CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 8 juin 2006

.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 } .s87F05BA2 { margin-top:12pt; 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 } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .sEC177689 { margin-top:0pt; margin-bottom:36pt; text-indent:14.2pt; text-align:justify } .s967D43C6 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s401C450A { margin-top:12pt; margin-bottom:18pt; text-indent:14.2pt; text-align:justify } .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 } .sD5DF731 { margin-top:0pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify } .sC702907E { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s984A15CA { margin-top:6pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s8F4EE4B8 { margin-top:6pt; margin-bottom:18pt; text-indent:14.2pt; text-align:justify } .s684F2214 { margin-top:18pt; margin-left:29.2pt; margin-bottom:24pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s25BD2B45 { margin-top:24pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s3B3A5DE9 { margin-top:12pt; margin-bottom:36pt; text-indent:14.2pt; text-align:justify } .s507703F { margin-top:12pt; margin-bottom:6pt; text-indent:14.2pt; text-align:justify } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s7714A00D { margin-top:12pt; margin-left:14.2pt; margin-bottom:36pt; text-align:justify } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .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. 37966/02 by Sergey Dmitriyevich SKOROBOGATYKH against Russia The European Court of Human Rights (First Section), sitting on 8 June 2006 as a Chamber composed of:   Mr   C.L. Rozakis , President ,   Mrs   N. Vajić ,   Mr   A. Kovler ,   Mrs   E. Steiner ,   Mr   K. Hajiyev ,   Mr   D. Spielmann ,   Mr   S.E. Jebens, judges , and Ms S. Nielsen , Section Registrar , Having regard to the above application lodged on 3 September 2002, 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, Mr Sergey Dmitriyevich Skorobogatykh, is a Russian national, who was born in 1966 and lives in Svetlyi, the Kaliningrad Region. He is respresented before the Court by Mrs Karinna A. Moskalenko and Mrs Natalya A. Anderson, lawyers practising in Moscow. The Russian Government (“the Government”) are represented by Mr P. Laptev, 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. The applicant currently serves a term of imprisonment in penitentiary establishment OM-216/13 in the Kaliningrad Region. In May 1999 several HIV-infected prisoners were accommodated in the prison during one week. 1.     First instance proceedings The applicant considered that his health and life were in danger since he had “to share barber shop, sauna, dental room, tableware, and clinic” with the infected persons and on 4 March 2002 he filed an action against the administration of the prison and other authorities in the Central District Court of Kaliningrad. He requested the court to declare the administration’s actions unlawful and to award him non-pecuniary damages. On 19 March 2002 the court informed the applicant about the date of the hearing and his procedural rights. The court noted that it could not summon the applicant to the hearing because the Code of Civil Procedure did not provide for transporting of prisoners to courts. The court also informed the applicant that he could appoint a representative or waive his right to be present at the hearing. On 27 March 2002 the applicant wrote to the court insisting that his personal presence as well as the presence of other prisoners who could confirm his allegation was absolutely necessary. He claimed that it was only in oral proceedings that he could express the anguish of living in constant fear of HIV-infection. The hearing on the merits of the case took place on 5 April 2002. Representatives of the defendants were present and made written and oral submissions to the court, whilst the applicant was absent. It appears that the applicant could make written submissions to the court prior to the commencement of the hearing, but it is not clear whether the applicant had any knowledge of the authorities’ written or oral submissions prior to the rendering of the first instance judgment. By judgment of 5 April 2002 the Central District Court dismissed the applicant’s action. The court considered it possible to hold the hearing in the applicant’s absence because the applicant had not appointed a representative, because he had been duly notified about the time and place of the hearing, and because “the documents in the case-file were sufficient for the examination of the case”. On the merits, the court noted that the placement of HIV-infected persons had been fully compatible with the domestic legislation and that no special precautions except those relating to catering had been required. The court also established that in addition to special catering arrangements the administration of the prison had supplied HIV-infected persons with separate tableware, medical equipment and that they had not taken baths on the same day as other prisoners. Finally, after their departure the whole facility was thoroughly disinfected. On 30 May 2002 the applicant appealed against the judgment on the ground that the hearing had taken place in his absence. 2.     Appeal proceedings On 24 July 2002 the Kaliningrad Regional Court dismissed the appeal. As regards the applicant’s argument regarding his inability to take part in the first instance hearing, the court noted that rules of civil and criminal procedure did not provide for transportation of prisoners to hearings in civil cases. As to his absence on appeal, the court found that “the applicant had been duly notified about the hearing but did not appear”, that “his detention could not be regarded as a valid excuse for the failure to attend” and that, furthermore, the applicant had not appointed a representative. B.     Relevant domestic law 1.     Tort claims against the State Article 46 of the Constitution of the Russian Federation provides that decisions and actions or lack of action of state bodies, bodies of local self-government, public associations and officials may be appealed against in court. Article 53 of the Constitution provides for the right to be reimbursed by the state for the damage caused as a result of unlawful actions (inaction) of the state bodies and their officials. Under Section 151 of the Civil Code of Russia compensation of non-pecuniary damage is payable only in case physical or moral prejudice has been inflicted on a person through the actions, violating his rights. Section 1069 of the Civil Code provides for the right to compensation for damage caused to an individual or a legal person as a result of an unlawful act or a failure to act by the state or municipal bodies, or their officials, including that caused by a written act issued by a state or a municipal body contrary to a law or a legislative act. The damage is payable by the treasury of the Russian Federation, the treasury of the subjects of the Russian Federation or the municipal treasury respectively. Under Section 101 (3) of the Penitentiary Code of Russia ( Уголовно-исполнительный кодекс РФ ) the administration of penitentiary institutions may be held liable for non-compliance with established sanitary, hygienic and anti-epidemic norms aimed at the protection of the health of prisoners. 2.     Legal provisions on prison regime in respect of HIV-infected detainees Section 101 (2) of the Penitentiary Code, as in force at the relevant time, provided that medical penitentiary establishments should be organised for treatment and detention of drug addicts, alcoholics, HIV and tuberculosis infected prisoners. Federal Law No. 25-FZ of 9 March 2001 repealed that provision insofar as it related to HIV-infected prisoners. 3.     Legal provision on attendance of prisoners who act as parties in civil proceedings By Sections 73 and 76 of the Penitentiary Code persons convicted to a sentence of imprisonment serve it in penitentiary establishments and throughout the detention are transported under convoy. Section 43 of the Civil Procedure Code of RSFSR of 1964 as in force at the relevant time provided that everyone may participate in court proceedings personally or through his representatives. Under Sections 157-161 of the Civil Procedure Code in case where a party was properly informed of the date of the hearing but failed to appear and excuse himself by reference to a good reason, a court may either adjourn the proceedings, leave the claim without examination (in case of the plaintiff’s repeated failure to appear after notification) or examine the claim in the party’s absence. COMPLAINT The applicant complained under Article 6 § 1 of the Convention that the first instance and appeal hearings in his case had been held in his absence and that the proceedings had thus been generally unfair. THE LAW The applicant complained about the courts’ refusal to secure his attendance in the proceedings on his claim against the prison administration and other authorities. He relied on Article 6 § 1 which provided in so far as relevant as follows:   “In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public ... hearing ... by [a] ... tribunal...” The Government submitted that the applicant had not been summoned to the proceedings at issue because he was in prison and because the domestic legislation had not provided for transportation of detainees to civil proceedings in which they act as parties. They also stressed that the applicant could have appealed the decisions in his case by lodging a supervisory review complaint in this connection. The applicant contested the Government’s argument and claimed that he had been deprived of an opportunity to state his case before a court in person. He also argued that his personal presence had been essential for a proper resolution of both factual and legal issues of the dispute. The Court need not examine the arguments raised by the parties as the application is in any event inadmissible for the following reasons. According to the Court’s well-established case-law, the applicability of the civil limb of Article 6 § 1 requires the existence of “a genuine and serious dispute” over a “civil right” which can be said, at least on arguable grounds, to be recognised under domestic law. Thus, a claim submitted to a tribunal for determination must be presumed to be genuine and serious unless there are clear indications to the contrary which might warrant the conclusion that the claim is frivolous or vexatious or otherwise lacking in foundation (see, e.g. Benthem v. the Netherlands , judgment of 23 October 1985, Series A no. 97, §   32 and Rolf Gustafson v. Sweden , judgment of 1 July 1997, Reports of Judgments and Decisions 1997 ‑ IV, §   38) On the facts, the Court may accept that the claim made by the applicant was, as such, civil since the applicant demanded not only to declare the actions of prison authorities unlawful but also to grant him compensation for non-pecuniary damage allegedly caused through the authorities’ fault (see, e.g., Aksoy v. Turkey , judgment of 18 December 1996, Reports of Judgments and Decisions 1996-VI, § 92). As to whether the dispute was “genuine and serious”, the Court notes that under the domestic law compensation for non-pecuniary damage is only payable in respect of a proven prejudice resulting from actions or inactions of authorities breaching a plaintiff’s rights. The Court further notes that from the applicant’s statement of claim, the case-file and the court decisions in the case it clearly follows that throughout the proceedings both at first instance and on appeal the applicant did not make any specific allegations of personal prejudice or interference with his individual rights which could, at least on arguable grounds, have called for an award of compensation under the applicable domestic law. His dissatisfaction was directed solely against the mere presence of HIV-infected prisoners in that prison and the alleged unlawfulness of the related legal acts and administrative decisions. In the Court’s view these circumstances provide a sufficiently clear indication that the dispute in question was not genuine and serious (see, e.g. Kaukonen v. Finland , no. 24738/94, Commission decision of 8 December 1997, Decisions and Reports (DR) 91 ‑ A, p. 14). Accordingly, Article 6 § 1 is not applicable in the instant case and the applicant’s complaint should be rejected as incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 of the Convention. For these reasons, the Court by a majority Declares the application inadmissible.   Søren Nielsen   Christos Rozakis   Registrar   President