CASE OF ZAYTSEV AND OTHERS v. RUSSIA
Violation of Article 6 - Right to a fair trial;Violation of Article 13 - Right to an effective remedy
Anatoly Kovler;Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
5. The applicants were born in 1950, 1959 and 1989 respectively and live in St. Petersburg. They are relatives. 6. On 17 July 1996 the first applicant lodged an action before the Nevskiy District Court of St. Petersburg against a private company and its owner, Mr P., claiming execution of a contract and compensation for damage. According to the Government, the action was lodged on 30 October 1996. 7. The Nevskiy District Court fixed a hearing for 12 September 1996 and ordered the first applicant to provide a detailed calculation of the damages claimed. The first applicant submitted the calculation and amended his claims. 8. On 15 October 1996 the Nevskiy District Court adjourned the examination of the action because the first applicant had not followed the pre-trial procedure for settling the dispute. 9. Three days later the first applicant appealed against the decision of 15 October 1996 to the St. Petersburg City Court. On the same day he lodged another action before the Nevskiy District Court against Mr P. seeking compensation for damage and execution of a contract. The action was based on the same set of facts as the action of 17 July 1996. 10. On 18 November 1996 the St. Petersburg City Court upheld the decision of 15 October 1996. 11. On 17 June 1997 the District Court partly granted the action of 18 October 1996. The judgment was quashed on appeal on 1 December 1997 and a re-examination of the case was ordered. 12. Having received the case file, on 11 March 1998 the Nevskiy District Court joined the two sets of the proceedings pertaining to the applicant’s actions and listed a hearing for 3 April 1998. Between April 1998 and March 2000 the District Court fixed fourteen hearings, of which, according to the Government, three hearings in 1998, one hearing in 1999 and five hearings in 2000 were adjourned due to the parties’ failure to attend. The first applicant, relying on a letter of 15 December 1998 from a deputy president of the Nevskiy District Court, disputed the Government’s assertion, arguing that one hearing in 1998 had been postponed due to the parties’ absence, two had been adjourned because the presiding judge had been involved in other unrelated proceedings or had been ill and the remaining eight hearings had been adjourned because the respondent had defaulted. 13. In the meantime, on 12 March 1999 the first applicant, who at that time lived in the town of Sestroretsk, asked the District Court to examine the action in his absence and to serve him with a copy of the judgment. The first applicant provided the Court with copies of summonses for the hearings, neither of which contained a notification that his presence before the District Court was mandatory. 14. On 28 March 2000 the Nevskiy District Court partly accepted the action. The first applicant appealed. On 14 August 2000 the District Court adjourned the appeal proceedings and asked the first applicant to pay a court fee. 15. On 5 February 2001, following a complaint by the first applicant, the St. Petersburg City Court quashed the decision of 14 August 2000 and accepted the appeal. On the same day the City Court quashed the judgment of 28 March 2000 in part and sent the case for a fresh examination. 16. On 25 April 2001 the first applicant once again asked the Nevskiy District Court to consider the case in his absence. 17. As it appears from the parties’ submissions, after the District Court had received the case file from the St. Petersburg City Court, it fixed the first hearing for 4 March 2002. 18. On 4 March 2002 the District Court postponed the hearing. According to the Government, the District Court held that the first applicant’s presence was mandatory. They further submitted that summonses had been served on the parties, including the first applicant, with a note stating that their presence was required. 19. Hearings scheduled for 5 August and 30 September 2002 were also adjourned due to the first applicant’s absence. According to the Government, summonses containing an order for the first applicant’s presence had been served on him in due time. Copies of the summonses presented by the first applicant, including those for the hearings scheduled for 4 March, 5 August and 14 November 2002, did not contain notification that his presence was mandatory. 20. On 14 November 2002 the Nevskiy District Court discontinued the examination of the action because the first applicant had defaulted at the hearings on 4 March, 30 September and 14 November 2002 and had apparently lost interest in his case. 21. The first applicant was not notified of the decision of 14 November 2002. Accordingly, he complained to various domestic officials and the Supreme Court of the Russian Federation about the excessive length of the proceedings in his case. 22. On 1 October 2003 the St. Petersburg City Court, in reply to numerous complaints by the first applicant, sent a letter informing him that on 14 November 2002 the proceedings in his case had been discontinued due to his failure to attend hearings. The City Court, explained in detail to the first applicant the various judicial avenues he could follow if he wanted to challenge the decision of 14 November 2002. A copy of the decision of 14 November 2002 was not enclosed. 23. The first applicant asked the President of the Nevskiy District Court to serve him with the decision of 14 November 2002. He also argued that he had requested the Nevskiy District Court to examine his action in his absence and that therefore his absence from the hearings should not have been interpreted as proof that he had lost interest in the case. 24. On 23 January 2004 the District Court President informed the first applicant that his requests for the examination of his action in his absence had been included in the case file and that the District Court had taken them into consideration. However, the District Court had considered that the first applicant’s presence at the hearings had been absolutely necessary and thus, following unsuccessful attempts to obtain his attendance, on 14 November 2002 it had decided to discontinue the examination of the case. The President of the District Court enclosed a copy of the decision of 14 November 2002. 25. On 12 March 2003 the St. Petersburg City Prosecutor’s office, in response to complaints by the applicant about the discontinuation of the proceedings, once again informed the first applicant of the procedure for challenging the decision of 14 November 2002. 26. The RSFSR Code on Civil Procedure 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. Civil cases were to be examined no later than one month after the preparation for the hearing had been completed (Article 99) 27. Summonses were to be served on the parties and their representatives in a way that allowed them enough time to attend the hearing on time and prepare their case. If necessary, the parties could be summoned by a phone call or a telegram (Article 106). 28. Parties could ask a court to examine a case in their absence and to serve them with a copy of a judgment. A court could decide that the presence of a party was mandatory on the basis of the particular circumstances of a case (Article 157). 29. Article 221 set out a list of grounds for issuing an interim decision on discontinuation of the proceedings (определение об оставлении заявления без рассмотрения), that is, if parties failed to make use of a preliminary non-judicial avenue of solving a dispute; if an action was lodged by an incapacitated person or by a person lacking the authority to act; if the parties, who had not asked for the examination of a case in their absence, without valid reasons, failed to attend two hearings and the court considered it impossible to decide the case on the basis of case file materials; if a claimant, who had not asked for the examination of a case in his/her absence, failed to attend two hearings and a respondent did not insist on the examination of the merits of the case; and if the same dispute between the same parties was pending before a court. 30. A copy of a decision on discontinuation of the proceedings was to be sent to the absent party no later than three days after its delivery (Article 213).