CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 27 mars 2008

.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 } .s434D37A9 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s10950C61 { margin-top:0pt; margin-bottom:0pt; 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 } .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 } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sE256019B { margin-top:12pt; margin-left:14.2pt; margin-bottom:0pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .s507451D6 { width:4.53pt; display:inline-block } .s4A0CEAF8 { width:194.77pt; 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. 7010/05 by Robert Vladimirovich ALEKSANYAN against Russia The European Court of Human Rights (First Section), sitting on 27   march 2008 as a Chamber composed of:   Christos Rozakis, President,   Nina Vajić,   Anatoly Kovler,   Elisabeth Steiner,   Khanlar Hajiyev,   Dean Spielmann,   Sverre Erik Jebens, judges,   and Søren Nielsen, Section Registrar , Having regard to the above application lodged on 18 January 2005, 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, Mr Robert Vladimirovich Aleksanyan, is a Russian national who was born in 1958 and lives in Sochi, the Krasnodar Region. The Russian Government (“the Government”) were initially represented by Mr   P.   Laptev, the former Representative of the Russian Federation at the European Court of Human Rights, and subsequently by their Representative, Mrs V. Milinchuk. The facts of the case, as submitted by the parties, may be summarised as follows. A.     Initial proceedings The applicant possessed a plot of land, which was in his family’s de facto tenure for more than 20 years. In 2000 he applied to the local authority (Отдел архитектуры и градостроительства администрации Адлерского района г. Сочи) seeking to have his title to the plot registered. However, the local authority refused his request. The applicant brought proceedings against the local authority. On 1 August 2002 the Adlerskiy District Court of Sochi granted the applicant’s claim and obliged the defendant to register the applicant’s title to the plot of land at issue. No appeal was lodged against the judgment, and it became binding and enforceable. B.     Reopening of the proceedings in view of the newly discovered circumstances On an unspecified date the defendant filed an application for reopening of the case in view of the newly discovered circumstances. The defendant referred to the decision of the head of the local administration dated 22   July   2002 which could have affected the outcome of the proceedings. By the decision of 20 November 2002 the Adlerskiy District Court granted the defendant’s request, quashed the judgment of 1   August   2002 and reopened the proceedings. C.     Fresh examination of the case On   10   December 2002 the Adlerskiy District Court decided that the applicant’s claim should be dismissed. However, on   23   January 2003 the Krasnodar Regional Court quashed the above judgment on appeal, declared the decision of 22 July 2002 void and granted the applicant’s claim. D.     Supervisory review of the decision of 23 January 2003 On an unspecified date the defendant lodged an application for supervisory review of the appeal decision of 23 January 2003. On 16 October 2003 the Presidium of the Krasnodar Regional Court held a supervisory-review hearing and quashed the decision of 23 January 2003 and remitted the case for a fresh examination at the first-instance court. E.     Application for supervisory review of the decision of 16 October 2003 The applicant lodged an application for supervisory review of the decision of 16   October 2003, but on 28 July 2004 the Supreme Court of Russia dismissed his request. F.     Decision not to entertain the claim and its quashing on supervisory review On 15   January 2004 the Adlerskiy District Court left the applicant’s action without consideration due to the applicant’s alleged failures to appear for the hearings. In October 2004, as soon as the applicant learned about the decision of 15 January 2004, he tried to file an appeal against it claiming to have never been apprised of any hearings before the district court. In the final decision of 14   December 2004 the Krasnodar Regional Court held that the applicant had failed to provide the court with valid reasons for his absence from the hearings and that he had failed for a long time to raise this issue before the court. The applicant’s reference to the absence of summons in the case file was left unexamined. However, following the applicant’s request, on 14 April 2005 the Presidium of the Krasnodar Regional Court found that there had been no proof of the applicant’s notification of the hearings of 10 and 15   January   2004 in the case file. On that ground it quashed the decision of 15   January 2004 and remitted the case for a fresh examination at the first-instance court. The outcome of the fresh examination of the applicant’s case has not been made known to the Court. COMPLAINTS 1.     The applicant complained under Article 6 of the Convention about the alleged unlawfulness of the following decisions: (a)     the review of the final judgment of 1   August   2002 in view of the newly discovered circumstances; (b)     the dismissal of the applicant’s claims on 10 December 2002; (c)     the quashing of the appeal decision of 23   January 2003 by way of supervisory review on 16 October 2003; (d)     the dismissal of the applicant’s request for quashing by way of supervisory review of the decision of 16 October 2003; (e)     the refusal of the domestic authorities to entertain the applicant’s claim (decision of 15   January   2004). With regard to the latter complaint the applicant alleged, in particular, that the domestic court had failed to notify him of the hearings after the quashing of the decision of 23   January   2003 by way of supervisory review and that, therefore, he was not given an opportunity to attend them. 3.     The applicant further complained under Article 13 about the lack of an effective domestic remedy against the above violations. 4.     Finally, he complained under Article 14 that the domestic authorities discriminated against him on the ground of his ethnic origin (Armenian). THE LAW 1.     The applicant complained about the failure of the domestic court to notify him of the hearing of his civil case after it had been remitted for a fresh examination on 16 October 2003 and the alleged unlawfulness of the subsequent decision of 15 January 2004 not to entertain his claim. He relied on Article 6 of the Convention, which, insofar as relevant, provides as follows: “1.     In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...” The Government submitted that even prior to communication of the application by the Court, on 14 April 2005 the Presidium of the Krasnodar Regional Court held a supervisory-review hearing. The Presidium found that the case file lacked information concerning proper notification of the parties of the date and the time of the hearing, and, therefore, the District Court had no reason to leave applicant’s claim unexamined. On that ground it quashed the decision of 15 January 2004 and remitted the case to the first-instance court for a fresh examination. Therefore, the domestic authorities had expressly acknowledged the violation of the applicant’s right to a fair trial and by remitting the case for a fresh examination provided the applicant with sufficient redress. In view of the above, the Government considered that the applicant could no longer be considered a victim of the alleged violation. The Government referred to the case of Katayeva and Katayev v. Russia (no. 45550/99, decision of 6 July 2004, with further references). The applicants maintained his initial complaints. The Court recalls 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 1996, Reports of Judgments and Decisions 1996-III, p. 846, §   36). In the present case, on 14 April 2005 the Presidium of the Krasnodar Regional Court quashed the decision of the Adlerskiy District Court of Sochi of 15 January 2004 on the ground that the applicant had not been properly notified of the hearing, which entailed his non ‑ attendance and adversely affected the fairness of the proceedings. By doing this the domestic authorities have recognised, at least in substance, the breach of the applicant’s right to a court. 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 recalls that a court judgment in civil proceedings, acknowledging an alleged breach of the Convention rights, may constitute in itself sufficient redress (see Enders v. Germany , no.   25040/94, Commission decision of 12 April 1996). In the present case the Court notes that by its decision of 14   April 2005 Presidium of the Krasnodar Regional Court quashed the decision of 15 January 2004 and ordered a fresh examination of the applicant’s case. Although the outcome of the subsequent proceedings has not been made known to the Court, the applicant did not object to the Government’s argument about the loss of his status as a victim. Neither did he allege any violation of the guarantees of a fair trial enshrined in Article 6 of the Convention in the proceedings that followed the quashing of the decision of 15 January 2004 by way of supervisory review. In these circumstances the Court concludes that by virtue of the decision of the Presidium of the Krasnodar Regional Court of 14 April 2005 the applicant was afforded the opportunity to have his claim determined anew in accordance with a new and fair procedure. The Court finds that this decision can be regarded as sufficient redress for the alleged unfairness of the proceedings by which the applicant’s claim was left without examination on the merits. Therefore, the applicant can no longer claim to be a victim of the alleged violation (see Katayeva and Katayev v. Russia (dec.), no. 45550/99, 6 July 2004, and Kravchuk v. Russia (dec.), no.   72749/01, 1 February 2005). It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article   35 §§   3 and   4 of the Convention. 2.     The Court has examined the remainder of the applicant’s complaints. 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 o f the Convention.   For these reasons, the Court unanimously Decides to discontinue the application of Article 29 § 3 of the Convention and declares the application inadmissible.   Søren Nielsen   Christos Rozakis   Registrar   President