FIFTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 4543/04 by Georgiy Nikolayevich MIKHAYLOV against Russia

The European Court of Human Rights (Fifth Section), sitting on 2 1 October 2008 as a Chamber composed of:

Rait Maruste , President, Anatoly Kovler , Renate Jaeger, Mark Villiger , Isabelle Berro-Lefèvre , Mirjana Lazarova Trajkovska , Zdravka Kalaydjieva , judges, and Claudia Westerdiek , Section Registrar ,

Having regard to the above application lodged on 24 January 2004,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Georgiy Nikolayevich Mikhaylov , is a Russian national who was born in 1944 and lives in St . Petersburg .

A. The circumstances of the case

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

First set of proceedings

(a) Background of the case

In 1979 the applicant was convicted of illegal business activity and sentenced to four years ’ imprisonment. The court also ordered the confiscation of his property, namely an art collection. As part of this collection allegedly disappeared, in 1985 the applicant was convicted of the fraudulent theft of State property.

In 1989 both judgments were quashed and the proceedings against the applicant were terminated on the ground that no criminal offence had been committed.

Between 1989 and 1998 the applicant unsuccessfully tried to recover his art collection.

(b) Civil proceedings

In October 1998 the applicant lodged a claim with the Oktyabrskiy District Court of St. Petersburg against the local departments of the Ministry of Justice, Ministry of Interior, Ministry of Finance and St. Petersburg Prosecutor ’ s Office, seeking compensation for the pecuniary and non-pecuniary damage caused by the confiscation of his property.

According to the applicant, only four out of twenty-seven scheduled hearings took place.

On 26 February 2003 the court dismissed the applicant ’ s claim. The court delivered only the operative part of the judgment, whereas the full text of the judgment became available to the applicant only on 3 September 2003.

On 11 July 2003 the applicant appealed against the judgment. In his appeal he mentioned that the full text of the judgment had not yet been prepared and that therefore his appeal was preliminary and would be amended.

On the same day he complained to the St. Petersburg City Court that the full text of the judgment of 26 February 2003 had still not been prepared, whereas Article 199 of the Code of Civil Procedure provided that a reasoned judgment was to be finalised within five days.

On 22 July 2003 the St. Petersburg Court informed the applicant that Judge K. (the presiding judge in his case) was on holiday and that the full text of the judgment of 26 February would be drafted as soon as possible.

On 1 September 2003 the Oktyabrskiy Court dismissed the applicant ’ s appeal, on the ground of his failure to respect the ten-day time-limit provided by law. It mentioned that the applicant ’ s appeal had been received on 25 July 2003, whereas the judgment had been given on 26 February 2003.

On 4 September 2003 the applicant was informed that the full text of the judgment had been finalised on 3 September 2003.

The applicant appealed against the decision of 1 September 2003. He claimed that, under Article 338 of the Code of Civil Proceedings, an appeal was to be lodged within ten days of the adoption of a final version of the judgment in issue. In his case, the final version of the judgment had been created on 3 September 2003, that is, two days after his appeal was rejected. He therefore applied for a renewal of the above time-limit.

On 29 October 2003 the St. Petersburg City Court rejected his appeal, having found no reasons to quash the decision of 1 September 2003 on account of a violation of Article 199 of the CCP by the first-instance court.

Second set of proceedings

In 1986 the applicant founded and headed a non-governmental organisation, the “F oundation for Free Contemporary Russian Art” (“ the F oundation ”). According to the applicant, 90% of the Foundation ’ s property belongs to him.

On 14 February 1999 Mr B. and Mrs L. allegedly removed property from the Foundation using false documents.

On 19 February 1999 criminal proceedings were instituted against B. and L. for fraud and forgery; the charges were later reclassified and they were accused only of usurpation of power. On 11 March 2002, following an amnesty act, the investigative authorities terminated the proceedings against B. and L.

The applicant appealed against this decision. On 18 March 2003 the Kuybyshevskiy Court rejected his appeal.

On 10 June 2003 the St. Petersburg City Court, having heard the applicant and the prosecutor, upheld the judgment of 18 March 2003.

On 13 July 2004 the St. Petersburg Prosecutor ’ s Office quashed the decision of 11 March 2002 and remitted the case for further investigation.

This decision was in turn quashed by the Kuybyshevskiy Court on 25 October 2004, as it violated the res judicata principle. The court found that the investigative authority had unlawfully overruled the final and binding court judgment of 18 March 2003. The applicant was not notified of the Kuybyshevskiy Court ’ s hearing, and received the decision of 25 October 2004 only in December 2004; he thus lost the opportunity to challenge it.

B. Relevant domestic law

Code of Civil Proceedings of the Russian Federation of 2002

Article 199. Preparation of a reasoned judgment

“Judgment shall be delivered immediately after the examination of a case. The preparation of a reasoned judgment may be postponed for not more than five days after the examination of a case; however, the court shall pronounce the operative part of the judgment at the same hearing in which the examination of the case is completed...”

Article 338 . Term for lodging of an appeal

“An appeal may be lodged within ten days of the delivery of a judgment in its final form.”

COMPLAINTS

The applicant complain ed under Article 6 § 1 and Article 1 of Protocol No.1 about a violation of his right of access to a court in his civil case . He also complained under Article 6 § 1 about the length of the civil proceedings .

T he applicant further complain ed under Article 6 § 1 and Article 13 of the Convention of the failure of the authorities to prosecute Mr B. and Mrs L., and of an erroneous assessment of evidence and incorrect interpretation of national law in the criminal proceedings against them. He also stated that he had been deprived of a right to compensation on account of the termination of the criminal proceedings against the above persons.

THE LAW

1. The applicant complain ed that the refusal to admit his appeal against the judgment in his civil case had deprived him of access to the appeal court, in violation of Article 6 § 1 of the Convention, and had also deprived him of the right to peaceful enjoyment of his possessions, in violation of Article 1 of Protocol No.1. He also complained under Article 6 § 1 that the proceedings in his civil claim had been excessively long. In so far as relevant, these provisions provide:

Article 6 § 1

“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

“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 considers that it cannot, on the basis of the case file, determine the admissibility of these complaints and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

2. The applicant further complained under Article s 6 § 1 and 13 of the Convention about the unlawfulness and ineffectiveness of the criminal proceedings against Mr B. and Mrs L. and about a violation of his property rights.

The Court has examined the remainder of the applicant ’ s complaints and considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, they 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 declared inadmissible pursuant to Article 35 §§ 3 and 4 of the Convention.

For these r easons, the Court unanimously

Decides to adjourn the examination of the applicant ’ s complaints concerning access to the appeal court, length of the civil proceedings and alleged interference with his right to a property ;

Declares the remainder of the application inadmissible.

Claudia Westerdiek Rait Maruste Registrar President