CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 18 mars 2010

.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 } .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 } .s8378218E { margin-top:12pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s9CB19847 { margin-top:6pt; margin-left:28.35pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .sCA71A5BA { margin-top:12pt; margin-left:59.5pt; margin-bottom:6pt; text-indent:-17.85pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sA1D3DA2E { margin-top:0pt; margin-bottom:0pt; text-align:justify } .s4BE80E05 { margin-top:14pt; margin-bottom:14pt; text-indent:14pt; text-align:justify } .s34D46E87 { margin-top:12pt; margin-bottom:6pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; 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 } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block } FIRST SECTION DECISION AS TO THE ADMISSIBILITY OF Application no. 23991/05 by Igor Vasilyevich BELAYEV against Russia The European Court of Human Rights (First Section), sitting on 18   March 2010 as a Chamber composed of:   Christos Rozakis, President,   Anatoly Kovler,   Elisabeth Steiner,   Dean Spielmann,   Sverre Erik Jebens,   Giorgio Malinverni,   George Nicolaou, judges, and Søren Nielsen, Section Registrar , Having regard to the above application lodged on 22 May 2005, Having deliberated, decides as follows: THE FACTS The applicant, Mr Igor Vasilyevich Belayev, is a Russian national who was born in 1957 and lives in Pyatigorsk, the Stavropol Region. The applicant is a retired military serviceman. The facts of the case, as submitted by the applicant, may be summarised as follows. A.     The circumstances of the case In 1990 the applicant was provided by the State with a two-bedroom flat in Magadan. The housing was provided as part of his military status entitlements. In April 1997 the applicant gave his permission for privatisation of the flat by his wife and in May 1997 the flat became her property. In February 1999 the applicant’s wife sold the flat. Proceedings concerning the applicant’s military status and the relevant entitlements a. The first set of proceedings On 21 December 1999 the Military Commissioner of the Magadan Region (the Military Commissioner) issued order no.   159 according to which the applicant was excluded from the list of the military personnel as of 6 July 2000. The applicant appealed this order to the Pyatigorsk Garrison Military Court (the Garrison Court). The applicant did not raise the issue of the lack of housing in this complaint. On 15 November 2001 the Garrison Court found in part for the applicant and ordered that he be reinstated in the list of military personnel. The text of the decision included the following: “... the military commissioner is to reinstate Belayev in the list of military personnel and to eliminate the violations of the procedure of his discharge from work... and then [again] exclude Belayev from the list of military personnel, after having provided him with all kinds of military provisions, including monetary ones...” The text of the decision did not mention anything concerning the applicant’s housing situation. On 20 August 2002 the Military Commissioner issued order no.   95 according to which the applicant’s name was reinstated in the list of the military personnel and he “was to be reinstated in all kinds of military entitlements.” The order did not state that the applicant was to be provided with State housing. b. The second set of proceedings and the related events i. The related events On 2 December 2003 the Military Commissioner issued order no.   147 according to which the applicant was again excluded from the list of the military personnel. On 24 December 2003 the applicant wrote to the Military Commissioner stating that it was unlawful to exclude him from the list without providing him with State housing to which he was entitled under the domestic law. On 12 January 2004 the Military Commissioner replied to the applicant stating that in 1990 he had been provided with a flat in Magadan, that in 1997 his wife had privatised the flat and that in 1999 she had sold it. The letter further stated: “... Thus, you have forfeited your entitlement to be provided with housing by the State or by the Ministry of Defence...” ii. The proceedings On 27 March 2004 the applicant brought proceedings against the Military Commissioner at the Garrison Court. On 2 June 2004 the Garrison Court refused to examine the applicant’s complaint stating that the same complaint had been already examined by the court’s decision of 15 November 2001. The applicant appealed against this decision to the court of the North-Caucasus Military Circuit Court (the Circuit Court). On 13 October 2004 the Circuit Court overruled this decision and returned the case for a fresh examination. On 21 October 2004 the Garrison Court rejected the applicant’s complaint. The court referred to the Military Commissioner’s letter of 12   January 2004 and stated that the applicant had missed the three-month statutory time-limit for the appeal against actions of officials. The text of the court’s decision stated, inter alia , the following: “... During the hearing the applicant stated that he did not miss the three-month time-limit for appeal of actions of officials, as he had received the Military Commissioner’s written refusal ... on 12 January 2004 and that he had lodged his complaint with the court on 27 March 2004... The court finds that the applicant’s reference [to the above dates] is unsubstantiated for the following reasons: ... according to Article 239 of the former Civil Procedure Code and Article 256 of the acting Civil Procedure Code, a citizen must lodge his complaint within three months from the date when he learnt about a violation of his rights [by a State official]. The Court finds that it is obvious that after the sale of his flat in Magadan on 18   February 1999 the applicant was aware of the absence of housing for him and his family. Further, by the Military Commissioner’s order no. 161 issued on 27   December 1999 the applicant was excluded from the list of the military personnel. Being aware of the exclusion from the list, the applicant appealed this order in June 2001 to the Garrison Court. In these circumstances, the court finds that the applicant was aware of the exclusion from the list of military personnel [and of the relevant entitlements] ...and the violation of his rights by the State official in June 2001... ...The applicant’s [current] complaint was received by the Garrison Court on 17   May 2004. In this situation the Court finds that the three-month time limit for appeal against the actions of the Military Commissioner ... was missed by the applicant. As to the applicant’s reference that the time limit started running over again after ... in January 2004 he had received the written refusal of the State official, the court finds it unconvincing as the time limit [for the appeal against actions of officials] should be calculated from the earliest event...” The applicant appealed this decision to the Circuit Court. On 16 February 2005 the Circuit Court upheld the decision of the Garrison Court and it became final. B.     Relevant domestic law Article 256 of the Code of Civil Procedure, in force as of 1   February 2003 stipulates: “Limitation period for judicial complaints: 1. A citizen has the right to apply to a court within the period of three months starting from the day when he leant about the violation of his rights [by a State official].” COMPLAINT The applicant complains under Article 6 of the Convention that the domestic courts’ decisions have blocked his access to court because in fact he did not miss the statutory time-limit. Referring to Article 1 of Protocol   No.   1 he further alleges that due to the failure to obtain the access to court he was deprived of State-provided housing. THE LAW The applicant complained that the domestic court’s decision of 21   October 2004 had blocked his access to court and as a result he had been deprived of State housing. He alleged violations of Article 6 and Article 1 of Protocol No. 1 of the Convention, which provided, insofar as relevant, as follows: Article 6 of the Convention “In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal ....” Article 1 of Protocol No. 1 “Every natural or legal person is entitled to the peaceful enjoyment of his possessions...”   The Court recalls that Article 6 embodies the "right to a court", of which the right of access, that is, the right to institute proceedings before a court in civil matters, constitutes one aspect. However, this right is not absolute, but may be subject to limitations, such as limitation periods; these are permitted by implication since the right of access by its very nature calls for regulation by the State. Limitation periods serve several important purposes, such as to ensure legal certainty and finality. Whilst the final decision as to observance of the Convention’s requirements rests with the Court, it is no part of its function to substitute for the assessment of the national authorities any other assessment of what might be the best policy in this field (see Ashingdane v. the United Kingdom , 28 May 1985, § 57, Series A no. 93). The Court observes that in the present case there is no reason to disturb the domestic courts’ findings. They concern interpretation of domestic law and give no appearance of arbitrariness. Under the Russian Civil Procedure Code, a limitation period runs from the day when the injured party became aware or, as in the present case, should have become aware of the injury. The applicant’s housing situation remained unchanged throughout the first set of proceedings, when he failed to raise this issue. In these circumstances, there is no appearance of denial of access to court contrary to Article 6 § 1 of the Convention. No separate issue arises under Article 1 of Protocol No.   1. It follows that the application is manifestly ill-founded and must be rejected pursuant to Article   35 §§   3 and   4 of the Convention. For these reasons, the Court unanimously Declares the application inadmissible.   Søren Nielsen   Christos Rozakis   Registrar   President