CASE OF SUKHORUBCHENKO v. RUSSIA
Violation of Art. 6-1 with regard to access to a court;Not necessary to examine Art. 6-1 with regard to the length of the proceedings;Not necessary to examine Art. 13;No violation of P1-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award
Christos Rozakis
8. The applicant was born in 1954 and lives in the town of Shakhty in the Rostov-on-Don Region. 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. 16. The parties offered different versions of further proceedings. 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. 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.” 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.