BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
FIRST
SECTION
CASE OF
DUNAYEV v. RUSSIA
(Application
no. 70142/01)
JUDGMENT
STRASBOURG
24 May
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 Dunayev v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Mr C.L. Rozakis, President,
Mr L.
Loucaides,
Mrs N. Vajić,
Mr A. Kovler,
Mr K.
Hajiyev,
Mr D. Spielmann,
Mr S.E. Jebens, judges,
and
Mr S. Nielsen, Section Registrar,
Having
deliberated in private on 3 May 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 70142/01) 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 Valentin Andreyevich
Dunayev (“the applicant”), on 16 May 2001.
- The
applicant, who had been granted legal aid, was represented by lawyers
of the Stichting Russian Justice Initiative, an NGO based in the
Netherlands with a representative office in Russia. The Russian
Government (“the Government”) were represented by Mr P.
Laptev, Representative of the Russian Federation at the European
Court of Human Rights.
- The
applicant alleged, in particular, a denial of access to a court on
account of the appellate court's refusal to examine his written
pleadings during the appeal hearing.
- By
a decision of 2 February 2006, the Court declared the application
partly admissible.
- The
Chamber having decided, after consulting the parties, that no hearing
on the merits was required (Rule 59 § 3 in fine), the
parties replied in writing to each other's observations.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant was born in 1938 and lives in the Tula
Region.
A. The facts
- The
applicant instituted civil proceedings in Moscow, some
300
kilometres from his place of residence. He sued the Russian Ministry
of Finance and the Russian Ministry of Defence in connection with
military operations in Chechnya in 1995. He claimed, in particular,
that his property, including his flat, had been destroyed during an
attack by federal forces on the centre of Grozny in January 1995 and
sought compensation for pecuniary damage. The applicant submitted
that the damage had been inflicted as a result of the use by the
State of hazardous devices (источник
повышенной
опасности),
namely weapons and military equipment, and that he was therefore
entitled to compensation under the relevant provision of law without
having to prove that the defendant had been at fault. The applicant
also stated that he had endured mental suffering when forced to live
in the zone of active military action, and claimed compensation for
non-pecuniary damage on that account.
- On
14 December 2000 the Basmanny District Court of Moscow (“the
District Court”) examined the applicant's claims. It
acknowledged that the applicant's property had been destroyed as a
result of an attack in 1995, but noted that the applicant had failed
to prove that his possessions had been damaged by Russian federal
troops rather than by rebel fighters, as both parties to the conflict
had used weaponry and ammunition of the same standard. The court also
noted that under Articles 1069–1071 and 1100 of the Civil Code
of Russia the State was only liable in damages for the unlawful acts
of its agents. It further held that the military operations in
Chechnya had been launched by presidential and governmental decrees
which had been held to be constitutional by the Constitutional Court
of Russia and were still in force. Accordingly, the court concluded
that the actions of the Russian federal troops in Chechnya were
lawful and dismissed the applicant's claim for compensation for
pecuniary and
non-pecuniary damage.
- On
the same date the applicant lodged a preliminary notice of appeal
(предварительная
кассационная
жалоба)
in which he requested the appellate court to quash the judgment and
remit his case for fresh consideration. He also expressed his
intention to adduce detailed arguments after acquainting himself with
the text of the transcript of the first-instance hearing and
obtaining a full copy of the judgment. Thereafter the applicant left
for his place of residence.
- In
a letter of 20 December 2000 the District Court informed the
applicant that he could obtain a full copy of the judgment of
14 December 2000 and access to his case file at the court
registry.
- On
21 December 2000 the applicant applied in writing to the District
Court for a copy of the transcript of the hearing on
14 December 2000, and a document that had been adduced by
the defendants at the hearing. According to the applicant, he never
received a response to his request.
- On
17 January 2001 the applicant sent another request to the District
Court, which also remained unanswered.
- In
a letter of 14 February 2001 the District Court forwarded a copy of
the judgment of 14 December 2000 to the applicant and notified him
that a hearing of his appeal was scheduled for 28 February 2001. The
applicant received this letter on 21 February 2001.
- On
27 February 2001 the applicant prepared detailed appeal submissions
(кассационная
жалоба),
in which he claimed that the first-instance court had not established
all the relevant facts and circumstances of the case, that the
defendants had not adduced any evidence capable of refuting his
arguments and that therefore the judgment of 14 December 2000 was
unfounded and should be quashed. He further reiterated that his
property had been destroyed during an attack in January 1995, and
that under national law he was entitled to compensation for pecuniary
damage. He also stated that he had endured mental suffering when
forced to live in the zone of active military action, and therefore
had the right to compensation for non-pecuniary damage. The applicant
further argued that once the District Court had established that his
property had, in fact, been destroyed, it should have indicated who
was liable to compensate him for that damage. He claimed in this
respect that since the military operations in Chechnya had been
launched by the Russian State, it was the State which should
compensate him for his losses. The applicant also insisted that
during the military operations the State had used hazardous devices,
namely heavy artillery and other indiscriminate weapons, and that
under national law he was absolved of any obligation to prove that
the damage had been caused by the defendants' fault.
- At
the end of his appeal submissions the applicant provided a list of
the documents lodged, namely, three copies of his detailed appeal
submissions of 27 February 2001, a copy of the preliminary notice of
appeal dated 14 December 2000, a copy of the District Court's
judgment of
14 December 2000, a motion to exempt the applicant
from payment of the court fee, a copy of a certificate indicating the
inflation rate in Russia for 1995-2000 and a copy of the summons for
the appeal hearing as well as the envelope in which it had been sent
marked with the date of receipt.
- According
to the applicant, a few hours before the court hearing on 28 February
2001, he attempted to file his detailed appeal submissions and to
gain access to his case file at the registry of the Moscow City Court
(“the City Court”), but was not allowed to do so. He then
attempted to lodge his detailed appeal submissions at the hearing,
but the presiding judge refused.
- The
Government referred to information provided by the Supreme Court of
Russia that the applicant's appeal of 27 February 2001 had been
accepted and examined by the City Court. They did not indicate the
date on which the applicant's appeal had been received and registered
by the City Court's registry.
- By
a decision of 28 February 2001 the City Court upheld the judgment of
14 December 2000. The applicant attended the hearing and
presented his arguments. The City Court held that the conclusions of
the court below were correct and well-founded, since the applicant
had not adduced any evidence that the actions of the Russian federal
troops within the territory of Chechnya were unlawful or that the
alleged damage had been caused by them rather than by rebel fighters.
It went on to address the applicant's argument that the weapons used
were hazardous devices and that the damage should therefore be
compensated irrespective of the question of fault. The City Court
noted that this argument could not constitute a ground for quashing
the judgment at first instance, as according to a decision of the
Plenary of the Supreme Court of Russia, firearms could not be
regarded as a hazardous device so that a claim for compensation for
the damage caused by the shooting would only lie if the defendant was
at fault. It concluded:
“The arguments advanced in the appeal do not point
to any circumstances which have not been examined by the
[first-instance] court or which could rebut the conclusions of the
judgment. They seek to re-evaluate the adduced evidence and cannot
serve as a basis for quashing the judgment.”
- On
1 March 2001 the applicant sent a letter to the President of the City
Court, complaining about the court's refusal to examine the detailed
appeal submissions he had given to the presiding judge at the court
hearing on 28 February 2001 and requesting that the appeal be
registered and a copy of the court's decision of 28 February 2001
forwarded to him.
- In
a letter of 26 March 2001 the District Court sent a copy of the
requested decision to the applicant without further explanation.
B. Documents submitted by the Government
- In
order to be able to assess the merits of the applicant's complaint,
the Court invited the Government at the admissibility stage to submit
documentary evidence to clarify whether the applicant's detailed
appeal submissions had been received and registered by the Moscow
City Court.
- In
reply, the Government submitted a copy of the applicant's preliminary
notice of appeal of 14 December 2000 and of his detailed appeal
submissions of 27 February 2001.
- The
first document, which is dated and signed by the applicant, bears the
stamp of the Basmanny District Court of Moscow together with a
reference number and the date of 14 December 2000. There are also a
number of handwritten notes, dates and signatures on the document
which make it clear that it was sent to, and received by, the Moscow
City Court.
- The
copy of the applicant's detailed appeal submissions, which is dated
and signed by the applicant, contains no official stamps or dates to
indicate whether they were received by the Moscow City Court and, if
so, on what date. The list of the enclosures at the end of the
document has been crossed out and the word “refused” has
been inserted by hand nearby. The date of this “refusal”
is missing, but the signature is very similar to that of the
presiding judge on a copy of the appeal decision of 28 February 2001.
II. RELEVANT DOMESTIC LAW
Code of Civil Procedure 1964, as worded at the material time
- Article
282 enshrined the right of any party to a dispute and of other
participants in proceedings to appeal against a first-instance
judgment.
- Article
283 provided that, as a rule, an appeal should be brought through the
first-instance court that delivered the judgment. However, the fact
that an appeal was lodged directly with an appellate court should not
preclude the latter from examining it.
- By
virtue of Article 284, an appeal could be lodged within ten days
after the first-instance judgment was finalised.
- Article
286 laid down a number of formal requirements for lodging an appeal.
In particular, the notice of appeal had to indicate the court to
which it was addressed, the name of the person lodging it, the
judgment being appealed against and the court which had delivered
that judgment, the grounds of appeal and the list of documents
enclosed with the appeal. An appellant could not refer to new
evidence which had not been before the first-instance court unless he
or she could substantiate that it had been impossible to adduce that
evidence at first instance.
- Article
291 secured the right of the other party to the dispute to submit
written pleadings in reply to an appeal.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that he had been denied an opportunity to file
written pleadings containing his detailed arguments before the
appellate court. He relied on Article 6 § 1 of the Convention,
the relevant part of which reads:
Article 6 § 1
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing ... by
[a] ... tribunal ...”
A. Submissions by the parties
- The
applicant insisted that he had only been permitted to file a
preliminary notice of appeal, which had merely indicated his
intention to adduce detailed arguments upon receipt of a full copy of
the judgment of
14 December 2000 and a transcript of the hearing.
He said that on
28 February 2001, shortly before the hearing of
the appeal, he had attempted to file his detailed appeal submissions
of 27 February 2001 but the registry of the Moscow City Court had
refused to register them. The applicant further claimed that at the
appeal hearing he had given his detailed appeal submissions to the
presiding judge, who had refused to examine them. The applicant
therefore argued that although he had attended the appeal hearing,
his right of access to a court secured by Article 6 § 1 of the
Convention had nevertheless been unjustifiably restricted by his
inability to have his written detailed appeal submissions examined by
the Moscow City Court.
- In
their memorial of 9 June 2005 the Government submitted with reference
to the information provided by the Supreme Court of Russia, that, as
a general rule, no transcript of a hearing before an appellate court
was made, and that it was probable that the Moscow City Court had
examined and dismissed the applicant's motion for leave to file the
detailed appeal submissions at the hearing on 28 February 2001.
Nevertheless, the appellate court had examined the preliminary notice
of appeal which the applicant had lodged earlier.
- In
their memorial of 3 May 2006 submitted after the adoption of the
decision on admissibility, the Government said that they had been
informed by the Supreme Court of Russia that the Moscow City Court
had accepted the applicant's appeal submissions of 27 February 2001
and included them in the case file. They added that the applicant had
attended the appeal hearing on 28 February 2001 and had been able to
present his arguments. The Moscow City Court “[had taken] into
consideration the arguments advanced by the applicant in his detailed
appeal”. The Government accordingly argued that the applicant's
right of access to court had not been infringed.
B. The Court's assessment
- The Court reiterates that Article 6 of the Convention
does not compel the Contracting States to set up courts of appeal or
of cassation. However, where such courts do exist, the guarantees of
Article 6 must be complied with, for instance in that it guarantees
to litigants an effective right of access to the courts (see, Brualla
Gómez de la Torre v. Spain, judgment of 19 December 1997,
Reports of Judgments and Decisions 1997-VIII, p. 2956, §
37; and Kozlica v. Croatia, no. 29182/03, § 32, 2
November 2006). The right of access to a court by its very nature
calls for regulation by the State and may be subject to limitations.
Nevertheless, the limitations applied must not restrict the access
left to the individual in such a way or to such an extent that the
very essence of the right is impaired (see, among other authorities,
Kreuz v. Poland, no. 28249/95, §§ 52-57, ECHR
2001-VI; and Liakopoulou v. Greece, no. 20627/04, §§
19-25, 24 May 2006).
- Turning
to the present case, the Court notes at the outset that the parties
disagreed as to whether the Moscow City Court had accepted and
examined the applicant's appeal submissions of 27 February 2001. The
Court observes that the Government submitted a copy of the
applicant's appeal submissions that had allegedly been included in
the case file and examined by the City Court. It notes that the copy
does not bear an official stamp or any other formal mark to indicate
the date on which the appeal submissions were received or registered
by the court or the registration number they were given. In other
words, the copy of the applicant's appeal submissions submitted by
the Government contains no indication that they were in fact
registered and accepted for examination. Moreover, the word “refused”
and a signature resembling that of the presiding judge appear at the
end of the copy submitted by the Government. Even if the exact
meaning of that inscription is uncertain, it clearly cannot mean that
the applicant's appeal submissions were accepted for examination.
- In
such circumstances, the Court finds the Government's arguments
unconvincing and considers it established with sufficient certainty
that the Moscow City Court refused to accept the applicant's appeal
submissions of 27 February 2001 for examination. In the Court's view,
such a refusal constituted a restriction on the applicant's right of
access to a court.
- The
Court further observes that despite the applicant's queries in this
respect, the domestic authorities gave no explanations as to the
reasons for which the applicant's appeal submissions of 27 February
2001 were not accepted for examination. It also notes the
inconsistency in the Government's position on the matter. Indeed,
initially they did not dispute that the applicant's written pleadings
of 27 February 2001 had not been admitted for examination, but
claimed that the Moscow City Court must have formally declined the
applicant's motion to consider his appeal. They did not advance any
justification for the domestic authorities' actions despite the
Court's query in this respect and eventually changed their position,
insisting that the applicant's appeal had been examined.
- In
the absence of any plausible explanation for the restriction imposed
on the applicant's right of access to a court in the appeal
proceedings, the Court finds that there has been a violation of
Article 6 § 1 of the Convention in this respect.
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
- The
applicant claimed 307,067 US Dollars (USD) in respect of pecuniary
damage and USD 1,000,000 in respect of non-pecuniary damage. The
Government contested the applicant's claims as having no causal link
with the violation alleged and argued that a finding of a violation
would be sufficient just satisfaction in the present case.
- Having
regard to the circumstances of the case, the Court accepts the
Government's argument and notes that there is no causal link between
the violation found and the extensive pecuniary damage alleged. The
Court further considers that the applicant must have suffered
distress and frustration resulting from the unjustified restriction
imposed on his right of access to a court, and that this cannot be
sufficiently compensated for by the finding of a violation. However,
the amount claimed appears excessive. Taking into account the
relevant aspects of the case and making its assessment on an
equitable basis, the Court awards 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 also claimed 1,570.54 Russian roubles (RUR) in respect of
costs and expenses incurred in the proceedings before the domestic
courts. The Government made no specific comments on this.
- According
to the Court's case-law, an applicant is entitled to the
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 full amount claimed by the
applicant. Accordingly, it awards the applicant RUR 1,570.54 for
costs in the domestic proceedings, plus any tax including value added
tax that may be chargeable on that 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
- 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, the following
amounts:
(i) EUR
2,000 (two thousand euros) in respect of non-pecuniary damage, to be
converted into the national currency of the respondent State at the
rate applicable at the date of settlement;
(ii) RUR
1,570.54 (one thousand five hundred and seventy roubles and
fifty-four kopecks) in respect of costs and expenses;
(iii) any
tax including value-added 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 24 May 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
