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FIRST
SECTION
DECISION
AS
TO THE ADMISSIBILITY OF
Applications nos.
26716/09, 67576/09 and 7698/10
by Rustem Rifovich FAKHRETDINOV,
Vladimir Viktorovich KUZOVLEV and Valeriy Leonidovich
SERGEYEV
against Russia
The
European Court of Human Rights (First Section), sitting
on 23 September 2010 as a Chamber composed of:
Christos Rozakis, President,
Nina
Vajić,
Anatoly Kovler,
Elisabeth
Steiner,
Khanlar Hajiyev,
Dean
Spielmann,
Sverre Erik Jebens, judges,
and André
Wampach, Deputy
Registrar,
Having
regard to the above applications lodged on 12 February 2009,
23 November 2009 and 16 December 2009 respectively;
Having
deliberated, decides as follows:
THE FACTS
- The
applicants are Russian nationals. The first applicant,
Rustem Rifovich Fakhretdinov, was born in 1973 and lives in
Oktyabrskiy in the Republic of Bashkortostan. The second applicant,
Vladimir Viktorovich Kuzovlev, was born in 1950 and lives in Uzlovaya
in the Tula Region. He is represented by L.S. Sladkikh, a lawyer
practising in Shvartsevskiy, Tula Region. The third applicant,
Valeriy Leonidovich Sergeyev, was born in 1952 and lives in Pobednoye
in the Orel Region.
A. The circumstances of the case
- The
facts of the case, as submitted by the applicants, may be summarised
as follows.
1. Application no. 26716/09 lodged on 12 February 2009
- On
12 May 2005 the applicant was arrested on suspicion of a drug
offence. On 29 December 2007 he was convicted by Salavat Town Court,
Republic of Bashkortostan, of unlawful dealing in drugs and sentenced
to five years' imprisonment. On 23 December 2008 the conviction was
upheld on appeal by the Supreme Court of the Republic of
Bashkortostan.
2. Application no. 67576/09 lodged on 23 November 2009
- On
28 June 2001 the applicant lodged a claim for invalidation of certain
gift agreements, which he later supplemented with other claims. His
claims were dismissed in a judgment of 17 March 2008 by Uzlovaya Town
Court, Tula Region. On 10 July 2008 Tula Regional Court upheld part
of the judgment on appeal and remitted the rest for fresh
consideration. On 19 May 2009 the trial court partially granted
the applicant's claims invalidating certain transactions and third
persons' property titles and acknowledging the applicant's title to a
plot of land and a house. The judgment was upheld on appeal on 16
July 2009.
3. Application no. 7698/10 lodged on 16 December 2009
- On
5 June 2002 the authorities instituted criminal proceedings against
the applicant. On 24 September 2008 the justice of the peace of
Verkhovskiy District, Orel Region, found the applicant guilty of
infliction of bodily harm through negligence, did not impose any
sanction due to the expiry of the time-limit for criminal prosecution
and partly granted a civil suit against him. On 17 July 2009
Verkhovskiy District Court, Orel Region, upheld the judgment on
appeal after some minor changes. The conviction was finally upheld at
a third level of jurisdiction by Orel Regional Court on 13 October
2009.
4. The creation of a new domestic remedy
- On
4 May 2010 the Government informed the Court that in response to the
pilot judgment two federal laws had been enacted, introducing a new
domestic remedy in respect of lengthy judicial proceedings and
delayed enforcement of domestic judgments against the State. The laws
entered into force on the same date (“the Compensation Act”,
see part B below).
- In
May 2010 the Registry of the Court informed the applicants in the
present cases and all other applicants in the same position of the
new remedy, advising them to make use of it within the six-month
time-limit set by the Compensation Act (see paragraph 16 below).
- By
a letter of 4 June 2010 Mr Fakhretdinov informed the Court in
response that he had indeed brought a relevant claim before a
domestic court in accordance with the new statute.
- By
a letter of 22 June 2010 Mr Sergeyev expressed an intention to lodge
such a claim but cast strong doubts as to the effectiveness of the
procedure, and added that it had not been available at the time of
his application to the Court.
- All
the applicants explicitly maintained their complaints concerning
undue length of the proceedings before the Court. Mr Fakhretdinov
furthermore insisted on his other complaint (see paragraph 18 below).
B. Relevant domestic law
- On
30 April 2010 the Russian Parliament adopted a Federal Law no. 68-ФЗ
“On Compensation for Violation of the Right to a Trial within a
Reasonable Time or the Right to Enforcement of a Judgment within a
Reasonable Time” (“the Compensation Act”). On the
same date the Parliament adopted a Federal Law, no. 69-ФЗ,
introducing a number of corresponding changes to the relevant federal
laws. Both laws entered into force on 4 May 2010.
- The
Compensation Act entitles a party concerned (“an applicant”)
to bring an action for compensation of the violation of his or her
right to a trial within a reasonable time or of the right to
enforcement within a reasonable time of a judgment establishing a
debt to be recovered from State budgets (Section 1, § 1).
Such compensation can only be awarded if the alleged violation took
place independently of the applicant's own actions except those taken
in the circumstances of force majeure. A breach of the
statutory time-limits for examination of the case does not amount per
se to a violation of the right to a trial within a reasonable
time or right to enforcement of a judgment within a reasonable time
(Section 1, § 2). A compensation award is not dependent on
the competent authorities' fault (Section 1, § 3).
- The
compensation is awarded in monetary form (Section 2, § 1).
The amount of the compensation should be determined by courts
according to the applicant's claims, the circumstances of the case,
and the length of the period during which the violation took place,
the significance of its consequences for the applicant, the
principles of reasonableness and fairness, and the practice of the
European Court of Human Rights (Section 2, § 2).
- Section
3 sets out the rules of jurisdiction and procedure. It states in
particular that a claim for compensation for excessively lengthy
civil and criminal proceedings should be brought to a court of
general jurisdiction, and a claim concerning commercial proceedings
to a commercial court. Such a claim can also be introduced as part of
an application for supervisory review of the decisions of commercial
courts. This provision further sets down the conditions to be
satisfied prior to lodging a claim for compensation. Thus, in the
case of civil proceedings the claim should be lodged within six
months of the last judicial decision, or prior to termination of the
proceedings provided that their length has exceeded three years and
the applicant has applied for their expedition in a procedure
determined by statute. In the case of criminal proceedings the claim
for compensation should be lodged within six months of the entry into
force of a final judicial decision, or prior to termination of the
proceedings if their length has exceeded four years and the applicant
has applied for their expedition in a procedure determined by
statute.
- A
court decision granting compensation is subject to immediate
enforcement (Section 4, § 4). It may be appealed against in
accordance with the procedural legislation in force (Section 4, § 5).
The costs of payment of compensation awards are included in the
federal budget, in the budgets of federal entities and in local
budgets (Section 5, § 3).
- All
individuals who have complained to the European Court of Human Rights
that their right to a trial within a reasonable time or to
enforcement of a judgment within a reasonable time has been violated
may claim compensation in domestic courts under the Compensation Act
within six months of its entry into force, provided the European
Court has not ruled on the admissibility of the complaint (Section 6
§ 2).
COMPLAINTS
- Referring
to Article 6 of the Convention, the applicants complained that the
length of the proceedings in their cases had been incompatible with
the “reasonable time” requirement as established in the
provision. The second applicant also relied on Article 13 to complain
of lack of effective legal remedies in Russia in respect of excessive
length of proceedings.
- The
first applicant also complained under Article 6 that the trial court
had not adequately considered the testimonies of a certain defence
witness.
THE LAW
A. Alleged violation of Article 6 § 1 of the Convention on
account of the length of proceedings
- The
Court will first determine whether the applicants complied with the
rule of exhaustion of domestic remedies set out in Article 35 of the
Convention, which provides, in so far as relevant:
“1. The Court may only deal with the
matter after all domestic remedies have been exhausted, according to
the generally recognised rules of international law, and within a
period of six months from the date on which the final decision was
taken.”
1. General principles
- The
Court reiterates that the purpose of the exhaustion rule is to afford
the Contracting States the opportunity of preventing or putting right
– usually through the courts – the violations alleged
against them before those allegations are submitted to the Court.
Consequently, States are dispensed from answering for their acts
before an international body before they have had the opportunity to
put matters right through their own legal system. That rule is based
on the assumption, reflected in Article 13 of the Convention –
with which it has close affinity – that there is an effective
remedy available in respect of the alleged breach in the domestic
system. In this way, it is an important aspect of the principle that
the machinery of protection established by the Convention is
subsidiary to the national systems safeguarding human rights. (see,
among many other authorities, Handyside v. the United Kingdom,
7 December 1976, § 48, Series A no. 24; Akdivar and Others v.
Turkey, 16 September 1996, § 65, Reports of Judgments and
Decisions 1996 IV; and Fressoz and Roire v. France
[GC], no. 29183/95, § 37, ECHR 1999 I).
- Nevertheless,
the only remedies which Article 35 of the Convention requires to be
used are those that relate to the breaches alleged and at the same
time are available and sufficient. The existence of such remedies
must be sufficiently certain not only in theory but also in practice,
failing which they will lack the requisite accessibility and
effectiveness (see Akdivar and Others, cited above, § 66,
and Dalia v. France, 19 February 1998, § 38, Reports
1998 I). In addition, according to the “generally
recognised principles of international law”, there may be
special circumstances which absolve the applicant from the obligation
to exhaust the domestic remedies at his disposal (see Van
Oosterwijck v. Belgium, 6 November 1980, § 36, Series A no.
40, A, and Akdivar and Others, cited above, § 67).
However, the existence of mere doubts as to the prospects of success
of a particular remedy which is not obviously futile is not a valid
reason for failing to exhaust domestic remedies (see Van
Oosterwijck, cited above, § 37; Akdivar and
Others, cited above, § 71; and Brusco v. Italy
(dec.), no. 69789/01, ECHR 2001 IX).
- An
assessment of whether domestic remedies have been exhausted is
normally carried out with reference to the date on which the
application was lodged with the Court. However, this rule is subject
to exceptions, which may be justified by the particular circumstances
of each case (see Baumann v. France, no. 33592/96, § 47,
22 May 2001, and Brusco, cited above).
- Relying
on the well-established principles set out above, the Grand Chamber
vigorously reiterated in a recent decision the subsidiary role of the
Convention system and the ensuing limits attached to the Court's
function (see Demopoulos and Others v. Turkey
(dec.), nos. 46113/99 et al.,
§ 69, ECHR 2010 ...):
“69. It is primordial that the machinery of
protection established by the Convention is subsidiary to the
national systems safeguarding human rights. This Court is concerned
with the supervision of the implementation by Contracting States of
their obligations under the Convention. The rule of exhaustion of
domestic remedies is therefore an indispensable part of the
functioning of this system of protection. (...) The Court cannot
emphasise enough that it is not a court of first instance; it does
not have the capacity, nor is it appropriate to its function as an
international court, to adjudicate on large numbers of cases which
require the finding of basic facts or the calculation of monetary
compensation – both of which should, as a matter of principle
and effective practice, be the domain of domestic jurisdictions.”
2. Application to the present cases
- The
Court notes at the outset that the first applicant has already
brought proceedings for compensation relying on the new Compensation
Act. The third applicant indicated that he would lodge such a claim
with the domestic court.
- While
disputing the effectiveness of the new remedy before the Court, the
applicants showed no doubt that it was available to them. Nor does
the Court see any reason to doubt that the applicants became entitled
to bring their claims to domestic courts in accordance with the
Compensation Act. First, the applicants' complaints to the Court
concern excessive length of the proceedings (see section 1 § 1,
paragraph 12 above). Second, even though their
actions in domestic courts appear to be barred by the time-limits set
in section 3 of the Compensation Act (see paragraph 14 above),
the applicants were entitled until 4 November 2010 to benefit from
the transitional provision of the law as their applications
had been lodged with the Court before its entry into force and the
Court had not ruled on their admissibility (see section 6 § 2,
paragraph 16 above). The Registry informed the
applicants of this opportunity (see paragraph 7 above).
- As
regards the effectiveness of the new remedy available to the
applicants, it is evident from the Compensation Act that when
deciding compensation claims domestic courts are required to apply
the Convention criteria as established in the Court's case-law. In
particular, compensation is awarded in monetary form; its amount
should be determined having regard to the applicant's claims, the
circumstances of the case, the length of the period during which the
violation took place, the significance of its consequences for the
applicant, the principles of reasonableness and fairness, and the
Court's case-law (section 2). Finally, compensation is awarded
irrespective of the authorities' fault (section 1 § 3).
- In
view of these elements, the Court accepts that the Compensation Act
was designed, in principle, to address the issue of excessive length
of domestic proceedings in an effective and meaningful manner, taking
account of the Convention requirements. It is true that domestic
courts have not been able yet to establish any stable practice under
this Act in the months since its entry into force (see Nogolica v.
Croatia (dec.), no. 77784/01, ECHR 2002-VIII). However, the
Court does not see at this stage any reason to believe that the new
remedy would not afford the applicants the opportunity to obtain
adequate and sufficient compensation for their grievances or that it
would offer no reasonable prospect of success. The applicants' mere
doubts about the capacity of the new remedy to provide adequate
compensation cannot alter the Court's conclusion.
- The
Court further concludes, as it has repeatedly done in other similar
cases, that the States can choose solely to introduce a compensatory
remedy in respect of undue length of proceedings without that remedy
being automatically regarded as ineffective (see Kudla v. Poland
[GC], cited above, § 158, and Zunič v. Slovenia (dec.),
no. 24342/04, 18 October 2007).
- The
Court is mindful that an issue may subsequently arise as to whether
the new compensatory remedy would still be effective in a situation
of persistent failure by the State to respect the right to a trial
within a reasonable time notwithstanding a compensation award or even
repeated awards made under the Compensation Act. However, it does not
find it appropriate to anticipate such an event, nor to decide this
issue in abstracto at the present stage.
- Finally,
the Court does not lose sight of the fact that the new remedy only
became available after the introduction of the present applications
and that only exceptional circumstances may compel the
applicants to avail themselves of such a remedy (see paragraph 22
above). It observes that there have been several cases concerning the
length of proceedings in various countries in which such exceptional
circumstances were found to exist (see Brusco v. Italy,
cited above; Nogolica v. Croatia, cited above; Andrášik
and Others v. Slovakia (dec.), nos. 57984/00 et al., ECHR
2002-IX; Michalak v. Poland (dec.), no. 24549/03,
§§ 41-43, 1 March 2005; and Korenjak v. Slovenia,
no. 463/03, §§ 63-71, 15 May 2007). The Court stresses
that the nature of the remedy and the context in which it was
introduced weighs heavily in its assessment of such exceptions (see
Scordino (no. 1), cited above, § 144).
- As in the cases mentioned above, the Court considers
it appropriate and justified in the circumstances of the present
cases to require applicants to use the new domestic remedy introduced
by the Compensation Act. Firstly, as it observed in Kudła v.
Poland (cited above, § 152), the right to a hearing within a
reasonable time would be less effective if there was no opportunity
to submit Convention claims to a national authority first. Once a
domestic compensatory remedy has been introduced, it becomes
particularly important for such complaints to be considered in the
first place and without delay by the national authorities, which are
better placed and equipped to establish the relevant facts and to
calculate monetary compensation (see, mutatis mutandis,
Demopoulos and Others (dec.), cited above, § 69).
Secondly, the Court attaches particular importance to the fact that
the applicants were entitled to bring their claims to the domestic
courts under the transitional provision of the Compensation Act (see
paragraph 16 above) which reflects the Russian authorities' intention
to grant redress at the domestic level to those people who had
already applied to the Court before the entry into force of the Act
(compare Brusco, cited above). It reiterates that its task,
as defined by Article 19 of the Convention, would not be best
achieved by taking such cases to judgment in the place of domestic
courts, let alone by considering them in parallel with the domestic
proceedings (see, mutatis mutandis,
E.G. v. Poland (dec.), no. 50425/99, § 27,
23 September 2008).
- While
the Court may exceptionally decide, for the sake of fairness and
effectiveness, to conclude its proceedings by a judgment in certain
cases of this kind which have remained on its list for a long time or
have already reached an advanced stage of proceedings (see, mutatis
mutandis, Burdov (no. 2), cited above, § 144),
it will require, as a matter of principle, that all new cases
introduced after the pilot judgment and falling under the
Compensation Act be submitted in the first place to the national
courts.
- However,
the Court's position may be subject to review in the future
depending, in particular, on the domestic courts' capacity to
establish consistent case-law under the Compensation Act in line with
the Convention requirements (see Korenjak, cited above, §
73). Furthermore, the burden of proof as to the effectiveness of the
new remedy will lie in practice with the respondent Government
(ibid.).
- In
view of the foregoing considerations, the Court finds that the
applicants are required by Article 35 § 1 of the Convention to
avail themselves of the new domestic remedy by pursuing domestic
proceedings.
- It
follows that this complaint must be rejected under Article 35 §§
1 and 4 of the Convention for non-exhaustion of domestic remedies.
B. Alleged wrongful assessment of evidence and lack of effective
remedies in respect of excessive length of the proceedings
- Regarding
the first applicant's complaint of the court's inadequate
consideration of a defence witness's statements, the Court reiterates
that it is not its function to deal with errors of fact or law
allegedly committed by a national court unless and in so far as they
may have infringed rights and freedoms protected by the Convention
(see García Ruiz v. Spain [GC], no. 30544/96, §
28-29, ECHR 1999 I). Accordingly, it considers this complaint
manifestly ill-founded and rejects it in accordance with Article 35
§§ 3 and 4 of the Convention
- As
to the second applicant's complaint of lack of effective remedies,
the Court reiterates that this provision applies only to those with
an arguable claim under the Convention (see Silver and Others v.
the United Kingdom, 25 March 1983, § 113, Series A no. 61).
Given that the applicant's complaint under Article 6 is rejected for
non-exhaustion of domestic remedies, the complaint under Article 13
should be declared manifestly ill-founded and rejected under Article
35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to join the applications;
Declares the applications inadmissible.
André Wampach Christos Rozakis Deputy Registrar President
