in respect of non-pecuniary damage.
- The
Government submitted that the applicant's claim for pecuniary damage
had no causal link to the alleged restriction on the applicant's
right of access to a court. They further argued that the claim in
respect of non-pecuniary damage was highly excessive. The Government
drew the Court's attention to a number of cases in which violations
of the applicants' rights under Article 6 of the Convention had been
found. They argued that the amount of compensation in those cases did
not exceed EUR 3,000 and asked the Court, if it was to find of a
violation in the present case, to apply a similar standard.
- 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, it notes that it has found a violation of the
applicant's right of access to a court in the present case. The Court
considers that the applicant's suffering and frustration cannot be
compensated for by the mere finding of a violation. Making its
assessment on an equitable basis, the Court awards the applicant EUR
2,000 in respect of non-pecuniary damage, plus any tax that may be
chargeable on that amount.
B. Costs and expenses
- The
applicant, without submitting any documents in support, also claimed
EUR 800 for the costs and expenses incurred before the Court.
- The
Government stressed that the applicant's claims were unsubstantiated.
- According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, the applicant did not
produce any document justifying her claim (copies of contracts with
lawyers, invoices, payment certificates, and so on.). The Court is
unable to determine whether the expenses claimed by the applicant
were, in fact, incurred in the amount she claimed and it therefore
makes no award under this head.
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 a denial of
access to a court admissible and the remainder of the application
inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- 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, EUR 2,000 (two thousand euros) in respect of
non-pecuniary damage, to be converted into Russian roubles at the
rate applicable at the date of the 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;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 22 December 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Nina Vajić
Registrar President
