CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 4 juillet 2017

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s2EF17D91 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s10AB3CA3 { font-family:Arial; color:#222222 } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .sC83985A0 { font-family:Arial; font-style:italic; color:#222222 } .s4B243ECC { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .s959B95E9 { margin-top:12pt; margin-left:14.2pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .s7E985A65 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; font-size:1pt } .s5F897A7E { margin-top:12pt; margin-left:14.2pt; margin-bottom:0pt } .sF7A4323 { margin-top:36pt; margin-bottom:0pt; text-align:left } .sF3B96856 { width:11.87pt; display:inline-block } .s74FD211E { width:197.76pt; display:inline-block } .sA2E62387 { width:204.97pt; display:inline-block } .s32563E28 { margin-top:0pt; margin-bottom:0pt }     THIRD SECTION DECISION Application no. 37285/12 Boris Pidarovich KHUBIYEV against Russia The European Court of Human Rights (Third Section), sitting on 4 July 2017 as a Committee composed of:   Luis López Guerra, President,   Dmitry Dedov,   Jolien Schukking, judges, and Fatoş Aracı, Deputy Section Registrar, Having regard to the above application lodged on 12 May 2012, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant, Having regard to the comments submitted by the Government, Having deliberated, decides as follows: THE FACTS The applicant, Mr Boris Pidarovich Khubiyev, is a Russian national, who was born in 1951 and lives in Cherkessk. The Russian Government ("the Government")   were represented initially by Mr G. Matyushkin, the Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin. A.     The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. In 1986 the applicant took part in the emergency operations at the Chernobyl nuclear disaster site. As a result he suffered from extensive exposure to radioactive emissions and became entitled to monthly payments in respect of health damage. On 5 September 2005 the Malokarachayevskiy District Court of the Karachayevo-Cherkessiya Republic granted the applicants claim against the Welfare and Employment Directorate ( Управление труда и социального развития ) of the Malokarachayevskiy Municipal District ordering recalculation of the monthly payments of 33,000 Russian roubles (RUB) for compensation of health damage since 1 January 2005. In 2007 the applicant brought yet another civil action against the Welfare and Employment Directorate of the Malokarachayevskiy Municipal District and the Ministry of Finance, seeking additional recalculation of the monthly payments and compensation in respect of arrears. On 11 December 2007 the Malokarachayevskiy District Court of the Karachayevo-Cherkessiya Republic held in the applicant’s favour, ordering recalculation of the monthly payments of RUB 196,055 and granted him a lump-sum RUB 3,226,125 as compensation of arrears. The defendants did not appeal against the judgment, which became final on 21 December 2007 and was executed. On 5 October 2011 the Malokarachayevskiy District Prosecutor requested to extend the statutory time-limit for lodging an appeal. He argued that the prosecutor’s office had not been notified about the civil action brought by the applicant. On 10 November 2011 the Malokarachayevskiy District Court granted the prosecutor’s request. The court found that as the prosecutor’s participation in the civil proceedings concerning compensation in respect of health damage was mandatory, he should have been notified about the hearing of 11 December 2007. The prosecutor lodged an appeal with the Supreme Court of the Karachayevo-Cherkessiya Republic. On 13 December 2011 the Supreme Court of the Karachayevo-Cherkessiya Republic received the applicant’s request for adjournment together with the documents showing that he had been admitted to hospital. On 14 December 2011 the Supreme Court of the Karachayevo ‑ Cherkessiya Republic held the appeal hearing. It rejected the applicant’s adjournment request finding that he had failed to show that his medical condition had prevented him to appear before the court. The Supreme Court granted the prosecutor’s appeal and quashed the judgment of 11 December 2007, finding that the District Court had applied material law incorrectly. It appears that the applicant continues to receive monthly payments awarded by the judgment of 5 September 2005. B.     Relevant domestic law The relevant domestic law governing the extension of the time-limits for appeal is summed up in the Court’s decision in the case of Magomedov and Others v. Russia (nos.   33636/09 and 9 others, §§ 35-43, 28 March 2017). COMPLAINT The applicant complained under Article 6 of the Convention and Article   1 of Protocol No. 1 to the Convention about unlawful extension of the time-limit for appeal and subsequent quashing of the final judgment in his favour. He further complained that the appeal court’s refusal to adjourn the hearing of 14 December 2011 breached his right to a fair trial under Article 6 of the Convention. THE LAW The applicant complains about a violation of his property rights on the ground that by virtue of the judgments of 10 November and of 14 December 2011 he was deprived of an extra allowance in addition to his monthly compensation. He relied on Article 1 of Protocol No. 1 to the Convention, which provides, insofar as relevant: “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 Government submitted that the domestic judgment in the applicant’s favour had been executed in full prior to being quashed and he was not required to reimburse them afterwards. Consequently, the Government considered that the applicant had not suffered any significant disadvantage as a result of the domestic judgment in his favour being quashed. The applicant maintained his claims. Article 35 of the Convention provides as follows: “3. The Court shall declare inadmissible any individual application submitted under Article 34 if it considers that: ... (b) the applicant has not suffered a significant disadvantage, unless respect for human rights as defined in the Convention and the Protocols thereto requires an examination of the application on the merits and provided that no case may be rejected on this ground which has not been duly considered by a domestic tribunal.” The Court notes at the outset that it has already addressed similar issue in the cases of Magomedov and Others (cited above) and Samoylenko and Others v. Russia (dec.) (no.   58068/13, 7 March 2017). It thus does not see any ground to depart from the findings in that cases. In the present case, the applicant does not dispute that both the monthly payments and arrears due under the initial judgment were made to him in full. Although this judgment was subsequently quashed, the Court observes that under the Russian Civil Code the applicant cannot be required to repay the sums already received (see, in the similar context of the annulment of final judgment, Podrougina and Yedinov v. Russia (dec.), no. 39654/07, 17   February 2009). Consequently, the financial implication of the proceedings could not present any particular hardship for the applicant. The Court recalls that Article 1 of Protocol No. 1 to the Convention does not guarantee, as such, any right to a social benefit of a particular amount (see Kjartan Ásmundsson v. Iceland , no. 60669/00, § 39, ECHR 2004‑IX) and it has consistently held, in a similar context, that the complaint under Article 1 of Protocol No. 1 to the Convention did not call for any separate examination of its (see, among many others, Kourinny v. Russia , no.   36495/02, §§ 37-38, 12 June 2008, and Streltsov and other cases "Novocherkassk military pensioners v. Russia , nos. 8549/06 and 86 others, §   59, 29 July 2010). The Court further notes that it is not alleged that the benefits in question constituted the main income of the applicant or that their very principle was questioned, only the method of calculating the amounts due having been rectified for the purpose of compliance with the applicable legislation at the time of the events. Lastly, as regards the time taken by the authorities to submit a request for extension of the time-limits for appeal, the Court considers that the period in question was partly offset by the fact that the applicant had continued to receive throughout the period the amounts due in accordance with the method indicated in the annulled judgment which was favorable to him (see, mutatis mutandis, Galovic v.   Croatia (dec.), No. 54388/09, § 74, 15 January 2013). In these circumstances, the Court finds that the applicant did not suffer any “significant disadvantage”. As to the question whether respect for human rights as defined in the Convention and the Protocols thereto requires an examination of the application on the merits, the Court points out that it has already held that respect for human rights does not require it to continue the examination of an application when, for example, the relevant law has changed and similar issues have been resolved in other cases before it (see Léger v. France (striking out) [GC], no.   19324/02, § 51, 30 March 2009). The present case raises a problem of an unjustified extension of the time ‑ limits for appeal resulting in a final judgment in the applicant’s favour being quashed, an issue which has already been addressed by the Court on several occasions, including in a case against Russia (see Ponomaryov v.   Ukraine , no.   3236/03, §§ 41-42, 3 April 2008; Bezrukovy v. Russia , no.   34616/02, §§   33-44, 10 May 2012; Karen Poghosyan v. Armenia , no.   62356/09, §§   44 ‑ 53, 31 March 2016; and most recent Magomedov and Others, cited above). The examination of this application on the merits would not bring any new elements to the Court’s existing case-law (see Burov v. Moldova (dec.), no.   38875/03, § 33, 14 June 2011, and, by contrast, Mikhaylova v.   Russia , no.   46998/08, § 49, 19   November 2015). The Court therefore concludes that respect for human rights as defined in the Convention and its Protocols does not require an examination of the applications on the merits. Lastly, as regards the third condition of this inadmissibility criterion, namely that the case must have been “duly considered” by a domestic tribunal, the Court notes that the applicant’s case was subject to several rounds of domestic proceedings. The applicant was able to submit his arguments in adversarial proceedings. The three conditions of the inadmissibility criterion having therefore been satisfied, the Court finds that the application must be declared inadmissible under Article 35 §§ 3 (b) and 4 of the Convention. Having regard to its finding above, the Court considers that the applicant’s complaints under Article 6 § 1 of the Convention does not require a separate examination. For these reasons, the Court, unanimously, Declares the application inadmissible.   Done in English and notified in writing on 27 July 2017.   Fatoş Aracı   Luis López Guerra Deputy Registrar   President