FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 74828/01 by Nikolay Aleksandrovich KONIBOLOTSKIY against Russia

The European Court of Human Rights (Fourth Section), sitting on 4 October 2005 as a Chamber composed of:

Mr J. Casadevall , President , Mr M. Pellonpää , Mr R. Maruste , Mr A. Kovler , Mr S. Pavlovschi , Mr J. Borrego Borrego , Mr J. Šikuta , judges , and Mr M. O ’ Boyle , Section Registrar ,

Having regard to the above application lodged on 23 August 2001 ,

Having regard to the decision to apply the procedure under Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,

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 Aleksandrovich Konibolotskiy , is a Russian national who was born in 1952 and lives in Kurskaya , a village in the Kurskiy District of the Stavropol Region. The respondent Government were represented by Mr P. A. Laptev , Representative of the Russian Federation at the European Court of Human Rights.

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

A. Court determination of the applicant ’ s dispute

On 13 September 1994 the Kurskiy District Court of the Stavropol Region dissolved the applicant ’ s marriage.

On 11 April 1996 the applicant brought proceedings against his former wife, requesting partition of a house of 64.6 sq. m. total surface and other property acquired before the divorce. On 5 June 1996 the Kurskiy District Court of the Stavropol Region discontinued proceedings in the case because of the withdrawal of the action by the applicant who had reached a settlement agreement with the defendant. The applicant did not appeal but later, on an unspecified date, since the defendant had failed to adhere to the settlement agreement, successfully pursued the supervisory review procedure - an extraordinary remedy provided for by the Russian legislation.

In the course of supervisory review proceedings, on 29 December 1997 , the Presidium of the Stavropol Regional Court quashed the decision of 5 June 1996 in view of procedural defects (it had not been explained to the applicant that his withdrawal of the action would deprive him of a right to re-lodge the same action in the future) and ordered a fresh examination of the case by the same District Court.

The examination of the case was then adjourned several times: on 17 February and 15 May 1998 on the defendant ’ s request; on 23 July 1998 on the applicant ’ s request and on 17 August 1998 because of the parties ’ failure to appear.

On 23 September 1998 the District Court ordered an expert opinion concerning the value of the house. It was obtained on 4 November 1998 .

On 12 November 1998 the hearing was adjourned as the parties failed to appear.

On 17 November 1998 the proceedings were suspended due to the applicant ’ s illness.

On 13 January 1999 the Kurskiy District Court rejected the applicant ’ s claim concerning the partition of the house and award ed a sum corresponding to his share in the house, to be paid by the defendant. Following the applicant ’ s appeal, on 14 May 1999 , the Stavropol Regional Court quashed the judgment in part concerning the division of the house, pointing out that the first instance court should have examined the technical possibility of the physical partition of the house, after obtaining an expert opinion if necessary, and ordered a fresh examination of the issue.

On 21 July 1999 the District Court ordered another expert opinion concerning the value of the disputed house and repair works made before the dissolution of the marriage. The expert opinion was obtained on 28 March 2000 .

On 15 April and 23 May 2000 the examination of the case was adjourned because of the parties ’ failure to appear.

On 11 July 2000 the District Court awarded the applicant compensation for the repairs, rejecting the rest of his claims. On 25 December 2000 the applicant requested the court to restore the time-limit for appealing against the judgment. On 27 December 2000 the court granted the request. On 30 March 2001 the Stavropol Regional Court quashed the judgment of 11 July 2000 , as it lacked reasons and references to material and procedural law, and ordered a fresh examination of the case by the same court.

On 20 April and 11 May 2001 the hearing was adjourned due to the parties ’ failure to appear.

On 29 May 2001 the District Court ordered one more expert opinion, asking whether it would be possible physically to divide the house, taking into account the applicant ’ s entitlement to half of the money spent on its repairs. The expert opinion was obtained in June 2001.

On 6 July 2001 the court found that the partition of the house was impossible and ordered the defendant to pay the applicant pecuniary compensation. The applicant did not appeal and the judgment became final on 17 July 2001 .

B. Enforcement proceedings

On 3 September 2001 the bailiff ’ s service found that the defendant had no property which could be seized . On 14 September 2001 the enforcement proceedings were closed because of the transfer of the writs of execution to a local social security authority for deductions to be made from the defendant ’ s pension. There is a certificate o f a local pension fund dated 25 December 2001 confirming that regular deductions were made from the defendant ’ s pension by way of execution of the judgment.

C. New court application

As the deductions from the defendant ’ s pension were so small as to make the prospect of the prompt execution of the judgment unrealistic, on 24 January 2002 the applicant attempted to bring a new action against the defendant, again requesting the partition of the house. On 18 February 2002 the Justice of the Peace of the First Court Circuit of the Kurskiy District of the Stavropol Region refused to examine the action, because it raised an issue substantially the same as the one which had been decided by the judgment of 6 July 2001 . On 25 April 2002 the Kurskiy District Court of the Stavropol Region upheld this decision on appeal.

COMPLAINTS

1. The applicant complained under Article 6 of the Convention about the length of the proceedings in his case.

2. He further alleged that the way the domestic courts conducted the proceedings equalled to his inhuman and degrading treatment in breach of Article 3 of the Convention. Invoking Article 6 of t he Convention, Article 1 of Protocol No. 1 and Article 5 of Protocol No. 7, he complained about the outcome of those proceedings. As regards the decision of 18 February 2002, as upheld on appeal on 25 April 2002, the applicant complained about a violation of his right of access to court under Article 6, his right not to be discriminated against on the ground of sex under Article 14 of the Convention and his property rights under Article 1 of Protocol No. 1.

THE LAW

1. The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, provided in Article 6 of the Convention, which, in so far as relevant, reads:

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

The Government rejected the allegation. They submitted that in the course of the proceedings the domestic courts gave seven decisions and there were no long periods of inactivity on their part. The repeated adjournments were caused by motions of the parties and the applicant ’ s failure to appear.

A. Period to be considered

The proceedings commenced on 11 April 1996 , when the applicant brought proceedings before the Kurskiy District Court of the Stavropol Region. They were discontinued on 5 June 1996 and then reopened on 29 December 1997 . However, the period which falls within the Court ’ s competence ratione temporis began on 5 May 1998 , when the Convention came into force in respect of Russia. The proceedings ended on 6 July 2001 , when the Kurskiy District Court delivered its judgment.

The proceedings lasted about three years and eight months . T he period between 5 June 1996 and 29 December 1997 during which no proceedings were pending is excluded (see Markin v. Russia ( dec .), no. 59502/00, 16 September 2004 ). Three years, two months and one day of the said period falls to be examined by the Court.

The Court notes that in assessing the reasonableness of the length of the proceedings account must be taken of the state of proceedings on the date of entry of the Convention into force in respect of the Contracting State (see, for example, Billi v. Italy , judgment of 26 February 1993, Series A no. 257 ‑ G, § 16). In this respect the Court notes that by 5 May 1998 the proceedings had lasted for about six months .

B. Reasonableness of the length of proceedings

The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the criteria established by its case-law, particularly the complexity of the case, the conduct of the applicant and of the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).

The Court considers that the applicant ’ s case , though requiring an expert opinion concerning the division of a house, was not particularly complex . It concerned the applicant ’ s rights to the family house and w as undoubtedly important for him.

As regards the applicant ’ s conduct, it appears that his failure to attend some hearings and his illness contributed to an overall delay of about eight months .

As regards the conduct of the judicial authorities, the case had twice been dealt with at two levels of jurisdiction until the final judgment was delivered. The Court notes that on 30 March 2001 the case was remitted to the Kurskiy District Court for a fresh examination because its judgment was manifestly ill-founded. It further notes that there were no developments in the case between 21 July 1999 and 28 March 2000 . The Court recalls that a delay at some stage may be accepted if the overall duration of the proceedings cannot be deemed excessive (see, for example, Pretto and Others v. Italy , judgment of 8 December 1983, Series A no. 71, p. 16, § 37). The Court considers that in the present case, although the above delays could possibly have been avoided, they are not such as to warrant the conclusion of a violation, given the total duration of the proceedings of about three years and two months and the applicant ’ s responsibility for some of the delays.

Based on the foregoing considerations, the Court concludes that the length of the civil proceedings in the present case does not disclose any appearance of a violation of the “reasonable time” requirement under Article 6 § 1 of the Convention. It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4 of the Convention.

2. Lastly, t he Court has examined the remainder of the applicant ’ s complaints as submitted by him . However, having regard to all the material in its possession, it 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

Decides to discontinue the application of Article 29 § 3 of the Convention;

Declares the application inadmissible.

Michael O ’ Boyle Josep Casadevall Registrar President