FIRST SECTION
CASE OF
ABORINA v. RUSSIA
(Application no.
28222/06)
JUDGMENT
STRASBOURG
11 April 2013
This judgment is final but
it may be subject to editorial revision.
In the case of Aborina v. Russia,
The European Court of Human
Rights (First Section), sitting as a Committee composed of:
Elisabeth Steiner, President,
Mirjana Lazarova Trajkovska,
Linos-Alexandre Sicilianos, judges,
and André Wampach, Deputy Section Registrar,
Having deliberated in private on 19 March 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
28222/06) 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 Valentina Alekseyevna Aborina
(“the applicant”), on 1 July 2006.
The applicant was represented by Ms S.V.
Davydova, a lawyer practising in Moscow. The Russian Government (“the
Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.
On 12 February 2009 the application was
communicated to the Government. In accordance with
Protocol No. 14, the application was allocated to a Committee.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1936 and lives in Lytkarino.
The applicant has been involved in a series of
disputes in connection with division of the property she used to own jointly
with Mr S., her brother.
A. Division of joint property
In 1995 the applicant filed a claim concerning
the division of a house and a plot of land.
On 14 September 1995 the Vidnoye Town Court of
the Moscow Region (the Town Court) granted her claim in part.
On 15 December 1999 the Presidium of the Moscow
Regional Court quashed the judgment by way of supervisory review and remitted
the matter for fresh consideration.
On 23 October 2003 the Town Court granted the
applicant’s claim in part.
B. Reconstruction of the house
On 25 February 1997 the Town Court granted S.’s
claim against the applicant concerning her objections to the reconstruction of
the house.
C. Allegedly unauthorised construction
On 3 October 1997 the applicant brought another
claim against S. seeking the demolition of the structures he allegedly built
without a relevant permit.
It appears that the consideration of the claims
was adjourned on numerous occasions, mostly because of the conduct of various expert
examinations. In particular, on 8 December 2000 the Town Court ordered to
conduct two expert examinations and stayed the proceedings pending their
outcome. The proceedings were resumed on 1 August 2002 when the expert opinions
were sent to the court and a hearing was scheduled for 2 October 2002.
On 17 May 2007 the Town Court dismissed the
applicant’s claim.
On 13 September 2007 the Moscow Regional Court
(the Regional Court) upheld the judgment on appeal.
D. Claim for damages
On an unspecified date the applicant brought a
claim against S. for damages.
On 12 December 2005 the Town Court dismissed the
applicant’s claims.
On 6 March 2006 the Regional Court upheld the
judgment on appeal.
E. Demolition of the fence
On an unspecified date S. brought an action
against the applicant, who had dismantled the fence he had constructed.
On 19 December 2007 the Town Court found for S.
On 13 March 2008 the Regional Court upheld the
judgment on appeal.
F. Title to newly constructed property
On an unspecified date the applicant brought a
claim against S. seeking recognition of her property rights to the newly
constructed buildings on the plot of land.
On 12 May 2008 the Town Court dismissed the
applicant’s claims.
On 2 September 2008 the Moscow Regional Court
upheld the judgment on appeal.
II. RELEVANT DOMESTIC LAW
Federal Law No. 68-FZ of 30 April 2010, which
entered into force on 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, Russian citizens are entitled to seek compensation for
non-pecuniary damage. Federal Law No. 69-FZ, adopted on the same date,
introduced the pertinent changes into Russian legislation.
Section 6.2 of Federal Law No. 68-FZ provides
that everyone who has a pending application before the European Court of Human
Rights concerning a complaint of the type described in that Law has six months
to bring the complaint before the domestic courts.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE
CONVENTION
The applicant complained that the length of the
proceedings in her case which ended on 13 September 2007 had breached the
“reasonable time” requirement of 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 ...”
The Court observes that the proceedings in
question commenced on 3 October 1997 and ended on 13 September 2007. However, the period to be taken into consideration began on 5
May 1998, when the Convention entered into force in respect of Russia. Thus, the aggregate length of the proceedings within the Court’s competence ratione
temporis amounts approximately to nine years and four months when the
applicant’s case was considered twice at two levels of jurisdiction.
A. Admissibility
The Court notes that the application is not
manifestly ill-founded within the meaning of Article 35 § 3 (a) 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 submitted
that the length
of the proceedings in the present case complied with the “reasonable time”
requirement of Article 6.
The applicant maintained her complaint.
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 of 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 has frequently
found violations of Article 6 § 1 of the Convention in cases raising issues
similar to the one in the present application (see, among many other
authorities, Frydlender v. France, cited above). Having examined all
the material submitted to it, the Court considers that the Government have not
put forward any fact or convincing argument capable of justifying such a
lengthy period of the proceedings and, thus, persuading it to reach a different
conclusion in the present circumstances.
. The
Court notes indeed that this length cannot be explained by either complexity of
the case or the applicant’s conduct in the proceedings. It should be recalled that
in assessing the reasonableness of the length of the proceedings account must be taken of the state of the
proceedings on the date of entry of the Convention into force in respect of the
Contracting State (see, among other authorities, Billi
v. Italy, judgment of 26 February 1993, Series A no. 257-G, § 16). In this respect, the Court
observes that overall the proceedings had been pending for more than eight
years before the Town Court. Moreover, a specific deficiency that occurred in
the course of these proceedings consisted of unexplained procrastination in
carrying out of the expert examinations which caused a delay of almost two
years (see paragraph 12). The Government did not provide any explanation in
this regard. Nevertheless, the Court recalls that the principal responsibility
for the delay due to the expert opinions rests ultimately with the State (see Capuano v. Italy, 25 June
1987, § 32, Series A no. 119). It is up to the
courts to use the measures available to them under domestic law to maintain control over the proceedings. The Court considers therefore that in the circumstances of the
present case the above defect in the authorities’ handling of the
case at hand were serious enough to lead to a breach of the “reasonable time”
requirement.
There has accordingly been a violation of
Article 6 § 1 of the Convention on account of unreasonable length of
proceedings.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE
CONVENTION
The applicant complained under Article 13 that
she had not had an effective remedy in respect of the length of the proceedings
in her case. The relevant provision 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.”
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 or delayed enforcement of court
judgments (see paragraph 24 above).
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 paragraph 25 above).
The Court recalls that in the pilot judgment
cited above it stated that it would be unfair to request the applicants whose
cases have 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 a violation of the substantive provision of the Convention.
Having regard to these special circumstances,
the Court does not find it necessary to separately examine the applicant’s
complaint under Article 13 (see Utyuzhnikova v. Russia, no. 25957/03, § 52, 7 October 2010).
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The applicant also complained under Articles 6
and 14 of the Convention about the unfairness of the civil proceedings in which
she was a party, bias of the judges and deprivation of her property.
Having regard to all the materials in its
possession, and in so far as these complaints fall within its competence, the
Court finds that there is no appearance of a violation of the rights and
freedoms set out in these provisions in that respect. It follows that this part
of the application must be rejected as being manifestly ill-founded, pursuant
to Article 35 §§ 1, 3 and 4 of the Convention.
IV. 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
In respect of pecuniary damage the applicant claimed
95 euros (EUR) which represented damage caused to her health as a
result of lengthy proceedings. She submitted copies of receipts showing that
she had paid for medicine. The applicant also claimed EUR 50,000 in respect of
non-pecuniary damage.
The Government did not provide any comments on
the claims.
In respect of the claim for pecuniary damage,
the Court does not discern any causal link between the violation found and the
damage alleged; it therefore rejects this claim.
In respect of non-pecuniary damage, the Court
accepts that the applicant suffered some distress and frustration caused by the
length of the proceedings. Deciding on an equitable basis, the Court awards EUR 4,000.
B. Costs and expenses
The applicant claimed EUR 2,256 for the costs
and expenses incurred in the domestic proceedings.
She also claimed EUR 28 for postal expenses
incurred before the Court. She submitted copies of several receipts for postal
expenses for a total sum of 700 Russian roubles (RUB).
The Government disputed the amount as
unsubstantiated
Regard being had to the documents in its
possession and to its case-law, the Court rejects the applicant’s claim
for costs and expenses incurred in the domestic proceedings as there is no indication that they were incurred in seeking
redress in respect of the violation found. At the same time, the Court
considers it reasonable to award the applicant an amount equivalent to the
postal expenses which have been incurred in her correspondence and proved by
postal receipts (RUB 700). The Court accordingly awards the sum of EUR 16
for the expenses incurred by the applicant in the proceedings before the Court,
plus any tax that may be chargeable on that amount.
C. Default interest
The Court considers it appropriate that the
default interest rate 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 complaint concerning the
length of the civil proceedings which ended on 13 September 2007 admissible and
the remainder of the application inadmissible;
2. Holds that there has been a violation of
Article 6 of the Convention;
3. Holds that there is no need for a 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 the
currency of the respondent State at the rate applicable at the date of
settlement:
(i) EUR 4,000 (four thousand euros), plus any tax
that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 16 (sixteen 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 11 April 2013,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Elisabeth
Steiner
Deputy Registrar President
