FIRST SECTION
CASE OF KOLKOVA v. RUSSIA
(Application no. 20785/04)
JUDGMENT
This version was rectified on 15 March 2011
under Rule 81 of the Rules of Court
STRASBOURG
13 January 2011
This judgment may be subject to editorial revision.
In the case of Kolkova v. Russia,
The European Court of Human Rights (First Section), sitting as a Committee composed of:
Nina Vajić, President,
Anatoly Kovler,
Giorgio Malinverni, judges,
and André Wampach, Deputy Section Registrar,
Having deliberated in private on 9 December 2010[1],
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 20785/04) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Ms Svetlana Gennadyevna Kolkova (“the applicant”), on 21 April 2004.
2. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.
3. On 17 December 2008 the President of the First Section decided to give notice of the application to the Government. In accordance with Protocol No. 14, the application was allocated to a Committee.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
4. The applicant was born in 1971 and lives in Astrakhan.
5. On 24 October 2001 the applicant lodged a paternity and alimony suit against Yu. before the Petrogradskiy District Court of St Petersburg.
6. At the first hearing that took place on 22 April 2002 the court granted the respondent’s motion for transfer of the case to the Nevskiy District Court of St Petersburg (“the District Court”). According to the Government, the applicant’s representative left this decision to the court’s discretion.
7. After holding a meeting with the parties on 9 September 2002, the court scheduled the first hearing for 6 November 2002. However, on that date the hearing was adjourned to 4 February 2003 to give the applicant time to procure additional evidence. The hearing of 4 February 2003 did not take place due to the respondent’s illness.
8. On 29 July 2003 the applicant and the respondent requested that the hearing be postponed due to their illness and the respondent’s counsel’s vacation.
9. The hearing of 7 October 2003 did not take place due to the judge’s involvement in different proceedings and the respondent’s inability to appear due to a business trip.
10. The hearing of 27 November 2003 was adjourned due to the applicant’s misconduct in the courtroom. The judge summoned the police who took the applicant to a police station for questioning and released soon afterwards. On an unspecified date the authorities instituted criminal proceedings against her.
11. The hearing of 11 February 2004 did not take place due to the judge’s illness. At the next hearing of 21 April 2004 the court granted the applicant’s motion for an outpatient DNA testing and stayed the proceedings. After the applicant challenged the decision to stay the proceedings, the case was remitted to the District Court for repeat examination of her motion for a DNA testing. The next hearing scheduled for 5 October 2004 was adjourned to obtain medical evidence in respect of the respondent.
12. The hearing of 14 December 2004 was adjourned due to the respondent’s default in appearance and lack of results for the court’s inquiry.
13. On 19 December 2004 the investigator imposed on the applicant an undertaking not to leave. Ten days later he put the applicant on the wanted list and stayed the preliminary investigation.
14. The hearings of 15 March and 9 June 2005 did not take place due to the judge’s illness.
15. On 26 May 2005 the applicant asked to postpone the hearing due to her own illness.
16. On 30 June 2005 the District Court left the claims without consideration ruling that the parties had failed to appear in court twice for no plausible reasons. This decision was overturned on the applicant’s appeal on 22 July 2005 for unspecified reasons.
17. Once back to the District Court, the case was assigned to a different judge due to the termination of the previous judge’s term in office.
18. At the next hearing of 24 November 2005 the court again ordered a DNA testing and stayed the proceedings.
19. On 28 February 2006 the respondent motioned for transfer of the case to the Khabarovsk Region where he had relocated.
20. On 12 April 2006 the applicant motioned for transfer of the case to Astrakhan where she had relocated with her child.
21. On 19 May 2006 the District Court sent a letter rogatory to a competent Astrakhan court asking that the latter order a local expert bureau to take the applicant’s and her child’s blood samples and send them to an expert bureau in St Petersburg. A similar letter rogatory was sent to a court in the Khabarovsk Region in respect of the respondent. However, the parties never appeared at the expert bureaus.
22. On 15 February 2007 the District Court declared the investigator’s decision to put the applicant on the wanted list unlawful. Both this decision and the decision to stay the investigation were revoked on 6 April 2007 by the higher investigation body. Subsequently, the investigation against the applicant was resumed and stayed on several occasions.
23. The parties did not appear at the next court hearing scheduled for 21 February 2007.
24. On 20 March 2007 the court ordered an expert examination of the medical documents. It also decided that the parties should have their blood samples taken in St Petersburg and sent a letter rogatory to an Astrakhan court for questioning of certain witnesses.
25. The next hearing scheduled for 13 September 2007 was adjourned to give the applicant time to obtain additional evidence.
26. The hearing of 26 September 2007 did not take place as the parties did not appear. The hearing of 31 October 2007 was adjourned to obtain additional evidence. The court also sent another letter rogatory for questioning of a certain witness and an inquiry in respect of the respondent. On this date and then on 11 January 2008 the court ordered additional expert examinations and stayed the proceedings.
27. On 10 July 2008 the District Court dismissed the applicant’s claims as unfounded. On 13 November 2008 the St Petersburg City Court decided that the applicant had not been duly notified of the date and whereabouts of the expert examination scheduled for 15 April 2008, set the judgment aside on appeal and required a new hearing.
28. On 1 December 2008 the District Court sent the case materials for the DNA testing and notified the parties of its date and whereabouts. However, on 12 January and 17 February 2009 only the respondent appeared at the expert bureau.
29. On 18 February 2009 the District Court again disallowed the applicant’s claims as unfounded. The judgment was upheld on appeal by the St Petersburg City Court on 21 April 2009.
30. The Government submitted that the authorities were considering termination of the criminal proceedings against the applicant as time-barred.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
31. The applicant complained that the length of the civil proceedings in her case had been incompatible with the “reasonable time” requirement as provided in Article 6 § 1 of the Convention, the relevant part of which reads as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”
A. Admissibility
32. The Government submitted that the complaint was manifestly ill-founded and should be rejected in accordance with Article 35 § 3 and 4 of the Convention.
33. The Court notes that this complaint does not appear to be manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B. Merits
34. The Government argued that the length of the proceedings at issue had been the result of the complexity of the case and the applicant’s own behaviour that manifested itself in repeated failure to appear at the hearings and for expert examinations.
35. The applicant retorted that she could not appear for expert examinations scheduled to take place in St Petersburg because she had been put on the wanted list. As to the decision to revoke this measure in April 2007, the relevant documents had not been forwarded to the local police of the area and thus she still could not come.
36. The Government replied that the applicant had been aware of the criminal proceedings against her and could have cleared the grounds for the decision to put her on the wanted list and to stay the proceedings. In any event, she did not appear for the expert examination that was fixed to take place in Astrakhan, her actual place of residence, either.
37. The Court observes that the proceedings in the applicant’s case had commenced on 24 October 2001 and ended on 21 April 2009. They thus lasted approximately for seven years and six months, during which period the courts considered her case three times at two levels of jurisdiction.
38. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII). In addition, only delays attributable to the State may justify a finding of a failure to comply with the “reasonable time” requirement (see, among other authorities, Zimmermann and Steiner v. Switzerland, 13 July 1983, p. 11, § 24, Series A no. 66; see also Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999-II).
39. The Court firstly observes that the applicant’s case had not been complex having involved a claim for determination of paternity and alimony.
40. Having regard to the applicant’s conduct, it notes that the court hearings had to be adjourned on several occasions due to the applicant’s failure to appear, illness or misconduct, which in total led to a delay of approximately eight months. In addition, the Court finds it most striking that the applicant never appeared at a DNA testing examination scheduled by the trial court multiple times at her own request, including in the town of her actual residence. It is not convinced by the applicant’s argument that the reason for this was her inability to travel due to the placement on the wanted list since, as it was pointed out by the Government, it had been open to her to make this measure no longer necessary or at least to appear for the examination in her own town.
41. Turning to the conduct of the authorities, the Court observes that an approximate delay of six months occurred as a result of the judge’s illness and involvement in different proceedings. Otherwise, it finds that both the court and the expert authorities involved in the proceedings exhibited the necessary promptness dealing with the case without idling for any considerable length of time.
42. Regard being had to the applicant’s own lack of due diligence in the proceedings and the authorities’ expedition in dealing with the case, as well as to the levels of jurisdiction involved, the Court finds that the “reasonable time” requirement was not breached in the present case.
43. There has accordingly been no violation of Article 6 § 1 of the Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
44. The applicant also complained under Articles 5 and 10 about the police actions on 27 November 2003 and under Article 8 of a violation of her right to respect for private and family life alleging that the court had attempted to obtain confidential data from her medical records. She further referred to Articles 13 and 14 to complain of lack of effective remedies and discrimination on the basis of her gender and socioeconomic status.
45. Regarding the complaints under Articles 5, 8 and 10, there is no evidence that the applicant raised them before a domestic court. These complaints should accordingly be rejected under Article 35 § 1 of the Convention.
46. As to the complaints under Article 13 and 14, they are neither sufficiently made-out nor substantiated. Therefore, they should be rejected under Article 35 §§ 3 and 4 of the Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the complaint concerning the length of the proceedings admissible and the remainder of the application inadmissible;
2. Holds that there has been no violation of Article 6 § 1 of the Convention.
Done in English, and notified in writing on 13 January 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
André WampachNina VajićDeputy Registrar President
[1]1. Rectified on 15 March 2011 : the text was “9 December 2011”
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