CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 1 février 2005

.s800EAC49 { font-size:12pt } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .sBB9EE52A { font-family:Arial } .s5BA5B7C7 { margin-top:12pt; margin-bottom:12pt; text-align:center; font-size:14pt } .s662121A1 { margin-top:12pt; margin-bottom:12pt; text-align:center } .sB8987CE9 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sB9D5CABB { width:28.35pt; display:inline-block } .s61ED8A2B { width:14.36pt; display:inline-block } .s61E420C2 { font-family:Arial; font-variant:small-caps } .sA36B60A1 { font-family:Arial; font-style:italic } .s84D0D60A { width:8.36pt; display:inline-block } .s597AF9F1 { width:9.9pt; display:inline-block } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sBB5E682E { margin-top:0pt; margin-bottom:36pt; text-indent:14.2pt } .sF604F523 { margin-top:36pt; margin-bottom:12pt; font-size:14pt } .s147369FC { margin-top:12pt; margin-bottom:18pt; text-indent:14.2pt } .sDEA336FF { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt } .s29100277 { font-family:Arial; font-weight:bold } .s9922FEC8 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt } .s9C230781 { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt } .s451A1BF5 { margin-top:6pt; margin-bottom:0pt; text-indent:14.2pt } .s377C1984 { margin-top:0pt; margin-bottom:12pt; text-indent:14.2pt } .sA845BF37 { margin-top:12pt; margin-left:36.6pt; margin-bottom:18pt; text-indent:-15.05pt } .s70114485 { margin-top:18pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt } .s4B773175 { margin-top:0pt; margin-bottom:18pt; text-indent:14.2pt } .sB8BE277E { margin-top:36pt; margin-bottom:48pt; font-size:14pt } .sE5B8ADA1 { margin-top:48pt; margin-bottom:48pt; font-size:14pt } .s5159655D { margin-top:48pt; margin-bottom:30pt; font-size:14pt } .s4EDC3409 { margin-top:30pt; margin-left:17.85pt; margin-bottom:12pt; text-indent:-17.85pt } .sD107E55B { margin-top:12pt; margin-bottom:12pt; text-align:center; font-size:10pt } .s160BBE39 { margin-top:12pt; margin-left:20.15pt; margin-bottom:6pt; text-indent:8.8pt; font-size:10pt } .sF66B8D08 { margin-top:18pt; margin-left:17.85pt; margin-bottom:12pt; text-indent:-17.85pt } .sA918FEC8 { margin-top:12pt; margin-bottom:12pt; text-indent:14.4pt } .s588BDBF1 { margin-top:12pt; margin-left:14.2pt; margin-bottom:12pt } .sBED5F98F { margin-top:12pt; margin-left:14.2pt; margin-bottom:36pt } .sF7A4323 { margin-top:36pt; margin-bottom:0pt; text-align:left } .sB1C25328 { width:226.35pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .s60570E66 { width:233.81pt; display:inline-block } FIRST SECTION DECISION AS TO THE ADMISSIBILITY OF Application no. 72749/01 by Toviy Ivanovich KRAVCHUK against Russia The European Court of Human Rights (First Section), sitting on 1 February 2005 as a Chamber composed of:   Mr   C.L. Rozakis , President ,   Mrs   S. Botoucharova ,   Mr   A. Kovler ,   Mrs   E. Steiner ,   Mr   K. H ajiyev ,   Mr   D. Spielmann ,   Mr   S.E. Jebens , judges ,   and   Mr S. Nielsen , Section Registrar , Having regard to the above application lodged on 9 May 2001, Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together, 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, Toviy Ivanovich Kravchuk, is a Russian national, who was born in 1952 and lives in Sochi. The respondent Government are represented by Mr P. A. Laptev, the Representative of the Russian Federation at the European Court of Human Rights. A.     The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. 1. Proceedings instituted by the applicant against Ms K. The applicant's house is situated on a steep bank of the river Persiyanka. The only public driveway to his house goes along the river, in a land-slide area. The road is quite narrow and it is locked between the riverside and the land of the applicant's neighbour, Ms K. In 1997 Ms K. built a garage. The garage went beyond the boundaries of her land and entrenched on the road. As a result, Ms K. was subjected to an administrative fine for unauthorised construction. However, in March   1998 the local council decided to regularise the existing situation and proposed Ms K. to lease the territory under the garage from the council. On an unspecified day in 1998 the applicant brought court proceedings against Ms K. and the local council claiming that the garage was built in breach of the domestic city planning regulations. The applicant also alleged that that the garage hindered access to his land by car. On 18 November 1998 the Lazarevskiy District Court took the decision in the applicant's favour. On 2 March 1999 the Krasnodar Regional Court quashed this decision and remitted the case for a fresh examination. On 11 May 1999 the Lazarevskiy District Court found in the applicant's favour. The court held that the garage had been built without due permission of the city administration and exceeded the boundaries of Ms K.'s land. The court, referring to an expert report of 7 May 1999, also held that the access to the applicant's land had been seriously hindered by the garage. The court ordered Ms K. to remove the garage and pay damages to the applicant in the amount of 3,151   Russian roubles (RUR). No appeal followed, and the decision became final. In December 1999 the court bailiffs recovered RUR   3,500 from Ms K. The applicant received RUR   2,766 of this sum, the rest being withheld by the bailiffs as an enforcement fee. The court decision ordering Ms K. to remove the garage remained unexecuted.   2. Proceedings instituted by Ms K. On 8 August 2000 the city administration legalised the garage by delivering a building permit to Ms K. and annexing the parcel under the garage to Ms   K.'s land. On an unspecified date Ms. K. brought new court proceedings against the applicant seeking to re-open the case “due to the discovery of new facts”. According to Ms K., shortly after 11 May 1999 (that is the date of the first court decision) she learned that a geodesic research had been carried out by the city planning authority. This research had shown that due to a long-distance power line running over Ms K.'s land, it had been impossible to build a garage otherwise than exceeding the boundaries of the plot. Consequently, in 2000 the boundaries of Ms   K.'s land were delimited anew. An expert report drawn on   1   December 2000 confirmed that the garage was now located on Ms   K.'s land. On 26 October 2000 the Lazarevskiy District Court granted the application for re-opening having applied Article 333 of the Code of Civil Procedure. On 25 January 2001 the court rendered a new judgment in this case. The court established that at the moment of the examination of the applicant's case it had not been aware of the findings of the expert report of 1   December   2000. The court noted that the second report was more “credible” than the initial report of 7 May 1999, referred to by the court in its decision of 11 May 1999. The court further noted that the plaintiff, Ms K., had presented documents entitling her to the land under the garage. On this ground the court dismissed the applicant's initial claims and awarded Ms K. damages in the amount of 4,912   RUR. On 1 March 2001 the Krasnodar Regional Court rejected the applicant's appeal against this decision. On 4 May 2001 the Lazarevskiy District Court awarded to Ms K. 3,890   RUR as compensation for the money recovered from her pursuant to the court decision of 11 May 1999. It appears that this decision was not appealed to the second instance court. 3. Supervisory review of the decision of 26 October 2000 In 2002, upon the applicant's request, the regional prosecutor brought an extraordinary appeal against the decision of 26 October 2000. On 21   November 2002 the Presidium of the Krasnodar Regional Court quashed the challenged decision stating that the circumstances adduced by the Lazarevskiy District Court as “newly discovered” should not have led to revision of the initial court decision of 11 May 1999. The court also discovered certain defects in the proceedings before the Lazarevskiy District Court. As a result, the case was remitted to the first instance court. On 12 March 2003 the Lazarevskiy District Court decided that the decision of 11 May 1999 in the applicant's favour should remain in force. The court found, in particular, that the authorisation to build garage delivered to Ms K by competent authorities in 2000 did not constitute a “newly discovered circumstance” calling for revision of the court decision. On 17   April 2003 this decision was upheld by the Krasnodar Regional Court. Ms K. brought new court proceedings against the local council claiming to recognise her property rights to the garage. On 24 February 2004 the Lazarevskiy District Court satisfied her claims declaring that the garage was Ms K.'s property. The court also ordered inscription of the garage in the land registry. The applicant did not participate in these proceedings. B.     Relevant domestic law According to Article 333 of the Code of Civil Procedure of 1964, final judgments can be reviewed due to discovery of substantial circumstances which were not and could not have been known to the person who applies for a review. Pursuant to Article 337, the decision of the court to re-open the proceedings on this ground is not subject to appeal. For relevant provisions of the Russian law on the supervisory review procedure see Ryabykh v. Russia , no.   52854/99, §31-42, ECHR 2003 ‑ X. COMPLAINTS 1. The applicant complains, invoking Article 6 of the Convention and Article 1 of Protocol no. 1 thereof, about the way the domestic courts dealt with his case. He claims, in particular, that the re-opening of the case due to discovery of the new circumstances amounted to an abuse of right because the acts, “legalising” the garage, as well as the expert report referred to by the court, appeared after the judgment of 21 October 1999, and should not have been considered as new evidence substantial to the case. The applicant adds that the procedural time-limits were not respected in the course of the proceedings on the merits and execution. 2. The applicant also complains that the State authorities failed to investigate the fire of his house or provide him with new housing.     THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION The applicant complains that the procedure in his case was unfair and lengthy. In particular, he complains that in 2000 the Lazarevskiy District Court decided to re-open the proceedings which had come to an end with the judgment of 11   May 1999 in the applicant's favour. He refers to Article   6 of the Convention, which, insofar as relevant, reads as follows: Article 6 “In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...” The Government argue that the revision of the court decision of 1999 was necessary because of the subsequent administrative acts extending the boundaries of Ms K.'s land plot and authorising construction of the garage. Moreover, in the Government's view, the re-opening of the proceedings was required because the geodesic examination carried out in 2000 had demonstrated that the garage did not constitute an obstacle for the normal functioning of the road. The applicant maintains his arguments. A. Concerning the revision of the judgment of 1999 The Court notes at the outset that the applicant complained primarily about the reversal of the judgment of 1999 in his favour. However, in 2002 the decisions taken in 2000 and 2001, complained of by the applicant, were quashed by way of supervisory review by the Presidium of the Krasnodar Regional Court. It follows that at present the judgment of 11   May 1999, favourable to the applicant, is in force again. The Court reiterates that to deprive an individual of his or her status as a “victim” the national authorities have to acknowledge, either expressly or in substance, and then afford redress for, the breach of the Convention (see Amuur v. France , judgment of 25   June 1995, Reports of Judgments and Decisions 1996-III, p. 846, § 36; and Dalban v. Romania , judgment of 28   September 1999, Reports 1999-VI, §   44). Turning to the present case the Court notes that in 2002 the Presidium of the Krasnodar Regional Court found that the quashing of the judgment in the applicant's favour had been arbitrary and unlawful. By doing this the domestic authorities have recognised, at least in substance, that the applicant's right to a court was breached by the re-opening of the case he had won in 1999. It remains to be decided whether the domestic authorities afforded the applicant redress for this breach and if so, whether the redress can be considered sufficient. In this respect the Court notes that the applicant's claim to restore the judgment of 1999 was fully satisfied. There is no evidence that he has ever sought anything more than the restoration of the initial judgment in his favour. Furthermore, the applicant has not shown that he has suffered any additional material damage. In these circumstances the Court concludes that the restoration of the judgment of 1999 constituted in itself sufficient redress. Therefore, the applicant can no longer claim to be a victim of the alleged violation (see in this respect Katayeva and Katayev v. Russia , 6 July 2004 (dec.), no. 45550/99). Consequently, his complaint about the revision of the judgment of 11 May 1999 is inadmissible and should be rejected in accordance with Article 35 §§ 3 and 4   of the Convention. B. Concerning the alleged non-enforcement of the judgment of 1999 Further, the applicant can be understood as complaining about the non-enforcement of the judgment of 11 May 1999 against Ms K. The Court recalls that in the enforcement of a judgment against a private person the responsibility of the State extends no further than the involvement of State bodies in the execution proceedings (see Shestakov v. Russia (dec.), no.   48757/99, 18   June   2002). The State's responsibility in the present case would be limited only by the bailiffs' engagement in the forced execution of the court decision ordering the demolition of Ms K.'s garage. From the documents submitted by the applicant it follows that after the decision of 11 May 1999 had entered into force he started the enforcement proceedings and even recovered from Ms K. a part of the sum awarded by the District Court as damages. However, it is unclear whether he tried to obtain forced execution of the demolition order, which was apparently his main concern in the present case. Even assuming so, the Court notes that after the judgment of 1999 had been restored the applicant made no recourse to the bailiffs. Consequently, no question of the State's responsibility can arise. Indeed, as the applicant pointed out, on 24   February 2004 the Lazarevskiy District Court recognised that the garage was Ms K.'s property. However, this cannot be regarded as an absolute ban on execution of the initial court judgment of 11 may 1999. The sole fact that the garage is Ms   K.'s property and should be so registered in the land cadastre does not prevent the applicant from obtaining a forced execution of the judgment of 11 May 1999 ordering the removal of the garage from the public road. Against the above background the Court concludes that the applicant's complaint about the State's failure to enforce the judgment of 11   May 1999 is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. C. Concerning the length of civil proceedings The applicant further complains, at least in substance, about the length of civil proceedings in his case. 1. Period to be considered The Court notes that the proceedings commenced on an unspecified date in 1998. The applicant did not indicate the exact date when he had brought the case before the domestic courts. Consequently, the Court will calculate the length from the date of the first judgment, rendered in this case, that is 18   November 1998. On 11 May 1999 the Lazarevskiy District Court rendered the second judgment in the applicant's case, which was not appealed and became final. Therefore, the length of the first round of the proceedings was five months and 23 days. Following the decision of 11 May 1999 the enforcement proceedings had been initiated. The Court recalls that in certain circumstances the enforcement proceedings may be regarded as a part of the trial (see, among recent authorities, Ivanova v. Russia , no. 74705/01, 1 April 2004; see also the Di Pede v. Italy and Zappia v. Italy judgments of 26 September 1996, Reports of Judgments and Decisions 1996-IV, pp. 1383-1384, §§   20-24, and pp. 1410-1411, §§   16-20 respectively). Assuming that these proceedings should be taken into account in calculating the overall length, the Court notes that they lasted until 26 October 2000, when the Lazarevskiy District Court granted Ms K.'s application for re-opening of the case. Therefore, the enforcement proceedings in this case lasted one year, five months and fifteen days. The second set of proceedings concerning the garage ended with the decision of the Krasnodar Regional Court of 1 March 2001, thus lasting four months and six days. No proceedings were pending between 1 March 2001 and 21   November 2002, when the Presidium of the Krasnodar Regional Court decided to re-open the case and remitted it to the first instance court. The final decision in this third round of court proceedings was taken on 17   April 2003 by the Krasnodar Regional Court. There is no information about any enforcement proceedings being carried out after this date. Therefore, the third round lasted four months and 26 days. The Court concludes that the overall length of proceeding in this case, including the enforcement proceedings, was two years, eight months and ten days.   2. Justification of the length of proceedings The Court reiterates that the reasonableness of the length of the proceedings is to be assessed in the light of the particular circumstances of the case, regard being had to the criteria laid down in the Court's case-law, in particular the complexity of the case, the conduct of the applicant and that of the authorities, what was at stake for the applicant etc. 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 judgment of 13 July 1983, Series A no. 66, p. 11, § 24; see also Pélissier and Sassi v. France [GC], no.   25444/94, ECHR 1999-II, § 67). The Court may also take into account the number of instances involved in the course of the proceedings (see   Zaskiewicz v. Poland , no. 46072/99, 11   December 2001). As concerns the complexity of the case, the Court observes that the subject of controversy in the present case was whether Ms K.'s garage was built in accordance with the applicable regulations on construction and whether it created inadmissible detriment to functional conditions for the applicant's property. To answer this question the domestic courts had to examine and compare the findings of at least two expert reports. The complex technical character of the issues involved brings the Court to a conclusion that the present case was not a trivial one. The Court further notes that in the course of the proceedings the case was examined four times by the first instance court, thrice on appeal and once by the supervisory review instance. On the whole the Court detects no significant period of inactivity attributable to the State. Finally, the Court pays special attention to the fact that the applicant failed to show to what extent the subject of domestic proceedings was important to him. In the Court's view, regard being had to the above elements and in the light of the Court's previous judgments in cases of this kind, the length of the proceedings was not obviously excessive. Against the above background the Court finds the complaint about the length of proceedings manifestly ill-founded. This complaint must be therefore rejected in accordance with Article 35 §§ 3 and 4 of the Convention. II. OTHER COMPLAINTS 2. The Court has examined the remainder of the applicants' complaints as submitted by them. However, having regard to all the material in its possession, it finds that these complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention. For these reasons, the Court unanimously Decides to discontinue the application of Article 29 § 3 of the Convention; Declares the application inadmissible. Søren Nielsen   Christos Rozakis   Registrar   President