CASE OF SĻADZEVSKIS v. LATVIA

FIFTH SECTION

CASE OF SĻADZEVSKIS v. LATVIA

(Application no. 32003/13)

JUDGMENT

STRASBOURG

11 June 2020

This judgment is final but it may be subject to editorial revision.

In the case of Sļadzevskis v. Latvia,

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:

Gabriele Kucsko-Stadlmayer, President,
Mārtiņš Mits,
Anja Seibert-Fohr, judges,
and Victor Soloveytchik, Deputy Section Registrar,

Having deliberated in private on 17 March 2020,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1.  The case originated in an application (no. 32003/13) against the Republic of Latvia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Latvian national, Mr Sergejs Sļadzevskis (“the applicant”), on 5 May 2013.

2.  The Latvian Government (“the Government”) were represented by their Agent, Ms K. Līce.

3.  On 16 January 2014 notice of the complaint concerning the length of the proceedings under Article 6 § 1 of the Convention was given to the Government, and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

4.  The Government objected to the examination of the application by a Committee. Having considered the Government’s objection, the Court rejects it.

THE FACTS  THE CIRCUMSTANCES OF THE CASE

5.  The applicant was born in 1970 and lives in London.

6.  The applicant and V.S. married on 22 June 1994. Their son N.S. was born on 25 January 1995, and their daughter E.S. on 20 December 2002.

7.  The applicant has resided in London since early 2005 at least. N.S. has resided with him since March 2006.

8.  On 20 December 2006 there was an incident which the Latvian authorities perceived to be an attempt by the applicant to forcibly remove E.S. from Latvia and take her to the United Kingdom. Following this incident the applicant’s right to care for E.S. was temporarily suspended, and E.S. remained in the care of V.S.Proceedings before the first-instance court

9.  On 11 March 2005 the applicant filed an application for divorce with the Riga Regional Court. The proceedings were initiated on 13 April 2005 after he had filed an addendum eliminating deficiencies and asking the court to rule that both children should reside with him. The applicant also requested monthly child support payments from V.S.

10.  On 24 August 2005 V.S. filed a counterclaim, requesting sole parental custody of both children, monthly child support payments from the applicant, and determination of the applicant’s contact rights in respect of the children.

11.  Subsequently, both parties filed addendums and clarifications concerning the division of their property, the determination of contact rights, and child support payments.

12.  On 12 May 2008 the Riga Regional Court delivered its judgment, declaring the marriage dissolved and granting the applicant and V.S. shared parental custody of N.S., and V.S. sole parental custody of E.S. The court rejected: the applicant’s application for determination of his contact rights in respect of E.S., V.S.’s application for contact rights in respect of N.S., and the applicant’s request for child support payments. Both parties appealed.

13.  Of the ten hearings scheduled to take place at the Riga Regional Court, two were adjourned because the applicant was ill and one was adjourned because V.S. was ill, which resulted in a delay of approximately nine months. Another two hearings were adjourned at the applicant’s request. In particular, he explained that he and N.S. were residing in London, where N.S. was attending school. As the applicant could not leave N.S. on his own, he asked the Riga Regional Court to adjourn the hearings. N.S. was eleven years old at the time of the first request, and twelve at the time of the second. This resulted in a delay of approximately one year. Another hearing was adjourned in order to obtain an opinion from the Rīga City Bāriņtiesa, a guardianship and curatorship institution established by the municipality (hereinafter – Bāriņtiesa) (see paragraph 14 below).Proceedings before the Bāriņtiesa

14.  On 15 April 2005 the Riga Regional Court asked the Bāriņtiesa to provide an opinion on custody and contact rights. On several occasions the Bāriņtiesa informed the Riga Regional Court that it was unable to carry out such an assessment, as the applicant did not attend scheduled meetings and failed to cooperate. The applicant also failed to ensure that N.S. attended a meeting with the authority. On 8 February 2007 the Bāriņtiesa delivered its first opinion, concluding that V.S. should have sole parental custody of both children, while the applicant should have only contact rights. However, on 5 March 2008 it issued another opinion on custody and contact rights. In that opinion, the custody authority concluded that the applicant and V.S. should have shared parental custody of N.S., and V.S. should have sole parental custody of E.S.; furthermore, the applicant should receive recommendations from a psychologist in order to have contact with E.S.

15.  During the proceedings before the appellate court the Bāriņtiesa also requested judicial assistance from the Children and Family Court Advisory and Support Service in the United Kingdom. However, the Bāriņtiesa was informed on 27 September 2011 that that service had been unable to contact the applicant, as he had not responded to invitations to interviews, and it had not been possible to meet the applicant and N.S. at their place of residence.Proceedings before the appellate court

16.  The Civil Division of the Supreme Court received the case from the Riga Regional Court on 24 July 2008; however, the appellate proceedings were initiated on 2 July 2009 and simultaneously the first appellate court hearing was scheduled to take place on 1 June 2010.

17.  The applicant did not attend the hearing on 1 June 2010; nevertheless, the Civil Division of the Supreme Court examined the case and scheduled the next hearing for 15 June 2010, when the judgment would be pronounced.

18.  On 10 June 2010 the applicant informed the Civil Division of the Supreme Court that he had not been present at the hearing on 1 June 2010 because he had not received the relevant court summons, thus he had not been informed about it. Amongst other things, he gave his address in the United Kingdom and, without providing any further explanation, referred to the domestic law provision regulating the delivery of court documents to a litigant residing abroad. However, to this Court, he explained that he could not attend that hearing because his flight had been delayed. The fact that the applicant had a plane ticket for 1 June 2010 to travel from London to Riga is confirmed by the documents submitted to the Court.

19.  On 15 June 2010 the Civil Division of the Supreme Court announced that it was unable to reach a decision and pronounce judgment without the applicant’s participation, thus it scheduled the next court hearing for 16 September 2010. However, on that date it established that the applicant was living in the United Kingdom, therefore it asked the Latvian Ministry of Justice to send court summons to his address there. Even though the applicant could not be reached at his address in London, he did appear before the court at the next hearing on 27 April 2011, during which he explained that he should be contacted using a contact address in Latvia which he had previously indicated.

20.  The applicant again failed to attend the following hearing on 6 December 2011. He had informed the Civil Division of the Supreme Court that he had learned about it too late and could not arrange to travel to Latvia from the United Kingdom, emphasising his poor financial state. Nevertheless, the Civil Division of the Supreme Court did not find his absence justified, and examined the case.

21.  The Civil Division of the Supreme Court delivered its judgment on 20 December 2011. It declared the marriage dissolved and ruled that V.S. should have sole parental custody of E.S. The court dismissed the applicant’s application for contact rights in respect of E.S. on the basis of the incident of 20 December 2006 (see paragraph 8 above). It also indicated that the applicant was not prevented from submitting a new application for the determination of his contact rights in respect of E.S. The Civil Division of the Supreme Court also found that the parties had not appealed against the Riga Regional Court’s judgment in so far as it had ruled that the applicant and V.S. should have shared parental custody of N.S. The court granted V.S.’s application for contact rights in respect of N.S., and lastly stated in the judgment that the applicant had intentionally been delaying the proceedings.

22.  With regard to the divorce, the judgment became enforceable on 7 February 2012. The applicant lodged an appeal on points of law in relation to the remaining claims.Proceedings before the Senate of the Supreme Court

23.  In a preparatory meeting on 24 January 2013 the Senate of the Supreme Court dismissed the applicant’s appeal on points of law as not raising any relevant legal issues.Ancillary proceedings

24.  Between 20 August 2007 and 14 September 2011 the domestic courts examined seven applications and complaints from both parties regarding the securing of their respective claims and the determination of interim contact rights pending the final judgment. The ancillary proceedings resulted in seven court hearings, and the domestic courts adopted eight decisions. As the applicant failed to cooperate with a psychologist who was working with E.S., he was consistently denied contact rights in respect of her.  RELEVANT DOMESTIC LAW

25.  Article 92 of the Constitution of Latvia (Satversme) provides that everyone has the right to defend his or her rights and lawful interests in a fair court, and that everyone whose rights are violated without justification shall have a right to commensurate compensation.

26.  Section 1635 of the Civil Law provides that any wrongful act which has caused harm shall give the victim the right to claim just satisfaction from the perpetrator, in so far as he or she may be held liable for that act.

THE LAWALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

27.  The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement laid down in Article 6 § 1 of the Convention, 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...”AdmissibilityNon-exhaustion of domestic remedies.

28.  The Government argued that the applicant had failed to exhaust the domestic remedies, as he could have lodged a claim with the courts of general jurisdiction on the basis of Article 92 of the Constitution and section 1635 of Civil Law, seeking compensation for the alleged violation of his right to trial within a reasonable time.

29.  As an example, the Government referred to a case where a claimant had lodged a civil claim against the State because an administrative court had failed to provide a translation of its decision in a case, thereby preventing him from appealing against that decision. In a judgment of 24 November 2010 (case no. SKC-233), the Senate of the Supreme Court noted that section 1635 of the Civil Law was not applicable, as the claim concerned public legal relations. However, Article 92 of the Constitution was directly applicable and guaranteed the right to adequate compensation for a breach of one’s fundamental rights. The Senate further considered that a court’s conclusion as to whether there had been a breach as a result of a court’s actions (tiesas darbības rezultātā pieļautais pārkāpums), in view of the gravity of that breach with respect to the person’s fundamental rights, would form the basis for deciding if Article 92 of the Constitution required redress.

30.  Furthermore, the Government submitted a judgment of 11 April 2013 of the Riga Regional Court concerning a civil claim about the length of criminal proceedings (case no. C27200511). In that case, the claimant was awarded 500 Latvian lati (LVL – approximately 711 euros (EUR)) because the criminal proceedings, which had not been particularly complex, had been pending before the first-instance court for more than six years. The Riga Regional Court relied on Article 92 of the Constitution and section 1635 of the Civil Law. On 30 December 2014 the Senate of the Supreme Court upheld that judgment, pointing out that the criminal courts had already established that there had been a breach of the reasonable time requirement (for more information, see Žerebkovs v. Latvia (dec.), no. 16800/11, §§ 24, 57, 26 September 2019).

31.  The applicant did not respond to the Government’s objections in this regard.

32.  In the case of Veiss v. Latvia (no. 15152/12, § 71, 28 January 2014), the Court dismissed a similar argument on the grounds that the Government had failed to submit relevant case-law examples establishing the effectiveness of this remedy under Article 92 for that particular type of claim. The judgment of 24 November 2010 of the Senate of the Supreme Court confirms the competence of domestic courts to review civil claims about such omissions on the part of administrative courts as a failure to provide translation of its decisions. The Government has not provided information on further developments in the case-law, apart from the judgment of 11 April 2013 of the Riga Regional Court, which dealt with a civil claim concerning the length of criminal proceedings in a case where the criminal courts themselves had made findings that there had been a breach of the reasonable time requirement. The courts’ take on the applicable legal basis for the civil claim in the latter judgment deviated from the one indicated by the Senate of the Supreme Court in 24 November 2010. Furthermore, the judgment was adopted by the appellate court on 11 April 2013 – three months after the adoption of the final judgment in the present case – and became enforceable even later, on 30 December 2014. Importantly, those two cases alone cannot be considered sufficient for a conclusion that, in the absence of a specifically introduced remedy, there nevertheless existed a remedy at the relevant time whose scope and application was clearly set out and confirmed or complemented by the domestic courts’ case-law (see, mutatis mutandis, Melnītis v. Latvia, no. 30779/05, § 50, 28 February 2012).

33.  Therefore, the Court rejects the Government’s objection, without further assessing the effectiveness of the domestic remedy relied on.Six-month time-limit

34.  The Government submitted that the applicant had failed to respect the six-month rule under Article 35 § 1 of the Convention with regard to his complaints related to the proceedings concerning custody rights in respect of his son N.S. and the divorce. The Government noted that in its judgment of 20 December 2011 the Civil Division of the Supreme Court had indicated expressis verbis that the custody rights in respect of N.S. had already been resolved by the judgment of the Riga Regional Court of 12 May 2008, and that part of the judgment had become enforceable on 16 June 2008. Furthermore, the marriage between the applicant and V.S. had been dissolved by a judgment of 20 December 2011 of the Civil Division of the Supreme Court. The applicant had not appealed against that part of the judgment, thus it had become enforceable on 7 February 2012.

35.  The applicant did not respond to the Government’s objections in this regard.

36.  The Court reiterates that, pursuant to Article 35 § 1 of the Convention, it may only deal with an application where it has been lodged within six months from the date of the final decision in the process of exhaustion of domestic remedies (see Lekić v. Slovenia [GC], no. 36480/07, § 65, 11 December 2018). The reasonable time requirement concerns the length of proceedings as a whole, and covers the period from the moment proceedings are brought before the domestic courts right up to the decision which disposes of the dispute (see König v. Germany, 28 June 1978, § 98, Series A no. 27, and Poiss v. Austria, 23 April 1987, § 50, Series A no. 117).

37.  Even though certain aspects of the dispute were resolved earlier, the domestic courts fully disposed of the dispute between the applicant and V.S. when they decided on the custody and contact rights in respect of E.S. by way of a final decision of 24 January 2013. Hence, with respect to the length of the proceedings the complaint was submitted within the six-month time-limit. Therefore, the Court rejects the Government’s objection in this regard.Conclusion

38.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.Merits

1.  The parties’ arguments

39.  The applicant reiterated his complaint (see paragraph 27 above).

40.  The Government argued that the applicant had significantly contributed to the length of the proceedings, and the domestic courts had acted in the best interests of the children.

2.  The Court’s assessment

41.  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). What is at stake for the applicant is particularly important in cases relating to civil status, and special diligence is required in view of the possible consequences which the excessive length of proceedings may have, notably on enjoyment of the right to respect for family life (see Laino v. Italy [GC], no. 33158/96, § 18, ECHR 1999-I). Furthermore, only delays attributable to the State may justify a finding of failure to comply with the “reasonable time” requirement (see Humen v. Poland [GC], no. 26614/95, § 66, 15 October 1999). With respect to the conduct of an applicant, the Court has held that the person concerned is only required to show diligence in carrying out the procedural steps relating to him or her, to refrain from using delaying tactics, and to avail himself or herself of the scope afforded by domestic law for shortening the length of proceedings (see Unión Alimentaria Sanders S.A. v. Spain, 7 July 1989, § 35, Series A no. 157). At the same time, the delaying tactics used by a party do not absolve the authorities from their duty to ensure that proceedings are conducted within a reasonable time (see Karcheva and Shtarbova v. Bulgaria, no. 60939/00, § 47, 28 September 2006, and Mincheva v. Bulgaria, no. 21558/03, § 68, 2 September 2010).

42.  In the present case, the period to be taken into consideration began on 11 March 2005, when the applicant initiated proceedings before the domestic courts (see paragraph 9 above), and ended on 24 January 2013 (see paragraph 23 above). The proceedings over three levels of jurisdiction lasted more than seven years and ten months.

43.  The Court observes that the domestic courts had to decide on several aspects arising from the dissolution of the marriage between the applicant and V.S., including custody and the determination of contact rights in respect of their children, which required the participation of the Bāriņtiesa. That, together with multiple sets of ancillary proceedings (see paragraph 24 above) and the applicant’s residence in the United Kingdom, increased the overall complexity of the case from a procedural standpoint. Furthermore, the subject matter of the case – a case which was of great importance to the applicant, especially as he was deprived of contact with E.S. during this time – and what was at stake called for an expeditious decision.

44.  With respect to the applicant’s conduct, the Court observes that he failed to attend at least two court hearings before the Riga Regional Court, which resulted in a one-year delay because he was in the United Kingdom at that time and allegedly could not leave his son N.S on his own (see paragraph 13 above). The applicant did not challenge the fact that he had been informed about those hearings in a timely manner, thus there is no reason to believe that there was insufficient time and opportunity to ensure his presence at the hearings, especially taking into account the importance of the subject matter. Furthermore, the Court draws attention to the fact that the applicant failed to cooperate with the Bāriņtiesa thereby contributing to the delays in obtaining an opinion on his and V.S.’s relationship with each of their children (see paragraph 14 above).

45.  As regards the proceedings before the Civil Division of the Supreme Court, it appears that the applicant might have misled the domestic court regarding his contact address. The applicant explained to this Court that he had not attended the first appellate court hearing on 1 June 2010 because his flight had been delayed, thus he was informed about it. However, in his submissions to the Civil Division of the Supreme Court, he indicated that he had not received the relevant court summons. He also referred to domestic law provisions which led the court to believe that the summons should be sent to his address in the United Kingdom (see paragraph 18 above). Thus, the applicant contributed to the overall length of the proceedings.

46.  As to the State’s conduct, the Court observes that there were some significant periods of inactivity. In particular, the Civil Division of the Supreme Court initiated the appeal proceedings one year after it had received the case from the first-instance court, and the first hearing was scheduled to take place eleven months later (see paragraph 16 above). While the domestic courts examined the applications for interim measures during this time, no action was taken with regard to the merits of the case. Moreover, although the applicant indicated on 10 June 2010 that he had not received the relevant court summons (see paragraph 18 above), only on 16 September 2010 did the Civil Division of the Supreme Court conclude that the summons should have been sent to his address in the United Kingdom through the Ministry of Justice and schedule the next hearing for 27 April 2011, seven months later. Lastly, it should be noted that after the Senate of the Supreme Court had received the case it took eleven months to adopt the decision refusing to initiate cassation proceedings, and no court hearings were held during this time.

47.  Overall, the Court observes that in the light of what was at stake for the applicant in the proceedings, notably, custody rights and contact rights with E.S., their length was excessive, and the domestic courts failed to act with the special diligence required by Article 6 § 1 of the Convention in such cases (compare Laino, cited above, § 22, and Veiss, cited above, § 80). In particular, the Court does not find information in the case file that would justify the significant periods of inactivity in the appellate proceedings from the moment the case was received in the Civil Division of the Supreme Court on 24 July 2008, initiating these proceedings on 2 July 2009 and scheduling of a hearing for 1 June 2010. The Court agrees with the Government that the applicant’s conduct also contributed to the overall length of proceedings, however, it recalls that the duty to administer justice expeditiously is, in the first place, incumbent on the relevant authorities (see Karcheva and Shtarbova, cited above, § 47).

48.  Having examined all the material and arguments submitted, and having regard to its case-law on the subject, the Court considers that there has accordingly been a breach of Article 6 § 1.APPLICATION OF ARTICLE 41 OF THE CONVENTION

49.  Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”Damage

50.  The applicant claimed 1,223,690.36 euros (EUR) in respect of pecuniary and non-pecuniary damage.

51.  The Government contested these claims.

52.  The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it considers that the applicant must have sustained non‑pecuniary damage. Taking into consideration the particular circumstances of the case and the applicant’s significant contribution to the delay, and ruling on an equitable basis, it awards him EUR 1,000 under this head.Costs and expenses

53.  The applicant also claimed EUR 6,643.54 for the costs and expenses incurred before the domestic courts, and EUR 34,670.06 for those incurred before the Court.

54.  The Government contested these claims.

55.  Regard being had to the documents in its possession and to its case‑law, the Court considers it reasonable to award the sum of EUR 53.35 for the proceedings before the Court, and rejects the rest of the claim in respect of costs and expenses.Default interest

56.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,Declares the application admissible;Holds that there has been a violation of Article 6 § 1 of the Convention;Holds

(a)  that the respondent State is to pay the applicant, within three months, the following amounts:

(i)  EUR 1,000 (one thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii)  EUR 53.35 (fifty-three euros and thirty-five cents), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 11 June 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Victor Soloveytchik Gabriele Kucsko-Stadlmayer
Deputy RegistrarPresident

 

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