I correctly predicted that there was a violation of human rights in KOCHERGA v. RUSSIA.

Information

  • Judgment date: 2020-01-28
  • Communication date: 2015-08-28
  • Application number(s): 21718/06
  • Country:   RUS
  • Relevant ECHR article(s): 6, 6-1, 8, 8-1, 13, P1-1
  • Conclusion:
    Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings
    Article 6-1 - Fair hearing)
  • Result: Violation
  • SEE FINAL JUDGMENT

JURI Prediction

  • Probability: 0.640886
  • Prediction: Violation
  • Consistent


Legend

 In line with the court's judgment
 In opposition to the court's judgment
Darker color: higher probability
: In line with the court's judgment  
: In opposition to the court's judgment

Communication text used for prediction

The applicant, Ms Natalya Dmitriyevna Kocherga, is a Russian national, who was born in 1954 and lives in Prokopyevsk, Kemerovo Region.
A.
The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows.
1.
Eviction Since the late 1980s the applicant was residing in a room in a dormitory accommodating workers of a local factory.
Later on, the factory became a private company.
In 1996 the applicant was dismissed from the factory but continued to live in the room.
The factory sought the applicant’s eviction.
By judgment of 8 January 2003 judge K. of the Rudnichniy District Court of Prokopyevsk ordered the applicant’s eviction.
It follows from the text of the judgment that “[the applicant] had been properly notified of the hearing”.
According to the applicant, she had not been notified of the hearing, thus did not participate in it and was not aware of the judgment.
The judgment became final on 19 January 2003.
On 11 February 2003 the bailiff service opened enforcement proceedings against the applicant.
The bailiff issued a decision, indicating that the applicant had five days to comply with the eviction order.
In the same decision, the bailiff also ordered that an inventory list be compiled and issued a charging order in respect of the applicant’s belongings.
It is unclear when the applicant received this decision.
In any event, on 11 February 2003 the representatives of the company and a police officer broke into the applicant’s room while she was absent; her belongings were removed from there to be kept at the premises of the company.
An inventory list of 211 items was compiled.
On 14 February 2003 the applicant was arrested during her attempt to enter the room and was taken to Rudnichniy police station.
On 27 February 2003 the bailiff closed the enforcement proceedings as completed.
On 3 March 2003 the applicant lodged an appeal against the judgment of 8 January 2003.
In March 2003 the town administration became the owner of the dormitory.
On 17 March 2003 the applicant’s registration at the address of her home was annulled.
On 4 April 2003 the Kemerovo Regional Court examined the applicant’s appeal and set aside the judgment of 8 January 2003.
The appeal court noted that the summons for the trial had reached the post office already after the trial.
On 9 January 2004 the applicant’s application for a Russian passport (to replace her old USSR passport) was refused due to the absence of registration of residence.
By judgment of 24 November 2004 the District Court re-examined the eviction claim and dismissed it.
The court found that the applicant could not have been lawfully evicted prior to giving her another dwelling.
The court concluded that the applicant “had a right to room no.
92 in the dormitory at [address]”; that she was to “be moved in” this room while the then users of the room were to be evicted.
The town administration was to provide these users with other housing.
The town administration and the room users appealed.
On 25 February 2005 the Regional Court upheld the judgment in respect of the applicant.
On unspecified date, the enforcement proceedings were opened.
In October 2005 the town administration signed a social tenancy contract with the applicant in respect of the room in the dormitory.
The town administration undertook to deliver the room to the applicant, within ten days, free of any third parties’ claims or entitlement.
On 20 June 2007 the bailiff discontinued the enforcement proceedings.
The applicant was able to move in the room of the dormitory.
2.
Related proceedings (a) Claims for compensation on account of the eviction proceedings In the meantime, in separate proceedings the applicant sued the State, arguing that judge K. had no proof that the applicant had been notified and thus could not lawfully proceed with the examination of the case; as a result of this unlawful action the applicant had sustained substantial pecuniary and non-pecuniary damage; in addition, the judge had made a manifest error of law, as confirmed by the judgments of 24 November 2004 and 25 February 2005.
On 19 April 2005 the Kemerovo Regional Court refused to deal with the case, indicating that there should be a final criminal judgment against the judge in order to a civil claim to proceed.
The court took note of the applicant’s argument that, according to the constitutional ruling of 15 January 2001 (see below), not every failing on the part of a judge required such final judgment.
However, the court concluded that the relevant grounds and the procedure for such claims had not (yet) been prescribed by the legislation.
On 12 October 2005 the Supreme Court of Russia, without holding a hearing, upheld this refusal.
The applicant received the appeal decision in November 2005.
The applicant also sued the town administration for failing to enforce the judgment of 24 November 2004 in her favour.
On 28 December 2005 the Tsentralniy District Court of Prokopyevsk held that the town administration unlawfully breached their undertaking under the social tenancy agreement (see above).
The court ordered the administration to execute the agreement and to pay 500 Russian roubles to the applicant as compensation in respect of non-pecuniary damage.
In addition, the applicant sued the factory owner seeking restitution of her belongings.
On 20 February 2006 the Rudnichniy District Court of Prokopyevsk ordered the factory owner “not to impede [the applicant’s] access to her belongings” but refused to order any compensation.
The appeal court set aside the judgment in the part relating to the obligation imposed on the respondent, and ordered re-examination of this part of the case.
Its outcome is unclear.
(b) Claims on account of the annulment of registration and refusal of passport In March 2004 the applicant unsuccessfully sought institution of criminal proceedings against the official who had annulled her residence registration and refused to issue her with the passport.
The applicant also sued the State on account of the same facts.
On 19 August 2004 the District Court dismissed her claims.
Her appeal was not processed as belated in September 2004.
(c) Criminal complaint The applicant sought institution of criminal proceedings on account of the execution of the unlawful eviction order and the loss of her belongings.
On 28 February 2003 the authorities refused to open a criminal case.
It was later on quashed and the preliminary inquiry was resumed.
In May 2004 the authorities opened a criminal case on account of arbitrary actions (самоуправство) punishable under Article 330 of the Criminal Code.
In August 2004 the case was closed.
In January 2005 the supervising prosecutor ordered resumption of the proceedings.
In April 2005 the case was against closed and resumed in May 2005.
On 27 May 2005 the authorities closed the case.
On 28 June 2006 the Rudnichniy District Court of Prokopyevsk confirmed this decision on judicial review.
On 24 August 2006 the Regional Court upheld the judgment.
B.
Relevant domestic law and practice 1.
State liability in relation to administration of justice Article 1069 of the Civil Code (“the Code”) provides that loss sustained as a result of unlawful actions or inaction on the part of public authorities or their officials should be compensated.
Loss sustained as a result of the administration of justice is recoverable if the judge’s fault has been established in criminal proceedings (Article 1070 § 2 of the Code).
By a ruling of 25 January 2001, the Constitutional Court provided an interpretation of Article 1070 § 2 of the Code.
It held that a judge’s criminal conviction was a necessary element for a claim for damages on account of an unlawful judicial decision issued by that judge in the context of civil proceedings.
However, a criminal conviction was not required if the claim concerned loss or damage sustained through other violations in judicial proceedings, such as, for instance, a failure to examine the case within a reasonable time.
The Constitutional Court held that the federal legislature should adopt a legislative framework governing that second category of tort claims and, in particular, clarifying the grounds for recovering damages and related jurisdictional matters.
The Constitutional Court indicated that the absence of the above-mentioned legislative framework should not serve as a reason for refusing to deal with a case.
The absence of such a framework did not imply the inapplicability of the general rules concerning the grounds and procedure for establishing State liability or concerning jurisdictional matters (see decision no.
210-O of 27 May 2004 and decision no.
278-O-P of 5 March 2009).
Subsequently, the Constitutional Court developed its position (see decision no.
524-О-P of 8 April 2010) as follows: “Administration of justice is a special type of State authority.
When applying a general legal rule in the circumstances of a given case, a judge provides an interpretation of the rule, takes a decision within the scope of his (at times wide) margin of appreciation provided by the law and, often, assesses the circumstances without the benefit of sufficient information ... A party to court proceedings benefiting from an annulment or amendment of a judgment by a higher court is entitled to consider that that judgment had not been in compliance with the law through the judge’s fault...
Article 1070 § 2 excludes a presumption of culpability on the tortfeasor’s part, and requires the establishment of the judge’s guilt in a criminal judgment as an additional condition of State liability ...
Thus, Article 1070 § 2 links State liability to a criminal act of a judge, which was premeditated or owing to the improper exercise of his powers ... when examining a case and taking a judicial decision...The above does not preclude compensation in respect of damage caused in other circumstances or contexts, when the judge’s guilt may be established by a court decision outside the sphere of criminal law ...” 2.
Enforcement proceedings Section 75 of the Enforcement Proceedings Act of 1997 provided, at the time, that if the debtor had not complied with the eviction order within the time-limit specified by the bailiff, the latter was empowered to take measures to enforce effective eviction.
To do this, the bailiff was to inform the debtor of the eviction date; to draw an inventory list of the debtor’s property and to ensure the safe-keeping of the debtor’s belongings.
COMPLAINTS The applicant complains under Article 8 of the Convention about the unlawful entering into her home by other people, including public officials.
The applicant also complains that the removal and loss of her property amounted to a violation of Article 1 of Protocol No.
1.
She also complains with reference to Articles 6 and 13 of the Convention about the delay in enforcement of the final judgments in her favour and the refusal to examine her claim against the State (judgment of 19 April 2005 by the Kemerovo Regional Court).
Lastly, the applicant refers to the absence of effective remedies in relation to her above complaints.

Judgment

THIRD SECTION
CASE OF ANDREYEVY v. RUSSIA
(Application no.
83399/17)

JUDGMENT
STRASBOURG
28 January 2020

This judgment is final but it may be subject to editorial revision.
In the case of Andreyevy v. Russia,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
Alena Poláčková, President,Dmitry Dedov,Gilberto Felici, judges,and Stephen Phillips, Section Registrar,
Having deliberated in private on 17 December 2019,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.
The case originated in an application (no. 83399/17) 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 two Russian nationals, Mr Vyacheslav Anatolyevich Andreyev and Mrs Svetlana Yuryevna Andreyeva (“the applicants”), on 25 November 2017. 2. The applicants were represented by Mr V.Ye. Solonovich, a lawyer based in Belogorsk. The Russian Government (“the Government”) were represented by Mr M. Galperin, the Representative of the Russian Federation to the European Court of Human Rights. 3. On 19 December 2018 the Government were given notice of the complaint concerning the quashing of a final judgment in the applicants’ favour following the extension of the time-limit for an ordinary appeal and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. THE FACTS
4.
The first applicant was born in 1967. The second applicant was born in 1979. Both applicants live in Belogorsk. 5. On 28 July 2015 the Ministry of Defence (“the Ministry”) brought a case against the applicants claiming compensation for part of the flat allocated to the first applicant as a military officer and his family, as it exceeded the size stipulated under the domestic law. 6. On 28 September 2015 the Prikubanskiy District Court in Krasnodar dismissed the Ministry’s claims. In its judgment the district court indicated as follows:
“The representative of the Ministry of Defence was summoned to the hearing but failed to attend it.
He submitted a request to examine a case without his participation and asked to grant his claim in full.”
7.
It appears that on an unspecified date after the hearing the Prikubanskiy District Court sent the copy of the judgment to the Ministry. There is no evidence as to when the Ministry received the copy of that judgment. 8. On 13 January and then on 13 April 2016 the Ministry lodged a request to the Prikubanskiy District Court asking to send a copy of the judgment of 28 September 2015. 9. On 15 June 2016 the Ministry received a copy of the judgment and applied for an extension of the time-limit for appeal on 23 June 2016. They argued that the Ministry received a copy of the judgment after the time-limit for appeal had passed. 10. On 25 May 2017 the Krasnodar Regional Court granted the Ministry’s request and restored the time-limit for appeal. 11. On 18 July 2017 the Krasnodar Regional Court quashed the judgment of 28 September 2015 on appeal and granted the Ministry’s claims. The applicants were obliged to pay 589,384.56 Russian roubles (8,700 euros). The applicants unsuccessfully appealed against the judgment. On 31 July 2018 their appeal was dismissed by the single judge of the Supreme Court of Russia. 12. The relevant domestic law governing the extension of the time limits for appeal is summed up in the Court’s decision in the case of Samoylenko v. Russia (dec.) (no. 58068/13, §§ 27-30, 30 March 2017). THE LAW
13.
The applicants complain under Article 6 of the Convention about an unlawful extension of the time-limits for appeal and the subsequent quashing of the final judgment in their favour by the regional court. The relevant part of the aforementioned provisions reads:
Article 6
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing within a reasonable time by [a] ... tribunal ...”
14.
The Court notes that these complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. 15. The Government did not contest the fact that the Ministry was summoned to the hearing of 28 September 2015. They further submitted that although the district court’s judgment of 28 September 2015 was sent to the Ministry after the hearing, there is no evidence in the case file as to when the Ministry received it. It was only on 15 June 2016 when the Ministry received a copy of the judgment following its two requests submitted in January and April 2016. 16. The applicants argued that the Ministry was notified about the hearing of 28 September 2015 and could have shown due diligence in requesting a copy of the judgment well before June 2016. Moreover the judgment was available on the official web site of the district court after the hearing and the Ministry could have had access to it. 17. The Court reiterates that the existence of reasons capable of justifying a departure from the principle of legal certainty, even where they are established, is not in itself sufficient to conclude to the absence of a violation of Article 6 of the Convention. Another important factor should be taken into account is the time elapsed from the moment when the person requesting the extension of the time-limits became aware that a judgment was delivered against him. Since the extension of the time-limits for appeal constitutes an interference with the principle of res judicata, a person requesting such an extension should act with sufficient diligence, that is without delay from the moment when he became aware, or ought to have become aware, of the judgment subject to appeal (Magomedov and Others v. Russia, nos. 33636/09 and 9 others, § 89, 28 March 2017, with further references). 18. Turning to the circumstances of the present case, the Court notes that although the Ministry was summoned to the hearing of 28 September 2015 its representative did not attend it. Then, it took the Ministry more than eight months to obtain a copy of the judgment delivered on that day. The Government failed to provide any explanation to justify why the Ministry had remained passive until 13 January 2016 and then another four months, until 13 April 2016, without taking any reasonable steps to obtain the copy of the judgment (see paragraph 8 above). 19. The Court recalls that it has already had an opportunity to examine a similar situation in the Magomedov and Others judgment (cited above). In the aforementioned case the Court found a violation of Article 6 of the Convention on account of the domestic courts’ failure to examine when the intervening party became aware or “ought to have become aware” of the adoption of the judgments against it, in particular in view of a significant lapse of time between the delivery of those judgments and the introduction of out-of-time appeals (Magomedov and Others, cited above, §§ 98-101). The Court does not see any reason to reach a different conclusion in the present case. 20. Having regard to the above mentioned and examined all the material before it the Court concludes that there has been a violation of Article 6 of the Convention. 21. The applicants further complained that there was an interference with their peaceful enjoyment of possessions as a result of the quashing of the judgment of 28 September 2015. They relied on Article 1 of Protocol No. 1. The relevant part of the aforementioned Article read as follows:
Article 1 of Protocol No.
1
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions.
No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.”
22.
The Court notes that after the extension of the time limit for appeal the domestic courts returned to the ordinary procedure (see paragraph 11 above), that is the appeal hearing. The Court cannot speculate as to what would have been the outcome of the appeal hearing in the applicant’s case, had there been a fair hearing in keeping with the requirements of Article 6 § 1. 23. Having regard to its conclusion under Article 6 § 1 of the Convention, the Court considers that there is no need to consider either the admissibility or the merits of the complaint submitted by the applicants under Article 1 of Protocol No. 1 (see S.C. Britanic World S.R.L. v. Romania, no. 8602/09, § 50, 26 April 2016 ; Bochan v. Ukraine (no 2) [GC], no. 22251/08, § 68, CEDH 2015; Rozalia Avram v. Romania, no. 19037/07, § 46, 16 September 2014; and Lyubov Stetsenko v. Russia, no. 26216/07, § 92, 17 April 2014). 24. 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.”
25.
The applicants claimed 12,000 euros (EUR) in respect of non‐pecuniary damage. 26. The Government contested this claim as being unsubstantiated. 27. The Court reiterates its finding that there had been a violation of Article 6 § 1 of the Convention on account of the interference with the principle of legal certainty. As regards the applicants’ claim for non‐pecuniary damage the Court considers that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage which may have been suffered by the applicants. 28. The applicants also claimed 144,000 Russian roubles (EUR 2,100) for the costs and expenses incurred before the domestic courts. 29. The Government contested this claim arguing that they were related to the domestic proceedings only. 30. Regard being had to the documents in its possession and to its case‐law, the Court considers it reasonable to award the sum of EUR 700 for costs and expenses incurred with regard to the domestic proceedings followed the extension of the time-limit for appeal. 31. The Court considers it appropriate that the default interest rate 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,
(a) that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicants;
(b) that the respondent State is to pay the applicants, within three months, EUR 700 (seven hundred euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;
Done in English, and notified in writing on 28 January 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Alena PoláčkováRegistrarPresident