CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 21 janvier 2020

.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 } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s9EADC58A { margin-top:14pt; margin-left:14.2pt; margin-bottom:3pt; font-size:1pt } .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 } .s3AAE10DF { margin-top:14pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .s6B505E72 { margin:0pt; padding-left:0pt } .sE485344B { margin-top:14pt; margin-left:28.6pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:0.6pt; font-family:Arial; font-weight:bold } .sF7610474 { margin-top:14pt; margin-left:36.55pt; margin-bottom:6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; font-style:italic } .s3136E68F { margin-top:14pt; margin-left:36.55pt; margin-bottom:6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sD8BF637E { margin-left:28.6pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:0.6pt; font-family:Arial; font-weight:bold } .s743F3A55 { margin-right:0pt; margin-left:0pt; padding-left:0pt } .sC6C7C49B { margin-left:7.35pt; margin-bottom:6pt; page-break-inside:avoid; page-break-after:avoid; font-weight:normal; font-style:italic } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sD7AA71C8 { margin-top:14pt; margin-left:14.2pt; margin-bottom:3pt } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .s8B7697D0 { width:20.77pt; display:inline-block } .s4024CB39 { width:139.08pt; display:inline-block } .sF7DC134C { width:39.46pt; display:inline-block } .s44B8752F { width:177.11pt; display:inline-block }     THIRD SECTION DECISION Application no. 11617/10 Andrey Vladimirovich NAUMOV against Russia   The European Court of Human Rights (Third Section), sitting on 21   January 2020 as a Committee composed of:   Alena Poláčková, President,   Dmitry Dedov,   Gilberto Felici, judges, and Stephen Phillips, Section Registrar, Having regard to the above application lodged on 20 January 2010, 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 1.     The applicant, Mr Andrey Vladimirovich Naumov, is a Russian national who was born in 1964 and lives in St Petersburg. He was represented before the Court by Ms A.G. Ayvazovskaya, a lawyer practising in Moscow. 2.     The Russian Government (“the Government”) were represented initially by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin. The circumstances of the case 3.     The facts of the case, as submitted by the parties, may be summarised as follows. Car accident 4.     On 10 October 2003 two cars, driven by K. and S., collided on a road. According to the applicant, S. was a police officer. Following the collision, K.’s car came off `the road and onto the pavement, where it hit the applicant. 5.     The applicant was diagnosed with craniocerebral trauma and underwent several operations. He developed organic personality disorder and anosognosia (loss of speech and memory) as a result of his injuries, which left him disabled. Criminal proceedings concerning the accident 6.     On 27 November 2003 an investigator from the Vyborgskiy district department of the interior in Saint Petersburg (“the investigator”) initiated a criminal investigation into the circumstances of the accident. The applicant was granted victim status in those proceedings. 7.     On 20 September 2004 the investigator discontinued the criminal proceedings in the absence of corpus delicti. 8.     On 25 October 2004 the prosecutor of the Vyborgskiy District of St Petersburg (“the district prosecutor”) quashed that decision. 9.     On 14 February 2005 the investigator again discontinued the criminal proceedings. 10.     On 10 January 2006 the district prosecutor quashed that decision. 11 .     On 21 March 2006 the investigator discontinued the criminal proceedings owing to the expiry of the statutory limitation period. 12 .     In October 2006 the applicant appealed against that decision to a prosecutor. According to the applicant, his health problems had prevented him from lodging a judicial appeal against that decision in time. 13.     On 1 November 2006 a prosecutor from the Vyborgskiy district prosecutor’s office dismissed the appeal. 14 .     Between 2007 and 2009 the applicant and his representative complained about the discontinuation of the criminal proceedings to prosecutors at different levels and the Ministry of the Interior. 15 .     In August 2009 the prosecutor’s office informed the applicant that that the decision to discontinue the criminal proceedings had been lawful. Civil proceedings for damages 16.     On an unspecified date the applicant instituted civil proceedings against K. and S. in the Vyborgskiy District Court of Saint Petersburg (“the District Court”). He claimed 1,450,000 roubles (RUB) in respect of non ‑ pecuniary damage and RUB 55,546.49 in respect of pecuniary damage. 17.     On 22 May 2006 the District Court allowed the applicant’s claim in part. The court established that the injuries received by the applicant in the accident had been life-threatening and awarded him RUB 100,000 in respect of non-pecuniary damage and RUB 55,546.49 in respect of pecuniary damage. It dismissed the remainder of the claim. 18.     On 11 July 2006 the St Petersburg City Court upheld that judgment. Relevant domestic law Code of Criminal Procedure of the Russian Federation, in force since 1 July 2002 19.     Under Article 124, a prosecutor can examine a complaint concerning the actions or omissions of officials in charge of a criminal investigation. 20.     Under Article 125, a decision of an investigator or a prosecutor refusing to institute criminal proceedings or terminating a case may be appealed against to a district court, which is empowered to check the lawfulness and grounds of the impugned decision. COMPLAINTS 21.     The applicant complained under Articles 2, 3, 5 and 13 of the Convention that the criminal investigation into the road accident had been ineffective. THE LAW The parties’ submissions 22.     The Government submitted that the applicant had not complied with the six-month time-limit for lodging his application. The final decision in the case had been adopted on 21 March 2006 (see paragraph 11 above), whereas the applicant had lodged his application to the Court on 20   January   2010. 23.     The applicant maintained his complaints. The Court’s assessment Complaints under Articles 2 and 3 of the Convention 24.     The Court observes that the applicant’s complaints do not contain allegations of intentional acts or suspicious circumstances. He did not attribute the incident to a failure on the part of the domestic authorities to adopt sufficient legal rules and measures to regulate motor vehicle traffic on public roads to ensure the safety of road users, or claim that the State was responsible for the conduct of S. because he was allegedly a police officer and therefore a State agent. The applicant referred to the serious consequences that the road accident had had on his physical and mental health. In view of the above, the Court considers that the applicant’s complaints concern his procedural rights and/or the procedural obligations incumbent on State authorities in the context of negligent actions resulting in very serious physical or life-threatening consequences. 25.     As to the applicant’s complaint under Article 3 of the Convention, the Court found in Nicolae Virgiliu Tănase v. Romania [GC] , (no.   41720/13, §§ 123-24, 25 June 2019) that bodily injuries and mental suffering experienced by an individual as a result of an accident which was merely the result of chance or negligent conduct could not be considered as the consequence of “treatment” to which that individual had been “subjected” within the meaning of Article 3. More particularly, such treatment is in essence, albeit not exclusively, characterised by an intention to harm, humiliate or debase an individual, by a display of disrespect for or diminution of his or her human dignity, or by the creation of feelings of fear, anguish or inferiority capable of breaking his or her moral and physical resistance. No such elements feature in the present case. 26.     It follows that the applicant’s complaint under Article 3 is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 §§ 3 (a) and 4. 27. As to the applicant’s complaint under Article 2 of the Convention, the Court observes that he filed evidence attesting that his injuries had been considered life-threatening. Having regard to the state of the evidence, the Court considers that in the circumstances of the applicant’s case, at the time of the accident, there was an arguable claim that his injuries were sufficiently severe to amount to a serious danger to his life. The Court concludes that Article 2 is applicable. 28.   The six-month time-limit provided for by Article 35 § 1 of the Convention has a number of aims. Its primary purpose is to maintain legal certainty by ensuring that cases raising issues under the Convention are examined within a reasonable time, and to prevent the authorities and other persons concerned from being kept in a state of uncertainty for a long period of time (see Sabri Güneş v. Turkey [GC], no. 27396/06, § 39, 29   June   2012). Normally, the six-month period runs from the date of the final decision in the process of the exhaustion of domestic remedies. However, where it is clear from the outset that no effective remedy is available to the applicant, the period runs from the date of the acts or measures complained of, or from the date of knowledge of that act or its effect on or prejudice to the applicant (see Varnava and Others v. Turkey [GC], nos. 16064/90 and 8 others, § 157, ECHR 2009). Where an applicant avails himself of an apparently existing remedy and only subsequently becomes aware of circumstances which render the remedy ineffective, it may be appropriate for the purposes of Article 35 § 1 of the Convention to calculate the start of the six-month period from the date on which the applicant first became or ought to have become aware of those circumstances (see Mocanu and Others v. Romania [GC], nos. 10865/09 and 2 others, § 260, ECHR 2014 (extracts)). 29.     The Court has found that in the Russian legal system   a judicial appeal against a decision not to institute or to discontinue criminal proceedings may offer a substantial safeguard against the arbitrary exercise of power by the investigating authority, given a court’s power to annul such decisions and indicate the defects to be addressed (see   Trubnikov v. Russia (dec.), no. 49790/99, 14 October 2003; Belevitskiy v. Russia , no. 72967/01, § 61, 1 March 2007; and Chumakov v. Russia , no. 41794/04, § 91, 24   April   2012). In the ordinary course of events, therefore, such an appeal might be regarded as a possible remedy where the prosecution has decided not to investigate the claims. 30.     At the same time, in a number of cases the Court held that the applicants were exempted from using this remedy where a decision refusing to open an investigation had already been quashed by a higher-ranking prosecutor. It found that a requirement to appeal again a subsequent decision of that kind would be overly formalistic, and would place an excessive burden on the applicant (see Samoylov v. Russia , no. 64398/01, §   45, 2 October 2008, and Georgiy Bykov v. Russia , no. 24271/03, § 46, 14   October 2010). 31.     In the present case the applicant, for health reasons, did not lodge a judicial appeal against the decision of 21 March 2006 discontinuing the criminal proceedings. He lodged complaints with higher-ranking prosecutors under Article 124 of the Code of Criminal Procedure (see paragraphs 12, 14 and 15 above) and with authorities of the Ministry of the Interior (see paragraph 14 above). 32.   The Court has consistently refused to consider the extraordinary remedy of   a complaint to a higher-ranking prosecutor as a remedy to be exhausted by applicants in order to comply with the requirements of Article   35 § 1 of the Convention (see, among other authorities,   Trubnikov v.   Russia   (dec.), cited above, and Aslakhanova and Others v. Russia , nos.   2944/06 and 4 others, § 152, 18 December 2012). 33.     Furthermore, a complaint to authorities of the Ministry of the Interior constitutes an appeal to a superior authority for the purpose of criticising the shortcomings of an investigation carried out by its subordinates. The superior authority is not required to hear the complainant, and the ensuing proceedings are entirely a matter between the supervising authority and its subordinates. The complainant is not a party to any proceedings and is entitled only to obtain information about the way in which the supervising body has dealt with his or her hierarchical appeal. It follows that an appeal to supervising authorities of the Ministry of the Interior does not give the person employing this remedy a personal right to the exercise by the State of its supervisory powers, and such an appeal does not therefore constitute an effective remedy within the meaning of Article   35 of the Convention (see Horvat v. Croatia , no. 51585/99, § 47, ECHR 2001 ‑ VIII). 34.   In the light of the above, the Court agrees with the Government that the decision of 21 March 2006 discontinuing the criminal proceedings was the final decision in respect of the applicant’s complaint under Article 2 of the Convention. The applicant lodged his application on 20 January 2010, more than six months after the final decision in the case. It follows that his complaint under Article 2 has been lodged out of time and must be rejected in accordance with Article 35 §§ 1 and 4. Complaint under Article 5 of the Convention 35.     As to the applicant’s complaint under Article 5 of the Convention, the Court observes he has not been “deprived of his liberty” within the meaning of that provision. It follows that his complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 §§ 3 (a) and 4. Complaint under Article 13 of the Convention 36.     As to the applicant’s complaint under Article 13 of the Convention, this provision does not contain a general guarantee of legal protection for every substantive right. It relates exclusively to those cases in which an applicant alleges, on arguable grounds, that one of his rights and freedoms set forth in the Convention has been violated. According to the Court’s case-law, this provision applies only where an individual has an “arguable claim” to be the victim of a violation of a Convention right (see Boyle and Rice v. the United Kingdom , 27 April 1988, § 51, Series A no. 131). The Court has found that the applicant’s complaints under Articles 2, 3 and 5 are inadmissible. It therefore concludes that the applicant does not have an “arguable claim” and that Article 13 in conjunction with Articles 2, 3 and 5 of the Convention is inapplicable to the case. This part of the application is therefore incompatible ratione materiae with the provisions of the Convention and must be dismissed pursuant to Article 35 § 4. For these reasons, the Court, unanimously, Declares the application inadmissible. Done in English and notified in writing on 13 February 2020.   Stephen Phillips   Alena Poláčková   Registrar   President