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FIRST
SECTION
CASE OF LITVINOVA v. RUSSIA
(Application
no. 34489/05)
JUDGMENT
STRASBOURG
14
November 2008
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 Litvinova v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis, President,
Nina
Vajić,
Anatoly Kovler,
Elisabeth
Steiner,
Khanlar Hajiyev,
Giorgio
Malinverni,
George Nicolaou, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 21 October 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 34489/05) 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 Larisa Ivanovna
Litvinova (“the applicant”), on 25 August 2005.
- The
Russian Government (“the Government”) were represented by
Mr P. Laptev, the former Representative of the Russian Federation at
the European Court of Human Rights.
- On
15 March 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 1968 and lives in the town of Belogorsk in the
Amur Region.
- On
31 December 2003 she brought proceedings against the Social Security
Office of Belogorsk on account of a refusal by the latter to increase
her child benefit payments according to a certain method of
calculation and seeking compensation in respect of pecuniary damage.
She also alleged that the Office had not given her access to a number
of documents concerning those payments.
- By a judgment of 30 November 2004 the Belogorsk Town
Court dismissed her claims as unfounded. The applicant's
representative lodged an appeal against the judgment on 12 December
2004.
- The Amur Regional Court scheduled a hearing for 25
February 2005. According to the Government, on 17 February 2005 the
Town Court dispatched summonses to the parties. The Government
submitted a copy of the cover letter dated 17 February 2005 and sent
by the Town Court to the Regional Court and the parties, including
the applicant and her representative. The letter bore the outgoing
number “1779” and indicated that the Town Court was
sending the case file to the Regional Court and that the appeal
hearing had been listed for 25 February 2005, at 9 a.m. The
Government also submitted a copy of an excerpt from the Town Court's
outgoing correspondence log. The column entitled “outgoing
number” contained the figure “1779”, and that
entitled “sent to” listed the Regional Court, the
applicant, her representative and the respondent. The date below that
record read “18 February 2005”.
- On
25 February 2005 the Amur Regional Court dismissed the applicant's
appeal. Neither the applicant nor her representative was present. The
judgment indicated that the appeal had been examined in a public
session but did not specify whether the applicant or her
representative had been notified of the hearing date.
- On 17 March 2005 the applicant's representative made an
inquiry to the Town Court about the state of the appeal proceedings.
On 22 March 2005 the Town Court sent him a copy of the appeal
judgment and indicated that he had been duly informed of the hearing
date.
II. RELEVANT DOMESTIC LAW
- The Code of Civil Procedure of the Russian Federation
(“the CCP”, in force from 1 February 2003) reads as
follows:
Article 113. Court summonses and notifications
“1. Parties ... are to be summonsed to
court by a letter sent via registered mail with an acknowledgment of
receipt, a court summons with an acknowledgment of receipt, a
telegram, by phone or fax or by any other means of communication
which guarantees recording of the fact that the court summonses or
notifications were received by the parties.
2. A court summons is one of the forms of
court notification. Parties are notified by court summonses of the
date and place of a court hearing or of particular procedural actions
...
3. A summons or another form of notification
is to be served on parties in such a way [as to ensure] that they
have enough time to prepare their case and to appear at the hearing.
4. A court notification, addressed to a
party, is to be sent to the address indicated by that party or
his/her representative. If a party does not reside at the indicated
address, the court summons may be sent to his or her place of work
...”
Article 115. Service of court summonses and
notifications
“1. Court summonses and other notifications are to
be sent by mail or delivered by a person whom the court authorises to
deliver them. The time of service is to be recorded as laid down by
post office regulations or on a document which is to be returned to
the court.
2. With a party's consent, a judge can serve
him/her with summonses or notifications to be delivered to another
party. A person authorised by the judge to deliver a court summons or
another notification is to return a counterfoil of the summons or a
copy of the notification bearing the addressee's signature recording
receipt.”
Article 116. Receipt of a court summons
“1. A court summons ... to a person is to be
served on him or her against his or her signature on a counterfoil of
the summons, which is to be returned to the court ...
...
4. If the current place of residence of an
addressee is unknown, an entry to this effect is to be made on the
court summons, showing the date and time of the attempted service and
the source of the information.”
Article 118. A change of address during the
proceedings
“Parties are to inform the court of any change in
their address in the course of the proceedings. If no such
notification is provided, court summonses or notifications are to be
sent to the addressee's last known address and are considered to be
delivered even if the addressee no longer lives or resides there.”
Article 119. Unknown place of residence of a
defendant
“When a defendant's place of residence is unknown,
the court begins examination of a case once it has received
information to that effect from the defendant's last known place of
residence.”
Article 338. Time-limits for lodging an appeal
statement
“Parties to the case or the prosecutor may lodge
an appeal statement within ten days after the judgment was delivered
in the final form.”
Article 343. Actions of the first-instance court upon
the receipt of the statement of appeal
“1. Upon the receipt of the statement
of appeal ... the judge shall:
1) send to the parties copies of the statement of appeal
and the enclosed written documents not later than the day after their
receipt;
2) notify the parties of the time and place of the
appeal hearing...
3) upon the expiry of the time-limit for appeal send the
case file to the court of appeal ...”
Article 354. Consequences of the parties' and their
representatives' failure to attend an [appeal] hearing
“1. If a party to the case fails to
appear and there is no evidence that the party was duly summonsed,
the hearing is to be adjourned ...”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that she had not been afforded the opportunity
to attend the appeal hearing in her civil case, in breach of 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 ... by
[a] ... tribunal ...”
A. Admissibility
- The Court notes that this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
- The
Government claimed that the applicant had been notified of the appeal
hearing in good time. Her representative had inquired about the state
of the proceedings only four months and seven days after he had
lodged the appeal against the trial judgment. In any event, the
applicant's presence had not been necessary as the appeal court could
decide the case on the basis of the case file and her written
submissions.
- The
applicant submitted that the courts had failed in their duty to
inform her of the appeal hearing, that she had not received the
letter of 17 February 2005 and that the Government had not
provided any evidence to the contrary, although they must have had it
at their disposal.
- The
Court observes that the appeal hearing was listed for 25 February
2005. The Government argued that the applicant had been notified of
that hearing by a letter sent by the Town Court on 17 February
2005. They submitted a copy of that letter and a copy of the
excerpt of the outgoing correspondence log of the Town Court which,
according to them, had sent out the letter on the same day (see
paragraph 7 above).
- The
Court has no reason to doubt that the letter of 17 February 2005 was,
in fact, dispatched. It is also to be recalled that Article 6
cannot be construed as conferring on litigants an automatic right to
obtain a specific form of service of court documents, such as by
registered mail (see Bogonos v. Russia (dec.), no. 68798/01,
5 February 2004). At the same time, the analysis of
Articles 113, 115 and 116 of the CCP suggests that, whichever
specific form of the parties' notification is chosen, the domestic
courts should be in possession of evidence confirming the receipt of
such notification by the addressee (see paragraph 10 above). However,
the Government adduced no evidence of receipt by the applicant of the
notification about the appeal hearing (compare Prokopenko v.
Russia, no. 8630/03, § 18, 3 May 2007). In
these circumstances, the Court is not persuaded that the domestic
authorities had notified the applicant of the appeal hearing in such
a way as to provide her with an opportunity to attend it and prepare
her case.
- The
Court reiterates that it has frequently found violations of Article 6
§ 1 of the Convention in cases raising issues similar to the one
in the present case (see Yakovlev v. Russia, no. 72701/01,
§ 19 et seq., 15 March 2005; Groshev v. Russia,
no. 69889/01, § 27 et seq., 20 October 2005; Mokrushina
v. Russia, no. 23377/02, § 20 et seq., 5 October 2006;
Prokopenko, cited above, § 17 et seq., and Subbotkin
v. Russia, no. 837/03, § 18
et seq., 12 June 2008).
- Having
examined the materials submitted to it, the Court notes that the
Government have not put forward any fact or argument capable of
persuading it to reach a different conclusion in the present case.
The Court has established that owing to the non-notification the
applicant has been deprived of the opportunity to attend the appeal
hearing and plead her case in adversarial proceedings. The Court also
notes that there is nothing in the appeal judgment to suggest that
the court of appeal examined the question whether the applicant had
been duly notified and, if she had not, whether the examination of
the appeal should have been adjourned.
- It
follows that there has been a violation of the applicant's right to a
fair hearing under Article 6 § 1 of the Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant complained under Articles 6 and 10 of the Convention and
Article 1 of Protocol No. 1 that the proceedings against the Social
Security Office had been excessively long, that the trial court had
dismissed her challenge to the judge and refused to obtain evidence
at her request and that the judge had refused to apply a particular
method of calculating the amount of benefits to be awarded.
- Having
regard to all the material in its possession and in so far as the
complaints fall within its competence, the Court 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 his 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 40,000 euros (EUR) in respect of unspecified
damage.
- The
Government contested her claim as excessive.
- The
Court finds that the applicant must have suffered frustration and a
feeling of injustice as a result of the domestic authorities' failure
to apprise her of the appeal hearing in good time. Having regard to
the nature of the violation found and making its assessment on an
equitable basis, the Court awards the applicant EUR 1,000, plus
any tax that may be chargeable on that amount.
B. Costs and expenses
- The
applicant claimed EUR 4,120 in respect of costs and expenses.
- The
Government submitted that the claims were excessive and
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 were
reasonable as to quantum. In the present case, regard being had to
the above criteria and in so far as the applicant's claims were
supported by the relevant documents, the Court awards the applicant
EUR 2, plus any tax that may be chargeable to her, and dismisses the
remainder of her claims 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 the domestic
authorities' failure to apprise the applicant of the appeal hearing
in good time 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, the following
amounts, to be converted into Russian roubles at the rate applicable
at the date of settlement:
(i) EUR
1,000 (one thousand euros) in respect of non-pecuniary damage, plus
any tax that may be chargeable to the applicant;
(ii) EUR
2,00 (two euros) in respect of costs and expenses, plus any tax that
may be chargeable to the applicant;
(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 14 November 2008,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
