FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 14085/04 by Sergey SMIRNOV against Russia

The European Court of Human Rights (First Section), sitting on 6 July 2006 as a Chamber composed of:

Mr C.L. Rozakis , President , Mrs N. Vajić , Mr A. Kovler , Mrs E. Steiner , Mr K. Hajiyev , Mr D. Spielmann , Mr S.E. Jebens, judges ,

and Mr S. Nielsen , Section Registrar ,

Having regard to the above application lodged on 26 February 2003 ,

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 S ergey Yuryevich Smirnov, is a Russian national who was born in 1959 . He has no fixed place of residence and uses a poste restante address in Moscow for correspondence . He is represented before the Court by Mr D. Gorelishvili, a lawyer practising in Moscow . The respondent Government are represented by Mr P. Laptev, Representative 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.

1. Background of the application

Since 1982 the applicant ha d lived in Moscow .

On 3 June 1986 the Kuybyshevskiy District Court of Omsk convicted him of “profiteering” ( that is resale of goods at a profit, a criminal offence in the planned economy) and sentenced him to three years ’ imprisonment.

Pursuant to the regulations in force at that time , once the applicant had been sent to serve his sentence, his residence registration in Moscow was cancelled.

Upon the applicant ’ s release, on 15 October 1991 he was issued with a new identity document that contained no stamp of residence registration. [1]

2. Proceedings concerning replacement of the passport and establishment of the fact of residence in Russia

On 22 January 2002 the applicant applied to the Passports and Visa Section of the Department of the Interior of the North-Western Administrative District of Moscow (“the passport authority”), requesting that his passport of a USSR citizen b e exchanged for that of a Russian citizen .

On 10 June 2002 the passport authority replied that the applicant should submit documents confirming the fact of his residence in Russia on 6 February 1992 . [2]

On 20 September 2002 the p assports authority refused to issue the applicant with a Russian passport and informed him that he should “re-establish” his Russian citizenship .

On 9 December 2002 the applicant challenged the refusal before a court . T he statement of claim indicated that the applicant had no fixed residence and provided an address in the North-Western Administrative District of Moscow for correspondence.

On 20 January 2003 the Khoroshevskiy District Court of Moscow found that the decision of 20 September 2002 had been lawful. It held that the applicant had never had a residence registration in the North-Western Ad ministrative District of Moscow; therefore his Russian citizenship could not be confirmed. It also noted that the refusal to replace the applicant ’ s passport did not restrict any of his rights.

On 28 March 2003 the Moscow City Court upheld the judgment of 20 January 2003 . It held that the applicant had failed to confirm his Russian citizenship. In particular, he had not submitted documents proving that he resided in Russia on 6 February 1992 . Moreover, having regard to the applicant ’ s explanation that he did not have an actual or registered residence in the North-Western Administrative Dist r ict of Moscow, the court decided that it could not impose on the passport authority of that district an obligation to examine the applicant ’ s request for the exchange of his passport.

On 13 October 2003 the applicant instituted non-contentious proceedings seeking to establish a fact of legal significance, namely the fact of his residence in Russia as on 6 February 1992 . The statement of claim indicated that the applicant had no fixed residence and provided an address in the North-Western Administrative District of Moscow for postal correspondence.

On 17 November 2003 the Tushinskiy District Court of Moscow declared the application inadmissible in the following terms:

“By virtue of Article 266 of the Code on Civil Procedure an application for establishment of a fact having legal significance is to be lodged with a court having territorial jurisdiction over the applicant ’ s place of residence.

It follows from the documents submitted to the court that the applicant has no temporary or permanent residence registration in Moscow , in particular, in the district over which the Tushinskiy court has jurisdiction.”

On 4 December 2003 the applicant lodged an appeal against the decision of 17 November 2003 . In response he received the following undated answer from a j udge of the Tushinskiy District Court:

“I return your appeal of 4 December 2003 against the decision of the Tushinskiy District Court of 17 November 2003 because it contains no matters for determination in the pre-trial proceedings”.

3. Proceedings against a hire agency

On 24 May 2002 the applicant asked to hire cutlery and a folding bed from the “ Morion ” hire agency. Having studied his passport, the manager replied that the company could not hire out anything to him because he had no fixed residence .

On 12 August 2002 the applicant lodged a civil action against the Morion company, alleging unlawful denial of services. The statement of claim indicated that the applicant had no fixed place of residence and provided an address in Moscow for correspondence.

On 9 October 2002 the Khoroshevskiy District Court stayed the applicant ’ s claim because his place of residence was not specified. He was invited to specify it by 11 November 2002 , failing which his action would be disallowed .

The applicant appealed against the decision of 9 October 2002, alleging an unlawful restriction on his right of access to a court guaranteed by Article 46 of the Russian Constitution on account of his inability to show a permanent residence at a specific place.

On 20 December 2002 the Moscow City Court upheld the decision.

4. Proceedings against a tele communications provider

On 5 April 2003 the applicant unsuccessfully attempted to subscribe to the services of the MTS tele communications company. He was refused because he had no fixed residence .

On 22 August 2003 he s ued the MTS company and the cell phones vendor for subscription to a contract and compensation for non-pecuniary damage. He indicated the city of Moscow as his place of residence and provided a poste restante address for correspondence.

On 8 September 2002 the Taganskiy District Court of Moscow stayed the applicant ’ s claim due to his omission to indicate his address. He was instructed to correct the defect within ten days, failing which his claim would be disallowed.

The applicant received a copy of the decision by mail at the address indicated in his statement of claim.

The applicant appealed, submitting that he did indicate his address in the statement of claim.

On 18 November 2003 the Moscow City Court upheld the decision of 8 September 2003 .

B. Relevant domestic law and practice

Law on civil procedure

Article 126 of the RSFSR Code of Civil Procedure (“the old CCP”, in force until 1 February 2003 ) provide d that the statement of claim was to specify, in particular, the plaintiff ’ s name and place of residence. Pursuant to Article 13 0 , if such information wa s missing, the judge had to stay the proceedings and set a time-limit by which the plaintiff would remedy the defects. If the missing information was not supplied, the claim should be declared inadmissible .

The Code of Civil Procedure of the Russian Federation of 14 November 2002 (“the new CCP”, in force from 1 February 2003 ) contains identical provisions in Articles 131 § 2 and 136.

Law on Constitutional Court

The competence of, and the procedure before, the Russian Constitutional Court are governed by the Law on the Constitutional Court of the Russian Federation (Law no. 1-FKZ of 21 July 1994).

Everyone whose constitutional rights and freedoms have been infringed by a law that has been applied or may be applicable in an individual case may complain to the Constitutional Court (Article 96).

The complaint is admissible only if (i) the law affects constitutional rights and freedoms; (ii) the law has been applied or may be applicable in the case which was decided upon in the final instance or is pending before courts of general jurisdiction or any other authority (Article 97).

The Constitutional Court examines the compatibility of the law with the Constitution and issues a declaration of (in)compatibility. If the Constitutional Court declares the law unconstitutional, the case must be reviewed by a competent court in accordance with the ordinary procedure (Articles 3 § 3 and 100).

Case-law of the Constitutional Court of the Russian Federation

On 23 June 2005 the Constitutional Court delivered its ruling in a case in which Article 131 of the new CCP was challenged (no. 282-O). The Constitutional Court declared the application inadmissible in the following terms:

“Article 131 which establishes the form and contents of a statement of claim cannot be regarded as infringing the applicant company ’ s constitutional rights. In accordance with Article 125 of the Russian Constitution and Article 3 of the Law on the Constitutional Court of the Russian Federation , the Constitutional Court does not have competence to verify whether the courts of general jurisdiction applied the above-mentioned provision correctly in individual cases... This is a matter for the [appeal] courts.”

COMPLAINTS

1. The applicant complains under Article 3 of the Convention about his humiliating and inhuman treatment by public officials.

2. The applicant complains under Article s 6 § 1 and 13 of the Convention about a violation of his right of access to a court.

THE LAW

1. The applicant complains about inhuman treatment under Article 3 of the Convention which reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

The Court reiterates that, according to the constant case-law of the Convention organs, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3 (see, for example, Koniarska v. the United Kingdom (dec.), no. 33670/96, 12 October 2000; Ireland v. the United Kingdom , judgment of 18 January 1978, Series A no . 25, p. 65 § 162).

The Court finds nothing in the case-file or in the applicant ’ s submissions which could indicate that the minimum level of severity was reached.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, and that it must be rejected pursuant to Article 35 § 4.

2. The applicant complains under Articles 6 § 1 and 13 of the Convention that he had no access to a court for determination of his civil claims. The relevant parts of these provisions read as follows:

Article 6 § 1

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”

Article 13

“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.”

The Court reiterates that where the right claimed is a civil right, Article 6 is the lex specialis in respect of Article 13 (see, for example, Brualla Gómez de la Torre v. Spain , judgment of 19 December 1997, Reports of Judgments and Decisions 1997 ‑ VIII, § 41). Therefore the Court considers that the complaint falls to be examined under Article 6 § 1 of the Convention, in so far as it is applicable.

Arguments by the parties

The Government submitted that the applicant had not challenged Article 131 § 2 of the new CCP before the Constitutional Court of the Russian Federation . Therefore he did not exhaust domestic remedies.

The applicant argued that Article 131 § 2 of the new CCP, if applied correctly, did not restrict his right of access to a court. He did not contest the compatibility of that provision with the Constitution, his complaint concerned solely the way in which the domestic courts had interpreted it in his case.

The applicant further submitted that all of his statements of claim indicated an address for correspondence required by the domestic law. He received correspondence from courts at that address. The requirement to indicate his registered place of residence had no basis in the domestic law and, taking into account his particular situation as a person with no fixed residence, it had a prohibitive effect, depriving him of the right of access to a court.

The Court ’ s assessment

(a) The Government ’ s objection as to exhaustion of domestic remedies

The Court observes that the Russian Constitutional Court is competent to examine individual complaints lodged to challenge the constitutionality of a law. An individual c onstitutional complaint can only be lodged against a law which infringes constitutional rights and freedoms and which has been applied or may be applicable in an individual case . Thus, the procedure of constitutional complaint cannot serve as an effective remedy if the alleged violation resulted only from erroneous application or interpretation of a statutory provision which, in its content, is not unconstitutional (see Szott-Medyńska v. Poland (dec.), no. 47414/99, 9 October 2003 ).

In the present case the Government suggested that the applicant should have challenged Article 131 of the new CCP. However, the Constitutional Court itself clarified that it could not verify whether in an individual case the courts of general jurisdiction applied this Article correctly. The applicant does not contest the compatibility of Article 131 with the Constitution, rather he questions the way in which the domestic courts applied the requirements contained in that Article to his case. It appears that in those circumstances an application to the Constitutional Court would have had no prospects of success. Therefore, the application cannot be rejected for non-exhaustion of domestic remedies.

(b) Proceedings for establishment of the fact of residence in Russia

The Court must examine at the outset whether Article 6 § 1 of the Convention was applicable to the non-contentious proceedings which concerned establishment of the fact of the applicant ’ s residence in Russia on 6 February 1992 . The applicant sought to establish the fact of his residence in Russia in order to confirm his Russian citizenship and to obtain a Russian passport. The Court notes that neither a right to citizenship nor a right to a passport is a civil right, given that it is not of a pecuniary or otherwise of a private character (see Šoć v. Croatia (dec.), no. 47863/99, 29 June 2000; Karassev and family v. Finland , no. 31414/96, Commission decision of 14 April 1998; Peltonen v. Finland , no. 19583/92, Commission decision of 20 February 1995).

It follows that this part of the application is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

(c) Proceedings against a hire agency and a telecommunications provider

The Court considers, in the light of the parties ’ submissions, that the remainder of the application raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. It concludes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring them inadmissible has been established.

For thes e reasons, the Court

Declares unanimously admissible, without prejudging the merits, the applicant ’ s complaints concerning his right of access to a court in relation to the civil proceedings against a hire agency and a telecommunication provider ;

Declares inadmissible , by a majority, the applicant ’ s complaint about inhuman treatment;

Declares unanimously inadmissible the remainder of the application.

Søren Nielsen Christos Rozakis Registrar President

[1] . In Russia , a stamp indicating the person’s residence registration is placed in his or her passport.

[2] . T he then effective law on Russian citizenship automatically conferred Russian nationality on all persons who had lived in the Russian Federation on 6 February 1992 .