FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 35986/02 by Emma Sa ak ovna SUMBATYAN and Igor Lvovich SUMBATYAN against Russia

The European Court of Human Rights ( First Section) , sitting on 30 September 2004 as a Chamber composed of:

Mr C.L. Rozakis , President , Mr P. Lorenzen , Mr G. Bonello , Mrs N. Vajić , Mr A. Kovler , Mrs E. Steiner , Mr K. Hajiyev, judges , and Mr S. Quesada , Deputy Section Registrar ,

Having regard to the above application lodged on 12 August 2002 ,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

The first applicant is Mrs Emma Sa ak ovna Sumbatyan, the second applicant is Mr Igor Lvovich Sumbatyan. The applicants are mother and son , and were born in 1920 and 1940 respectively. Both are Russian nationals and live in Saint-Petersburg. They are represented before the Court by Mrs O.P. Tseytlina, a lawyer practising in Saint-Petersburg. The respondent Government are represented by Mr Pavel Laptev, Representative of the Russian Federation in 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 .

The applicants are forced migrants from Chechnya and live in Saint-Petersburg since 1991. The first applicant suffers from serious recurrent health problems caused by tuberculosis.

In April 1999 the applicants were granted Forced Migrant Certificates ( удостоверение вынужденного переселенца ).

On 1 December 1999 they applied to the Territorial Administration of the Central District of Saint-Petersburg ( Территориальное управление Центрального административного района Санкт-Петербурга ) , seeking to be registered as persons in need of improve d living conditions.

On 30 December 1999 the Territorial Administration refused their application on the grounds that only citizens who had lived in Saint-Petersburg for at least t en years on a permanent basis could be so registered .

On 1 5 March 2000 the applicants complained to the Smolninskiy District Court of Saint-Petersburg ( Смольнинский федеральный суд Центрального района Санкт-Петербурга ) about the refusal, claiming that – as forced migrants – they were entitled to improve d living conditions irrespective of the number of years that they had lived in Saint-Petersburg.

On 11 May 2000 the District Court, presided by judge Y., ordered the parties to appear before the court for a preparatory hearing on 23 June 2000 .

On 23 June 2000 judge Y. held a preparatory hearing at which the trial was scheduled to commence on 24 October 2000 . T he applicants submit that the respondent ' s representative was absent from this hearing.

On 24 October 2000 the hearing was adjourned and a new hearing was scheduled for 28 November 2000 . According to t he Government , the hearing was adjourned due to the absence of the first applicant and the respondent ' s representative. According to the applicants, they were both present at this hearing.

On 28 November 2000 the hearing was again adjourned and a new hearing was scheduled for 6 February 2001 . According to the Government , the hearing was adjourned due to the absence of both applicants. According to the applicants, they were both present at this hearing, wh ile the respondent ' s representative was absent.

On 6 February 2001 the hearing was again adjourned due to the absence of the respondent ' s representative. A new hearing was scheduled for 23 February 2001 .

On 23 February 2001 the court held the first hearing on the merits as both parties were present. The applicants pleaded their case, which was followed by the respondent ' s objections. The court ordered a n adjournment until 26 February 2001 and asked the applicants to submit additional documents.

On 26 February 2001 the hearing was adjourned following the grant of the motion lodged by the respondent ' s representative requesting that the Housing Agency of the Central District ( Жилищное агентство Центрального района ) be invited to participate in the case as a third party. According to the applicants, at this hearing they submitted all the documents requested by the court. The presiding judge Y. scheduled the next hearing for 29 March 2001 , notwithstanding that the applicants informed her that they would not be able to attend on that date as they were going out of town to a health recreation cent re for forced migrants.

On 29 March 2001 n either of the parties appeared at the hearing and a new hearing was scheduled for 14 May 2001 .

On 11 May 2001 the Head of the Territorial Administration ( глава Территориального управления ) ordered that the applicants be registered as persons in need of improve d living conditions with effect from 24 December 1999 .

On 15 May 2001 the applicants discovered that the court had held a hearing on 14 May 2001 and decided to leave their complaint without consider ation as the applicants had twice failed to appear at court hearings, i.e. the hearings of 29 March and 14 May 2001 , about whi ch they had been duly informed.

On 24 May 2001 t he applicants contested this decision before the Saint-Petersburg City Court. In their appeal , the applicants also complained in detail about delays in the examination of their case and the conduct of judge Y .

On 13 November 2001 the Saint-Petersburg City Court quashed the decision of the District Court, finding that the applicants had v alid reasons for being absent from the hearing of 29 March 2001 . The City Court did not address the applicants ' complaint about the length of proceedings.

The case was remitted once again to the Smolninskiy District Court presided by judge S. Following the receipt of the case file on 9 January 2002 , the judge scheduled a hearing for 10 January 2002 .

On 10 January 2002 the hearing was again adjourned and a new hearing was scheduled for 13 February 2002 . According to the Government, the hearing was adjourned due to the absence of both parties. According to the applicants, the first applicant was present at this hearing and it was adjourned due to the absence of the respondent ' s representative.

On 13 February 2002 the hearing was again adjourned and a new hearing was scheduled for 26 February 2002 . According to the Government, the hearing was adjourned for the absence of both parties. According to the applicants, they were present at this hearing and it was adjourned due to the absence of the respondent ' s representative.

On 26 February 2002 the hearing was adjourned until 26 March 2002 with the court order ing the respondent, who was absent from the hearing, to submit a copy of the Order ( распоряжение главы Территориального управления о постановке на учет заявителей ) of 11 May 2001 . The first applicant was present at the hearing.

On 26 March 2002 the court held a hearing in the presence of the first applicant and the respondent ' s representative. During the hearing, the applicant felt sick and was t ak en to a hospital. A new hearing was scheduled for 10 July 2002 .

On 10 July 2002 the hearing was adjourned until 20 August 2002 as judge S. was on vacation.

At the hearing of 20 August 2002 the applicants lodged a complaint in which they alleg ed that judges S. and Y. had been biased against them , in favour of the respondent. In support of their allegations, the applicants pointed out the failure of the judges to examine the case within a reasonable time . Following this, they left the courtroom and the hearing was closed.

On 26 August 2002 the applicants received a reply from the President of the District Court requesting them to attend the next hearing which was scheduled for 9 October 2002 and was to be conducted by judge S. The reply did not address the issues of length and parti ality raised by the applicants.

On 9 October 2002 t he applicants did not appear at the hearing.

On 15 October 2002 they complained to the President of the Saint-Petersburg City Court ( председатель Санкт-Петербургского городского суда ) about the bias of judges Y. and S. and the unreasonable delays in the proceedings.

On 21 October 2002 the applicants received a reply from the President of the City Court informing them a new hearing had been scheduled for 21 November 2002 as they had failed to appear at the previous one on 9 October 2002 .

On 21 November 2002 the court held a hearing when t he applicants again challenge d judge S ., alleging that the deliberate delay in the proceedings indicated the judge ' s personal interest in the outcome of the case . The challenge was examined by judge S. herself and rejected as unsubstantiated. The judge found that the delay in the proceedings did not indicate that she was biased, since she had only t a k en over the case in January 2002 and that the delays had been caused for objective reasons , such as the behaviour of the parties. The applicants left the courtroom following the rejection of the challenge. Thereafter, the court went on to examine the case and delivered a judgment on the merits. The court rejected the applicants ' claims, finding that on 11 May 2001 they had been registered by the Territorial Administration as persons in need of improve d living conditions and that the Administration ' s initial refusal had been lawful.

On 19 December 2002 the applicants lodged an appeal against the judgment of 21 November 2002 . In their appeal, they complained in detail about the delays in the proceedings and the bias of judges Y. and S .

On 4 February 2003 the Saint-Petersburg City Court upheld the judgment of the Distr ict Court and dismissed the applicants ' appeal.

B. Relevant domestic law

The Code of Civil Procedure of 1965 ( Гражданский процессуальный кодекс РСФСÐ )

Article 239 . 6 provides that complaints against actions of a public authority , a public organis ation or an official who violate rights and freedoms of a person are to be examined by the court within ten days , with the participation of the complainant and the head or the representative of the public authority or the public organization or the official whose actions are contested. It further provides that non-attendance of the court hearing by any of the parties for a n in valid reason is not an obstacle to the examination of the complaint. However, the court may consider the attendance to be indispensable .

The 1987 Rules for the Registration of Persons in Need of Improve d Living Conditions and for the Allocation of Accommodation in Saint-Petersburg (Правила учета граждан, нуждающихся в улучшении жилищных условий, и предоставления жилых помещений в Ленинграде)

Rule 16 provides that only persons who ha ve lived in Saint-Petersburg for at least ten years on a permanent basis can be recognized as those in need of improve d living conditions.

The 1995 Law on Forced Migrants (Закон «О вынужденных переселенцах»)

Article 7 § 1(2) provides that forced migrants are entitled to be registered for allocation of State-funded accommodation irrespective of how long they ha ve lived in a given area.

COMPLAINT S

The applicants complain ed under Article 6 § 1 of the Convention that the length of proceedings in their case wa s in violation of the “reasonable time” requirement.

They further complain ed about the lack of an effective remedy against the delays in the proceedings , without referring to any Article of the Convention.

In their observations submitted on 26 September 2003 , the applicants also complained that the procedure whereby a challenge to a judge is examined by the challenged judge himself or herself , as happened in their case , was in violation of the fair hearing guarantees.

THE LAW

1. The applicant s complained about unreasonable delays in the proceedings to which they were a party. They invoke Article 6 § 1 which, insofar as relevant, provides:

“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 indicate that the length of the proceedings was objectively justified because of the applicant s ' own behaviour. In particular, the applicants failed to appear at the hearings of 28 November 2000 , 29 M arch and 14 May 2001 , 10 January, 13 and 26 February, and 9 October 2002 . The hearing of 26 March 2002 was adjourned because of the first applicant ' s health problems. On 20 August and 21 November 2002 the applicants left the courtroom following the rejection of their challenge.

The applicant s maintain that the length of the proceedings in their case was incompatible with Article 6 § 1. They contest the Government ' s submission that they were absent from the hearings of 28 November 2000 , and 10 January, 13 and 26 February 2002 . They submit that the respondent failed on numerous occasions to appear at the hearings , but the District Court n ever inquire d about the reasons for th at absence or consider ed examining the case in the respondent ' s absence.

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 st ak e for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).

The Court notes that the period to be considered began on 15 Ma rch 2000 , when the applicants lodged their complaint with the Smolninskiy District Court, and ended on 4 February 2003 with the final decision of the Saint-Petersburg City Court, amounting to a total of two years, ten months and 20 days. During that period, by 11 May 2001 , the merits of the case were essentially resolved with the applicants ' registration on the relevant housing list , backdated to 24 December 1999 . T he Court further notes that, even though the case was not complex, it was decided on two levels of jurisdiction, there were no significant periods of inactivity and that part of the delay was indisputably attributable to the applicants (on 20 August 2002, when they left the courtroom after lodging a challenge to the presiding judge, and on 9 October 2002, when they failed to appear at the court hearing). The Court concludes that , despite a number of short delays which are evident in the case , the overall length of the proceedings was not so excessive as to disclose any appearance of a violation of the “reasonable time” requirement under Article 6 § 1 .

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

2. The applicants complained that they did not have an effective remedy in respect of their complaints about the delays in the proceedings. The Court considers that this complaint must be examined under Article 13 which provides:

“Everyone whose rights and freedoms as set forth in this 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 did not submit any observations on this point.

The Court recalls that Article 13 applies only where an individual has an “ arguable claim ” to be the victim of a violation of a Convention right (see , e.g., Boyle and Rice v. the United Kingdom , judgment of 27 April 1988, Series A no. 131, § 52).

The Court has found that the applicant s ' complaint under Article 6 § 1 to the Convention is manifestly ill-founded. For similar reasons, the applicant s do not have an arguable claim and Article 13 is therefore inapplicable to their case.

It follows that this part of the application is also manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.

3. In their observations submitted on 26 September 2003 , the applicants complained about the fact that the challenge to judge S. was examined by the judge herself. They invoked the above-cited Article 6 § 1 of the Convention.

The Court recalls that it may only examine complaints in respect of which domestic remedies have been exhausted and which have been submitted within six months from the date of the “final” domestic decision (see, e.g., Valasinas v. Lithuania (dec.), no. 44558/98, 14 March 2000 ).

The Court notes that the final decision in the applicants ' case was taken by the Saint-Petersburg City Court on 4 February 2003 . However, it was not until 26 September 2003 , the date when the observations were submitted, that the applicants raised this issue before the Court.

It follows that this complaint was lodged out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

S antiago Q uesada C hristos Rozakis Deputy R egistrar President