FIRST SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 60408/00 by Yulia Aleksandrovna YEMANAKOVA against Russia

The European Court of Human Rights (First Section), sitting on 6 November 2003 as a Chamber composed of

Mr C.L. Rozakis , President , Mr P. Lorenzen , Mr G. Bonello , Mr A. Kovler , Mr V. Zagrebelsky , Mrs E. Steiner , Mr K. Hajiyev, judges , and Mr S. Nielsen , Deputy Section Registrar ,

Having regard to the above application lodged on 7 July 2000,

Having regard to the partial decision of 13 September 2001,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Yulia Aleksandrovna Yemanakova, is a Ukrainian national, born in 1919 and living in Ukraine. She is represented before the Court by Mrs. Panchenko, a lawyer practising in Berdyansk, Ukraine. The respondent Government are represented by Mr Pavel Laptev, Representative of the Russian Federation in the European Court of Human Rights.

A. The circumstances of the case

The facts of the case are partly disputed by the parties. They may be summarised as follows.

1. The initial set of proceedings 1990 -1992

The applicant's father was subjected to repressions in 1929-1930 as a rich peasant (“ kulak ”). In 1930 the family property, including a two-storey house in Sorochinsk, Orenburg Region, Russia, was confiscated. In 1989 the applicant's father was rehabilitated post mortem . The family house remains intact in Sorochinsk, where it is used by the Sorochinsk Veterinary College to house its employees. At some point during the proceedings the families who lived in the house privatised their flats and became owners of their living quarters.

The applicant lives in Berdyansk, Ukraine, and the train journey to Sorochinsk takes about two and a half days.

In 1990 the applicant and her sister, Mrs. Mikhaylishina, initiated proceedings to recognise their property right to the house. On 26 October 1990 the Sorochinsk Town Court rejected their request. Instead the court advised them to claim compensation for the confiscated property from the Orenburg Regional financial department. The department refused their request for compensation as having no basis in the national legislation.

In January 1992 the applicant's sister died.

2. Proceedings in 1992 - 2002

At some point in March 1992 the applicant submitted new claims to the Leninskiy District Court of Orenburg. On 24 September 1992 the Leninskiy District Court rejected both her complaint about the actions of the Regional financial department and her civil claim to confirm her property right to the house. On 6 May 1993 the Orenburg Regional Court quashed the decision of 24 September 1992 and remitted the case to the District Court. On 15 September 1993 the Leninskiy District Court ordered the transfer of the case to the Sorochinskiy Town Court which had territorial jurisdiction for the dispute over the building.

On 20 January 1995 the Head of the Sorochinsk Town administration issued an order, asking the Veterinary College to pay the applicant the maximum compensation allowed by the national legislation, which would later be reimbursed to the College by the regional budget. The order was never complied with. On 10 April 1995 the Sorochinsk Town Court ordered the closure of the civil case as the applicant had been awarded the compensation. On 25 September 1995 the Presidium of the Orenburg Regional Court, acting by way of supervisory review, quashed the order of 10 April 1995 and returned the case to the Town Court.

On 27 December 1995 the Sorochinsk Town Court rejected the applicant's claim to the Town administration, on the ground that it was not based on national legislation and that she had already been awarded the maximum compensation for the house. On 9 April 1996 the Orenburg Regional Court quashed the decision of the Town Court of 27 December 1995 and remitted the case.

On 24 July 1996 the Sorochinsk Town Court established that the applicant's family had been the owners of the property, and confirmed that the confiscation had taken place, but rejected the applicant's claim to have the house returned. On 27 August 1996 the Orenburg Regional Court quashed this judgement.

On 13 February 1997 the Sorochinsk Town Court again confirmed the family's previous ownership of the property and the confiscation, but rejected the applicant's claim. On 24 April 1997 the Orenburg Regional Court quashed the judgment of 13 February. The applicant was then informed that the Orenburg Regional Court would consider her case as the first instance court.

On 28 April 1998 the Civil College of the Orenburg Regional Court rejected the applicant's claim to the Regional financial department for compensation and refused to return the house in natura . It ordered the Sorochinsk Town administration to pay the applicant the maximum compensation for the confiscated property in the amount of 8 349 roubles (100 “units” of the minimum monthly wage), travel expenses and legal fees in the amount of 3 540 roubles. The applicant received the decision on 6 May 1998.

The applicant submits that on 7 May 1998 the amount of 3 540 roubles was voluntarily given to her by the Town administration. She submits that the amount of 8 349 roubles was never transferred to her.

On 14 May 1998 the applicant lodged a cassation appeal with the Orenburg Regional Court, to be forwarded together with the case file to the Supreme Court. The applicant then wrote to the Orenburg Regional Court to inquire about the progress of the case on 21 August 1998 and 24 March 1999, but received no reply. She also wrote directly to the Supreme Court on several occasions, including 21 August and 26 November 1998, 6 May, 21 June, 2 August, 18 August and 16 December 1999. She received standard replies from the Supreme Court on 5 November 1998, 19 July 1999 and 19 January 2000, stating that her appeal could not be considered as no case file was attached. At least on one occasion, in May 1999, the applicant copied the decisions of the courts and her appeal and forwarded the copies to the Supreme Court herself. Her letters to other bodies, including the Ministry of Justice, the High Qualification Board of Judges, the President's administration, the Constitutional Court, the General and Orenburg Regional Prosecutors were either not answered or forwarded to the Orenburg Regional Court. The applicant submits that she was not aware of any procedural orders issued by the Regional Court in respect of her appeal.

The Government submit a different account of events. According to their submissions of 15 January, 30 May and 27 September 2002, the Orenburg Regional Court pronounced its judgment on 28 April 1998 in short form (without reasoning), and then on 29 April 1998 in full. The applicant missed the ten-days limit for filing the cassation appeal, which had only been lodged on 15 May 1998. As a result, on 1 June 1998 the Orenburg Regional Court issued a procedural order, by which her appeal had been adjourned, and the applicant was requested to submit reasons for the delay. On 21 June 1998 the Orenburg Regional Court again adjourned the appeal and requested reasons for the delay from the applicant. These orders were forwarded to the applicant, and the failure of the applicant to receive them did not convincingly prove the fact that they had not been sent to her. The Government also submit that the court decision was executed in full in April 2000, when the sum of 8 349 roubles (one hundred minimum monthly wages) was transferred to the applicant's account in the Sorochinsk branch of Sberbank. Earlier the applicant had received the awarded money to cover her travel expenses in the amount of 3 539 856 roubles (calculated before the denomination in 1997).

3. New proceedings in 2002

The complaint was communicated to the Russian Government in September 2001.

On 21 January 2002 the Presidium of the Orenburg Regional Court, acting upon the Regional Prosecutor's application for supervisory review, quashed and remitted the decision of the Sorochinsk Town Court of 26 October 1990. The decision was quashed for breach of procedure during the hearing. On 30 January 2002 the applicant was informed of the quashing.

On 12 February 2002 the Sorochinsk Town Court issued an order by which the applicant and her sister were given until 15 March 2002 to update their claim of 1990 and to submit the applicant's sister's birth certificate. On 13 February 2002 the order was forwarded to the applicant. On 26 April 2002 the applicant replied to the Sorochinsk Town Court that her sister had died in 1992 and forwarded a copy of her death certificate. On 16 May 2002 the judge of the Town Court confirmed receipt of her letter and again requested her to update the claim initially submitted in August 1990 and to clarify if she wanted the case to be reviewed in her absence. It appears that a court hearing was scheduled for 22 August 2002. The applicant responded in July 2002 that she was not interested in the new review of the case, since it had lost its meaning. Her new claims to the defendants were submitted in 1992 to the Sorochinsk Town Court, and these proceedings were pending.

On 18 September 2002 the Orenburg Regional Court issued an information note, stating that the hearing in the applicant's claim to the Sorochinsk Town administration was adjourned till 27 September 2002, due to the non-appearance of the claimant. On 14 October 2002 the applicant requested the court to terminate these proceedings.

B. Relevant domestic law

Article 283 of the Civil Procedural Code then in force provided that cassation appeals are submitted through the court which acted as the court of first instance. Submission of the appeal directly to the cassation instance can not prevent its consideration.

Article 284 (1) set a one month time-limit for review of cassation appeals by the Supreme Court.

COMPLAINTS

The applicant complained under Article 6 § 1 of the Convention that the length of proceedings in her case was in violation of the “reasonable time” requirement. She further complained about the lack of an effective remedy against the delays in the review of her cassation appeal.

THE LAW

1. The applicant complains of the length of civil proceedings to which she is a party. She alleges a violation of Article 6 § 1 of the Convention which, in so far as relevant, provides:

“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”

The Government raise several objections to the admissibility of the complaint. In their memorandum of 15 January 2002 and their submissions of 30 May 2002 the Government acknowledge that the length of proceedings in the applicant's case was significant. They submit that the proceedings started in March 1992 and terminated in June 1998 when the Orenburg Regional Court adjourned her appeal. The length of proceedings is to a large extent attributable to the applicant herself, who filed complaints, additional submissions, failed to appear in court on several occasions, etc. The Government also refer to the fact that the applicant's place of residence is far from the Orenburg Region, where the proceedings took place, and that the postal services took a long time.

As regards the proceedings following the judgment of the Orenburg Regional Court of 28 April 1998, the Government submit that the applicant failed to submit her appeal within the prescribed time-limit and the proceedings were adjourned. The judgment of the Regional Court was executed in full in April 2000. Furthermore, on 21 January 2002 the Presidium of the Orenburg Regional Court acting by way of supervisory review, quashed and remitted the decision of the Sorochinsk Town Court of 26 October 1990. The new proceedings are pending in the Town Court and the complaint is premature. On 17 December 2002 the Government submitted that the applicant's request of July 2002 to terminate the proceedings in the Sorochinsk Town Court signified that she had not intended to pursue her application and requested the Court to strike it out of the list of cases.

The applicant submits that the length of proceedings prior to April 1998 was not reasonable and that there were several periods of inaction attributable to the state bodies. She further submits that the decision of the Orenburg Regional Court was issued only on 6 May 1998, and that at the last hearing of the case on 28 April 1998 no decision was pronounced. The applicant therefore submitted the cassation appeal in time to comply with the ten-days limit for such appeals. She was never informed of the Orenburg Regional Court's orders of 1 and 21 June 1998, to which the Government refer. The applicant submits that after May 1998 she applied on numerous occasions to various judicial and administrative authorities asking them to speed up the review of her appeal, but was never informed that her appeal had been adjourned due to the time-limit she had missed. She submits that she learnt of these adjournments from the Government observations of 15 January 2002, and had not seen the texts of these decisions.

The Court notes that in the present case there were two separate sets of proceedings. In the first set, the Sorochinsk Town Court on 26 October 1990 rejected the applicant's claim to recognise her right of property for the house. That decision was quashed in January 2002 by the Orenburg Regional Court by way of supervisory review and the case was remitted. In July and October 2002 the applicant requested the Town Court to terminate these proceedings. She submits no complaints in this respect, and the Court will not look upon this set of proceedings. The preliminary objections raised by the Government, that the application should be struck out and that it is premature, relate to this set of proceedings and, therefore, are not relevant for the Court's examination of the case.

The second set of proceedings started in March 1992 when the applicant filed a new claim with the Sorochinskiy Town Court. The end of this period is in dispute between the applicant and the Government. The Government submit that these proceedings ended in June 1998, when the Orenburg Regional Court adjourned the applicant's appeal. The Government also submit that the decision of April 1998 entered into force and was executed in full in April 2000. The applicant submits that she was not aware of the adjournment until January 2002. She also contests the execution of the judgment. No documents have been submitted by the parties which relate to the adjournment of the case, its execution or the information being given to the applicant in this respect.

The Court will only examine the second set of proceedings, in respect of which the applicant complains of their excessive length.

The Convention entered into force in respect of Russia on 5 May 1998. The Court is not competent to examine complaints relating to the events that occurred prior to that date. However, in cases where it can, by reasons of its competence ratione temporis , only examine part of the proceedings, it may take into account, in order to assess their length, the stage reached in the proceedings at the beginning of the period under consideration (see, among other authorities, Wojnowicz v. Poland , no. 33082/96, 21 September 2000, § 46).

The proceedings in question started in March 1992, when the applicant applied to the Leninskiy District Court. The termination of the proceedings is disputed by the parties. The question is not, however, whether the proceedings at issue took place, but whether and when the applicant was notified of them.

The Court considers, in the light of the parties' submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

2. The applicant also complains that she has no effective remedy against the delays in the cassation procedure. The Court has examined this complaint under Article 13 of the Convention, which provides:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

The Government did not address the issue of domestic remedies in their submissions.

The applicant submits that she had no effective remedies against the delays in proceedings.

The Court considers, in the light of the parties' submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

For these reasons, the Court unanimously

Declares the remainder of the application admissible, without prejudging the merits of the case.

Søren Nielsen Christos Rozakis              Deputy Registrar President