FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 76110/01 by Vitaliy Ivanovich ZEMLYANSKIKH against Russia

The European Court of Human Rights (Fifth Section), sitting on 9 September 2008 as a Chamber composed of:

Peer Lorenzen , President, Rait Maruste , Volodymyr Butkevych , Anatoly Kovler , Mark Villiger , Mirjana Lazarova Trajkovska , Zdravka Kalaydjieva , judges, and Claudia Westerdiek, Section Registrar ,

Having regard to the above application lodged on 7 March 2001,

Having regard to the decision to examine the admissibility and merits of the case together (Article 29 § 3 of the Convention).

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 Vitaliy Ivanovich Zemlyanskikh, is a Russian national who was born in 1957 and lives in Khabarovsk . The Russian Government (“the Government”) were represented by their Agent, Mr P. Laptev, Representative of the Russian Federation at the European Court of Human .

A. The circumstances of the case

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

In 1996 the Frunzenskiy District Prosecutor ’ s office of Saratov opened criminal investigations against the applicant who was suspected of having committed an act of hooliganism. In the course of the criminal investigations the applicant ’ s Ford vehicle was impounded. On 14 October 1999 the applicant was informed by a letter from the same prosecutor ’ s office that the criminal proceedings were discontinued because no facts had been established that would constitute a criminal offence. The letter stated that the applicant could access the official text of that decision at the prosecutor ’ s office and that he could challenge it before the prosecutor or the court.

On 17 July 2000 the applicant requested the prosecutor ’ s office to return him the impounded vehicle. In reply, he was informed on 26 July 2000 that all material evidence seized in the course of criminal proceedings were in charge of the Saratov Town Department of the Interior and he could claim his belongings there. It is not clear whether the applicant attempted to do so.

On 2 August 2000 the applicant seized the Leninskiy District Court of Saratov with a claim for compensation of damage caused by the unlawful prosecution. Among other complaints, he alleged that he did not get back the impounded vehicle.

On 4 August 2000 the court issued a resolution to stay the proceedings on the ground that the applicant had failed to comply with the formal requirements for lodging a claim. In particular he did not provide the court with copies of the procedural decision that he intended to challenge, i.e., the investigators ’ decision to institute the criminal proceedings. The applicant was allowed 10 days for supplementing his submissions.

On 14 August 2000 the applicant appealed against the stay of proceedings claiming that the court could request the missing documents under its own powers. On 21 August 2000 he was informed by the same court that the stay of proceedings was not amenable to appeal.

The applicant did not take any steps to comply with the court order of 4 August 2000. Neither did he request an extension of the time-limit for supplementing his submissions, which, accordingly, expired on 14 August 2000.

On 26 October 2000 the court returned the applicant ’ s claim by posting it to him by ordinary mail.

The applicant did not attempt to lodge his claims again. In 2000-2001 he brought several requests for supervisory review complaining about the court ’ s refusal to accept his claim for examination, but these were refused on the ground that every time he failed to attach a copy of the court order of 4 August 2000.

B. Rel evant domestic law

The RSFSR Code on Civil Procedure, in force at the material time, provided as follows:

Article 130

“Having established that the claim does not conform to the formal requirements of ... this Code ... the judge issues a resolution to stay the claim and notifies the plaintiff and sets a time-limit for rectification of the shortfalls.

If the plaintiff complies ... within the time-limit ... the claim is considered lodged on the date when it was originally filed with the court. Otherwise, the claim is considered as not having been lodged and is to be returned to the plaintiff.”

Article 315

“Resolutions of the courts of first instance may be appealed before the court of cassation separately from the courts ’ judgements by the parties and other persons taking part in the proceedings, or by a prosecutor ’ s protest:

1) when it is specifically provided for by this Code;

2) whenever the resolution bars the continuation of the proceedings.

Other resolutions of the first instance courts may not be appealed by way of a separate appeal or a protest, but the objections against them may appear in the points of appeal or a protest before the cassation instance.”

COMPLAINTS

The applicant complained under Article s 6 and 13 of the Convention that the Leninskiy District Court of Saratov stayed the proceedings on his claim and that no effective remedy was available against that decision .

He also complained under Article 1 of Protocol No. 1 to the Convention about the impossibility to recover his property seized in the course of criminal investigation.

Finally, he alleged that the court order to produce documents that he did not have constituted ill-treatment contrary to Article 3 of the Convention and that the domestic authorities ’ overall conduct constituted a violation of Article 17 of the Convention.

TH E LAW

1. The applicant complained that the Leninskiy District Court of Saratov acted unlawfully in that it stayed the proceedings and required him to submit documents that he did not possess. That deprived him of an opportunity of having his claim for damages examined by a court. Furthermore, he could not challenge this decision before a court as it was not amenable to appeal. He invokes Articles 6 and 13 of the Convention, which provide, in so far as relevant, as follows:

Article 6 (right to a fair hearing)

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

Article 13 (right to an effective remedy)

“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 Government contested this application both as regards its admissibility and the substance. Firstly, they considered that this application was lodged out of time. The domestic decision in question was taken by the Leninskiy District Court of Saratov on 4 August 2000, that is more than six months before the introduction of this application on 7 March 2001. On the merits, they did not consider that the stay of proceedings in question deprived the applicant of the right of access to court. They argued that the court order to the applicant to provide the copies of the decisions he intended to challenge was lawful and reasonable; the time-limit set by the court gave the applicant sufficient opportunity to obtain the necessary copies.

The applicant, on the other hand, considered that his complaints were well-founded and introduced in due time. He considered that the six months ’ time-limit started to run on 26 October 2000 when the Leninskiy District Court of Saratov eventually returned his claim, or even three days later if the Court is to take account of the postal delay. On the substance, he alleged that the court order to produce the copies of the contested decisions made it impossible for him to pursue his claim.

The Court, first, takes note of the Government ’ s objection to the admissibility of this application. It observes that on 4 August 2000 the Leninskiy District Court of Saratov issued a resolution to stay the proceedings on the ground that the applicant had failed to comply with the formal requirements for lodging a claim. The applicant was allowed ten days for supplementing his submissions. However, the applicant did not comply with this order within the time-limit specified. Accordingly, under the relevant domestic law, his claim was considered as not having been lodged from the expiry of that time-limit on 14 August 2000.

It is true that the applicant appealed against the decision of 4 August 2000 although, under the Code on Civil Procedure, a resolution on the stay of proceedings was not amenable to appeal. In any event, the Leninskiy District Court of Saratov informed the applicant on 21 August 2000 that the appeal could not be accepted for examination. Taking into consideration the applicant ’ s statement that the postal delays in his case were about three days, the Court concludes that the applicant received this decision on 24 August 2000 at the latest. Accordingly, from that day the applicant should have been aware of final nature of the decision of 4 August 2000 and the legal consequences of his failure to supplement his submissions.

The Court therefore cannot agree with the applicant that the six-months ’ time-limit should be calculated from 26 October 2000, the day when the court returned his claim. This date was of no legal consequence .

The Court notes that the applicant introduced this complaint to the Court on 7 March 2001 . Thus, more than six months passed between the decision of 4 August 2000 , or even the date when the applicant received the information that it was not amenable to appeal, and the introduction of this complaint to the Court.

It follows that this part of the application is inadmissible for failure to observe the six months ’ time-limit in Article 35 § 1 of the Convention and must be rejected pursuant to Article 35 § 4.

2. Invoking Articles 3 and 17 of the Convention, t he applicant complained that the court ’ s refusal to consider his claim without the requisite documents amounted to ill-treatment and abuse of authority, as well as prevented him from recovering his property in breach of Article 1 of Protocol No. 1 to the Convention.

Having regard to all the material in its possession, and in so far as these complaints fall within its competence, the Court finds that 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 rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

In view of the above, it is appropriate to disco ntinue the application of Article 2 9 § 3 of the Convention .

For these reasons, the Court unanimously

Declares the application inadmissible.

             Claudia Westerdiek Peer Lorenzen Registrar President