CASE OF GORBACHEV v. RUSSIA
Violations of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
Loukis Loucaides
5. The applicant was born in 1949 and lives in the town of Aleksin in the Tula Region. 6. On 18 May 1999 the applicant sued his former employer, a private company, for reinstatement, wage arrears and compensation for damage. The acknowledgment of receipt card indicated that the Aleksin Town Court had received the statement of claim on 21 May 1999. According to the Government, the applicant introduced the claim in August 1999. 7. On 5 January 2000 the Aleksin Town Court dismissed the claim. The judgment was quashed on 20 April 2000 by the Tula Regional Court and the case was remitted for a fresh examination. 8. In December 2000 the Aleksin Town Court told the defendant company that the first hearing had been fixed for 16 January 2001, and asked it to produce certain employment-related documents. The letter did not contain any indication whether the applicant had been summonsed. According to the applicant, he was not notified of the hearing of 16 January 2001. It appears from the list of events attached to the Government's memorandum that the case-file only contained a copy of summonses sent to the Aleksinskiy District Prosecutor who had been a third party in the proceedings. 9. The Aleksin Town Court fixed the following hearing for 9 February 2001. According to the Government, the parties were duly informed thereof. The applicant argued that the summonses had not been served on him. 10. On 9 February 2001 the Aleksin Town Court discontinued the proceedings. The relevant part of the decision read as follows: “In the preparatory part of the hearing [the court] established that the plaintiff had not asked for an examination of his case in his absence and that he defaulted on the second summons, whereas the representative of the defendant... does not insist on the examination of the case on the merits. Having studied the case-file and heard the prosecutor who considered that the proceedings should be discontinued, the court finds it necessary, under Articles 220, 221 § 6 of the RSFSR Code on Civil Procedure, to discontinue the proceedings.” The decision was amenable to appeal within ten days. 11. According to the Government, on 19 February 2001 the Aleksin Town Court sent a copy of the decision to the applicant. The Government produced a copy of the covering letter accompanying the decision. The applicant claimed that he had not received the letter of 19 February 2001. 12. In May 2001 the applicant complained to the Supreme Court of the Russian Federation about the excessive length of the proceedings in his case. The Supreme Court readdressed the complaint to the Tula Regional Court. 13. On 12 September 2001 the President of the Tula Regional Court sent a letter to the Aleksin Town Court. The letter read as follows: “I am sending you the complaint of Mr Gorbachev which was received from the Supreme Court of the Russian Federation. [He complains] about your court's lengthy failure to examine his action... for reinstatement, payment of wage arrears and compensation for non-pecuniary damage after the Tula Regional Court quashed the judgment of 5 January 2000 of your court on 20 April 2000. [I ask you] to take immediate measures to determine the dispute.” The applicant received a copy of the letter of 12 September 2001. 14. According to the Government, on 24 October 2001 officials of the Aleksin Town Court attempted to serve the applicant with a copy of the decision of 9 February 2001, however, he refused to countersign a record showing that the decision had been served on him. The Government indicated that this fact had been orally confirmed by the President of the Town Court. According to the applicant, he was not served with the decision either by mail or in person. 15. On 30 October 2001 the Aleksin Town Court sent a letter to the applicant and the President of the Tula Regional Court informing them that on 9 February 2001 the proceedings in the applicant's employment dispute had been discontinued. According to the applicant, he did not receive that letter. 16. On 29 November 2001 the applicant complained to the Tula Regional Court that the proceedings in his case were excessively long. On 11 December 2001 the Tula Regional Court readdressed the complaint to the Aleksin Town Court “in order to examine and respond”. 17. On 8 January 2002 the President of the Aleksin Town Court sent a letter to the applicant. A copy of that letter was also sent to a deputy President of the Tula Regional Court. The letter read as follows: “Further to your complaint no. 22-5538 of 11 December 2001 lodged before the Tula Regional Court, the [Aleksin Town] Court informs you that by the decision of 9 February 2001 of the Aleksin Town Court the proceedings concerning reinstatement, payment of wage arrears and compensation for non-pecuniary damage were discontinued in accordance with paragraph 6 of Article 221 of the RSFSR Code on Civil Procedure. A copy of the decision advising you, in particular, of the right to appeal against it, was sent to you on 19 February 2001. However, you did not appeal against that decision by way of cassation or supervisory review after a copy of that decision had been delivered to you personally on 24 October 2001. Your complaint is therefore unsubstantiated.” The applicant submitted that he had not received that letter. 18. On 12 January 2002 the applicant complained to the Supreme Court of the Russian Federation that the Aleksin Town Court was delaying the examination of his action. The Supreme Court sent the complaint to the Tula Regional Court. 19. On 7 March 2002 the President of the Tula Regional Court sent letters to the President of the Aleksin Town Court and the applicant. The President noted that it had received the applicant's complaint concerning the excessive length of the proceedings related to his employment action. The President urged the Town Court to take measures to examine the applicant's action as soon as possible. 20. On 22 March and 5 April 2002 the President of the Aleksin Town Court sent letters to the applicant and the President of the Tula Regional Court. He insisted that on 9 February 2001 the proceedings had been discontinued, that a copy of that decision had been sent to the applicant on 19 February 2001 and that it had also been delivered to him personally on 24 October 2001. The applicant alleged that he had not received those letters. 21. On 29 March 2002 the applicant sent letters to the Constitutional and Supreme courts of the Russian Federation, the Tula Regional and Aleksin Town courts. The letters, in the relevant part, read as follows: “On 4 December 2001 the Supreme Court of Russia received my complaint about the unjustified procrastination in the examination of civil cases in the Aleksin Town Court. The first-instance judgment of 5 January 2000 was quashed by the judgment of the appeal court on 20 April 2000. Almost two years have passed, but the civil case is not re-examined... My complaints were readdressed to the Tula Regional Court and then to the Aleksin Town Court. I received letters of 12 September 2001, 7 March 2002 from the Regional Court. [The letters] state that 'immediate measures should be taken for examination of the case' and 'measures should be taken to examine the case as soon as possible'. No concrete response was received from the Aleksin Town Court... The courts of the Russian Federation take every possible step to procrastinate for indefinite period the examination of my civil cases... to force me to withdraw my actions... I would like to ask you to transfer the examination of my civil actions to another court in the town of Tula or to the Tula Regional Court” 22. In April 2002 the Supreme Court readdressed the applicant's complaint of 29 March 2002 to the Tula Regional Court. On 10 April and 14 May 2002 the President of the Tula Regional Court again sent letters to the Aleksin Town Court and the applicant. The Regional Court noted that the applicant had complained about the lengthy failure to examine his case. It urged the Aleksin Town Court to examine the applicant's claim as soon as possible. Copies of these letters were sent to the applicant. 23. On 15 May 2002 the President of the Aleksin Town Court sent letters to a deputy President of the Tula Regional Court and the applicant, informing them that the applicant had failed to appeal against the decision of 9 February 2001 and that his complaints were therefore unsubstantiated. The applicant claimed that he had not received that letter. 24. On 22 May 2002 the President of the Aleksin Town Court sent letters to the applicant and a deputy President of the Tula Regional Court. The letters read as follows: “Further to your request of 29 March 2002 the Aleksin Town Court of the Tula Region informs you that on 9 February 2001 the proceedings... concerning reinstatement were discontinued under paragraph 6 of Article 221 of the RSFSR Code on Civil Procedure. A copy of the court's decision was sent to the plaintiff on 19 February 2001; subsequently, on 24 October 2001 a copy of the decision of 9 February 2001 was made available to the plaintiff by personal delivery against his signature; an entry to that effect was made in the case-file. However, at the material time, the plaintiff did not appeal against the decision by way of cassation or supervisory review. The complaint is therefore unsubstantiated.” 25. According to the applicant, he did not receive any letters from the Aleksin Town Court. 26. On 13 February 1999 the applicant lodged before the Aleksin Town Court a defamation action against the Aleksin Town Council. The statement of claim was sent to the Town Court by registered mail. The list of enclosures bearing a stamp of the Aleksin post office showed that the applicant's letter included three copies of the statement of claim and copies of responses from the prosecutor's office. The acknowledgment of receipt card shows that on 19 February 1999 the Aleksin Town Court received the statement of claims with enclosures. 27. The Government, relying on a certificate prepared by the Aleksin Town Court, claimed that no defamation action had been lodged by the applicant between 1999 and 2005. 28. In 1999 to 2002 the applicant complained to various domestic officials that the Aleksin Town Court had failed to decide on his claim. 29. On 7 March and 10 April 2002 the Tula Regional Court asked the Aleksin Town Court to take necessary steps to examine the merits of the applicant's defamation action as soon as possible. The applicant received copies of these letters. 30. The applicant did not receive any response from the Aleksin Town Court. 31. 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) 32. 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 (Article 106). 33. A party was to sign the second copy of a summons which was to be returned to a court. If a summons could not be served on a party, it was to be served on an adult family member who lived with the party. A family member who had received a summons was to indicate on its second copy his/her first name, patronymic and family name and his/her relation to a summonsed party. If a party was absent, a person who delivered a summons was to note on the second copy of the summons where the party had moved (Article 109). 34. Article 221 § 6 provided that a court could issue an interim decision on discontinuation of the proceedings (определение об оставлении заявления без рассмотрения), in particular, if the plaintiff had not waived his/her right to be present and had failed to appear for the second time, and the defendant had not insisted on continuation of the proceedings. 35. A copy of an interim decision on discontinuation of the proceedings was to be sent to the absent party no later than three days upon its delivery (Article 213).