CASE OF CHELIKIDI v. RUSSIA
Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court)
Anatoly Kovler;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen
5. The applicant was born in 1956 and lives in Georgiyevsk. 6. On 17 September 2001 the applicant brought civil proceedings against the joint stock company “Nov” (акционерное общество “Новь”), subsequently known as the collective farm “Nov” (сельскохозяйственная артель “Новь”), seeking recovery of 100 tons of sunflower seeds under a supply agreement. 7. On 17 October 2001 the Georgiyevskiy Town Court granted the applicant’s claim. The defendant was absent from the hearing. 8. On 24 December 2001 the writ of execution was returned to the Georgiyevskiy Town Court as it had not been possible to enforce it. 9. On 13 March 2002, following a request by the defendant, the Georgiyevskiy Town Court quashed the judgment of 17 October 2001 and resumed the proceedings. 10. On 22 October 2002 the applicant modified her claims and asked the court to order the defendant to pay her 800,000 Russian roubles. 11. On 17 December 2002 the Georgiyevskiy Town Court granted the applicant’s claim. The judgment was not appealed against and became final. 12. The judgment could not be enforced because the defendant had insufficient funds. 13. On an unspecified date in June 2003 the applicant lodged a claim against the Ministry of Finance seeking compensation for damages incurred through the inappropriate administration of justice, notably the excessive length of proceedings in respect of her claims against the company. She argued that the courts had failed to observe the time-limits prescribed by the Russian Code of Civil Procedure, which had undermined the possibility of enforcement of the final judgment in her favour. 14. On 21 July 2003 the Basmannyj District Court of Moscow dismissed the applicant’s claim without consideration on the merits. Referring to Ruling no. 1-P, adopted by the Constitutional Court on 25 January 2001 (see paragraph 18 below), the District Court noted that current laws did not determine the grounds or procedure for adjudicating a claim for damages on account of failure by the courts to comply with statutory time-limits. In particular, the court noted as follows: “According to Article 1 of the Code of Civil Procedure of the Russian Federation, the rules of civil procedure in federal courts of general jurisdiction are determined by the Russian Constitution, the Judicial System Act, the Code of Civil Procedure and other federal laws. The law has not determined the territorial and subject-matter jurisdiction over civil claims for compensation for damage incurred in civil proceedings in cases where a dispute has not been heard on the merits as a consequence of unlawful acts (or failure to act) of a court (a judge), including breach of a reasonable-time guarantee. Pursuant to Article 134 § 1 (1) of the Code of Civil Procedure of the Russian Federation, the judge shall dismiss a statement of claim if the claim is subject to examination not in civil proceedings but in another judicial procedure.” 15. On 10 March 2004 the Moscow City Court upheld the decision of 21 July 2003 on appeal, finding as follows: “In dismissing the claim with reference to Ruling no. 1-P of 25 January 2001 of the Constitutional Court of the Russian Federation, the court came to the correct conclusion that its examination by a district court of general jurisdiction would only be possible if a federal law determined that the district court of general jurisdiction had territorial and subject-matter jurisdiction over such claims. At the present time, however, neither the Code of Civil Procedure of the Russian Federation nor any other federal law ... determines the territorial and subject-matter jurisdiction over claims concerning compensation for damage caused by judicial acts not touching upon the merits of the case.” 16. Article 1064 of the Civil Code contains general provisions on liability for the infliction of damage. It establishes that damage inflicted on the person or property of an individual must be reimbursed in full by the person who inflicted the damage (Article 1064 § 1). 17. Article 1070 of the Civil Code determines liability for damage caused by the unlawful actions of law-enforcement authorities or courts. In particular, it establishes that the federal or regional treasury shall be liable for damage sustained by an individual in the framework of the administration of justice provided that the judge’s guilt has been established by a final criminal conviction (Article 1070 § 2). 18. By Ruling no. 1-P of 25 January 2001, the Constitutional Court found that Article 1070 § 2 of the Civil Code was compatible with the Constitution in so far as it provided for special conditions in respect of State liability for damage caused in the framework of the administration of justice. It clarified, nevertheless, that the term “administration of justice” did not cover judicial proceedings in their entirety, but only extended to judicial acts touching upon the merits of a case. Other judicial acts – mainly of a procedural nature – fell outside the scope of the notion “administration of justice”. State liability for damage caused by such procedural acts or failures to act, such as a breach of the “reasonable length” requirement of court proceedings, could arise even in the absence of a final criminal conviction of a judge if the fault of the judge had been established in civil proceedings. The Constitutional Court emphasised, moreover, that the constitutional right to compensation by the State for damage should not be tied in with the personal fault of a judge. An individual should be able to obtain compensation for any damage incurred through a violation by a court of his or her right to a fair trial within the meaning of Article 6 of the Convention. The Constitutional Court held that Parliament should legislate on the grounds and procedure for compensation by the State for damage caused by the unlawful acts or failure to act of a court or judge and determine territorial and subject-matter jurisdiction over such claims. 19. Article 134 § 1 (1) of the Russian Code of Civil Procedure provides that a civil claim must be dismissed by a judge, in particular, if it is amenable to examination not in civil proceedings but in another judicial procedure.