ПОСТАНОВЛЕНИЕ Европейского суда по правам человека от 10.02.2005<ДЕЛО СУХОРУБЧЕНКО (sukhorubchenko) ПРОТИВ РОССИИ> [англ.]


EUROPEAN COURT OF HUMAN RIGHTS
FIRST SECTION
CASE OF SUKHORUBCHENKO v. RUSSIA
(Application No. 69315/01)
JUDGMENT <*>
(Strasbourg, 10.II.2005)
In the case of Sukhorubchenko v. Russia,
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<*> This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
Mr C.L. Rozakis, President,
Mr P. Lorenzen,
Mrs {N. Vajic} <*>,
Mrs S. Botoucharova,
Mr A. Kovler,
Mr K. Hajiyev,
Mr S.E. Jebens, judges,
and Mr S. Nielsen, Section Registrar,
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<*> Здесь и далее по тексту слова на национальном языке набраны латинским шрифтом и выделены фигурными скобками.
Having deliberated in private on 20 January 2005,
Delivers the following judgment, which was adopted on the last-mentioned date:
PROCEDURE
1. The case originated in an application (No. 69315/01) 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 Aleksey Petrovich Sukhorubchenko, on 11 January 2001.
2. The Russian Government ("the Government") were represented by their Agent, Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights.
3. The applicant alleged, in particular, a violation of his right to a court under Article 6 § 1 of the Convention because of excessively long examination of his claim and the lack of effective remedies against the delays, as required by Article 13 of the Convention. He also complained under Article 1 of Protocol No. 1 that the length of the proceedings had made the enforcement impossible.
4. The application was allocated to the First Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1.
5. By a decision of 15 January 2004, the Court declared the application partly admissible.
6. The applicant and the Government each filed observations on the merits (Rule 59 § 1).
7. On 1 November 2004 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed First Section (Rule 52 § 1).
THE FACTS
I. The circumstances of the case
8. The applicant was born in 1954 and lives in the town of Shakhty in the Rostov-on-Don Region.
A. The applicant"s claim against an investment company
9. In 1994 the applicant deposited his savings with "Hermes-Finance", a Russian investment company. In 1995, when the applicant came to Moscow to recover his deposit, he found the company"s offices closed.
10. On 12 August 1995 the applicant lodged a civil action against the company in the Taganskiy District Court of Moscow. The court disallowed the applicant"s action for lack of territorial jurisdiction.
11. On 31 October 1995 the applicant brought an action against the company before the Khoroshevskiy District Court of Moscow. Citing lack of territorial jurisdiction, on 17 November 1995 the Khoroshevskiy District Court transferred the case to the Tushinskiy District Court of Moscow. The Government submitted that there was no indication in the case-file of the receipt of the claim by the Tushinskiy District Court. The applicant challenged this statement, referring to the "forwarding note" of 17 November 1995, from the Khoroshevskiy District Court to the Tushinskiy District Court, which had been copied to him.
12. On 14 February 1996 the applicant sent a letter to the Tushinskiy District Court with a request to explain the delay in examination of his case. No answer was given.
13. In April 1996 the applicant lodged yet another action against the company with the Moscow City Court. It was not accepted for lack of hierarchical jurisdiction.
14. On 27 June 1996 the applicant brought an action against the company before the Supreme Court of the Russian Federation. On 9 August 1996 the Supreme Court forwarded the applicant"s statement of claim to the Moscow City Court, which, in turn, sent the claim on 22 August 1996 to the Tushinskiy District Court of Moscow.
15. On 5 May 1998 the Convention entered into force in respect of the Russian Federation.
B. Proceedings on the applicant"s claims
16. The parties offered different versions of further proceedings.
1. The applicant"s submissions
17. On 8 June 1998 the applicant received a summons to appear before the Tushinskiy District Court of Moscow on the same day at 2.10 p.m. The summons was delivered by regular mail and put in his letter box.
18. On 29 September 1998 the applicant found in his letter box a summons to appear before the Tushinskiy District Court of Moscow on 21 September 1998.
19. On 25 November 1998, on coming home from the office, the applicant found in his letter box a summons to appear before the Tushinskiy District Court of Moscow on 26 November 1998 at 2 p.m.
20. The applicant submitted to the Court copies of the above summonses certified by a notary public.
21. The applicant did not receive any further summonses or communications from the Tushinskiy District Court.
22. On 29 March 2000 the applicant sent a letter to the Tushinskiy District Court, requesting it to account for the delay in the proceedings. On 13 April 2000 the applicant"s letter was returned to him with a handwritten request to specify the date when the action had been lodged. The applicant wrote the date on the same letter and sent it back on 20 April 2000. No answer was received.
2. The Government"s submissions
23. The Government denied the applicant"s submission that the hearings had been listed for 8 June and 29 [sic] September 1998 as not supported with the case-file materials.
24. According to them, the first hearing on the applicant"s claim was fixed for 22 October 1998. As the parties failed to appear, the hearing was adjourned until 26 November 1998. The applicant was advised of the new date and he received the summons on 30 November 1998.
25. On 26 November 1998 the hearing was adjourned until 24 December 1998, as both parties were absent. The applicant received the notice about the adjournment on 21 December 1998.
26. On 24 December 1998 the Tushinskiy District Court of Moscow left the applicant"s claim "without examination", finding as follows:
"The parties failed to appear twice, on 26 November and 24 December 1998; they were notified of the hearing date; the plaintiff does not ask for a default judgment, he did not produce the original documents and receipts, the copies submitted are not properly certified; the court does not consider it possible to examine the case on the basis of the materials in the file."
27. The decision indicated that an appeal lay to the city court against it within ten days.
28. At the Court"s request, the Government enclosed a copy of the decision of 24 December 1998 with their additional observations of 19 April 2004.
29. In support of their statements the Government produced the front and back pages of the case-file.
30. The front page contains the name of the court, the names of the parties and the following handwritten notes:
"Received: 21 September 1998.
Examined: 22 October 1998 at 2.15 p.m.
26 November 1998 at 2 p.m.
24 December 1998 at 9.10 a.m.
filed on 19 February 1999."
31. The back page contains the following handwritten notes:
"Summons for 26 November 1998
Summons for 24 December 1998
[Copy of the decision sent] to the plaintiff on 19 February 1999
24 February 1999 - Archive."
II. Relevant domestic law
32. Article 99 of the Russian Civil Procedure Code of 11 June 1964 (in force at the material time) provided that civil cases were to be prepared for a hearing no later than seven days after the action had been lodged with the court. In exceptional cases, this period could be extended for up to twenty days. Civil cases were to be examined no later than one month after the preparation for the hearing had been completed.
33. Article 106 provided that summonses were to be served on the parties and their representatives in such way so that they would have enough time to appear timely at the hearing and prepare their case. If necessary, the parties could be summoned by a phone call or a telegram.
34. Article 221 § 5 provided that the court could make an interim decision to leave the claim "without examination" (определение об оставлении заявления без рассмотрения), in particular, if the parties had not waived their right to be present and had failed to appear for the second time and the court did not consider it possible to determine the claim on the basis of the case-file. Article 222 required the judge to include in the decision specific instructions on how to eliminate the obstacles to the examination of the claim. Upon removal of the circumstances on which the decision to leave the claim without examination was founded, an interested party could request the court to resume the proceedings. The court could reverse its decision to leave the claim without examination if the parties proved that they had had valid reasons for the absence.
35. Article 213 required a copy of an interim decision to leave the claim without examination to be sent to the absent party no later than three days after it had been made.
THE LAW
I. Alleged violation of Article 6 § 1 of the Convention
36. The applicant complained under Article 6 § 1 of the Convention that his claim had not been determined within a "reasonable time". Article 6 § 1 provides as follows:
"In the determination of his civil rights and obligations..., everyone is entitled to a... hearing within a reasonable time by [a]... tribunal..."
A. Arguments by the parties
37. The applicant submitted that between his first application to the Tushinskiy District Court on 12 August 1995 and the present date he had only received three summons (8 June, 29 September and 25 November 1998) and his returned request to explain the delay in the proceedings (on 13 April 2000). He only became aware of the decision of 24 December 1998 upon receipt of the Government"s observations on 3 July 2003. He considered that at present it would be irrational to apply to the Tushinskiy District Court with a request to resume the proceedings because the defendant had meanwhile divested itself of its assets and made enforcement impossible.
38. The Government, in their observations on the admissibility and merits of the application of 1 July 2003, acknowledged that the length of the civil proceedings in the applicant"s case had been in breach of the "reasonable time" requirement of Article 6 § 1.
39. In their additional observations of 19 April 2004, the Government submitted that the applicant had failed to prove that a copy of the decision of 24 December 1998 had not been served on him. In particular, the applicant failed to obtain a certificate from the Moscow postal service showing that no registered mail enclosing a copy of that decision had been sent to him. In this connection, the Government invited the Court to reconsider the issue of the applicant"s compliance with the six-months rule in Article 35 § 1 of the Convention. They contended that there had been no violation of the applicant"s rights.
40. The Court will examine the Government"s preliminary objection as to the compliance with the six-months rule together with the merits of the application.
B. Compliance with Article 6 § 1 of the Convention
1. Right of access to a court
41. The Court reiterates that the procedural guarantees laid down in Article 6 secure to everyone the right to have any claim relating to his civil rights and obligations brought before a court or tribunal; in this way it embodies the "right to a court", of which the right of access, that is the right to institute proceedings before courts in civil matters, constitutes one aspect (see Golder v. the United Kingdom, judgment of 21 February 1975, Series A No. 18, pp. 13 - 18, §§ 28 - 36).
42. The Court observes that the applicant in the present case had the possibility of lodging a civil action against the defaulting financial institution; after several unsuccessful attempts, his claim against the investment company was accepted for examination by the Tushinskiy District Court. Although the parties suggested different dates as the starting date of the proceedings, the Court, as it has already noted in its decision as to the admissibility of the application of 19 January 2004, does not consider it necessary to determine the exact date, that period lying, in any event, outside its competence ratione temporis. In this context it is sufficient to establish that on the date when the Convention entered into force in respect of Russia, the applicant"s claim had been pending for some time before the district court.
43. The institution of proceedings does not, in itself, satisfy all the requirements of Article 6 § 1. The Court recalls that the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective. The right of access to a court includes not only the right to institute proceedings but also the right to obtain a "determination" of the dispute by a court. It would be illusory if a Contracting State"s domestic legal system allowed an individual to bring a civil action before a court without ensuring that the case would be determined by a final decision in the judicial proceedings. It would be inconceivable for Article 6 § 1 to describe in detail procedural guarantees afforded to litigants - proceedings that are fair, public and expeditious - without guaranteeing the parties that their civil disputes will be finally determined (see Multiplex v. Croatia, No. 58112/00, § 45, 10 July 2003; {Kutic} v. Croatia, No. 48778/99, § 25, ECHR 2002-II). The Court has found a violation of the right of access to a court in cases where the proceedings, including their enforcement stage, were stayed for a significant period of time by operation of law (see Multiplex v. Croatia, cited above, §§ 53 - 55; {Kutic} v. Croatia, cited above, §§ 32 - 33; Immobiliare Saffi v. Italy [GC], No. 22774/93, § 70, ECHR 1999-V).
44. In the present case the proceedings were stayed on 24 December 1998 after the

"ПРОТОКОЛ МЕЖДУ ФЕДЕРАЛЬНОЙ ПОГРАНИЧНОЙ СЛУЖБОЙ РОССИЙСКОЙ ФЕДЕРАЦИИ И КОМИТЕТОМ НАЦИОНАЛЬНОЙ БЕЗОПАСНОСТИ ТУРКМЕНИСТАНА О ПОРЯДКЕ ОКАЗАНИЯ МЕДИЦИНСКОЙ ПОМОЩИ ВОЕННОСЛУЖАЩИМ И ЧЛЕНАМ ИХ СЕМЕЙ"(Подписан в г. Ашхабаде 13.11.1996)  »
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