FIRST SECTION

DE CISION

AS TO THE ADMISSIBILITY OF

Application no. 5964/02 by Ivan CHERNITSYN against Russia

The European Court of Human Rights ( First Section) , sitting on 8 July 2004 as a Chamber composed of:

Mr C.L. Rozakis , President , Mrs F. Tulkens , Mrs N. Vajić , Mrs S. Botoucharova , Mr A. Kovler , Mr V. Zagrebelsky , Mrs E. Steiner , judges , and Mr S. Quesada , Deputy Section Registrar ,

Having regard to the above application lodged on 18 January 2002 ,

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 Ivan Petrovich Chernitsyn , is a Russian national, who was born in 1931 and lives in Krasnodar . The respondent Government are represented by Mr P. Laptev , 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.

Civil action for compensation for work-related injury

On 20 April 1988 the applicant was run down by a lorry belonging to a State-owned construction company “ Krasnodartrubovodstroy ” (“ Краснодартрубоводстрой ”, “KTS”). As the accident happened during the applicant’s working hours, the injury was classified as work-related. On 30 August 1988 the driver of the lorry was convicted of reckless driving.

Between 1988 and 1992 the applicant received monthly compensation for the work-related injury from his employer, the public company “ Krasnodaragropromremstroymontazh ” (“ Краснодар ­ ­ агро ­ ­ пром ­ ­ рем ­ строй ­ мон ­ таж ”, “KAPRSM”). According to the Government, the KAPRSM Company made these payments on a voluntary basis.

After the KAPRSM stopped payments to the applicant, on 20 January 1993 he brought a civil action against the KAPRSM for compensation for damage to his health.

On 17 May 1993 the Takhtamukayskiy District Court of the Adygheya Republic ( Тахтамукайский районный суд Республики Адыгея ) granted the applicant’s action and awarded him a lump sum of RUR 76,452 and life-long monthly payments of RUR 18,982 starting from 1 May 1993 . The judgment became final.

The applicant submits that he was able to recover the lump sum, but not the monthly payments. He complained to the President of the Supreme Court of the Adygheya Republic .

On 30 December 1996 the Presidium of the Supreme Court of the Adygheya Republic quashed the judgment of 17 May 1993 by way of supervisory review proceedings and remitted the case for a new examination.

On 21 April 1997 the Takhtamukayskiy District Court allowed the applicant’s claim against the KAPRSM Company and awarded him a lump sum of RUR 99,176,879 (USD 17,239 or about EUR 14,360) for the period between 1 May 1992 and 1 April 1997 and life-long monthly payments of RUR 1,185,570 (USD 206 or about EUR 172). The lump sum award was made up of the principal amount of outstanding payments, the interest thereon and a penalty for belated payments during the period between 1 December 1995 and 1 December 1997 .

Separate examination of the claim for penalty

On the defendant’s appeal, on 3 June 1997 the Supreme Court of the Adygheya Republic quashed the judgment of 21 April 1997 in the part concerning the calculation of the penalty and remitted this claim for a new examination. The court upheld the remainder of the judgment of 21 April 1997 .

On 16 July 1997 the Takhtamukayskiy District Court dismissed this claim. The court found that the applicant failed to show that the writ of execution in respect of monthly payments had indeed been served on the defendant and, therefore, the event giving rise to the defendant’s liability had not been proven.

On 5 May 1998 the Convention entered into force in respect of the Russian Federation .

The applicant complained to the Supreme Court of the Russian Federation .

On 27 September 2001 the Presidium of the Supreme Court of the Adygheya Republic quashed the judgment of 16 July 1997 by way of supervisory review and remitted the case for a new examination before the first instance court.

On 5 February 2002 the Takhtamukayskiy District Court again dismissed the applicant’s claim for a penalty.

On 12 March 2002 the Supreme Court of the Adygheya Republic quashed the decision of 5 February 2002 and remitted the case for a new examination.

Quashing of the final judgments by way of supervisory review

On 15 March 2002 the acting President of the Takhtamukayskiy District Court lodged an application ( представление ) with the Supreme Court of the Adygheya Republic to quash the judgment of 21 April 1997 and all other judgments in the case, because the defendant in the applicant’s action should have been the KTS Company that had been the actual owner of the lorry, rather than the KAPRSM Company that had been the applicant’s employer.

On 27 August 2002 the Presidium of the Supreme Court of the Adygheya Republic granted the application and quashed the judgments of 21 April and 3 June 1997 and 12 March 2002 . The Presidium found that the quashed judgments had been unlawful because the lower courts had failed to substitute the proper defendant. The applicant’s action was remitted for a new examination.

On 7 and 28 October 2002 the scheduled hearings did not take place because the applicant was ill.

According to the Government, on 13 November and 15 December 2002 the applicant failed to appear before the court, although he had been duly notified of the hearing.

On 16 January 2003 the Takhtamukayskiy District Court, by an interim decision ( определение ), ordered the KTS Company to be joined as a co ‑ defendant. The court ordered the bailiffs to locate the company.

On 12 May 2003 the Takhtamukayskiy District Court established that the applicant had been informed of the possibility to substitute the legal successor of the KTS Company as the proper defendant and to join the regional branch of the Social Security Fund as a third party, but the applicant had refused consent for the substitution. The court therefore dismissed the applicant’s action against the KAPRSM Company.

The decision of 12 May 2003 was not appealed against and it became final on 22 May 2003 .

B. Relevant domestic law

Article 99 of the Russian Civil Procedure Code of 11 June 1964 provides that civil cases shall be prepared for a hearing no later than seven days after the action is submitted to the court. In exceptional cases, this period may be extended for up to twenty days. Civil cases shall be examined no later than one month after the preparation for the hearing has been completed.

For relevant provisions on supervisory review proceedings, see Ryabykh v. Russia , no. 52854/99, §§ 31-42, ECHR 2003-X.

COMPLAINTS

1. The applicant complains, without invoking specific provisions of the Convention, that the court judgments in his case were unlawful and arbitrary and that the civil proceedings were unreasonably long. He also alleges that he was singled out for discrimination in the Adygheya Republic for being ethnically Russian.

2. The applicant next complains that the final decisions in his case were quashed by the Supreme Court of the Adygheya Republic on 27 August 2002 by way of supervisory review proceedings, of which he was not aware and he was not present at the hearing.

3. Finally, the applicant complains that, as a result of court decisions, he was deprived of the penalty in respect of the outstanding monthly payments that had been awarded to him on 21 April 1997 .

THE LAW

A. The Government’s preliminary objection as to the alleged abuse of the right of petition

In correspondence, rather than in the written observations on the case, the Government raise a preliminary objection that the applicant has abused the right of petition, within the meaning of Article 35 § 3 of the Convention. They submit that certain statements in the applicant’s observations concerning the highest officials and the Representative of the respondent Government were offensive and amounted to such an abuse. Referring to the case L.R. v. Austria (no. 2424/65, Commission decision of 24 May 1966 ), they invite the Court to declare this application inadmissible.

The Court recalls that, whilst the use of offensive language in proceedings before it is undoubtedly inappropriate, an application may only be rejected as abusive in extraordinary circumstances, for instance if it was knowingly based on untrue facts (see, e.g. , Akdivar and Others v. Turkey , judgment of 16 September 1996, Reports of Judgments and Decisions 1996 ‑ IV, p. 1206, §§ 53-54; Varbanov v. Bulgaria , no. 31365/96, § 36, ECHR 2000 ‑ X; Assenov and Others v. Bulgaria , Commission decision of 27 June 1996, Decisions and Reports (DR) 86-B, p. 54), which is not alleged by the Government in the present case.

It is true that in certain exceptional cases the persistent use of insulting or provocative language by an applicant against the respondent Government may be considered an abuse of the right of petition (see, most recently, Duringer and Grunge v. France ( dec .), nos. 61164/00 and 18589/02, ECHR 2003 ‑ II, as well as Stamoulakatos v. the United Kingdom , no. 27567/95, Commission decision of 9 April 1997; L.R. v. Austria , cited above; X. v. Germany , no. 2724/66, Commission decision of 10 February 1967; and X. and Y. v. Germany , no. 2625/65, Commission decision of 30 September 1968, Reports 28, pp. 26-42). However, in the present case the Government do not indicate which expressions or passages in the applicant’s observations they consider insulting or abusive and the Court does not observe any gratuitous offence, outrage or provocation in the applicant’s submissions (see Kolosovskiy v. Latvia ( dec .), no. 50183/99, 29 January 2004).

The Court considers that although some of the applicant’s statements are irrelevant and excessively emotional, they do not amount to the circumstances of the kind that would justify a decision to declare the application inadmissible as an abuse of the right of petition. It follows that the preliminary objection must be dismissed.

B. Admissibility of the complaints

1. The applicant complains about the excessive length of proceedings in his action against his former employer. The Court considers that this complaint falls to be examined under Article 6 § 1 of the Convention which provides as follows:

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

The Government submit that the length of the proceedings in the present case was objectively justified because the higher courts quashed the judgments of lower courts and remitted the applicant’s claims for a new examination. Furthermore, several hearings were adjourned at the applicant’s request, or because he was ill, or because he did not appear before the court, for unknown reasons.

The applicant submits that the Government’s reference to the quashing of the first instance judgments by higher courts demonstrates that the judgments made by lower courts had been erroneous and were to be quashed. Had it been otherwise, no quashing would have been required. He accepts that on several occasions he could not appear at the court because of illness, but his absence was always for valid reasons and confirmed by appropriate medical certificates. Lastly, he contends that the reference to a relatively short period of his illness certainly cannot explain why the proceedings were pending for more than ten years.

The Court firstly observes that there were, in fact, two distinct claims. The subject-matter of the main proceedings was to determine the applicant’s civil claim for monthly payments against his former employer, the KAPRSM Company. In the second set of proceedings the domestic courts were required to determine the applicant’s claim for a penalty award, allegedly resulting from incomplete or belated payments between 1 December 1995 and 1 December 1997 .

The Court further notes that both claims were determined in the final instance in 1997, i.e. before the Convention entered into force in respect of the Russian Federation . Subsequently, the proceedings on the claim for a penalty were re-opened on 27 September 2001 , when the Presidium of the Supreme Court of the Adygheya Republic quashed the 1997 judgment and remitted the case. The renewed proceedings lasted four months and eight days until the new final judgment of the district court of 5 February 2002 was pronounced. A new re-opening of the proceedings on both claims took place on 12 and 15 March 2002 , respectively. On the latter date the Presidium quashed all the earlier judgments and again referred the case for a new examination. Both sets of proceedings finally concluded on 22 May 2003 , i.e. almost nine months later, when the time-limit for lodging an appeal against the district court decision of 12 May 2003 expired.

It follows that in the post-ratification period the proceedings for monthly payments lasted for nine months and the proceedings for a penalty award continued for one year and almost two months. Even taking into consideration the length of the proceedings before 5 May 1998, the Court finds that that period was compatible with the “reasonable time” criterion of 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 applicant complains under Article 6 § 1 that on 27 August 2002 the Supreme Court of the Adygheya Republic quashed the final judgments in his case, without him being present or being given an opportunity to attend the hearing.

The Government submit that the purpose of the supervisory review decision of the Supreme Court of the Adygheya Republic was to correct a miscarriage of justice. The Supreme Court found that the applicant’s former employer, the KAPRSM Company, was to be substituted as the defendant by the KTS Company, who had been the owner of a hazardous device and had therefore strict liability for the injury caused by that device to the applicant. The Government allege that the re-opening of the proceedings was justified to remedy substantial breaches of substantive and procedural law.

The applicant indicates that the first judgment against the allegedly improper defendant was made on 17 May 1993 . This “mistake” was later perpetuated in the subsequent judgments of the District and Supreme Courts of 21 April, 3 June and 16 July 1997 , made against the same defendant. He submits that the fault was not his, but that of the domestic courts which accepted and entertained a civil action against the “wrong” defendant. It was not until eight years later that the defendant’s identity was first questioned by the Presidium of the Supreme Court. In these circumstances, the applicant understandably objected to the substitution of the defendant, fearing that a de novo examination of his claims would entail ever greater procedural delays. Finally, he indicates that while he indeed objected to the substitution of the defendant, he agreed to the joining of the KTS Company (or its legal successor) as a co-defendant.

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues 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.

3. Lastly, the Court has examined the remainder of the applicant’s complaints as submitted by him.

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 the remainder 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 about the quashing, by way of supervisory-review proceedings, of the final judgments in his case;

Declares inadmissible the remainder of the application.

Santiago Quesada Christos Rozakis              Deputy Registrar President