THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 58263/00 by Nikolay Vasilyevich TIMOFEYEV against Russia

The European Court of Human Rights (Third Section) , sitting on 5 September 2002 as a Chamber composed of

Mr G. Ress , President , Mr I. Cabral Barreto , Mr P. Kūris , Mr B. Zupančič , Mrs M. Tsatsa-Nikolovska , Mr K. Traja , Mr A. Kovler , judges , and Mr V. Berger , Section Registrar ,

Having regard to the above application lodged on 17 March 2000,

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, Nikolay Vasilyevich Timofeyev, is a Russian national, who was born in 1948 and lives in Orsk .

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

1. Persecution by the Soviet regime and subsequent rehabilitation

In 1981 criminal charges were brought against the applicant for dissemination of anti-Soviet propaganda. On 30 July 1981 a search was made of the applicant ’ s home and certain personal effects allegedly used by him in his unlawful activity – including a radio, audio records, books, newspaper clippings and manuscripts – were confiscated.

On 7 April 1982 the Orenburg Regional Court held that the applicant was not guilty on the ground of insanity and ordered that he be placed in a mental asylum.

On 23 April 1986 the Oktyabrskiy District Court of Orsk found that the applicant ’ s mental health had improved and that he could be released.

On 15 September 1992 the Orenburg Regional Public Prosecutor ’ s Office issued a statement acknowledging that the applicant had been unlawfully persecuted by the State, and rehabilitating him.

2 . Claim for compensation and enforcement

In the course of 1995 to 1997 the applicant made several unsuccessful attempts to recover the property that had been confiscated in 1981. His requests to the prosecutors ’ offices and the organisations then in possession of the property were rejected.

As a victim of political persecution, the applicant was entitled to compensation. Payment was not properly effected however, and the applicant brought court proceedings against the Social Security Department of the Sovetskiy District Authority of Orsk. The case was dismissed by the Sovetskiy District Court of Orsk on 25 July 1995 and, on appeal, by the Regional Court on 5 September 1995.

On 28 June 1996 the applicant brought a claim for repossession against the Orenburg Regional Public Prosecutor ’ s Office and the Orsk City Committee of the Voluntary Society for Assistance to the Army, Air Force and Navy, together with an action for damages against the Orsk City Council.

On 22 July 1998 the Leninskiy District Court of Orsk granted the applicant ’ s claims in part and ordered the Federal Treasury Department to pay the applicant compensation for the property confiscated on 30 July 1981 totalling RUR 2,570.92, and RUR 200 by way of legal costs. On appeal, the judgment was upheld by the Civil Chamber of the Regional Court on 8 December 1998.

On 5 February 1999 the applicant took out a writ of execution in respect of the 22 July 1998 judgment in the registry of the Oktyabrskiy Court . He was not notified as to whether enforcement proceedings had been opened, or what action had been taken to execute the judgment. For this reason, he issued proceedings against the bailiff. On 14 May 1999 the Oktyabrskiy Court found in the applicant ’ s favour, holding that the bailiff had acted unlawfully. The applicant was informed that responsibility for the enforcement of the judgment had been transferred to another bailiff ’ s service – the Leninskoye Bailiff ’ s Service of Orenburg.

On 25 May 1999 the the Leninskiy Court issued clarification on how its judgment of 22 July 1998 was to be enforced. It confirmed that, even though the Ministry of Finance was the defendant in the case, the compensation should be recovered from the Treasury Department which was liable for debts of the Ministry. The applicant appealed, requesting the inclusion of the debtor ’ s bank account details in the operative part of the judgment. His appeal was dismissed on 8 July 1999.

No progress was made in the enforcement proceedings, and the applicant issued fresh proceedings alleging professional negligence by the bailiff.

On 28 July 1999 the Leninskiy District Court of Orenburg examined the applicant ’ s complaint and dismissed the case. It found that the enforcement proceedings had been lawfully stayed by the bailiff because on 25 May 1999 she had been informed that supervisory review proceedings had been instituted by an acting Public Prosecutor of the Orenburg Region against the judgment of 22 July 1998. Under national law, enforcement could be stayed pending supervisory review. The applicant ’ s appeal was dismissed on 23 September 1999 by the Regional Court .

On 3 February 2000 the bailiff attempted to attach the accounts of the Federal Treasury Department. The Department challenged the bailiff ’ s actions in court. The complaint was reviewed and accepted by the Central District Court of Orenburg on 23 March 2000. The court came to the conclusion that the bailiff had acted improperly when it had seized the Department ’ s assets because, according to the clarifications provided on 25 May 1999 concerning the enforcement, the debt should have been “recovered against the Treasury of the Russian Federation ”. The applicant had not been aware of these proceedings, and was not summoned to the hearing. He successfully raised this point on appeal to the Orenburg Court . The decision of 23 March was quashed and a fresh examination of the case was ordered.

On 9 February 2000 the Leninskiy Court refused the applicant ’ s application to have the judgment enforced in a different way. His appeal against that decision was dismissed on 21 March 2000.

On 10 and 21 February 2000 the bailiff issued two applications to have the enforcement proceedings stayed in view of a request for supervisory review of the 22 July 1998 judgment made by the Treasury Department.

In March 2000 the applicant became aware that the President of the Regional Court had ordered a stay of execution because supervisory review proceedings were pending. The applicant issued proceedings against the President, which were dismissed on 12 April 2000 by the Sovetskiy District Court of Orsk as not being amenable to judicial review. The applicant challenged the court ’ s refusal to deal with the complaint and on 30 May 2000 the President of the Regional Court confirmed the legality of the decision and refused to bring supervisory review proceedings against it. The applicant was also informed that the stay of execution had been lifted.

On 27 September 2000 the Senior Bailiff of the Leninskoye Bailiff ’ s Service revoked the initial certificate commencing execution, as the writ of execution did not unequivocally identify the debtor.

The applicant successfully appealed against the revocation, the Central District Court of Orenburg holding on 16 November 2000 that the Senior Bailiff had exceeded her authority when she terminated the enforcement proceedings.

On 30 November 2000 the bailiff responsible for the applicant ’ s file issued a certificate revoking her initial certificate of 9 April 1999 commencing the enforcement proceedings. The reason stated in the certificate was that the writ of execution did not clearly identify the debtor and its address. The applicant successfully applied to the Central Court , which on 1 March 2001 issued an order requiring the bailiff to proceed with the execution of the judgment.

On 14 December 2000 the same court ruled that the stay of execution pending the supervisory review was unlawful and ordered the bailiff to proceed with execution.

On 21 March 2001 the bailiff applied to the Leninskiy Court for clarification as to how the judgment should be enforced, what legislation should be applied and which accounts of which branch of the Treasury Department should be debited. The court refused to instruct the bailiff on the way the judgment should be enforced, since courts only had a duty to clarify their judgments if a writ of execution was unclear.

On 4 April 2001 the acting Public Prosecutor of the Orenburg Region lodged an application for supervisory review of the judgment of 22 July 1998 on the ground that the compensation should have been awarded against the Regional Authority and not against the Treasury Department. On 16 April 2001 the Presidium of the Orenburg Regional Court accepted the prosecutor ’ s submissions and quashed the judgments of 22 July 1998 and 8 December 1998. The case was remitted for a new examination.

On 15 May 2001 the Central District Court of Orenburg refused the Treasury Department ’ s application to lift the attachment of its accounts. Instead, the court ordered that execution should cease since the judgment debt had been quashed on 16 April 2001.

On 29 June 2001 the Lenisnkiy Court gave a new judgment in the case. The applicant was awarded RUR 2,869.50 in compensation for the property and RUR 1,000 in legal costs. The compensation was payable by the financial department of the Orsk City Council with subsequent reimbursement of the expenditure from the federal budget. The claims for repossession and non-pecuniary damages were dismissed. The applicant ’ s appeal against the judgment was disallowed by the Orenburg Regional Court on 14 August 2001.

3. Litigation over shares

After his rehabilitation, the applicant returned to work at the plant where he had been working before his prosecution. On privatisation of the plant by its conversion into a stock company, the applicant applied for shares. His application was refused as he had not worked at the plant for the requisite number of years. He was given no credit for the years 1981 to 1986.

The applicant brought proceedings against the employer to have the period of his detention included as working years. He claimed shares and damages.

On 8 June 1998 the Oktyabrskiy District Court of Orsk held that the applicant should be given additional credit equal to three times the period spent in detention, but dismissed the claim for shares and damages under the statute of limitations. The appeal court dismissed his case in full on 1 July 1999, holding that the inclusion of time spent in detention by persecuted persons was permissible only for the determination of retirement benefits.

B. Relevant domestic law

Section 20 of the Law on Enforcement Proceedings sets out the rules governing stays of execution of judgments. Section 20 § 6 provides that execution shall be stayed if:

“a [relevant] order is made by an official authorised by Federal law to stay execution of the decision of a court or other body decisions which served as the basis for the issue of the writ of execution...”

Article 323 of the Code of Civil Procedure contains an equivalent provision:

“Officials authorised to lodge applications for supervisory review may stay the execution of relevant judgments, orders and decisions pending the determination of the supervisory-review proceedings...”

Article 320 of the Code of Civil Procedure lists among such officials Presidents of Regional Courts and regional public prosecutors.

Further, Article 361 of the Code of Civil Procedure requires judges to stay execution proceedings in cases when:

“a [relevant] order is made by an official authorised by law to stay the execution of a judgment.”

It remains unclear whether in practice a bailiff is obliged to stay execution solely on the basis of “an authorised official ’ s order” or whether such an order must be upheld by a court, as provided for in Article 361 of the Code of Civil Procedure.

COMPLAINTS

1. Under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention the applicant complains about the non-enforcement of the judgment of 22 July 1998 due to the professional negligence of the Bailiff ’ s Service and the abuse of supervisory review powers.

2. In addition, the applicant alleges that the hearing before the Presidium of the Orenburg Regional Court on 16 April 2001 was not fair. He asserts that the proceedings were not adversarial, that his challenge of the prosecutor was disregarded and that the court only examined the reasons contained in the application for supervisory review.

3. The applicant further complains that the time taken to determine his case has exceeded the “reasonable time” threshold contained in Article 6. He submits, in particular, that although his action for repossession was initially filed on 28 June 1996, the case has still not been finally determined (as of the date he presented his comments on the Government ’ s observations). It is alleged that the delay has been caused not by the complexity of the legislation but by the bad faith of the “former communists” occupying official posts who have hindered the reinstatement of his rights, inter alia , by quashing favourable judgments on application for supervisory review.

4. Under Article 6 § 1 the applicant also complains that the courts refused to proceed with his complaint against the President of the Orenburg Regional Court , who had ordered a stay of execution. He alleges that the national judiciary has thereby deprived him of the right to a court.

5. Finally, the applicant complains about the courts ’ ruling that the stay of execution was lawful; about the domestic decisions in the litigation over the shares; about the indiscriminate approach of the national legislature towards the rehabilitation of victims of the political persecution; and about the State ’ s failure to reinstate his rights fully, inter alia , by prosecuting those responsible for his persecution and by including his name in relevant lists. The applicant refers to Articles 5 § 5, 6 § 1, 13 and 14 of the Convention, Article 2 § 1 of Protocol No. 7 and Article 3 of Protocol No. 7 to the Convention in support of the above complaints.

THE LAW

1. The applicant complains under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 to the Convention about his inability to obtain execution of a final judgment against the State, partly because supervisory review proceedings prevented enforcement. He submits that his dispute was not determined within a reasonable time. Article 6 § 1 of the Convention, insofar as relevant, reads as follows:

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

Article 1 of Protocol No. 1 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 preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

In their memorial the Government argue that since the supervisory review proceedings of April 2001 resulted in the judgment of 22 July 1998 being quashed and a new examination of the case being ordered, it is not possible to answer the questions put by the Court. The Government conclude that since the applicant ’ s litigation is proceeding on the merits before national courts, the application cannot be the subject of a review by the Court of Human Rights.

In his comments the applicant challenges that argument. He asserts that the application for supervisory review lodged on 4 April 2001 against the judgment of 22 July 1998 serves no purpose other than to hinder the execution of the judgment and unnecessarily prolong the litigation. The applicant claims that the judgment of 22 July 1998 became final after it had been confirmed on appeal by the Regional Court on 8 December 1998 and that all subsequent revisions of the case represent an abuse by State officials of their discretionary powers.

The applicant also submits that there was no good reason to set aside the judgment of 22 July 1998 since the new judgment of 29 June 2001 is essentially the same, except for the part that determines the authority financially liable to him, and he claims that in any event it is unlikely that the new judgment will be executed without difficulty as it contains no indication of the bank accounts to be debited.

The Court observes that it is true that in certain circumstances the fact that the proceedings are pending on the national level may be an obstacle to the examination of Article 6 complaints, especially in criminal cases, where the conformity of a trial with the requirements of Article 6 § 1 must be assessed on the basis of the trial as a whole (see X v. Switzerland, application no. 9000/80, Commission decision of 11 March 1982, Decisions and Reports (DR) 28, p. 127).

This consideration, however, cannot be said to apply to the issues raised by the present application, since it is not clear how the quashing of the judgment, which entitled the applicant to certain pecuniary benefits, may have any bearing on the fact that the applicant was not able to benefit from the judgment debt over the preceding two years.

Besides, after the Government submitted their observations, the applicant ’ s case was re-examined and a new final judgment was given to conclude the proceedings. It does not appear, however, that the new judgment has been executed.

In these circumstances, the Court holds that the Government ’ s objection that the application is premature must be dismissed.

The Court considers, in the light of the parties ’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which should depend on an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

2. Under Article 6 of the Convention the applicant also complains about the unfair character of the proceedings before the Presidium of the Regional Court and the lack of equality of arms in those proceedings.

For the reasons indicated above, the Court does not agree with the Government ’ s submission that this complaint is premature.

The Court reiterates that alleged violations of Article 6 are to be examined having regard to the proceedings as a whole (see, among other authorities, Kuráková v. the Slovak Republic (dec.), no. 37895/97, 1 February 2001, unreported).

To the extent that the hearing before the Presidium of the Orenburg Regional Court on 16 April 2001 – which concerned the re-opening of the proceedings that ended in the Orenburg Regional Court on 8 December 1998 – can be said to come within the ambit of Article 6 § 1 of the Convention, the Court is not convinced that the alleged omissions were so decisive as to amount in themselves to a breach of Article 6.

Furthermore, the applicant ’ s case has now been re-examined and ended with a judgment similar to the original one. The Court considers that the application is therefore without purpose (see, mutatis mutandis , (see X v. Austria , application no. 5575/72, Commission decision of 8 July 1974, DR 1, p. 45).

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

3. Under Article 6 § 1 of the Convention the applicant also complains that the courts refused to proceed with his complaint against the President of the Orenburg Regional Court who had ordered the stay of execution.

For the reasons indicated above, the Court does not agree with the Government ’ s submission that this complaint is premature.

The Court notes, however, that the proceedings the applicant was unsuccessful in bringing – an action against a State official (the President of the Regional Court in the instant case), seeking to declare unlawful the official ’ s failure to comply with the domestic legislation governing supervisory review proceedings – did not concern the determination of the applicant ’ s civil rights and obligations, or a criminal charge against him.

It follows that this complaint 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.

4. The applicant also complains, by reference to Articles 5 § 5, 6 § 1, 13 and 14 of the Convention, Articles 2 § 1 and 3 of Protocol No. 7 to the Convention about the findings of the national courts and about the State ’ s failure to provide sufficient redress for his persecution.

For the reasons indicated above, the Court does not agree with the Government ’ s submission that these complaints are premature.

The Court notes, first, that the persecution complained of by the applicant took place before the Convention came into force in respect of Russia .

As regards the alleged inadequacy of the redress for the persecution, it is not for the Court to act as a court of appeal, or as sometimes is said, as a court of fourth instance from the decisions taken by domestic courts. It is the role of the domestic courts to interpret and apply relevant rules of procedural or substantive law. Furthermore, it is the domestic courts which are best placed for assessing the credibility of witnesses and the relevance of evidence to the issues in the case (see, amongst many authorities, the Vidal v. Belgium judgment of 22 April 1992, Series A no. 235-B, pp. 32-33, § 32; the Edwards v. the United Kingdom judgment of 16 December 1992, Series A no. 247-B, § 34).

The Court finds no indication that the procedures or decisions adopted by domestic courts in this case infringed the fairness requirement at the heart of Article 6 § 1 of the Convention.

Nor is there indication of any Convention issues under Articles 13 and 14 of the Convention, Articles 2 § 1 and 3 of Protocol No. 7 to the Convention.

Having regard to all the material in its possession, including its case-law in this connection and the contents of the case-file, the Court finds that these matters do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court by a majority

Declares admissible, without prejudging the merits, the applicant ’ s complaint about the failure to obtain execution of the judgment;

Declares inadmissible the remainder of the application.

Vincent Berger Georg Ress Registrar President