DZHIGARKHANOV v. RUSSIA - 38321/03 [2010] ECHR 1579 (21 October 2010)

JUDGMENT STRASBOURG 21 October This judgment is final but it may be subject to editorial revision. In the case of Dzhigarkhanov v. Russia , The European Court of Human Rights (First Section), sitting as a Committee composed of: Elisabeth Steiner, President, Anatoly Kovler, George Nicolaou, judges, and André Wampach , Deputy Section Registrar , Having deliberated in private on 30 September 2010, Delivers the following judgment, which was adopted on that date: PROCEDURE The case originated in an application (no. 38321/03) 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 Anatoliy Ivanovich Dzhigarkhanov (“the applicant”), on 6 November 2003. The Russian Government (“the Government”) were represented by Mrs V. Milinchuk, former Representative of the Russian Federation at the European Court of Human Rights. On 9 March 2007 the President of the First Section decided to give notice of the application to the Government. In accordance with Protocol No. 14, the application was allocated to a Committee. It was also decided that the Committee would rule on the admissibility and merits of the application at the same time (Article 29 § 1 of the Convention). THE FACTS THE CIRCUMSTANCES OF THE CASE The applicant was born in 1942 and lives in Budennovsk of the Stavropol Region. On 5 February 1998 the applicant was stopped by the police and brought to a sobering-up centre. He was examined by a doctor who found that he was sober. The applicant was immediately released. On 18 November 1998 the applicant sued the local police department for compensation for unlawful arrest. The applicant’s complaint was admitted by the Budennovsk Town Court of the Stavropol Region (“the Town Court”). The first hearing was scheduled for 25 December 1998, but on that date it did not take place. No action was taken on the case until December 2001. On 25 December 2001 the Town Court identified the Ministry of the Interior Affairs as the respondent and involved the local police department as a third party in the proceedings. On 30 December 2002 the Town Court held in a default judgment that the applicant’s arrest had been unlawful and partly allowed his claim for compensation. On 29 January 2003 the Town Court granted an extension of the time allowed for submission by the respondent of their grounds of appeal. On 6 February 2003 the Stavropol Regional Court (“the Regional Court”) overturned the judgment on appeal for failure to notify the respondent about the hearing in a timely manner and remitted the case to the first instance. On 20 February 2003 the Town Court again allowed the applicant’s claim in part, but on 23 April 2003 the judgment was set aside on appeal by the Regional Court for failure to involve the finance authorities in the proceedings. The appeal court required a new hearing. It also delivered a special ruling in which it reprimanded the judge in charge of the applicant’s case for breaches of the procedural time-limits for consideration of the case. On 6 June 2003 the Town Court judge withdrew from the proceedings. On 4 July 2003 the Town Court rejected the applicant’s claims as unsubstantiated. On 20 August 2003 the Regional Court set aside the judgment on appeal and allowed the applicant’s claim in part. It held that his arrest had been unlawful and ordered that the Budennovsk town administration pay the applicant 5,000 Russian roubles (RUB). On an unspecified day the town administration lodged an application for supervisory review of the decision of 20 August 2003. On 8 December 2003 the Presidium of the Regional Court granted the application, quashed the judgment of 20 August 2003 for failure to notify the town administration about the hearing and remitted the case to the Regional Court. On 1 March 2004 the Regional Court quashed the judgment of 4 July 2003 and remitted the case to the Town Court. On 7 May 2004 the Town Court designated the Ministry of Finance of the Stavropol Region as a co-respondent. On 12 July 2004 the Town Court granted the applicant’s claim in part and ordered that the Ministry of Finance of the Stavropol Region pay the applicant RUB 15,000. On 8 September 2004 the Regional Court upheld the judgment on appeal. THE LAW I. ALLEGED VIOLATION OF ARTICLES 6 § 1 AND 13 OF THE CONVENTION The applicant complained under Articles 6 § 1 and 13 of the Convention that the length of the proceedings was unreasonable. The Court considers that this complaint should be examined under Article 6 § 1, the relevant part of which 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 ...” A. Admissibility The Government submitted that the complaint should be rejected as manifestly ill-founded in accordance with Article 35 §§ 3 and 4 of the Convention. In their further observations they specified that the applicant had only complained of the length of the proceedings that took place before 30 December 2002 and that he no longer enjoyed the victim status under the Convention. They did not elaborate on these statements. Regarding the Government’s assertion that the applicant’s complaint was limited to the proceedings that took place before 30 December 2002, the Court firstly observes that in his application form the applicant indicated that the last judgment taken in his case was that of 20 August 2003. In any event, it has been a long-standing practice of the Court that the period covered by the reasonable time guarantee in a particular case runs until the judgment is given by the Court (see , among others, Bordikov v. Russia , no. 921/03, 8 October 2009; Polonskiy v. Russia , no. 30033/05, 19 March 2009). As to the argument that the applicant could no longer be considered a victim under the Convention, the Court assumes that it relates to the fact that the applicant’s claims for compensation in his civil case were partially granted. It rejects this argument as the applicant’s claims in the domestic proceedings did not concern a complaint about the length of the said proceedings. 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 disagreed with the complaint. They observed that the case had been complex and that its length had been justified by a number of the involved parties, the courts’ errors, the respondent’s failure to appear, the number of the rounds of the proceedings and the parties’ exercise of their procedural rights. In their further observations they admitted that the trial court had indeed been inactive until 30 December 2002 but insisted that after that date the proceedings had progressed without any delays. The applicant maintained his complaints. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII). The Court observes that in the present case the proceedings commenced on 18 November 1998 and ended on 8 September 2004, during which period the applicant’s claims were examined four times at two levels of jurisdiction. The period between 20 August and 8 December 2003 has to be deducted from the overall length as the case was not pending before the courts. Thus, the aggregate length at issue amounts approximately to five years and six months. The Court considers that the applicant’s case had not been complex, having involved a straightforward claim for compensation concerning one incident. The Court notes that no delays in the proceedings can be attributed to the applicant. Turning to the conduct of the authorities, it is struck that the applicant’s case had been left without examination for almost three years, which had been admitted both by the domestic authorities (see para. 11 above) and the Government in their observations. It is also mindful of the fact that the authorities have failed to provide any explanation for this lengthy period of inactivity. The Court is of the opinion that even though the subsequent proceedings had been conducted with reasonable expedition, this alone cannot redress the excessive delay at the beginning. The foregoing considerations are sufficient to enable the Court to conclude that the “reasonable time” requirement was breached in the present case. There has accordingly been a violation of Article 6 § 1 of the Convention. II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION The applicant also complained under Article 3 of the Convention that he had been subjected to inhuman treatment upon the arrest and under Article 5 that his arrest had been unlawful. The Court observes that the applicant’s complaints under Articles 3 and 5 of the Convention are outside its jurisdiction ratione temporis as his arrest had taken place before the entry of the Convention into force in respect of Russia on 5 May 1998. These complaints should therefore be rejected as inadmissible in accordance with Article 35 § 3 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 150,000 euros (EUR) in respect of non-pecuniary damage. The Government contested the claim as excessive and stated that, if the Court were to find a violation of the Convention, such finding would be sufficient as just satisfaction. Referring to its established case-law, the Court accepts that the applicant suffered some distress and frustration caused by the unreasonable length of the proceedings. Deciding on an equitable basis, the Court awards EUR 2,400. B. Costs and expenses The applicant also claimed 226 Russian roubles (RUB) (EUR 5) for the costs and expenses incurred before the Court. In support of his claim he submitted two post receipts. The Government contested the claim as unsubstantiated. Regard being had to the documents in its possession, the Court considers it reasonable to award the sum of EUR 5 for the proceedings before the Court. 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 excessive length of the proceedings 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, the following amounts, to be converted into Russian roubles at the rate applicable at the date of settlement: (i) EUR 2,400 (two thousand four hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 5 (five euros), plus any tax that may be chargeable to the applicant, 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 21 October 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. André Wampach Elisabeth Steiner Deputy Registrar President BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII