FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 7061/02 by Vitaliy Sergeyevich PETROV against Russia

The European Court of Human Rights (First Section), sitting on 10 November 2005 as a Chamber composed of:

Mr C.L. Rozakis , President , Mrs F. Tulkens , Mr P. Lorenzen , Mrs N. Vajić , Mrs S. Botoucharova , Mr A. Kovler ,

Mr S.E. Jebens , judges , and Mr S. Nielsen , Section Registrar ,

Having regard to the above application lodged on 9 August 2001 ,

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 Sergeyevich Petrov , is a Russian national who was born in 1948 and lives in Orsk . He is represented before the Court by Mr S. Kiryukhin , a lawyer practising in Orsk . The respondent Government are represented by Mr P. Laptev, the 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. Civil proceedings regarding the applicant ’ s apartment.

In July 1998 the applicant, a private entrepreneur, purchased a flat on the ground floor of an apartment building, with a view to opening a shop. The flat bought by the applicant belonged to the category of “living premises”, and could not be used for other purposes than providing a housing. In order to function as a shop, the flat had to be officially re-classified as “non-residential premises”. With that view the applicant addressed the Orsk Town Administration (the local executive authority) with a request for re-classification. On 23 March 2000 that request was rejected. The applicant challenged the refusal in court. On 8 September 2000 the Orsk Town Leninskiy District Court held in the applicant ’ s favour, ordering the local administration to re-classify the applicant ’ s real estate. On 23 September 2000 enforcement proceedings were instituted in this respect.

On 16 October 2000 the administration issued an order, allowing commercial use of the applicant ’ s flat. Following this decision, on 4 November 2000 , the bailiffs ’ service discontinued the execution proceedings. However, the applicant was still unable to start his business because certain other formalities were not observed. In particular, the local authority had refused to provide him with a certified plan of his flat claiming that the order of 16 October 2000 was not clear enough. The applicant appealed to a court. On 25 May 2001 the Leninskiy District Court rejected his claim, stating that the judgment of 8 September 2000 had been duly executed, and that the bailiff ’ s decision to discontinue the execution proceedings had been lawful. This judgment was upheld by the Orenburg Regional Court on 28 June 2001 .

On 18 October 2001 a prosecutor lodged an extraordinary appeal ( протест ) against the judgment of 8 September 2000 . On 10 December 2001 the Presidium of the Orenburg Regional Court quashed the above judgment as a result of the supervisory review proceedings ( в порядке надзора ). The Presidium held in particular that pursuant to Article 9 of the Housing Code, a decision to turn a flat into a commercial facility could only been taken at the regional level, the town administration having no authority in this respect. The Presidium also held that the lower court had not examined the opinion of other residents of the apartment building, where the applicant ’ s flat was situated. Moreover, the Town administration had failed to assess possible environmental impact of the functioning of the shop and obtain a report from the competent authority. The case was remitted to the first instance court for a fresh examination.

In the meantime, on 24 October 2001 , the Orsk T own Council ( Орский городской совет депутатов ), adopted a new regulation concerning non-residential facilities. Pursuant to this regulation the permission to re-arrange a flat for commercial purposes must be issued by the Town Council instead of the Town Administration. On 28 March 2002 the applicant revoked his initial action against the Town Administration, pending before the Leninskiy District Court, and re-submitted his request for re-classification of the property to the Town Council. On 24 April 2002 this body dismissed his request on the ground that a number of the applicant ’ s immediate neighbours objected to a shop being established in the building. The applicant brought an action against the Town Council. On 11 June 2002 the Leninskiy District Court rejected it. On 16 July 2002 the Orenburg Regional Court upheld that decision.

2. Other proceedings involving the applicant

In August 1998 the applicant started construction works in his flat with a view to establishing a shop. On several occasions in 1998-1999 the local administration fined the applicant for unauthorised construction. In November 1999 the police instituted criminal proceedings against him in this respect. On 28 December 2000 the Leninskiy District Court acquitted the applicant. The court found that the applicant had carried out works without a relevant permission. However, in the court ’ s opinion, it did not amount to a criminal offence. This decision was upheld by the Orenburg Regional Court on 1 March 2001 .

Some time later the applicant brought civil proceedings against the State claiming compensation for pecuniary and non-pecuniary damage for his allegedly unlawful prosecution. He maintained, in particular, that the fact of having been under investigation caused him serious mental sufferings. He also submitted that the psychological stress caused by the prosecution had weakened his immune system thus provoking tumefaction of gums, dental diseases and problems with the stomach and the intestines. Consequently, he had to pay for a an expensive treatment in a clinic in Moscow.

In the course of the proceedings the applicant ’ s claims concerning pecuniary damage were severed from his claims for non-pecuniary damages. On 27 March 2003 the court awarded the applicant 10,000 roubles in compensation of non-pecuniary damage. This decision was upheld on 10 June 2003 by the Orenburg Regional Court . As regards compensation of pecuniary damages sought by the applicant, the court dismissed them in full on 27 October 2004 . The court found that the applicant had suffered from the diseases complained of before the investigation had started. The court found no casual link between the deterioration of the applicant ’ s state of health and his prosecution. On 30 November 2004 the Orenburg Regional Court upheld this judgment.

B. Rele vant domestic law

Article 11 of the Code of Civil Procedure of 1964, as in force at the material time, provided that regional and higher courts could conduct “supervisory review” of the decisions of the lower courts. This meant, according to Articles 319, 320 and 327, that specific senior judicial officers could, at any time, at the request of a party or of their own motion, lodge with a higher court an “extraordinary appeal” ( протест ) against the final decision on all questions of fact and law. If an “extraordinary appeal” was lodged, the proceedings recommenced and execution of the final judgment would be adjourned (Article 323). The “supervisory review” procedure was separate from proceedings for review on the basis of new facts (Articles 333 -337). For further details concerning the supervisory review proceedings see the case Ryabykh v. Russia , no. 52854/99, §§31-42, ECHR 2003 ‑ IX .

COMPLAINTS

1. Under Article 6 § 1 the applicant complains about the effects of the decision of the Presidium of the Orenburg Regional Court of 10 December 2001 quashing the judgment of 8 September 2000 .

2. Under Article 6 of the Convention and Article 1 of Protocol No. 1 the applicant further complains about the outcome of the proceedings regarding the status of the flat and his inability to establish a shop there.

3. Under Article 6 of the Convention the applicant complains that the criminal prosecution against him was unlawful and that the court award received in connection with it was insufficient.

THE LAW

1. The applicant complains that the decision of the Presidium of the Orenburg Regional Court of 10 December 2001 to quash the judgment of 8 September 2000 and remit the case frustrated his right to a fair trial and deprived him of the fruits of the litigation. His complaint falls to be examined under Article 6 § 1 of the Convention, and Article 1 of Protocol no. 1 to the Convention. These provisions read, insofar as relevant, as follows:

Article 6

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

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 Government submit that the decision of the Presidium of the Orenburg Regional Court , complained of by the applicant, was aimed at correcting a judicial error of the lower court. In particular, the lower court had failed to take into account legitimate interests of other residents of the building, where the applicant intended to open a shop. Therefore, the quashing of the judgment of 8 September 2000 was not against the principle of “legal certainty” enshrined in Article 6 § 1 of the Convention ( Ryabykh v. Russia , no. 52854/99, §§ 52, 24 July 2003 ).

As regards the applicant ’ s complaints under Article 1 of Protocol no. 1 to the Convention, the Government stress that the property, acquired by him, always belonged to the category of dwellings and could not be used for commercial purposes. This limitation was established by the Russian legislation with a view of protecting legitimate interests of neighbours. The transfer of such a property into the category of “non-residential premises” could be authorised by the competent local authority only exceptionally. The Government conclude that the applicant ’ s complaints in this respect are manifestly ill-founded as nobody deprived him of his flat, and, as concerns the refusal to transfer it to another category, since the refusal cannot be regarded as an interference with his “possessions”.

In his submissions in reply to those of the Government the applicant maintains his complaints. He submits that the quashing of a final judgment in his favour breached the principle of legal certainty, enshrined in Article 6 of the Convention ( Brumărescu v. Romania [GC], no. 28342/95, § 61 , ECHR 1999 ‑ VII ) and constituted an unjustified interference with his “possessions”, contrary to Article 1 of Protocol no. 1 to the Convention.

T he Court considers, in the light of the parties ’ submissions, that this issue raises serious questions of fact and law under the Convention, the determination of which requires 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. The Court has examined the remainder of the applicant ’ s complaints as submitted by him (complaints nos. 2 and 3 above). However, having regard to all the material in its possession, the Court finds that these complaints 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 unanimously

Declares admissible, without prejudging the merits, the applicant ’ s complaint concerning the quashing, by way of supervisory review, of the judgment of 8 September 2000 ;

Declares the remainder of the application inadmissible.

Søren Nielsen Christos Rozakis Registrar President