CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 6 mai 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 } .s34D46E87 { margin-top:12pt; margin-bottom:6pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s20C3EEC6 { font-family:Arial; color:#000033 } .s1E2B8B97 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-align:justify; font-size:10pt } .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 } .sBBCA2740 { margin-top:14pt; margin-left:21.25pt; margin-bottom:14pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .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 } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } FIRST SECTION DECISION AS TO THE ADMISSIBILITY OF Application no. 28780/03 by Roman Yuryevich BOLGOV against Russia The European Court of Human Rights (First Section), sitting on 6   May   2010 as a Chamber composed of:   Christos Rozakis, President,   Nina Vajić,   Anatoly Kovler,   Elisabeth Steiner,   Khanlar Hajiyev,   Giorgio Malinverni,   George Nicolaou, judges, and Søren Nielsen, Section Registrar, Having regard to the above application lodged on 26 August 2003, 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 Roman Yuryevich Bolgov, is a Russian national who was born in 1979 and lives in the town of Shakhty, in the Rostov Region. The respondent Government were represented by Mr   P. Laptev and Mrs V. Milinchuk, former representatives 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 1997 the applicant was drafted into the army and assigned as a naval recruit to military unit no. 9881 in the town of Novorossiysk. On 22 April 1999 he fell from a metre-high staircase on a concrete shipbuilding cradle. The staircase did not have barrier railings or life rails. The applicant was admitted to hospital and diagnosed with a severe non-penetrating head injury with subdural and subarachnoid haemorrhaging. He underwent a decompression craniotomy in the left parietotemporal part of his head. His injury was complicated by post traumatic stress and sinistral bronchial pneumonia. In July 1999 the applicant was discharged from the army. On 31 August 1999 criminal proceedings were instituted against the deputy chief of the military unit, Mr P., an assistant commander of the ship, Mr K., and the officer in charge of ship hull maintenance of Temryuk military unit no. 2389, Mr G. They were charged with violating safety regulations under Article 216 § 1 of the Russian Criminal Code. In November 1999 the military prosecutor of the Krasnodar Region issued Mr K. and Mr G. with the bill of indictment and sent the case file to the Military Court of the Krasnodar Garrison for judicial examination. The criminal proceedings against Mr P. were discontinued. On an unspecified date the court started the adjudication of the case. It was further found that the applicant had not been named, in accordance with the procedure of law, as a civil plaintiff and that he had not fully enjoyed his right to defence. By a decision of 6 June 2001 the court that was not at that state of the proceedings empowered to admit the applicant's claim to the file, remitted the case to the prosecutor's office for additional investigation in order to remedy the breach of the applicant's rights (see Relevant domestic law below). This decision was not appealed against by either party to the proceedings. By a decision of 12 November 2001 of a senior assistant of the military prosecutor, the criminal proceedings against the accused officers were discontinued on the ground that nothing indicated that a criminal offence had been committed. On 11 March 2002 a higher-ranking prosecutor quashed the decision and resumed the proceedings. On 18 April and 23 November 2002, and 3 April and 23 October 2003 various prosecutors discontinued the criminal proceedings on the above-mentioned ground. Those decisions were quashed by higher-ranking prosecutors on 23   October 2002, 19 February, 20 August and 11 December 2003, respectively. On 7 July 2004 the proceedings were discontinued on the ground that the statutory time-limit for criminal prosecution had expired. On an unspecified date in the meantime, the applicant brought a separate civil action for damages against the Ministry of Finance of the Russian Federation and the Treasury of Schacht of the Rostov Region. By a decision of 11 June 2003, the Military Court of the Rostov Region declined to examine the suit owing to the applicant's repeated failure to appear in court. B.     Relevant domestic law 1.     Civil Code Article 1064. General grounds for liability for causing loss or harm “1. Loss or harm caused to a person or to a company shall be compensated in full by the wrongdoer. The law may impose responsibility to compensate for loss or harm on a person other than the wrongdoer” Article 1069. Liability for damage caused by State authorities, local authorities and their officials “Damage caused to an individual or a legal entity by the unlawful actions (inactions) of State, municipal bodies or their officials ... must be compensated. The compensation shall be paid out of the funds of the Treasury of the Russian Federation, the treasury of the constituent element of the Russian Federation or the treasury of the municipal entity respectively”. 2.     Code of Criminal procedure, as in force until 1 July 2002 Article 29. Civil claim in criminal proceedings “A person who sustained damage as a result of a crime can bring a civil claim against the accused or a person who is vicariously liable for acts of the accused. The civil claim shall be examined jointly with a criminal case. The claim should be lodged by the relevant person upon the initiation of a criminal case and before the beginning of the adjudication process ... A person has the right to bring civil proceedings if the claim was not brought in criminal proceedings or if the claim was not adjudicated”. According to Article 54, a person could be named as a plaintiff by a procedural decision rendered either by an investigator in charge or by a judge. 3.     Code of Criminal procedure, as in force since 1 July 2002 Article 44 stipulates that a civil claim for compensation in respect of pecuniary and non-pecuniary damage can be submitted by persons who have sustained damage as a result of a crime (paragraph 1). The civil claim can be lodged upon the opening of a criminal case, during the pre-trial investigation, or with the court before the finishing of the adjudication process (paragraph 2). COMPLAINTS The applicant complained under Articles 6 and 13 of the Convention and Article 1 of Protocol No. 1 to the Convention that the proceedings in the criminal case had been excessively long, that he had not been afforded an effective remedy against the alleged violation and that he could not recover compensation for damage caused to his health owing to the excessive length of those proceedings. THE LAW A.     Alleged violation of Article 6 of the Convention The applicant complained that the excessive length of the criminal proceedings constituted a violation of his right to a fair trial within a reasonable time guaranteed by Article 6 § 1 of the Convention, which provides as follows: “1.   In the determination of his civil rights and obligations or any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time ...” 1.     The parties' submissions The Government argued that the complaint was incompatible ratione materiae . The provision invoked either in its criminal or civil aspect, was not applicable to the applicant's case as the proceedings in question had neither determined a criminal charge against him nor concerned a civil claim brought in the context of the criminal case According to the applicant, he had brought separate civil proceedings but his action had not been examined on the merits owing to his repeated failure to appear in court. He explained that he had not attended the hearings because, at the material time, the criminal charges against the officers had not been determined by the competent court and for that reason his civil claim could not have been granted by the judicial authorities. 2.     The Court's assessment (a)     General principles The Court reiterates that Article 6 of the Convention does not apply to proceedings instituted against third parties unless the determination of civil rights and obligations is at stake (see Moreira de Azevedo   v. Portugal , judgment of 23 October 1990, Series   A no.   189, p.   17, §   67). It applies in particular to criminal proceedings involving a determination of pecuniary claims asserted by the injured parties (“civil-party complaints”) and, even in the absence of such claims, to those criminal proceedings the outcome of which is decisive for the “civil right” in question (see Perez v. France [GC], no.   47287/99, §§ 65-67 and 71, ECHR 2004-I). Hence, for the purposes of establishing the applicability of Article 6 § 1 in the instant case, the question has to be examined whether the proceedings in issue concerned a dispute over the applicant's “civil rights” (see, mutatis mutandis , Acquaviva   v. France , judgment of 21 November 1995, Series   A no.   333-A, §   45). The Court further reiterates that the concept of “civil rights” has an “autonomous” meaning under the Convention. However, according to the principles laid down in the Court's case-law, the legislation of the State concerned is not without importance (see Perez , cited above, §§   57-75) and the Court must ascertain whether there was a dispute over a “right” which can be said, at least on arguable grounds, to be recognised under domestic law (see Zander   v. Sweden , judgment of 25 November 1993, Series   A no.   279-B, §   22, and Kerojärvi   v. Finland , judgment of 19 July 1995, Series   A no.   322, §   32). (b)     Application of these principles to the present case The Court, taking into consideration the relevant domestic law and the facts of the case, notes that the alleged wrongful acts of the army officers, had they been determined, would have entitled the applicant to claim compensation for the damage sustained as a result of his injury. The applicant could have lodged his claim against the defendants, as well as a State authority vicariously liable for actions of the defendants. The Court further observes that by the decision of 6 June 2001, the trial court remitted the case to the prosecutor's office for additional investigation on the ground that the applicant had not exercised his right to lodge a claim for damages in the framework of the criminal proceedings. The proceedings were discontinued on 7 July 2004 owing to the expiry of the statutory time-limit for criminal prosecution. However, the applicant failed to submit his civil claim prior to that date. He did not provide any explanation as to why he had not tried to do so, even though he had been explicitly advised to do so by the judicial authorities and there had been a clear and sufficient basis for doing so in the national law. In these circumstances, it cannot be said that the criminal proceedings in question involved the determination of “civil rights” pertaining to the applicant in a manner that would attract the application of Article 6 § 1 of the Convention. The complaint should therefore be rejected pursuant to Article   35   §§ 3 and 4 of the Convention as incompatible ratione materiae . B.     Alleged violation of Article 1 of Protocol No. 1 The applicant complained under Article 1 of Protocol No. 1 that owing to the excessive length of the criminal proceedings he could not recover compensation for damage caused to his health and that his parents had had to sell their property in order to pay for his medical treatment. The relevant part of the provision invoked 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 Court reiterates that under Article 35 § 1 of the Convention normal recourse should be had by an applicant to remedies which are available and adequate to afford redress in respect of the breaches alleged. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness (see, for example, Vernillo v. France , judgment of 20   February 1991, Series A no. 198, § 27; and Johnston and Others v. Ireland , judgment of 18   December 1986, Series A no. 112, p.   22, §   45). Turning to the instant case, the Court observes that the applicant did not use the available civil remedies in order to obtain compensation for his injury. Having regard to the material in its possession, and in so far as this complaint falls within its competence, the Court finds that it should be dismissed for non-exhaustion of domestic remedies, pursuant to Article 35 §§ 1 and 4 of the Convention. C.     Alleged violation of Article 13 of the Convention The applicant complained that he had not been afforded an effective remedy in respect of his complaint about the excessive length of the proceedings, which is required under Article 13 of the Convention: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority ....” The Court reiterates that this provision guarantees the availability of a remedy at national level to enforce the substance of the Convention rights and freedoms in whatever form they may happen to be secured in the domestic legal order. The effect of Article 13 is thus to require the provision of a domestic remedy allowing the competent “national authority” both to deal with the substance of the relevant Convention complaint and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they conform to their obligations under Article   13 (see, for example, Chahal v. the United Kingdom , judgment of 15   November 1996, Reports 1996-V, §   145). However, this provision applies only in respect of grievances under the Convention which are arguable (see, for example, Boyle and Rice v. the United Kingdom , judgment of 27   April 1988, Series   A no.   131, §   52). Having regard to its conclusion on the applicant's Articles 6 § 1 complaint, the Court finds that his complaint under this head is not arguable and is therefore manifestly ill-founded within the meaning of Article   35 §   3. Accordingly it must be rejected in accordance with Article   35 §   4 of the Convention.   For these reasons, the Court unanimously   Decides to declare the application inadmissible.   Søren Nielsen   Christos Rozakis   Registrar   President