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FIRST
SECTION
CASE OF GORBACHEV v. RUSSIA
(Application
no. 3354/02)
JUDGMENT
STRASBOURG
15
February 2007
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 Gorbachev v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Mr L. Loucaides, President,
Mr A.
Kovler,
Mrs E. Steiner,
Mr K. Hajiyev,
Mr D.
Spielmann,
Mr S.E. Jebens,
Mr G. Malinverni,
judges,
and Mr S. Nielsen, Section Registrar,
Having
deliberated in private on 25 January 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 3354/02) 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 Mikhailovich
Gorbachev (“the applicant”), on 15 November 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
27 April 2005 the Court decided to give notice of the application to
the Government. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the application at
the same time as its admissibility.
- The applicant and Government each filed observations on
the admissibility, merits and just satisfaction. The Court decided,
after consulting the parties, that no hearing was required.
THE FACTS
- The
applicant was born in 1949 and lives in the town of Aleksin in the
Tula Region.
I. THE CIRCUMSTANCES OF THE CASE
A. Employment dispute
- On
18 May 1999 the applicant sued his former employer, a private
company, for reinstatement, wage arrears and compensation for damage.
The acknowledgment of receipt card indicated that the Aleksin Town
Court had received the statement of claim on 21 May 1999.
According to the Government, the applicant introduced the claim in
August 1999.
- On
5 January 2000 the Aleksin Town Court dismissed the claim. The
judgment was quashed on 20 April 2000 by the Tula Regional Court and
the case was remitted for a fresh examination.
- In
December 2000 the Aleksin Town Court told the defendant company that
the first hearing had been fixed for 16 January 2001, and asked
it to produce certain employment-related documents. The letter did
not contain any indication whether the applicant had been summonsed.
According to the applicant, he was not notified of the hearing of 16
January 2001. It appears from the list of events attached to the
Government's memorandum that the case-file only contained a copy of
summonses sent to the Aleksinskiy District Prosecutor who had been a
third party in the proceedings.
- The
Aleksin Town Court fixed the following hearing for 9 February 2001.
According to the Government, the parties were duly informed thereof.
The applicant argued that the summonses had not been served on him.
- On
9 February 2001 the Aleksin Town Court discontinued the proceedings.
The relevant part of the decision read as follows:
“In the preparatory part of the hearing [the
court] established that the plaintiff had not asked for an
examination of his case in his absence and that he defaulted on the
second summons, whereas the representative of the defendant... does
not insist on the examination of the case on the merits.
Having studied the case-file and heard the prosecutor
who considered that the proceedings should be discontinued, the court
finds it necessary, under Articles 220, 221 § 6 of the RSFSR
Code on Civil Procedure, to discontinue the proceedings.”
The
decision was amenable to appeal within ten days.
- According
to the Government, on 19 February 2001 the Aleksin Town Court sent a
copy of the decision to the applicant. The Government produced a copy
of the covering letter accompanying the decision. The applicant
claimed that he had not received the letter of 19 February 2001.
- In
May 2001 the applicant complained to the Supreme Court of the Russian
Federation about the excessive length of the proceedings in his case.
The Supreme Court readdressed the complaint to the Tula Regional
Court.
- On 12 September 2001 the President of the Tula
Regional Court sent a letter to the Aleksin Town Court. The letter
read as follows:
“I am sending you the complaint of Mr Gorbachev
which was received from the Supreme Court of the Russian Federation.
[He complains] about your court's lengthy failure to examine his
action... for reinstatement, payment of wage arrears and compensation
for non-pecuniary damage after the Tula Regional Court quashed the
judgment of 5 January 2000 of your court on 20 April 2000. [I
ask you] to take immediate measures to determine the dispute.”
The
applicant received a copy of the letter of 12 September 2001.
- According to the Government, on 24 October 2001
officials of the Aleksin Town Court attempted to serve the applicant
with a copy of the decision of 9 February 2001, however, he
refused to countersign a record showing that the decision had been
served on him. The Government indicated that this fact had been
orally confirmed by the President of the Town Court. According to the
applicant, he was not served with the decision either by mail or in
person.
- On
30 October 2001 the Aleksin Town Court sent a letter to the applicant
and the President of the Tula Regional Court informing them that on 9
February 2001 the proceedings in the applicant's employment dispute
had been discontinued. According to the applicant, he did not receive
that letter.
- On
29 November 2001 the applicant complained to the Tula Regional Court
that the proceedings in his case were excessively long. On 11
December 2001 the Tula Regional Court readdressed the complaint to
the Aleksin Town Court “in order to examine and respond”.
- On 8 January 2002 the President of the Aleksin Town
Court sent a letter to the applicant. A copy of that letter was also
sent to a deputy President of the Tula Regional Court. The letter
read as follows:
“Further to your complaint no. 22-5538 of 11
December 2001 lodged before the Tula Regional Court, the [Aleksin
Town] Court informs you that by the decision of 9 February 2001
of the Aleksin Town Court the proceedings concerning reinstatement,
payment of wage arrears and compensation for non-pecuniary damage
were discontinued in accordance with paragraph 6 of Article 221 of
the RSFSR Code on Civil Procedure.
A copy of the decision advising you, in particular, of
the right to appeal against it, was sent to you on 19 February 2001.
However, you did not appeal against that decision by way of cassation
or supervisory review after a copy of that decision had been
delivered to you personally on 24 October 2001.
Your complaint is therefore unsubstantiated.”
The
applicant submitted that he had not received that letter.
- On 12 January 2002 the applicant complained to the
Supreme Court of the Russian Federation that the Aleksin Town Court
was delaying the examination of his action. The Supreme Court sent
the complaint to the Tula Regional Court.
- On 7 March 2002 the President of the Tula Regional
Court sent letters to the President of the Aleksin Town Court and the
applicant. The President noted that it had received the applicant's
complaint concerning the excessive length of the proceedings related
to his employment action. The President urged the Town Court to take
measures to examine the applicant's action as soon as possible.
- On 22 March and 5 April 2002 the President of the
Aleksin Town Court sent letters to the applicant and the President of
the Tula Regional Court. He insisted that on 9 February 2001 the
proceedings had been discontinued, that a copy of that decision had
been sent to the applicant on 19 February 2001 and that it had also
been delivered to him personally on 24 October 2001. The applicant
alleged that he had not received those letters.
- On 29 March 2002 the applicant sent letters to the
Constitutional and Supreme courts of the Russian Federation, the Tula
Regional and Aleksin Town courts. The letters, in the relevant part,
read as follows:
“On 4 December 2001 the Supreme Court of Russia
received my complaint about the unjustified procrastination in the
examination of civil cases in the Aleksin Town Court. The
first-instance judgment of 5 January 2000 was quashed by the judgment
of the appeal court on 20 April 2000. Almost two years have passed,
but the civil case is not re-examined...
My complaints were readdressed to the Tula Regional
Court and then to the Aleksin Town Court. I received letters of 12
September 2001, 7 March 2002 from the Regional Court. [The letters]
state that 'immediate measures should be taken for examination of the
case' and 'measures should be taken to examine the case as soon as
possible'. No concrete response was received from the Aleksin Town
Court...
The courts of the Russian Federation take every possible
step to procrastinate for indefinite period the examination of my
civil cases... to force me to withdraw my actions...
I would like to ask you to transfer the examination of
my civil actions to another court in the town of Tula or to the Tula
Regional Court”
- In April 2002 the Supreme Court readdressed the
applicant's complaint of 29 March 2002 to the Tula Regional Court. On
10 April and 14 May 2002 the President of the Tula Regional Court
again sent letters to the Aleksin Town Court and the applicant. The
Regional Court noted that the applicant had complained about the
lengthy failure to examine his case. It urged the Aleksin Town Court
to examine the applicant's claim as soon as possible. Copies of these
letters were sent to the applicant.
- On 15 May 2002 the President of the Aleksin Town Court
sent letters to a deputy President of the Tula Regional Court and the
applicant, informing them that the applicant had failed to appeal
against the decision of 9 February 2001 and that his complaints were
therefore unsubstantiated. The applicant claimed that he had not
received that letter.
- On 22 May 2002 the President of the Aleksin Town Court
sent letters to the applicant and a deputy President of the Tula
Regional Court. The letters read as follows:
“Further to your request of 29 March 2002 the
Aleksin Town Court of the Tula Region informs you that on 9 February
2001 the proceedings... concerning reinstatement were discontinued
under paragraph 6 of Article 221 of the RSFSR Code on Civil
Procedure.
A copy of the court's decision was sent to the plaintiff
on 19 February 2001; subsequently, on 24 October 2001 a copy of the
decision of 9 February 2001 was made available to the plaintiff by
personal delivery against his signature; an entry to that effect was
made in the case-file.
However, at the material time, the plaintiff did not
appeal against the decision by way of cassation or supervisory
review. The complaint is therefore unsubstantiated.”
- According
to the applicant, he did not receive any letters from the Aleksin
Town Court.
B. Defamation action
- On
13 February 1999 the applicant lodged before the Aleksin Town Court a
defamation action against the Aleksin Town Council. The statement of
claim was sent to the Town Court by registered mail. The list of
enclosures bearing a stamp of the Aleksin post office showed that the
applicant's letter included three copies of the statement of claim
and copies of responses from the prosecutor's office. The
acknowledgment of receipt card shows that on 19 February 1999 the
Aleksin Town Court received the statement of claims with enclosures.
- The
Government, relying on a certificate prepared by the Aleksin Town
Court, claimed that no defamation action had been lodged by the
applicant between 1999 and 2005.
- In
1999 to 2002 the applicant complained to various domestic officials
that the Aleksin Town Court had failed to decide on his claim.
- On 7 March and 10 April 2002 the Tula Regional Court
asked the Aleksin Town Court to take necessary steps to examine the
merits of the applicant's defamation action as soon as possible. The
applicant received copies of these letters.
- The
applicant did not receive any response from the Aleksin Town Court.
II. RELEVANT DOMESTIC LAW
- The
RSFSR Code on Civil Procedure 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. Civil cases were to be examined no later than one
month after the preparation for the hearing had been completed
(Article 99)
- 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 (Article 106).
- A
party was to sign the second copy of a summons which was to be
returned to a court. If a summons could not be served on a party, it
was to be served on an adult family member who lived with the party.
A family member who had received a summons was to indicate on its
second copy his/her first name, patronymic and family name and
his/her relation to a summonsed party. If a party was absent, a
person who delivered a summons was to note on the second copy of the
summons where the party had moved (Article 109).
- Article 221 § 6 provided that a court could issue
an interim decision on discontinuation of the proceedings
(определение
об оставлении
заявления без
рассмотрения),
in particular, if the plaintiff had not waived his/her right to be
present and had failed to appear for the second time, and the
defendant had not insisted on continuation of the proceedings.
- A copy of an interim decision on discontinuation of
the proceedings was to be sent to the absent party no later than
three days upon its delivery (Article 213).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicant complained that the domestic court's failure to notify him
of developments in two sets of the proceedings deprived him of the
right under Article 6 § 1 of the Convention, which reads as
follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing within a
reasonable time... by [a] ... tribunal...”
A. Failure to notify the applicant of the state of the
proceedings in the employment dispute
1. Submissions by the parties
- The
Government argued that the applicant's complaint was manifestly
ill-founded. On 9 February 2001 the proceedings were discontinued
because of the applicant's failure to attend. The decision of
9 February 2001 was sent to him on 19 February 2001 and was
delivered to him personally on 24 October 2001. The Government
further noted that in 2001 and 2002, in response to the applicant's
complaints, the Aleksin Town and Tula Regional courts sent letters to
the applicant notifying him of the decision of 9 February 2001.
- The
applicant averred that he had not been summonsed to the hearings of
16 January and 9 February 2001 and that the Government did not
produce any evidence to the contrary. The proceedings were thus
discontinued in breach of the Russian law. He was not notified of the
decision of 9 February 2001 either by mail or by personal delivery.
He referred to an alleged discrepancy in the Government's submissions
concerning the notification of the decision of 9 February 2001:
whereas the President of the Town Court had orally claimed that on
24 October 2002 he had refused to countersign the receipt card,
the letter of 22 May 2002 of the Aleksin Town Court stated that
on 24 October 2002 he had accepted the decision and signed the
receipt card. The applicant further argued that the Tula Regional
Court had never informed him of the discontinuation of the
proceedings, but urged the Town Court to examine his action as soon
as possible. He did not receive any response from the Aleksin Town
Court.
2. The Court's assessment
(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 Court considers that the applicant's complaint
raises an issue as to the right of access to a court. In this
respect, 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, §§ 28-36).
- The
Court observes that the applicant in the present case had the
possibility of lodging a civil action against his former employer.
The Court considers it established that on 21 May 1999 the Aleksin
Town Court received the applicant's statement of claims and accepted
it for examination.
- The Court reiterates that the institution of
proceedings does not, in itself, satisfy all the requirements of
Article 6 § 1. 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 § 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,
§ 45, 10 July 2003; Kutić v. Croatia,
no. 48778/99, § 25, ECHR 2002-II).
- The
Court observes that on 9 February 2001 the Aleksin Town Court,
applying Article 221 of the RSFSR Code on Civil Procedure, issued an
interim decision discontinuing the proceedings in the applicant's
case because he had defaulted at the two hearings of 16 January and 9
February 2001 and appeared to have lost interest in the case.
- The
Court reiterates that, in proceedings originating in an individual
application, it has to confine its attention, as far as possible, to
the concrete case before it (see Ashingdane v. the United Kingdom,
judgment of 28 May 1985, Series A no. 93, § 59).
Accordingly, the Court's task in assessing the permissibility of the
limitation imposed is not to review Article 221 of the RSFSR Code on
Civil Procedure as such but the circumstances and manner in which
that provision was actually applied to the applicant's situation.
- In
the decision of 9 February 2001 the Aleksin Town Court cited the
applicant's failure to appear at the hearings of 16 January and 9
February 2001 as the reason for discontinuation of the proceedings.
According to the Government, he was duly summonsed. However, the
Court observes that the Government was not able to put forward any
evidence showing whether and when the applicant had been summonsed to
those hearings. It appears that the defendant company was only
summonsed to the hearing of 16 January 2001 and the only
available copy of summonses for the hearing of 9 February 2001
showed that the summonses had been sent solely to the third party to
the proceedings, the Aleksinskiy District prosecutor. Nor is there
any indication in the decision of 9 February 2001 that the Town Court
examined the issue whether the applicant had been duly summonsed for
the hearings.
- The
Court accordingly finds that there is no indication that the
applicant was properly informed of the hearings. In these
circumstances, the authorities' assumption that the applicant had
lost interest in pursuing his claim did not have a sufficient factual
basis and the decision on discontinuation of the proceedings appears
to be issued in breach of Article 221 § 6 of the RSFSR Code on
Civil Procedure (see paragraph 34 above).
- The
Court further notes that the decision of 9 February 2001 did not
entail the conclusive termination of the proceedings. It rather had
suspensive effect as the proceedings could be resumed if the decision
were quashed by a higher court or if the Aleksin Town Court
determined that the applicant 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.
- The
Court notes, firstly, that the decision of 9 February 2001 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
Town Court almost ten days to dispatch it. The Government did not
offer any explanation for that delay. Furthermore, they did not
produce any evidence, apart from a covering letter, showing that on
19 February 2001 the decision had indeed been dispatched and
served on the applicant.
- Nor
is the Court satisfied with the accuracy and reliability of the
Government's factual submissions concerning the notification of the
decision on 24 October 2001. The Court notes the following
circumstances. In May 2002, in his letters to the Tula Regional Court
and the applicant, the President of the Aleksin Town Court insisted
that on 24 October 2001 the decision of 9 February 2001 had been
made available to the plaintiff by personal delivery against his
signature and an entry to that effect had been made in the case-file
(see paragraph 24 above). Furthermore, the Government's memorandum
referred to the oral statements by the same President of the Town
Court who claimed that on 24 October 2001 the applicant had refused
to countersign the receipt record (see paragraph 14 above).
- However,
the Government's assertion about the applicant's refusal to
countersign the record has not been supported by any documentary
evidence. In particular, the Government did not submit a copy of the
record or the list of the case-file confirming the applicant's
refusal.
- The
Court further observes that on 30 October 2001, that is six days
after the alleged notification of the decision on 24 October 2001,
the Town Court sent the letter to the applicant informing him about
that decision. The letter of 30 October 2001 did not make any
reference to the events of 24 October 2001. The Court finds it
peculiar that less than a week after the decision of 9 February 2001
had allegedly been served on the applicant, the Town Court once again
informed him about that decision. In these circumstances, the Court
lends more credence to the applicant's claim that he had not been
served with the decision of 9 February 2001 either by mail or in
person.
- Furthermore,
the applicant's written complaints in 2001 and 2002 about the
excessive length of the proceedings should have alerted the domestic
authorities that the applicant might be not aware of the existence or
contents of the decision of 9 February 2001 (see, for example,
paragraph 21 above). The Government argued that the Aleksin Town
Court on a number of occasions sent letters to the applicant
informing him about that decision (see paragraphs 14, 17, 23 and 24
above). However, the Court observes that the Government did not
supply their contention with any evidence showing that those letters
of the Aleksin Town Court had indeed been dispatched and reached the
applicant. This conclusion is also supported by the
following consideration. As it follows from the abovementioned
letters, the Aleksin Town Court sent them both to the applicant and
the Tula Regional Court. However, if those letters had, in fact, been
dispatched and the Regional Court had been informed about the outcome
of the proceedings, it appears peculiar that the Regional Court
subsequently accepted the applicant's complaints about the
procrastination of his action and went on urging the Town Court to
take necessary steps to examine his claim without further delay (see
paragraphs 13, 19 and 24 above). In these circumstances the Court
does not find it established that the Aleksin Town Court took
appropriate steps to inform the applicant of the decision on the
discontinuation of the proceedings on his claim.
- The
Court, however, notes that it would certainly have been preferable if
the applicant had inquired the Aleksin Town Court about the state of
the proceedings. However, having regard to the fact that the Supreme
and Tula Regional courts readdressed his complaints to the Town Court
and the applicant was made aware of the transfer, he could have
reasonably expected to receive a reply from the Aleksin Town Court
without inquiring himself.
- The
Court further observes that the parties' submission do not enable the
Court to establish the exact date when the applicant learned about
the outcome of the proceedings in his employment dispute. It appears
that he only took cognisance of the existence of the decision of 9
February 2001 more than four and a half years later when the
Government first mentioned it in their memorandum.
- The
Court reiterates 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 (see Sukhorubchenko v. Russia, no.
69315/01, § 53, 10 February 2005).
- Taking
into account that the decision of 9 February 2001 on the
discontinuation of the proceedings was issued without a sufficient
factual basis and was not notified to the applicant in due course,
the Court finds that this deprived him of the right of access to a
court within the meaning of Article 6 of the Convention. There has
accordingly been a violation of that provision.
B. Failure to examine the defamation action
1. Submissions by the parties
- The
Government argued that the registration logs of the Aleksin Town
Court for the years of 1999 to 2005 did not contain any information
on the applicant's defamation claim. They further noted that the
applicant had failed to provide any evidence that he had ever lodged
a defamation claim before the Aleksin Town Court.
- The
applicant submitted a copy of the acknowledgment-of-receipt card
showing that on 19 February 1999 the Aleksin Town Court had received
his letter of 13 February 1999. He also produced a copy of the list
of enclosures to that letter which included three copies of the
statement of claim and other documents. The applicant pointed out
that on several occasions in 2002 the Tula Regional Court, in
response to his complaints, had asked the Town Court to take steps to
ensure the examination of his defamation action.
2. The Court's assessment
(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
Court considers that the present complaint also concerns the
applicant's right of access to a court.
- The
applicant claimed that his defamation action had never been examined
by the Aleksin Town Court. The Government insisted that the claim had
never been introduced.
- Turning
to the evidence submitted by the parties, the Court notes that the
acknowledgment-of-receipt card and the list of enclosures bearing the
stamp of the Aleksin post office show that on 19 February 1999 the
Town Court received the applicant's letter enclosing a statement of
claim. It follows from the Government's submissions that the
statement of claim was not registered or recorded by the Town Court's
registry. In the absence of any explanation from the Government as to
what was in the applicant's letter received by the Aleksin Town Court
on 19 February 1999, the Court finds it established that on 19
February 1999 the applicant validly introduced his defamation action
against the Aleksin Town administration. The Court also
attributes evidential weight to the letters of the Tula Regional
Court which upon the applicant's complaints asked the Aleksin Town
Court to examine his defamation action without any undue delays (see
paragraph 29 above). The Court considers that it would
certainly have been preferable if the applicant had inquired the
Aleksin Town Court about the state of the proceeding. However, having
regard to the fact that the Town Court denied that it had ever
registered the action, such an inquiry would not have brought about
any change in the applicant's situation (see Dubinskaya
v. Russia, no. 4856/03, § 36, 13 July 2006).
63. The
Court notes that the applicant was not notified of any decision on
his claim if it has ever been made. The Government's submissions do
not enable the Court to establish what happened to the statement of
claim and supporting documents. What is certain is that the applicant
has never obtained a judgment on the merits.
64. The
Court finds therefore that the failure of the domestic authorities to
determine the applicant's claim deprived him of the right of acess to
a court. There has been therefore a violation of Article 6 § 1
of the Convention.
II. 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
- As
regards pecuniary damage, the applicant claimed 8,714 euros (EUR) as
compensation for the loss of salary and EUR 7,246 as compensation for
his expenses incurred through dissemination of a defamatory
statement. The applicant claimed that he would have obtained that
amount had the Russian courts determined his claims on their merits.
The applicant further claimed EUR 67,246 in respect of non-pecuniary
damage.
- The
Government contested that there was any causal link between the
alleged violations and the pecuniary damage claimed by the applicant.
- The
Court notes that in the present case an award of just satisfaction
may only be based on the fact that the applicant did not have the
benefit of the guarantees of Article 6. The Court cannot speculate as
to the outcome of the proceedings had the situation been otherwise
and therefore rejects the claims in respect of pecuniary damage. As
regards non-pecuniary damage, the Court accepts that the applicant
experienced frustration of not having his two cases properly
examined. These elements of damage do not lend themselves to a
process of calculation. Taking them on an equitable basis, as
required by Article 41 of the Convention, the Court awards the
applicant the sum of EUR 2,000, plus any tax that may be chargeable
on that amount.
B. Costs and expenses
- The
applicant claimed EUR 30.7 for the costs and expenses before the
Court.
- The
Government considered that only those expenses which had been
incurred by the applicant should be reimbursed.
- 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 applicant the sum of EUR 20 under this head,
plus any tax that may be chargeable.
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 application admissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention as a consequence of the decision of
9 February 2001 on the discontinuation of the proceedings
without a sufficient factual basis and the defective service of that
decision;
- Holds that there has been a violation of Article
6 § 1 of the Convention on account of the domestic authorities'
failure to examine the applicant's defamation action;
4. 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, to be converted into Russian roubles at the rate applicable
at the date of the settlement:
(i) EUR 2,000 (two thousand euros) in respect of pecuniary and
non-pecuniary damage;
(ii) EUR 20 (twenty euros) 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 15 February 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Loukis Loucaides
Registrar President
