EU & Human Rights

ZHUKOVSKIYE v. RUSSIA - 23166/04

[2011] ECHR 34European Court of Human Rights2011

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The European Court of Human Rights (First Section), sitting as a Committee composed of:

Sverre Erik Jebens, President, Anatoly Kovler, George Nicolaou, judges, and André Wampach , Deputy Section Registrar ,

The case originated in an application (no. 23166/04) 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 Feliks Aleksandrovich Zhukovskiy and Mrs Varvara Nikitichna Zhukovskaya (“the applicants”), on 25 May 2004

The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.

On 10 December 2008 the President of the First Section to the Government. In accordance with Protocol No. 14, the application was allocated to a Committee.

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BAILII · Verbatim mirror

On 10 December 2008 the President of the First Section to the Government. In accordance with Protocol No. 14, the application was allocated to a Committee.

THE FACTS

THE CIRCUMSTANCES OF THE CASE

The applicants were born in 1930 and 1932 respectively and live in Moscow.

In 2000 the applicants bought a flat in a block of flats under construction from ZAO Otdelstroy, a private company.

On 6 June 2002 the applicants sued ZAO Otdelstroy claiming that the flat had a number of construction defects. They requested repairs to be done and claimed damages.

On 9 July 2002 the Lyublinskiy District Court of Moscow (“the District Court”) dismissed their claims.

On 28 October 2002 the Moscow City Court examined the applicant’s appeal, set the judgment aside and remitted the case for fresh examination.

At the hearing of 17 December 2002 the applicants further specified their claims, following which the court adjourned the hearing to enable the respondent to familiarise itself with the changes.

The hearing of 21 January 2003 did not take place as one of the applicants failed to appear.

On 6 February 2003 the respondent motioned for involvement of three co-respondents which included two private companies and a municipal agency.

The hearing of 19 February 2003 did not take place due to the judge’s illness.

On 18 March 2003 the court granted the above motion and the applicant’s motion for filing of some additional documents and adjourned the hearing.

The applicants again specified their claims on 14 April 2003.

On 22 April 2003 the proceedings were adjourned to enable one of the co-respondents to study the case file.

The hearing of 28 May 2003 was adjourned at the request of one of the respondents in order to enable it to draw up an act for elimination of the defects in the applicants’ flat. The applicants did not object.

On 17 June 2003 the court scheduled a construction expert examination. The proceedings were resumed on 23 September 2003 when the court again adjourned the hearing following additional specification of the applicants’ claims.

On 10 October 2003 the District Court granted the claims in part, following which the parties appealed. On 18 December 2003 the appeal court sent the case back to the first instance for consideration of the applicants’ objections to the hearing minutes. On 4 February 2004 the hearing at the appeal court did not take place following lack of due notification and the resulting default in appearance of the respondents. On 24 February 2004 the Moscow City Court overturned the judgment of 10 October 2003 and ordered new examination at the trial court.

The hearing of 12 May 2004 did not take place due to the respondents’ default in appearance.

The hearings scheduled for 3 August, 24 September and 15 November 2004 did not take place as the applicants and one of the respondents failed to appear.

On 20 December 2004 the court decided that the defaulting parties had been duly summoned and left the claims without consideration.

Neither of the parties provided a copy of the above decision or the hearing minutes recorded between 12 May and 20 December 2004.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

The applicants complained that the length of the proceedings in their case had been incompatible with the “reasonable time” requirement as provided in Article 6 § 1 of the Convention, 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 was manifestly ill-founded and should be rejected as inadmissible under Article 35 § 4 of the Convention.

The Court notes that this complaint does not appear to be 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 argued that the case had been complex due to its technical nature and a large number of the respondents and that the applicants had borne primary responsibility for its length in view of their modification of the claims on multiple occasions and failure to appear in court after May 2004.

The applicants retorted that they had not been notified of the hearings in which they had not appeared.

The Court observes that the proceedings in the applicants’ case commenced on 6 June 2002 and ended on 20 December 2004, during which period the domestic courts examined the claims three times at the first instance and twice in appeal. The aggregate length of the proceedings thus amounted approximately to two years and six months.

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 considers that the proceedings had not been characterised by particular complexity. It is also of the opinion that dealing with the case required particular expedition as it concerned the applicants’ living conditions.

Regarding the applicants’ conduct, the Court observes that on two occasions before May 2004 the applicants chose to specify their claims, and on two occasions they failed to appear either at the first instance or at the appeal court. It further observes that after May 2004 they did not show in a single hearing, following which their claims were left without consideration. It is mindful of the applicants’ argument that they had not been duly notified of the hearings. However, in absence of any documentary evidence and considering that the applicants did not challenge the final decision at the appeal court, which could have quashed it on the ground of inadequate notification, the Court finds it difficult to accept this argument as a valid reason for their repeated default.

Finally, regarding the authorities’ behaviour, the Court notes that apart from the judge’s brief illness and certain delay that occurred at the appeal stage of the proceedings in view of the courts’ failure to timely consider the applicants’ objections to the hearing minutes and to duly notify the respondents, the authorities handled the case with sufficient care and expedition.

Regard being had to the overall length of the proceedings and the levels of jurisdiction involved, as well as the parties’ behaviour, the Court considers that the “reasonable time” requirement was not breached in the present case.

There has accordingly been no violation of Article 6 § 1 of the Convention.

II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

The applicants also complained under Article 13 and Article 1 of Protocol No. 1 about the failure of their contractors and subcontractors to meet their obligations and execute necessary repairs.

The Court notes that this complaint was examined by the domestic courts and the applicants essentially complain about the outcome of the dispute. It recalls that it is not its task to act by calling into question the outcome of the domestic proceedings. The domestic courts are best placed for assessing the relevance of evidence to the issues in the case and for interpreting and applying rules of substantive and procedural law (see Pekinel v. Turkey, no. 9939/02, § 53, 18 March 2008). The Court also reiterates that Article 1 of Protocol No. 1 does not concern the regulation of civil law rights between parties under private law. Courts’ decisions according to the rules of private law cannot be seen as an unjustified State interference with the property rights of one of the parties. Indeed, it is the very function of the courts to determine such disputes, the regulation of which falls within the province of domestic law and outside the scope of the Convention (see, mutatis mutandis, Kuchař and Štis v. Czech Republic (dec.), no. 37527/97, 21 October 1998; see also S.Ö., A.K., Ar.K. and Y.S.P.E.H.V. v. Turkey (dec.) 31138/96, 14 September 1999). It follows that this complaint should be rejected under Article 35 §§ 3 and 4 of the Convention.

FOR THESE REASONS, THE COURT UNANIMOUSLY

Declares the complaint concerning the length of the proceedings admissible and the remainder of the application inadmissible;

Holds that there has been no violation of Article 6 § 1 of the Convention.

Done in English, and notified in writing on 13 January 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

André Wampach Sverre Erik Jebens Deputy Registrar President

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