CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 12 novembre 2009

.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 } .sA36B60A1 { font-family:Arial; font-style:italic } .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 } .sB8084949 { width:138.49pt; display:inline-block } .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 } .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 } FIRST SECTION DECISION AS TO THE ADMISSIBILITY OF Application no. 37390/04 by Yelena BARYSHNIKOVA against Russia The European Court of Human Rights (First Section), sitting on 12   November 2009 as a Chamber composed of:   Christos Rozakis, President,   Nina Vajić,   Anatoly Kovler,   Khanlar Hajiyev,   Dean Spielmann,   Sverre Erik Jebens,   George Nicolaou, judges, and Søren Nielsen, Section Registrar , Having regard to the above application lodged on 26 September 2004, 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 Yelena Ivanovna Baryshnikova, is a Russian national who was born in 1923 and lives in Moscow. The Russian Government (“the Government”) were represented by Mr P. Laptev, Ms V.   Milinchuk and Mr   G.   Matyushkin, two former and the current Representatives of the Russian Federation at the European Court of Human Rights. The facts of the case, as submitted by the parties, may be summarised as follows. A.     First round of proceedings The applicant had a sister who had sold her house to a third person, Mr   A. On 9 July 1993 the applicant’s sister brought proceedings for a declaration that the sale agreement was void and for an order for Mr A.’s eviction. By a judgment of 6 October 1993, the Sestroretskiy District Court of St Petersburg granted the claim, after finding that the plaintiff had not been fully aware of the terms of the sale agreement as she had intended to sell only part of the house and had been misled by Mr A. into signing an agreement for the sale of the entire property. It also established that the applicant’s sister did not fully master written Russian (being of Finnish origin) and had not been well on the day the agreement was signed (she was 80 years of age).     On 11 November 1993 the St Petersburg City Court quashed that judgment for unspecified reasons and ordered a re-examination of the case. B.     Second round of proceedings On 27 December 1993 the applicant’s sister died. On 28 June 1995 the applicant informed the District Court that she would be succeeding her late sister as the plaintiff in the case and asked the court to resume the proceedings. In September 1995 the applicant submitted the documents certifying her rights to be appointed as her sister’s successor and heir. On an unspecified date in 1995 the applicant was accepted as the plaintiff. In 1996 she applied for judicial recognition of her status as the deceased’s sister. It appears that the applicant, who resided in Moscow, travelled on a number of occasions to attend hearings before the District Court. On 13 March 1998 the District Court formally recognised that the applicant and her late sister were related. As to the remaining claims, at least five hearings were scheduled and adjourned because the defendant and witnesses failed to attend. A further hearing was adjourned because the presiding judge was on annual leave. By a judgment of 29 January 1999, the District Court granted the applicant’s claims. On 7 June 1999 Mr A. appealed. On 5 August 1999 the City Court refused to examine his appeal as it had been submitted out of time. On 22   November 1999 the District Court refused to extend the time-limit for appealing against the decision of 13 March 1998. On 27   November 1999 the City Court set aside the District Court’s decision and extended the time-limit for appealing against the decision of 13   March 1998 and the judgment of 29   January 1999. Having examined the appeals, on 24 January 2000 the City Court quashed them for unspecified reasons and ordered a new hearing. C.     Third round of proceedings In December 2000 the case was assigned to Judge P. Hearings scheduled for 13 December 2000 and 13 March 2001 were adjourned because the defendant failed to attend them. In July 2001 the case was re-assigned to Judge B. Hearings listed for 26   July and then 2 October 2001 were adjourned because the defendant again failed to attend. Another hearing was adjourned at the applicant’s request to enable her to call witnesses. On 31 January 2002 the District Court adjourned the case until 20   March 2002 in order to collect further evidence. On 20 March 2002 it adjourned the case until 24   May 2002 for the same reason and because the defendant failed to attend the hearing. On 24 May 2002 it adjourned the proceedings until 17   September 2002 because the applicant’s representative was on a business trip. On the latter date it again adjourned pending an “enquiry” on an unspecified matter. Two further adjournments followed as a result of the parties’ failure to attend. On 30   December 2002 the case was adjourned until 13 March 2003 at the applicant’s request. On the latter date the proceedings were adjourned because the parties failed to attend. By a judgment of 22 April 2003, the District Court granted the kinship-related claim but dismissed the remainder of the applicant’s claims. On 29   April 2003 the applicant issued an authority for Mr S. to represent her in the proceedings. On 31 October 2003 he appealed against the judgment of 22   April 2003. On 4 November 2003 the District Court extended the time-limit for appealing. On 11 December 2003 the City Court held an appeal hearing at which both the applicant’s representative Mr S. and other party were present, and at which the appeal court took a decision to uphold the District Court’s judgment. It established that the applicant’s sister had been of sound mind when she concluded the agreement and had been conscious of the consequences of her actions. According to the Government, the text of that decision was finalised on 24   December 2003; the case file was returned to the District Court on 22   January 2004. On 25 March 2004 the applicant wrote to the City Court complaining that she had not been provided with a copy of the appeal decision. By a letter of 20   May 2004, the City Court informed the applicant that she could obtain a copy from the registry of the District Court or make a written request for a copy to be sent by mail. The City Court also noted that the case file had been returned to the District Court on 24 December 2003 after the appeal hearing.     In the meantime, by a letter of 23 April 2004, the District Court sent a copy of the appeal decision to the applicant. COMPLAINTS   The applicant complained under Article 6 § 1 of the Convention about the length of the civil proceedings. She also complained about the allegedly wrong findings made by the national courts. The applicant further complained under Article 13 of the Convention about the lack of remedies in respect of the length of the proceedings. THE LAW 1.     The applicant complained that the length of the civil proceedings had been in breach of Article 6 § 1 of the Convention, which reads in the relevant part as follows: “In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...” The applicant also complained that she had no effective remedies for her above complaint, in breach of Article 13 of the Convention, 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.     Submissions by the parties The Government submitted that the applicant had failed to comply with the six-month rule since she had lodged her complaint with the Court on 27   August 2004 whereas the proceedings had ended on 11   December 2003. They pointed out that the applicant’s representative had been present during the appeal hearing on 11 December 2003 and was accordingly on that date aware that the final decision was taken. Furthermore, the Code of Civil Procedure contained no provisions concerning a time-limit for issuing the final text of an appeal decision in a civil case. Nor did the Code require a first-instance or appeal court to dispatch, ex officio , copies of the appeal decision to the persons involved in the civil case. The text of the appeal decision in the applicant’s case was finalised on 24   December 2003 but the applicant had not asked for a copy of that decision until 25 March 2004. The applicant contended that she had complied with the six-month time-limit as she had lodged her application with the Court within six months from receiving a copy of the appeal decision of 11 December 2003, sent to her from the District Court by letter of 23 April 2004. B.     The Court’s assessment The Court reiterates at the outset that, according to Article 35 § 1 of the Convention, it may only deal with an individual application lodged with it within a period of six months from the date on which the final decision was taken. Where an applicant is represented the six-month period normally runs from the date on which the applicant’s lawyer became aware of the decision completing the exhaustion of the domestic remedies, notwithstanding the fact that the applicant only became aware of the decision later (see Jakelaitis v. Lithuania (dec.), no.   17414/05, 16 December 2008, with further references). However, where the reasons for a decision are necessary for the introduction of an application, the six-month period ordinarily runs not from the date of notification of the operative part of the decision but from the date on which the full reasons for the decision were given (see Monory v. Romania and Hungary (dec.), no.   71099/01, 17 February 2004). Turning to the circumstances of the instant case, the Court first observes that the applicant’s initial correspondence to the Court, enclosing the application form dated 27   August 2004, was dispatched on 28   September 2004. She offered no explanation for the delay in dispatching this correspondence. Thus, the Court considers that the application was introduced on the latter date. Second, it is noted that the Code of Civil Procedure contained no provisions concerning a time-limit for issuing the final text of an appeal decision in a civil case. Nor did the Code require a first-instance or appeal court to dispatch, ex officio , copies of the appeal decision to the persons involved in the civil case. The Court observes that the final decision in the applicant’s civil case was taken by the City Court on 11 December 2003. The Court is satisfied that Mr S. was present at the hearing at which the appeal court pronounced its decision upholding the lower court’s judgment, a fact the applicant did not contest either at the national level or before the Court. It follows therefore that according to the Court’s case-law (see the Jakelaitis decision, cited above) the six-month period started to run on 11   December 2003 whereas the application was not introduced until 28   September 2004, that is more than six months later. It is true that the applicant contended in substance that the Court should count the period of six months from a date in late April 2004 when she received a copy of the appeal decision. Indeed, as already indicated above, the Court has previously held that where the reasons for a decision are necessary for the introduction of the application the six-month period would not start running before the full reasons for the decision were made available. However, in so far as the applicant complains of the length of proceedings this would not apply. Accordingly, in the circumstances of the case, the Court concludes that the applicant has not complied with the six-month rule in so far as her complaints about the length of the proceedings and the alleged lack of effective remedies in this respect are concerned. It follows that this part of the application has been introduced out of time and must be rejected in accordance with Article   35 §§   1 and   4 of the Convention.   2.     Lastly, the applicant complained under Article 6 of the Convention about the outcome of the civil proceedings and the allegedly wrong findings made by the national courts. With regard to this part of the application the Court does not find it necessary to examine whether the six-month rule was complied with. Even assuming this to be the case the Court reiterates that, in accordance with Article 19 of the Convention, its only task is to ensure the observance of the obligations undertaken by the Parties to the Convention. In particular it is not its task to deal with an application alleging that errors of law or fact have been committed by domestic courts, except when it considers that such errors might have involved a possible violation of the rights and freedoms set out in the Convention or its Protocols (see, among other authorities, Schenk v. Switzerland , 12 July 1988, § 45, Series A no. 140). In that respect the applicant relied on Article 6 of the Convention. However, having regard to all the material in its possession, the Court finds that the present case does not disclose any appearance of a violation of this provision. 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 by a majority Declares the application inadmissible.   Søren Nielsen   Christos Rozakis Registrar President