FIRST SECTION
 
 
 
 
 
 
 
CASE OF KIISA v. ESTONIA
 
(Application no. 72999/10)
 
 
 
 
 
 
 
 
JUDGMENT
 
 
 
 
STRASBOURG
 
13 March 2014
 
 
 
 
This judgment is final but it may be subject to editorial revision. In the case of Kiisa v. Estonia,
The European Court of Human Rights (First Section), sitting as a Committee composed of:
 Khanlar Hajiyev, President,
 Julia Laffranque,
 Erik Møse, judges,
and André Wampach, Deputy Section Registrar,
Having deliberated in private on 18 February 2014,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 72999/10) against the Republic of Estonia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Estonian national, Ms Karin Kiisa (“the applicant”), on 17 November 2010. 2. The applicant was initially represented before the Court by Mr R. Nõu, a lawyer practicing in Tallinn. On 11 August 2013 she withdrew the power of attorney granted to her lawyer. The Estonian Government (“the Government”) were represented by their Agent, Ms M. Kuurberg, of the Ministry of Foreign Affairs. 3. On 18 March 2013 the application was communicated to the Government. THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
4. The applicant was born in 1966 and lives in Tallinn. 5. On 10 October 2003 the applicant lodged an action with the Harju County Court (previously named the Tallinn City Court) for divorce and division of joint property including a number of real estates and shares of companies. 6. The defendant submitted his arguments to the court on 15 January 2004. 7. A preliminary hearing took place on 20 April 2004. An adjournment was requested because of the illness of the defendant’s lawyer. The applicant submitted a request concerning new evidence and interim measures. 8. On 9 November 2004 a preliminary hearing took place. The applicant submitted that she intended to supplement her action. 9. On 20 December 2004 the applicant submitted new arguments and a request concerning new evidence. On 5 January 2005 the defendant replied. 10. On 7 April 2005 a preliminary hearing took place. 11. On 22 August 2005 the applicant submitted a number of procedural objections and requests concerning new evidence, including a request to appoint an expert. On 2 September 2005 she requested to stay the proceedings. 12. On 13 September 2005 a preliminary hearing took place. As the defendant had failed to appear at the hearing, the examination of the case was adjourned. 13. On 25 October 2005 the defendant submitted additional evidence. On 11 November 2005 the applicant replied, submitted new arguments and a request concerning new evidence. On 11 January 2006 the defendant made further submissions. 14. On 17 January 2006 a preliminary hearing took place. 15. On 31 March and 24 August 2006 the applicant submitted new evidence, arguments and requests concerning new evidence, including a request to appoint an expert, and supplemented her action. 16. On 5 September 2006 a hearing took place. The applicant requested ordering an expert assessment. She had not yet submitted the list of the joint property, information about its value and relevant proof. The applicant objected to the defendant’s request that a partial judgment in respect of divorce be made. 17. On 15 September 2006 the Harju County Court delivered a partial judgment divorcing the marriage. The applicant appealed. 18. On 25 September 2006 she submitted a request for the removal of the judge and requests concerning new evidence. 19. On 7 May 2007 the Tallinn Court of Appeal dismissed the applicant’s appeal. On 25 July 2007 the Supreme Court refused the applicant leave to appeal. 20. On 20 December 2007 the applicant submitted a complete version of her claims that had been requested by the County Court since she had previously made numerous amendments to her initial claims. She also made a request concerning new evidence and an expert assessment. In the months to follow, written submissions were exchanged between the parties. 21. On 11 July 2008 the applicant submitted new arguments and requests concerning new evidence. 22. On 18 September 2008 the County Court ruled on an advance payment concerning an expert assessment. 23. On 10 October 2008 the applicant requested an interim judgment for the establishment of joint property. The defendant agreed. On 17 November 2008 the County Court requested the parties to submit the lists of property. 24. In April 2009 the parties exchanged submissions concerning the court expenses and the court ordered the parties to submit any unsubmitted evidence. 25. On 26 June 2009 the Harju County Court delivered an interim judgment on the composition of the joint property. Both the applicant and the defendant appealed. In September 2009 and January 2010 the parties exchanged submissions. 26. On 27 January 2010 a hearing took place before the Tallinn Court of Appeal which, on 16 February 2010, delivered a judgment partially granting the defendant’s appeal. Both parties lodged an appeal with the Supreme Court in respect of the partial judgment. 27. On 31 May 2010 the Supreme Court refused the parties leave to appeal and the partial judgment became final. 28. On 18 August 2010 the applicant supplemented her action and applied for interim measures. 29. On 19 August 2010 the County Court applied interim measures. 30. On 17 November 2010 the County Court ordered the applicant to make an advance payment related to expert assessments. On 21 December 2010 it ordered the assessments. 31. On 14 January 2011 the applicant submitted objections to the activities of the court, supplemented her action and submitted new evidence. 32. On 1 February 2011 the court warned the parties that they would be fined in case of failure to submit the required information to the experts. On 3 February 2011 the applicant submitted objections to the activities of the court and requested the removal of the expert. On 11 March 2011 the County Court dismissed the removal request. 33. On 3 May 2011 the County Court ordered the defendant to present the required documents to the expert. 34. On 9 May 2011 the applicant submitted an additional opinion and again requested the removal of the expert. The request was dismissed on 17 May 2011. 35. In May, August and September 2011 the County Court received expert assessments concerning the value of a number of real estates and of the shares of a company. 36. In September and November 2011 the parties exchanged proposals and submissions on the division of the property. 37. On 24 November 2011 the applicant requested the removal of the judge responsible for the case. This request was dismissed. 38. In December 2011 the applicant made further submissions and a request concerning new evidence. She also filed an objection to the court’s activities. 39. On 6 February 2012 the court dismissed the request concerning new evidence. The applicant filed an objection. 40. At a hearing of 8 March 2012 experts were heard. The applicant stated that she did not accuse the court or the defendant for the length of the proceedings and requested an adjournment of the hearing as she wished to obtain an estimation of the value of the forest on one of the real estates. The hearing was adjourned. 41. On 19 March 2012 the applicant submitted new requests concerning the real estate. On 21 May 2012 the court dismissed these requests and ordered the defendant to submit an estimation. The defendant requested an extension. 42. On 21 June 2012 the applicant submitted a supplementary opinion. 43. On 16 October 2012 the applicant submitted new requests. 44. A hearing was held on 15 November 2012. 45. On 21 January 2013 the Harju County Court made a judgment on the merits concerning the division of the joint property. Both parties appealed. 46. In March 2013 the parties exchanged submissions. 47. On 30 April 2013 the Tallinn Court of Appeal delivered a judgment. It partly granted the applicant’s appeal, dismissed the defendant’s appeal and partly amended the County Court’s judgment. Both parties lodged an appeal with the Supreme Court. 48. On 1 August 2013 the Supreme Court refused the parties leave to appeal. II. RELEVANT DOMESTIC LAW AND PRACTICE
49. The Constitution of the Republic of Estonia (Eesti Vabariigi põhiseadus) provides:
Article 14
“The guarantee of rights and freedoms is the duty of the legislative, executive and judicial powers, and of local governments.”
Article 15
“(1)  Everyone whose rights and freedoms are violated has the right of recourse to the courts. Everyone has the right, while his or her case is before the court, to petition for any relevant law, other legislation or procedure to be declared unconstitutional. (2)  The courts shall observe the Constitution and shall declare unconstitutional any law, other legislation or procedure which violates the rights and freedoms provided by the Constitution or which is otherwise in conflict with the Constitution.”
Article 25
“Everyone has the right to compensation for moral and material damage caused by the unlawful action of any person.”
50. Article 46 § 4 of the Code of Administrative Court Procedure sets a three-year time-limit for compensation claims filed with an administrative court. 51. By a decision of 30 December 2008 (case no. 3-4-1-12-08) the Constitutional Review Chamber of the Supreme Court dealt with a complaint concerning the length of criminal proceedings. It rejected the complaint, considering that the complainant could have had recourse to another effective remedy. The Supreme Court held:
“25. In the examination of [the complainant’s] request for compensation for the damage caused by the violation of fundamental rights, the Chamber agrees with the opinion expressed in the written opinions of the parties to the proceedings that [the complainant] can demand compensation for damage in an administrative court on the bases and pursuant to the procedure established by the State Liability Act.”
This decision of the Supreme Court is extensively quoted in the case of Malkov v. Estonia (no. 31407/07, § 32, 4 February 2010). 52. In a judgment of 22 March 2011 in the case of Osmjorkin (no. 3‑3‑1‑85‑09) the Supreme Court, sitting in plenary session, held that Article 14 of the Constitution provided for a fundamental right to an effective remedy. Taken together with Article 15 of the Constitution, these provisions provided for a fundamental right to effective judicial proceedings. The right to an effective remedy also encompassed the right to claim that the proceedings took place within a reasonable time. The Supreme Court also made reference to the right to a fair trial within a reasonable time enshrined in Article 6 § 1 of the Convention and to the right to an effective remedy in Article 13 of the Convention. The Supreme Court found that the State Liability Act (Riigivastutuse seadus) did not provide for compensation for non-pecuniary damage caused by excessive length of a preliminary investigation in criminal proceedings, declared it unconstitutional in this respect and awarded the complainant a sum of money relying on Article 25 of the Constitution. The Supreme Court further considered that the enactment of a special regulation for compensation for damage arising from criminal proceedings was required (for a more extensive summary of the judgment, see Raudsepp v. Estonia, no. 54191/07, §§ 38-42, 8 November 2011). 53. By a decision of 23 May 2011 (unpublished) the Civil Chamber of the Supreme Court decided not to examine an appellant’s appeal in civil case no. 2-04-1159. In respect of a compensation claim concerning excessive length of proceedings made in the appeal the Supreme Court noted that a civil court had no jurisdiction of such matter. Referring to the decision of 30 December 2008 of the Constitutional Review Chamber of the Supreme Court (see paragraph 51 above) and the judgment of 22 March 2011 of the Supreme Court’s plenary session (see paragraph 52 above), the Civil Chamber explained that a claim for compensation for damage for excessive length of proceedings had to be lodged with an administrative court. 54. By a judgment of 27 February 2012 (case no. 3-10-3326) the Tartu Administrative Court awarded a complainant a sum of money for non-pecuniary damage caused by, inter alia, excessive length of criminal proceedings and lengthy application of a preventive measure (obligation not to leave the place of residence). Criminal proceedings against the complainant had already been discontinued because of the length of the proceedings. The Administrative Court referred to Articles 14, 15, 25, 34 and 35 of the Constitution and to the Supreme Court’s judgment in the case of Osmjorkin. 55. By a judgment of 30 November 2012 (case no. 3-11-1108) the Tartu Administrative Court awarded a complainant a sum of money as compensation for the non-pecuniary damage caused by the excessive length of the criminal proceedings and the obligation not to leave his place of residence. The Administrative Court referred to Articles 14, 25, 34 and 35 of the Constitution and to the Supreme Court’s judgment in the case of Osmjorkin (these administrative court proceedings have been summarised in Mets v. Estonia (dec.), no. 38967/10, §§ 14-15, 7 May 2013). 56. By a decision of 8 May 2012 (case no. 3-11-1146) the Tallinn Administrative Court confirmed a compromise agreement between a complainant and the Ministry of Justice. The Ministry agreed to pay the complainant a sum of money in compensation for non-pecuniary damage caused by lengthy criminal proceedings. THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
57. The applicant complained that the length of the civil 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...”
58. The Court notes that the proceedings in question started on 10 October 2003 and came to the end on 1 August 2013 having thus lasted for nine years and nearly nine months for three levels of jurisdiction. A. Admissibility
59. The Government asked the Court to declare the complaint inadmissible because the applicant had failed to exhaust domestic remedies. The Government referred to the recent developments in the domestic case-law (see paragraphs 51, 52, 55 and 56 above) and argued that it was possible to claim compensation for damages from the Ministry of Justice and, in case no agreement could be reached with the Ministry, the person concerned could have recourse to an administrative court. The fact that there was still little case-law did not mean that the measure was not effective. The Government considered that declaration of inadmissibility of the current application by the Court would contribute to wider use of the existing domestic remedies and would help to reduce the number of similar complaints to the Court in the future. 60. The Court notes that it has found in earlier cases that no effective remedy existed in Estonia for length-of-proceedings complaints (see Raudsepp, cited above, §§ 62-66, with other cases referred to therein). The Court further notes that it had recently occasion to deal with a complaint concerning excessive length of proceedings and alleged lack of effective remedies in this respect in the above-cited case of Mets v. Estonia. In that case, which concerned excessive length of criminal proceedings, the applicant had recourse to an administrative court and was awarded compensation for non-pecuniary damage. The Court found that the applicant had lost his victim status in respect of his complaint under Article 6 § 1 (see Mets, cited above, §§ 27-33, and paragraph 55 above). In respect of the complaint about lack of effective remedies the Court noted that the applicant had at his disposal an effective remedy developed by the practice of the courts, which he made use of, and therefore that complaint was declared inadmissible as being manifestly ill-founded (ibid., §§ 34-37). The Court has also taken note of another example of a case where an administrative court has awarded compensation for excessive length of criminal proceedings (see paragraph 54 above). 61. However, the Court observes that the present application was lodged with it on 17 November 2010, that is before the development of the case-law referred to by the Government, notably the Supreme Court’s judgment of 22 March 2011 in the Osmjorkin case and the subsequent cases decided by the administrative courts. Therefore, the Court considers, similarly to its finding in the above-cited case of Raudsepp, that the applicant had no effective remedy for her length-of-proceedings complaint at the time of the lodging of the present application. 62. The Court further observes that the domestic proceedings in the present case came to the end on 1 August 2013, that is after the Supreme Court’s judgment of 22 March 2011 and the subsequent judgments of the administrative courts which relied on the Supreme Court’s judgment. Thus, the question arises whether the applicant was required to have recourse to administrative courts after having lodged her application with the Court. 63. The Court reiterates in this connection that the assessment of whether domestic remedies have been exhausted is normally carried out with reference to the date on which the application was lodged with it. However, as it has held on many occasions, this rule is subject to exceptions, which may be justified by the particular circumstances of each case (see Baumann v. France, no. 33592/96, § 47, ECHR 2001-V, and Brusco v. Italy (dec.), no. 69789/01, ECHR 2001-IX). In particular, the Court has previously departed from this general rule in cases, for example, against Italy, Croatia and Slovakia concerning remedies against the excessive length of proceedings (see Brusco, cited above; Nogolica v. Croatia (dec.), no. 77784/01, ECHR 2002-VIII; and Andrášik and Others v. Slovakia (dec.), nos. 57984/00, 60226/00, 60237/00, 60242/00, 60679/00, 60680/00 and 68563/01, ECHR 2002-IX) and in İçyer v. Turkey ((dec.), no. 18888/02, ECHR 2006-I) concerning a new compensation remedy for interference with property (see also Charzyński v. Poland (dec.), no. 15212/03, ECHR 2005-V, and Tadeusz Michalak v. Poland, no. 24549/03, 1 March 2005). The remedies under consideration in these cases were enacted to redress at a domestic level the Convention grievances of persons whose applications pending before the Court concerned similar issues (see Demopoulos and Others v. Turkey (dec.) [GC], nos. 46113/99, 3843/02, 13751/02, 13466/03, 10200/04, 14163/04, 19993/04 and 21819/04, § 87, ECHR 2010). 64. The Court observes that in a number of such instances the legislation introducing new remedies in respect of excessive length of proceedings contained transitional provisions concerning cases in respect of which applications had already been lodged with this Court (see Balakchiev and Others v. Bulgaria (dec.), no. 65187/10, § 22, 18 June 2013; Turgut and Others v. Turkey (dec.), no. 4860/09, § 26, 26 March 2013; Taron v. Germany (dec.), no. 53126/07, § 27, 29 May 2012; Fakhretdinov and Others v. Russia (dec.), nos. 26716/09, 67576/09 and 7698/10, § 16, 23 September 2010; Vokurka v. the Czech Republic ((dec.), no. 40552/02, § 11, 16 October 2007; Grzinčič v. Slovenia, no. 26867/02, § 48, ECHR 2007‑V (extracts); and Charzyński, cited above, § 20). The Court has referred in such context to thousands (Turgut and Others, § 54, and Grzinčič, § 104, both cited above) or hundreds of applications (Andrášik and Others and Nogolica, both cited above) or “many” applications (Ahlskog v. Finland (dec.), no. 5238/07, § 76, 9 November 2010) filed against the respective countries. 65. The Court notes, however, that there are only few pending cases concerning the excessive length of proceedings lodged against Estonia before the Supreme Court’s judgment of 22 March 2011 or before the persons concerned must have been considered to have obtained effective knowledge of it (see, in the latter respect, for example, Broca and Texier-Micault v. France, nos. 27928/02 and 31694/02, § 20, 21 October 2003; Depauw v. Belgium (dec.), no. 2115/04, 15 May 2007; and Leandro Da Silva v. Luxembourg, no. 30273/07, § 50, 11 February 2010). Having regard to the fact that in the present case the applicant lodged her application with the Court on 17 November 2010, after the domestic proceedings had lasted for more than seven years, the fact that the domestic remedy in question was developed by case-law without any specific transitional provisions concerning cases pending before the Strasbourg Court having been enacted and considering the small number of similar cases in respect of the Contracting Party concerned, the Court considers that there are no particular circumstances in this case to justify departing from the general rule that the assessment of whether domestic remedies have been exhausted is carried out with reference to the date on which the application was lodged with the Court (compare, for example, Parizov v. the former Yugoslav Republic of Macedonia, no. 14258/03, §§ 45-46, 7 February 2008, and Eriksson v. Sweden, no. 60437/08, § 53, 12 April 2012). Consequently, the Court finds that, in the instant case, it could not be required of the applicant to pursue the remedy invoked by the Government. The Government’s objection as to the exhaustion of domestic remedies must therefore be dismissed. 66. 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. B. Merits
1. The parties’ submissions
67. The applicant complained about the excessive length of civil proceedings. 68. The Government were of the opinion that the length of the proceedings in the present case had been caused by the acts of the applicant and the defendant and had not been attributable to the courts. 69. The Government contended that the length of the proceedings had been most strongly affected by the repeated supplementing of the action and submitting of new evidence and requests by the applicant which had happened on at least twenty-five occasions. The defendant had to be given an opportunity to reply to the applicant’s submissions; as these submissions had usually been voluminous, the defendant had on at least five occasions asked for extension of the time-limit given to him for replying. The applicant herself had also requested several extensions of time-limits; she had also made several requests for the removal of the judge and an expert and filed objections to the activities of the court. 70. The Government pointed out that contestation of the partial judgment of 15 September 2006 concerning the divorce and of the interim judgment of 26 June 2009 concerning the composition of the joint property had both caused an approximately one-year break in the proceedings before the County Court. Further delays had been caused by the parties’, particularly the defendant’s, failure to submit timely information to the experts. 71. Lastly, the Government were of the opinion that the case involved a complicated property dispute. It was not a priority case in view of what was at stake for the applicant. 2. The Court’s assessment
72. 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 cases relating to civil status 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. 3158/96, § 18, ECHR 1999-I). 73. The Court accepts that the civil proceedings in question involved a certain degree of complexity having regard to the amount and nature of the joint property to be divided and the need to conduct several expert examinations in order to ascertain its value. However, it cannot accept that the complexity of the case, taken on its own, was such as to justify the overall length of the proceedings. 74. In respect of the applicant’s conduct, the Court considers that her numerous amendments to her claims as well as various requests concerning new evidence and other matters undoubtedly contributed to the length of the proceedings. The Court further notes that the applicant also made use of her right to appeal against the judgments, including the partial judgment and the interim judgment. However, the Court notes that it has been its constant approach that an applicant cannot be blamed for taking full advantage of the resources afforded by national law in the defence of his or her interests (see, for example, Kolomiyets v. Russia, no. 76835/01, § 29, 22 February 2007). 75. As regards the conduct of the authorities, the Court notes that although it does not detect any obvious procrastination on the part of the courts in conducting the proceedings, it nevertheless considers that the overall length of the proceedings – nine years and nine months – was incompatible with the applicant’s right to have her claim examined within a reasonable time. 76. Lastly, as concerns what was at stake for the applicant, the Court notes that the case concerned her claim for divorce and division of joint property. The Court acknowledges that the applicant’s marriage was dissolved by a partial judgment more speedily and separately from the resolution of the remainder of her claims. The remaining part of the case concerned a property dispute which does not appear to have been of the kind to require, by its nature, the most expeditious consideration. 77. However, having examined all the materials submitted to it and having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement. 78. II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
79. The applicant further complained about the lack of an effective remedy in respect of the excessive length of proceedings. She relied on Article 13 which reads as follows:
“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.”
A. Admissibility
80. The Court considers that this 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 (a) of the Convention. No other ground for declaring it inadmissible has been established. The complaint must therefore be declared admissible. B. Merits
81. The applicant complained that there was no effective remedy for her complaint about excessive length of proceedings. 82. The Government argued that it had been open to the applicant to claim compensation for the length of the proceedings (see paragraph 59 above). 83. The Court reiterates that Article 13 guarantees an effective remedy before a national authority for an alleged breach of the requirement under Article 6 § 1 to hear a case within a reasonable time (see Kudła v. Poland [GC], no. 30210/96, § 156, ECHR 2000-XI). 84. In the present case, the Court has already found that there was no effective remedy available to the applicant that she would have been required to exhaust (see paragraphs 60 to 65 above). This conclusion also applies in respect of Article 13 of the Convention.
85.

Article of the Convention at issue: Article 13
Outcome: violation