CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 23 mai 2006

.s800EAC49 { font-size:12pt } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .sBB9EE52A { font-family:Arial } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .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 } .s967D43C6 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s7EE1C8F0 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s88A92475 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sDD165512 { margin-top:12pt; margin-left:14.2pt; margin-bottom:0pt; text-align:justify } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .s2DF49AA6 { width:24.54pt; display:inline-block } .sD79BB263 { width:196.1pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block } FIRST SECTION DECISION AS TO THE ADMISSIBILITY OF Application no. 71676/01 by Anna Andreyevna SARNATSKAYA against Russia The European Court of Human Rights (First Section), sitting on 23 May 2006 as a Chamber composed of:   Mr   C.L. Rozakis, President,   Mr   L. Loucaides,   Mrs   F. Tulkens,   Mrs   N. Vajić,   Mr   A. Kovler,   Mr   D. Spielmann,   Mr   S.E. Jebens, judges, and Mr S. Nielsen, Section Registrar, Having regard to the above application lodged on 27 April 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, Ms Anna Andreyevna Sarnatskaya, is a Russian national, who was born in 1937 and lives in the town of Cherkessk of the Karachayevo-Cherkessiya Republic. The respondent Government are represented by Mr P. 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. In 1995 the applicant moved from Chechnya to the Stavropol Region due to military hostilities. She left behind her two-room flat and other property. On 30 April 1997 the Government of the Russian Federation enacted a regulation which allowed payment of compensation to persons who had sustained damage during military hostilities in Chechnya. In 1998 the applicant asked for and obtained compensation in accordance with the Government’s regulation of 30 April 1997. Considering that the compensation obtained had been insufficient, she sued the Government and the Ministry of Finance of the Russian Federation for a bigger compensation. On 2 June 2000 the Presnenskiy District Court of Moscow, in the presence of the parties, dismissed the action. The court considered that the sum paid to the applicant had been calculated in accordance with the domestic law. On 26 June 2000 the Presnenskiy District Court of Moscow sent a copy of the judgment to the applicant. The applicant appealed to the Moscow City Court and asked to be summoned to the appeal hearing. On 30 August 2000 the Presnenskiy District Court of Moscow sent a letter to the applicant advising her of the date, time and place of the appeal hearing. The appeal hearing was fixed for 20 November 2000. The district court also requested the applicant to submit two copies of her statement of appeal. On 10 October 2000 the applicant sent her statement of appeal to the Moscow City Court. On 1 November 2000 the applicant sent a letter to the President of the Presnenskiy District Court of Moscow which read as follows: “Your court informed me that my case against the Government of the Russian Federation and my statement of appeal would be heard in the Moscow City Court on 20 November 2000. Therefore, I ask you to send me the judgment of the appeal [court] to the following address...” On 16 November 2000 the Presnenskiy District Court of Moscow sent summons to the applicant for the appeal hearing of 20 November 2000. The applicant claims that she only received the summons on 21   November 2000. On 20 November 2000 the Moscow City Court held the hearing in the absence of the parties and upheld the judgment of 2 June 2000. On 25 December 2000 the Presnenskiy District Court of Moscow sent a copy of the judgment of 20 November 2000 to the applicant. B.     Relevant domestic law Article 289 of the Civil Procedure Code of 1964 (in force at the material time) required that a judge or the president of the district court having received an appeal against a judgment should inform the parties of date and place of the appeal hearing and send the case file to the appeal court. Article 106 provided that summons should be served on the parties and/or their representatives in such a way that they had enough time to appear at the hearing and prepare their case. Where necessary, the parties could be summoned by a phone call or a telegram. Pursuant to Article 299, if a party to the case failed to appear and there was no evidence that the party had been duly summoned, the appeal hearing had to be adjourned. If a party to the case failed to appear in spite of the fact that the party had been duly summoned, the court could decide the case in the party’s absence. COMPLAINTS 1.     The applicant complained under Article 6 of the Convention that she was not summoned in time for the appeal hearing of 20 November 2000 and that her appeal was dismissed in her absence. 2.     Under the same provision the applicant further complained about an erroneous interpretation of the facts by the courts, the excessive length of the proceedings, partiality of the judges, the delay in issuing the first-instance judgment, and her inability to respond to every argument of the defendants. 3.     The applicant also complained under Article 1 of Protocol No. 1 that she had to leave her property in Chechnya due to a life-threatening situation there. 4.     Finally, under Article 14 of the Convention the applicant complained that she was discriminated against by the domestic courts and public officials. THE LAW   1.     The applicant complained under Article 6 § 1 of the Convention that she was not given an opportunity to attend the appeal hearing. Article 6 § 1 of the Convention, in the relevant part, reads as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing ... by [a] ... tribunal ...” Submissions by the parties The Government argued that the applicant was duly informed about the hearing before the Moscow City Court by the letter of 30 August 2000 and by the summons of 16 November 2000. In her letter of 1   November 2000, she confirmed that she was aware of the date and time of the appeal hearing and asked for a copy of the appeal judgment. The Government claimed that the applicant had decided not to participate in the appeal hearing on her own free will. Under such circumstances the court was entitled to proceed with the hearing in her absence. The applicant averred that her letter of 1 November 2000 did not imply that she had refused to take part in the appeal hearings and asked the city court to determine her appeal in her absence. She insisted that the letter of 30 August 2000 could not be considered as a proper notification of the appeal hearing because in three months the date and time of the hearing could have been easily changed. Moreover, she received the summons of 16   November 2000 too late. The Court’s assessment The Court reiterates that the entitlement to a “public hearing” in Article 6 §   1 necessarily implies a right to an “oral hearing”. However, the obligation under Article 6 § 1 to hold a public hearing is not an absolute one. Thus, a hearing may be dispensed with if a party unequivocally waives his or her right thereto and there are no questions of public interest making a hearing necessary. A waiver can be made explicitly or tacitly, in the latter case for example by refraining from submitting or maintaining a request for a hearing (see, among other authorities, Håkansson and Sturesson v.   Sweden , judgment of 21 February 1990, Series A no. 171-A, p.   20, §   66; Schuler-Zgraggen v. Switzerland , judgment of 24 June 1993, Series   A no.   263, pp.   19-20, §   58). Furthermore, a hearing may not be necessary due to exceptional circumstances of the case, for example when it raises no questions of fact or law which cannot be adequately resolved on the basis of the case-file and the parties’ written observations (see Döry v.   Sweden , no.   28394/95, §   37, 12   November 2002, with further references). In this respect the Court notes that the summons for the hearing fixed for 20 November 2000 was despatched by the registry on 16 November 2000. It is not necessary to determine on what date the summons was served on the applicant, if at all, because the information about the hearing date has already been communicated to the applicant by the letter of 30 August 2000. Upon receipt of the information the applicant had almost three months to arrange her attendance, even having regard to the distance that separated her from Moscow. As it appears from her letter of 1   November 2000, she was fully aware of the date and time of the hearing and asked the court to send her a copy of the appeal judgment. The Court therefore finds that the applicant can reasonably be considered to have waived her right to appear before the Moscow City Court, particularly taking into account that she attended the hearings before the first-instance court, and within the framework of these proceedings she was able to introduce arguments in defence of her interests, submit evidence and challenge arguments of the defendants. Having regard to the foregoing, the Court finds that the applicant was properly summoned for the appeal hearing (cf. Belan v. Russia (dec.), no. 56786/00, 2 September 2004). It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article   35 §§   3 and   4 of the Convention. 2.     The applicant further complained under Article 6 § 1 of the Convention that the domestic courts incorrectly assessed the facts and did not deal with her case within the “reasonable time”, that the judge of the district court was biased, that she was not duly given a copy of the judgment of 2 June 2000 and that she was not allowed to respond to all of the defendants’ arguments. (a)     Insofar as the applicant’s complaint about the assessment of evidence, the Court reiterates that, according to Article 19 of the Convention, its duty is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention. In particular, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention (see, e.g. , Cekic and Others v. Croatia (dec.), no. 15085/02, 9   October 2003). Moreover, while Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts (see García Ruiz v.   Spain [GC], no.   30544/96, §   28, ECHR 1999 ‑ I). Turning to the facts of the present case, the Court finds that there is nothing to indicate that the domestic courts’ evaluation of the facts and evidence presented in the applicant’s case was contrary to Article 6 of the Convention. The applicant was provided with ample opportunities to present her arguments and to challenge the submissions of the adversary in the proceedings, there had been a public hearing at first instance and the courts’ decisions were satisfactorily reasoned. In the light of the foregoing consideration, the Court finds that the reasons on which the national courts based their conclusions are sufficient to exclude any doubt that the way in which they established and assessed the evidence in the applicant’s case was unfair or arbitrary.   It follows that this complaint must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention. (b) As to the length complaint, the Court observes that the proceedings in the present case commenced some time in October 1999, when the applicant filed her claim, and ended on 25 December 2000 when the final judgment was served on the applicant. The period to be taken into consideration is therefore one year, two months and twenty-five days. The case was heard by the domestic courts at two instances.     Having regard to the proceedings as a whole, the Court finds that they did not exceed a “reasonable time” within the meaning of Article 6 § 1 of the Convention. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. (c) As regards the applicant’s allegation of partiality of the national courts, the delay in issuing the judgment of 2 June 2000 and the applicant’s alleged inability to respond to the defendants’ arguments, the Court notes that the applicant did not raise these issues in her grounds of appeal and she did not indicate any ground capable of casting doubt on the effectiveness of such an avenue. Accordingly, the Court considers that there was a domestic remedy available to the applicant which she did not use.     It follows that this part of the application must be rejected pursuant to Article   35 §§   1 and   4 of the Convention for non-exhaustion of domestic remedies. 3.   The applicant claimed that she had been deprived of her property as a result of the military conflict in Chechnya. She relied on Article 1 of Protocol No. 1, which reads as follows: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” The Court notes that the facts of the present case are similar to those recently examined by the Court in the case of Dunayev v. Russia ((dec.), no. 70142/01, 2 February 2006). In the abovementioned case the Court dismissed the applicant’s complaint concerning the destruction of his property during military hostilities in Chechnya in 1995. The Court found as follows: “The Court reiterates that its jurisdiction ratione temporis covers only the period after the ratification of the Convention or its Protocols by the respondent State. From the ratification date onwards, all the State’s alleged acts or omissions must conform to the Convention or its Protocols even where they are merely extensions of an already existing situation (see, for example, Yağcı and Sargın v. Turkey , judgment of 8   June 1995, Series A no. 319-A, p. 16, § 40, Almeida Garrett, Mascarenhas Falcão and Others v. Portugal , nos.   29813/96 and 30229/96, § 43, ECHR 2000-I, and Kovačić and others v. Slovenia (dec.), nos. 44574/98, 45133/98 and 48316/98, 9   October 2003 and 1 April 2004). While it is true that the Court may have regard to facts prior to ratification inasmuch as they could be considered to have created a situation extending beyond that date or may be relevant for the understanding of facts occurring after that date (see Broniowski v.   Poland (dec.) [GC], no. 31443/96, ECHR 2002-...), the possible existence of a continuing situation must be determined in the light of the special circumstances of each case (see X. and Y. v. Portugal , nos. 8560/79 and 8613/79, Commission decision of 3 July 1979, Decisions and Reports (DR)   16, p. 212). Turning to the facts of the present case, the Court observes that the applicant’s property was destroyed in 1995, i.e. prior to the entry into force of the Convention in respect of Russia on 5 May 1998. It recalls in this connection that the destruction of property, according to the well-established case-law, is an instantaneous act which does not create any continuous situation (see, among a number of other similar cases, Kresović v. Croatia (dec.), no. 75545/01, 9 July 2002, Aćimović v. Croatia (dec.), no.   61237/00, 7 November 2002, and Dobrotinić v. Croatia (dec.), no.   13848/02, 13   February 2003). It also notes that there is nothing on the facts of the instant case to suggest the contrary... As regards proceedings concerning compensation for the destroyed property that took place in 2000 – 2001, the Court accepts the Government’s argument that interpreting these proceedings as confirming the events in question and bringing them within the Court’s temporal jurisdiction would amount to giving retroactive effect to the Convention which would be contrary to general principles of international law (see, in a similar context, Kastelic v. Croatia (dec.), no. 60533/00, 7   November   2002). Moreover, in so far as the applicant’s complaint under Article 1 of Protocol No. 1 is concerned, the Strasbourg institutions have consistently held that complaints about the refusal or denial of compensation claims based on facts that had occurred prior to the entry into force of the Convention in respect of the respondent State are outside their temporal competence (see, as the most recent authority, Geschäftshaus GmbH v. Germany , no. 36713/97, Commission decision of 21 May 1998, unreported)... It follows that this part of application is incompatible ratione temporis with the provisions of the Convention, within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4 thereof.” (see Dunayev v. Russia, (dec.), no.   70142/01, 2 February 2006) Having examined all the material submitted to it, the Court considers that there is no fact or argument capable of persuading it to reach a different conclusion in the present case. Accordingly, the Court finds that in the instant case the applicant’s complaint about the loss of her property in 1995 is incompatible ratione temporis with the provisions of the Convention, within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4. 4.   The applicant complained about the discrimination by the domestic courts, contrary to Article 14 of the Convention, which provides as follows: “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”   The Court, firstly, notes that the applicant did not indicate the ground on which she had allegedly been discriminated against. Moreover, the Court observes that the applicant’s allegations that she had been discriminated are not supported by the facts of the case. In particular, the fact that her claim for increased compensation was dismissed does not in itself constitute discrimination contrary to Article 14 of the Convention (cf. Des Fours Walderode v. the Czech Republic (dec.), no. 40057/98, ECHR 2004). It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 § 3 and 4 of the Convention. For these reasons, the Court unanimously Declares the application inadmissible.   Søren Nielsen   Christos Rozakis   Registrar   President