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FIRST
SECTION
CASE OF
MARUSEVA v. RUSSIA
(Application
no. 28602/02)
JUDGMENT
STRASBOURG
29 May 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 Maruseva 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,
Dean
Spielmann,
Sverre
Erik Jebens,
judges,
and
Søren Nielsen, Section
Registrar,
Having
deliberated in private on 6 May 2008,
Delivers
the following judgment, which was adopted on the last mentioned
date:
PROCEDURE
- The
case originated in an application (no. 28602/02) 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, Mrs Valentina Pavlovna
Maruseva (“the applicant”), on 26 June 2002.
-
The Russian Government (“the Government”) were
represented by Mr P. Laptev, the Representative of the Russian
Federation at the European Court of Human Rights.
- The
applicant alleged that the length of proceedings in her civil case
exceeded the “reasonable time” requirement of Article 6 §
1 of the Convention.
- By
a decision of 1 June 2006, the Court declared the application partly
admissible.
- The
applicant and the Government each filed further written observations
(Rule 59 § 1).
THE FACTS
- The applicant was born in 1962 and lives in Smolensk.
- The
applicant's 6 year old son, Sergey, suffered from a serious
congenital heart disease. On 8 February 1995 he died during heart
surgery in a State-owned clinic. The applicant requested the Smolensk
town prosecutor's office to investigate her son's death. She
suspected that he had died as a result of medical negligence. On
several occasions the case was opened and then closed by the
prosecutor's office on the ground that no fault on the part of the
doctors had been established. The conclusions of the investigative
authorities relied, in particular, on the results of the forensic
examination carried out after the death of Sergey Marusev. The
applicant challenged the refusal to prosecute the doctors in court,
but to no avail. On 12 February 1997 the Zadneprovskiy
District Court of Smolensk (“the District Court”) upheld
the prosecution's decision to discontinue the criminal proceedings.
That judgment was upheld by the Smolensk Regional Court on
11 March 1997.
- On
23 August 1995 the applicant brought a civil action for negligence
against Dr M., who had performed the operation, and Hospital no. 1 of
Smolensk, in which the operation had been carried out (“the
hospital”). She sought compensation for pecuniary and
non-pecuniary damage.
- On
23 December 1996 the District Court rejected her claim, holding
that her son had died of natural causes. On 11 February 1997
that judgment was upheld by the Smolensk Regional Court.
- On
an unspecified date the applicant requested the Supreme Court of the
Russian Federation to examine her case by way of supervisory review
(see the “Relevant Domestic Law” part below).
- On
23 February 1999 the Vice-President of the Supreme Court
brought an extraordinary appeal (протест),
pointing to numerous errors of fact and law in the lower courts'
decisions. On 18 March 1999 the Presidium of the Regional Court
examined the case, allowed the extraordinary appeal and quashed the
impugned judgments of 23 December 1996 and 11 February 1997. The case
was remitted to the first-instance court.
- According
to the Government, on 21 March 1999 the District Court received the
case file from the Supreme Court. The judge invited the parties to an
informal preliminary meeting, which took place on 11 May 1999. The
first hearing was held on 20 May 1999. The judge decided to summon
additional witnesses and the case was adjourned to 8 July 1999.
- On
9 July 1999 the District Court dismissed the applicant's action,
holding that the defendants could not be held responsible for the
death of Sergey Marusev. On an appeal by the applicant, on
21 October 1999 the Regional Court quashed that judgment,
pointing out that the first-instance court had failed to assess
important medical aspects of the case. It also recommended that
certain additional steps be taken. The case was remitted to the
first-instance court.
- On
17 November 1999 the District Court again dismissed the applicant's
action. On 28 December 1999 the Regional Court overruled the
first-instance court and remitted the case to it for a fresh
examination. The Regional Court noted that the first-instance court
had failed to take certain procedural steps, breached procedural
rules and failed to establish and analyse all the pertinent facts of
the case.
- On
19 January 2000 the District Court received the case file from the
Regional Court. According to the Government, after having received
the case file the judge tried to initiate a supervisory review of the
decision of the Regional Court, but to no avail – on 30 March
2000 his request for supervisory review was rejected.
- On
8 April 2000 the judge invited the parties to an informal preliminary
meeting. The first hearing took place on 29 May 2000. On that date
the judge decided that an additional forensic examination was needed
to establish the cause of death of Sergey Marusev. He formulated
eighteen questions to be answered by medical experts and transferred
the documents from the case file to a clinic based in the Moscow
Region. It took the court several months to obtain the results of
that examination.
- The
next hearing was held on 21 December 2000. On that date the court
decided to examine two more witnesses – Mr B., the director of
the Scientific Centre of Cardiovascular Surgery of the Russian
Academy of Sciences, and Mr P., his deputy.
- On
11 January 2001 the District Court sent a rogatory letter to the
Zamoskvoretskiy District Court of Moscow, requesting the questioning
of those witnesses. The rogatory letter was received by the
Zamoskvoretskiy District Court on 12 March 2001. Mr B. and Mr P.
were summoned to the court but failed to appear. On several occasions
the court bailiffs tried to reach them at their home and professional
addresses, but to no avail.
- In
2002 the applicant complained about the court's inactivity to the
Administration of the President of Russia and to the Federal
Ombudsman's Office. Her complaints were forwarded to the Moscow City
Court. Finally, on 11 February 2002 the judge of the
Zamoskvoretskiy District Court of Moscow questioned Mr B. and Mr P.
and sent the transcript of their testimonies to the Zadneprovskiy
District Court of Smolensk. It was received on 4 March 2002.
- On
14 March 2002 the Zadneprovskiy District Court set the date for the
next hearing at 15 May 2002. On 17 May 2002 it dismissed the
applicant's action against the hospital and doctor M. The applicant
appealed. On 15 October 2002 the Regional Court quashed the
first-instance judgment and remitted the case to the first-instance
court.
- On
26 December 2002 the District Court delivered a new judgment. This
time the court found that there had been certain counter-indications
to performing the surgery and that the hospital had not obtained the
relevant medical information before the operation. The court
concluded that the surgical team and the hospital had therefore been
responsible for the death of the applicant's son due to negligence
and satisfied the applicant's claims in part, awarding her
15,000 Russian roubles (“RUB”, approximately 457 euros)
in compensation for non-pecuniary damage and 16,430 RUB ( 500
euros) for pecuniary damage. The court held that the above sums
should be paid by the hospital, exonerating Doctor M. from any
liability. The remaining part of the applicant's claims (248,569 RUB
in compensation for non-pecuniary damage) was rejected.
- On
4 January 2003 the applicant appealed. By a decision of 11 March
2003 the Regional Court increased the award for non-pecuniary damage
to 100,000 RUB. As regards compensation for pecuniary damage, the
judgment of 26 December 2002 was quashed and the case remitted to the
first-instance court.
- On
25 April 2003 the District Court awarded the applicant RUB 6,304
for pecuniary damage. On 24 June 2003 that judgment was quashed by
the Regional Court.
- On
22 August 2003 the District Court examined the case again. It partly
satisfied the applicant's claims, awarding her RUB 43,984 in
compensation for pecuniary damage. On 21 October 2003 that judgment
was upheld by the Regional Court.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained of the excessive length of the proceedings in
her civil case, which ended on 21 October 2003 with the judgment of
the Smolensk Regional Court. Article 6, in its relevant part, 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...”
- In
their observations on the merits the Government claimed that the
length of the proceedings had not been excessive. The proceedings had
never come to a standstill, the case had been examined four times at
three levels of jurisdiction, and four forensic reports had been
obtained. Furthermore, a certain delay had been caused by the failure
of witnesses B. and P. to appear.
- The
applicant maintained her complaints.
- The
Court refers to its admissibility decision of 1 June 2006 in which it
held that it would examine under Article 6 § 1 only the period
between 23 February 1999, when the Vice-President of the Supreme
Court reopened the case by way of supervisory review, and 21 October
2003, when the Smolensk Regional Court adopted the final decision in
the case. The overall duration of the proceedings was therefore four
years, seven months and twenty-eight days. That being said, the Court
will have regard to the stage which the proceedings had reached on
the date when the period under examination began (see Kudła
v. Poland [GC], no. 30210/96, § 123,
ECHR 2000 XI).
29. The
Court also notes that the reasonableness of the length of the
proceedings is usually assessed in the light of the particular
circumstances of the case and with regard to the criteria laid down
in its case-law, in particular the complexity of the case and the
conduct of the applicant and of the relevant authorities. On the
latter point, what is at stake for the applicant also has to be taken
into account (see Philis v. Greece (no. 2), judgment of 27
June 1997, Reports of Judgments and Decisions 1997-IV, p.
1083, § 35, and Portington v. Greece, judgment of 23
September 1998, Reports 1998-VI, p. 2630, § 21).
- Turning
to the present case the Court accepts that the dispute between the
applicant and the hospital involved complex medical issues. At the
same time, by the time the proceedings had been reopened by way of
supervisory review, the Zadneprovskiy District Court had obtained the
results of the criminal investigation into the death of Sergey
Marusev carried out by the prosecution, which had been confirmed by
the courts in 1997. Therefore, even assuming that the previous
courts' decisions were erroneous, by 23 February 1999 (the
starting point for calculating the length of the proceedings)
the case file must have contained a substantial amount of necessary
information and evidence. In other words, the complexity of the case
should not be overestimated.
- The
Court notes that after it was reopened the case was examined five
times by the first-instance court and five times by the court of
appeal. With regard to the applicant's conduct, the Court notes that
it was always the applicant who appealed. However, she cannot be
criticised for taking advantage of that remedy, especially given that
the court of appeal accepted her arguments and remitted the case for
a fresh examination four times (see, mutatis mutandis, Yağcı
and Sargın v. Turkey, judgment of 8 June 1995,
Series A no. 319-A, § 66).
- As to the conduct of the authorities, the Court notes
that, first of all, it took the domestic courts more than a year to
question two expert witnesses whose whereabouts, given their
professional status, were well known. Furthermore, the case was
remitted to the District Court for fresh examination five times (once
by the Supreme Court, and four times by the Regional Court). The
Court does not see any reason for that other than the failure of the
District Court to examine the case in an appropriate manner. Although
the length of proceedings could be explained by the involvement of
many instances, it does not relieve the States of their duty to
organise their legal systems in such a way that their courts can meet
the requirement to hear cases within a reasonable time (see Duclos
v. France, judgment of 17 December 1996, Reports of
Judgments and Decisions 1996-VI, § 55).
- Finally,
the Court notes that the case concerned the death of the applicant's
son, a very delicate subject which would normally require special
promptness.
- Having
examined all the material submitted to it and having regard to its
case-law on the subject, the Court considers that in the instant case
the length of the proceedings was excessive and failed to meet the
“reasonable time” requirement. There has accordingly been
a breach of Article 6 § 1.
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 that the excessive length of the proceedings had
caused her personal suffering, but did not claim any specific amount
under this head. She left the issue to the discretion of the Court.
- The
Government contested her claim as unsubstantiated.
- The
Court considers that the applicant must have suffered feelings of
frustration and distress as a result of the excessive length of the
proceedings in the case concerning the death of her son. That
suffering cannot be compensated solely by the finding of a violation.
Making an assessment on an equitable basis, as required by Article 41
of the Convention, the Court awards the applicant EUR 2,100 in
respect of non-pecuniary damage, plus any tax that may be chargeable
on that amount.
B. Costs and expenses
-
The applicant also claimed reimbursement of costs and expenses
incurred in the proceedings before the domestic courts and before the
European Court of Human Rights. She thus claimed RUB 1,764 in postal
and copying expenses. She further claimed RUB 65,000 for loss of time
caused by her having to participate in the domestic proceedings. She
claimed that that sum was equal to the amount she would have paid a
lawyer if she had had one.
- The
Government considered that her claims in that connection were
unsubstantiated.
- The
Court reiterates that only legal costs and expenses found to have
been actually and necessarily incurred and which are reasonable as to
quantum are recoverable under Article 41 of the Convention (see,
among other authorities, Nikolova v. Bulgaria [GC], no.
31195/96, 25 March 1999, § 79, and Smith and Grady v. the
United Kingdom (just satisfaction), nos. 33985/96 and
33986/96, § 28, ECHR 2000-IX). This may include domestic
legal
costs actually and
necessarily incurred to prevent or redress the breach of the
Convention (see, for example, I.J.L., G.M.R. and A.K.P. v. the
United Kingdom (Article 41), nos. 29522/95, 30056/96 and
30574/96, § 18, 25 September 2001).
- Turning
to the present case, the Court notes that the applicant provided the
Court with evidence confirming her statutory expenses. They appear to
be reasonable as to the quantum and related to the domestic
proceedings and the proceedings in Strasbourg. As regards the amount
of RUB 65,000, claimed under the head of “loss of time”,
the applicant's method of calculation does not appear convincing. The
Court, having examined the documents in its possession, awards the
applicant EUR 47 under the head of costs and expenses.
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, to be converted into the Russian roubles at the rate
applicable at the date of settlement, plus any tax that may be
chargeable;
(i) EUR
2,100 (two thousand one hundred euros) in respect of non-pecuniary
damage;
(ii) EUR
47 (forty seven euros) in respect of her 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 29 May 2008, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
