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FIRST
SECTION
CASE OF CHERNICHKIN v. RUSSIA
(Application
no. 39874/03)
JUDGMENT
STRASBOURG
16 September
2010
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 Chernichkin v.
Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis,
President,
Anatoly Kovler,
Elisabeth
Steiner,
Dean Spielmann,
Sverre Erik
Jebens,
Giorgio Malinverni,
George Nicolaou,
judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 26 August 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 39874/03) 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 Aleksandr Sergeyevich
Chernichkin (“the applicant”), on 4 April 2002.
- The
Russian Government (“the Government”) were represented by
Mrs V. Milinchuk, former Representative of the Russian Federation at
the European Court of Human Rights.
- The
applicant alleged that he had been denied access to a court.
- On
3 September 2007 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 § 1 of the Convention).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1941 and lives in Moscow.
A. Litigation with the Savings Bank
- In
1995 the applicant deposited his money with the Savings Bank of
Russia (Sberbank). Subsequently, the Savings Bank unilaterally
reduced the interest rate on his deposit. The applicant sued the
Savings Bank for the damages incurred through the unilateral
modification of the interest rate.
- On
10 March 1998 the Tverskoy District Court of Moscow dismissed the
applicant’s claim as unsubstantiated. On 26 May 1998 the Moscow
City Court upheld that judgment.
- On
10 June 1999 the Presidium of the Moscow City Court quashed the
judgments of 10 March and 26 May 1998 by way of supervisory review
and remitted the claim for fresh consideration. The Presidium’s
decision was set aside by the Supreme Court of the Russian Federation
on 16 November 1999. However, on 9 December 1999 the City
Court’s Presidium re-examined the supervisory-review
application, quashed the earlier judgments and ordered a new
examination of the applicant’s claim.
- On
17 October 2000 the Tverskoy District Court granted a small portion
of the applicant’s claims to the amount of 386,63 Russian
roubles and rejected the remainder. On 27 October 2000 the District
Court adopted a supplementary judgment, by which it declared the
deposit agreement, in relation to the right of the Savings Bank to
change unilaterally the interest rate, invalid. On 16 February 2001
the Moscow City Court rejected an appeal by the applicant.
B. Action for compensation for the excessive length of
proceedings
- The
applicant lodged a claim against the Ministry of Finance, seeking
compensation for pecuniary and non-pecuniary damages incurred through
the inappropriate administration of justice, and notably the
excessive length of proceedings in respect of his claim against the
Savings Bank.
- On
23 July 2001 the Basmanniy District Court of Moscow dismissed the
applicant’s claim. Referring to the Constitutional Court’s
Ruling of 25 January 2001 (see paragraph 16 below), the District
Court noted that Parliament had not yet adopted a law determining
jurisdiction over claims concerning State liability for the damage
caused by a court’s or judge’s failure to adjudicate a
case within a reasonable time, and dismissed the claim in the
following terms:
“According to Article 1 of the RSFSR Code of Civil
Procedure, the rules of civil procedure in federal courts of general
jurisdiction are determined by the Russian Constitution, the Judicial
System Act, the Code of Civil Procedure and other federal laws.
The law has not determined the territorial and
subject-matter jurisdiction over civil claims for compensation of
damages incurred in civil proceedings in cases where a dispute has
not been heard on the merits as a consequence of unlawful acts (or
failures to act) of a court (a judge), including the breach of a
reasonable-time guarantee.
The court must dismiss the statement of claim if there
are grounds listed in Article 129 (1) and (7) of the RSFSR Code
of Civil Procedure, that is if the claim may not be examined in civil
proceedings and if the court is not competent to examine the claim.”
- On
20 December 2001 the Moscow City Court upheld the decision to dismiss
the applicant’s claim, finding as follows:
“In dismissing the claim, the judge correctly
stated that the law had not determined the territorial and
subject-matter jurisdiction over civil claims for compensation of
damages incurred in civil proceedings in cases where a dispute had
not been heard on the merits as a consequence of unlawful acts (or
failures to act) of a court (a judge), including the breach of a
reasonable-time guarantee.
Under these circumstances, the [City Court] finds no
grounds for quashing that decision. Since the judge reached the
conclusion that the claim may not be examined in civil proceedings,
the reference to Article 129 (7) of the RSFSR Code of Civil Procedure
must be deleted [as being superfluous]”.
- On
5 May 2003 and 4 February 2004 the Moscow City Court and the Supreme
Court of the Russian Federation, respectively, refused the
applicant’s requests for the institution of supervisory-review
proceedings.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- Article 1064 of the Civil Code contains general
provisions on liability for the infliction of damage. It establishes
that damage inflicted on the person or property of an individual
shall be reimbursed in full by the person who inflicted the damage
(Article 1064 § 1).
- Article 1070 of the Civil Code determines liability
for the damage caused by unlawful actions of law-enforcement
authorities or courts. In particular, it is established that the
federal or regional treasury shall be liable for the damage sustained
by an individual in the framework of the administration of justice
provided that the judge’s guilt has been established in a final
criminal conviction (Article 1070 § 2).
- By Ruling no. 1-P of 25 January 2001, the
Constitutional Court found that Article 1070 § 2 of the Civil
Code was compatible with the Constitution in so far as it provided
for special conditions on State liability for the damage caused in
the framework of administration of justice. It clarified,
nevertheless, that the term “administration of justice”
did not cover the judicial proceedings in their entirety, but only
extended to judicial acts touching upon the merits of a case. Other
judicial acts – mainly of a procedural nature – fell
outside the scope of the notion “administration of justice”.
State liability for the damage caused by such procedural acts or
failures to act, such as a breach of the reasonable length of court
proceedings, could arise even in the absence of a final criminal
conviction of a judge if the fault of the judge has been established
in civil proceedings. The Constitutional Court emphasised, moreover,
that the constitutional right to compensation by the State for the
damage should not be tied in with the personal fault of a judge. An
individual should be able to obtain compensation for any damage
incurred through a violation by a court of his or her right to a fair
trial within the meaning of Article 6 of the Convention. The
Constitutional Court held that Parliament should legislate on the
grounds and procedure for compensation by the State for the damage
caused by unlawful acts or failures to act of a court or a judge and
determine territorial and subject-matter jurisdiction over such
claims.
- The
RSFSR Code of Civil Procedure (in force at the material time)
established that a civil claim should be dismissed, by a single
judge, in particular, if it was not amenable to examination in civil
proceedings (Article 129 (1)) or if the court was not competent to
examine it (Article 129 (7)).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained under Article 6 § 1 of the Convention that
he had been denied access to a court because the Moscow courts had
refused to examine his claim against the Ministry of Finance. Article
6 in the relevant part provides as follows:
“In the determination of his civil rights and
obligations ... everyone is entitled to a fair ... hearing ... by [a]
... tribunal ...”
A. Submissions by the parties
1. The Government
- The
Government submitted that the applicant had not exhausted the
domestic remedies because he had not applied for supervisory review
before lodging his application with the Court. Furthermore, he had
not lodged a criminal complaint with the Prosecutor General’s
Office about an alleged breach of law committed by any of the judges
who had examined his claim against the Savings Bank. Finally, the
applicant had not asked any judicial authorities to establish a
violation of his right to a hearing within a reasonable time.
- In
the Government’s view, there was no violation of the
applicant’s right to a court. The domestic courts examined and
dismissed the applicant’s statement of claim because it
contained defects and fell short of the requirements of substantive
and procedural law. The Government maintained that the applicant had
not attempted to correct those defects.
2. The applicant
- The
applicant pointed out that supervisory-review proceedings were not
considered by the Court to be an effective remedy in the Russian
legal system because of its discretionary nature. Similarly, a
criminal complaint would not lead to the automatic institution of
criminal proceedings, as the decision to institute them remained
within the prosecutor’s sole discretion. In any event, he did
complain to the Prosecutor General’s Office about the unlawful
actions of the judges and prosecutors, but all of his complaints were
rejected.
- The
applicant emphasised that the claim he had attempted to lodge against
the Ministry of Finance had contained references to many procedural
and substantive violations committed by the Tverskoy District and
Moscow City Courts during the examination of his claim against the
Savings Bank. The domestic courts may not have rejected his claim de
plano for a lack of justification or insufficient evidence, as
those were the issues to be determined in the judicial proceedings.
The Basmanniy District Court’s refusal to examine his claim had
been in breach of the constitutional requirements and Article 6 of
the Convention.
B. Admissibility
- The
Government pleaded non-exhaustion of domestic remedies. The Court
reiterates firstly that supervisory review in civil proceedings under
Russian law is not an effective remedy to be exhausted (see
Tumilovich v. Russia (dec.), no. 47033/99, 22 June 1999,
and Denisov v. Russia (dec.), no. 33408/03, 6 May 2004).
Secondly, it observes that there was no allegation of criminally
reprehensible conduct on the part of the judges who had examined the
applicant’s claim against the Savings Bank and that the
institution of criminal proceedings was not a condition precedent for
the examination of the applicant’s claim for damages caused by
the allegedly excessive length of civil proceedings. Finally, the
Court notes that the existence and extent of any such damages were
precisely the issues to be determined in the proceedings which the
applicant had unsuccessfully sought to institute. It follows that the
Government’s objection is without merit on all three counts and
that it must be dismissed.
- 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.
C. Merits
- The
Court reiterates that Article 6 § 1 secures to
everyone the right to have any claim relating to his civil rights and
obligations brought before a court or tribunal. In this way, that
provision embodies the “right to a court”, of which the
right of access, that is, the right to institute proceedings before a
court in civil matters, constitutes one aspect only; however, it is
an aspect that makes it in fact possible to benefit from the further
guarantees laid down in paragraph 1 of Article 6 (see Sergey
Smirnov v. Russia,
no. 14085/04, § 25, 22 December 2009, and
Teltronic-CATV v. Poland, no. 48140/99, § 45,
10 January 2006).
- The
“right to a court” is not absolute, but may be subject to
limitations. The Court must be satisfied that the limitations applied
do not restrict or reduce the access afforded to the individual in
such a way or to such an extent that the very essence of that right
is impaired. Furthermore, the Court underlines that a limitation will
not be compatible with Article 6 § 1 unless it pursues a
legitimate aim and there is a reasonable relationship of
proportionality between the means employed and the legitimate aim
sought to be achieved (see Sergey Smirnov, cited above, §§
26-27; Jedamski and Jedamska v. Poland, no. 73547/01, §
58, 26 July 2005; and Kreuz v. Poland, 19 June
2001, no. 28249/95, §§ 54 and 55, ECHR 2001-VI).
- Finally,
the Court further reiterates that it is not its task to take the
place of the domestic courts. It is primarily for the national
authorities, notably the courts, to resolve problems of
interpretation of domestic legislation. The Court’s role is
confined to ascertaining whether the effects of such an
interpretation are compatible with the Convention (see Société
Anonyme Sotiris and Nikos Koutras Attee v. Greece, no. 39442/98,
§ 17, ECHR 2000 XII).
- In
the instant case the applicant attempted to sue the Russian treasury
for the damage caused by the allegedly excessive length of civil
proceedings in his dispute with the Savings Bank. The possibility of
lodging such claims was envisaged in Articles 1064 and 1070 of the
Civil Code of the Russian Federation (see paragraphs 14 and 15
above). The Constitutional Court clarified that State liability for
the damage caused by any violations of the litigant’s right to
a fair trial, including a breach of the reasonable-time guarantee,
would arise even if the fault of the judge was established in civil –
rather than criminal – proceedings and that the right to
compensation by the State for the damage should not be tied in with
the personal fault of a judge (see paragraph 16 above). It also held
that an individual should be able to obtain compensation for any
damage incurred through a violation of his or her right to a fair
trial within the meaning of Article 6 of the Convention. It follows
that the applicant’s claim concerned his civil rights of a
pecuniary nature and should have been amenable to examination in
civil proceedings.
- The
Moscow courts dismissed the applicant’s claim on the grounds
that the legislature had not yet determined jurisdiction over such
claims. This limitation on the right to a court excluded any
possibility of having such a claim examined and, accordingly,
undermined the essence of the applicant’s right of access to a
court. The Government did not offer any justification for the
continued failure to adopt legislation governing the procedure for
examination of such claims.
- Accordingly,
the Court finds that the applicant was denied the right of access to
a court and that there has been a violation of Article 6 § 1 of
the Convention in that regard.
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 17,143 euros (EUR) as compensation in respect of
non-pecuniary damage.
- The
Government considered that the applicant’s claim in respect of
non-pecuniary damage was excessive and unreasonable and also not
supported by any evidence of harm or suffering.
- The
Court considers that the applicant must have suffered distress and
frustration as a result of the refusal of the domestic courts to
entertain his claims. In these circumstances, the Court considers
that the applicant’s suffering and frustration cannot be
compensated for by a mere finding of a violation. The particular
amount claimed is however excessive. Making its assessment on an
equitable basis, the Court awards the applicant EUR 7,200 for
non-pecuniary damage, plus any tax that may be chargeable on the
above amount.
B. Costs and expenses
- The
applicant claimed 10,767 euros (EUR) for 1,786 hours of his own work
in the domestic proceedings at the rate of EUR 6.03 an hour and a
further EUR 1,055 for 175 hours’ work on self-representation in
the Strasbourg proceedings.
- The
Government stated that the applicant’s method of calculation of
his own work had not been “based on any legislation” and
had been therefore “erroneous”. The amount claimed was
unreasonable in respect of the complexity of the case. In the
Government’s opinion, the award should not exceed EUR 100.
- 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 documents in its possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 1,000 covering costs
under all heads.
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;
- 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
7,200 (seven thousand two hundred euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage;
(ii) EUR
1,000 (one thousand euros), plus any tax that may be chargeable, 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;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 16 September 2010,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
