SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 45550/99 by Klara Khudovna KATAYEVA and Movladin Khasanovich KATAYEV against Russia

The European Court of Human Rights (Second Section), sitting on 6 July 2004  as a Chamber composed of:

Mr J.-P. Costa , President , Mr L. Loucaides , Mr C. Bîrsan , Mr K. Jungwiert , Mr V. Butkevych , Mrs W. Thomassen , Mr A. Kovler, judges and Mrs S. Dollé , Section Registrar ,

Having regard to the above application registered on 19 January 1999,

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 applicants, Mrs Klara Khudovna Katayeva and Mr Movladin Khasanovich Katayev, are Russian nationals who were born in 1940 and 1948 respectively and live in the Republic of Adygeya. The applicants are married. 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.

1. Court proceedings concerning the alleged loss of the applicants’ property in Chechnya

(a) Initial proceedings

The applicants are a family of refugees from Chechnya. They brought a court action against authorities, claiming 92,000 US dollars for the loss of their real property left in Chechnya, including a house and a chicken farm, and 240,000 Russian Roubles (“RUR”) for the loss of their movable effects.

On 23 June 1999 the Maykop Town Court of the Republic of Adygeya (“the Town Court”) dismissed the applicants’ claim in their absence, having heard the respondent authorities. The court referred to the applicants’ request to consider the case in their absence. The court found that in 1998 the authorities had paid the applicants RUR 79,676 for the loss of their real property and RUR 12,524 for the movable items left in Chechnya, which they had proved to have owned in accordance with a special governmental decree on compensation for the material losses of Chechen refugees. The court found that the applicants had proved that they had a flat of 38.4 square metres, for which they had been awarded the above sums. The court held that the applicants had not substantiated their case to the extent that they had claimed to have lost further real or movable items.

The applicants appealed against the above judgment, stating that the court had failed to assess properly the evidence in the case.

On 17 August 1999 the Supreme Court of the Republic of Adygeya rejected the appeal in the absence of the applicants and in the presence of the governmental authorities, finding that the applicants had not proved the alleged pecuniary damage. The court also stated that Russian legislation provided for no right to claim non-pecuniary damage in connection with the alleged violation of property rights.

(b) Supervisory review of the decisions of 23 June and 17 August 1999

On 13 January 2001 the Deputy President of the Supreme Court of Russia lodged with the Supreme Court of the Russian Federation an application for supervisory review of the case, requesting the quashing of the decisions of 23 June and 17 August 1999 on the ground, inter alia , that although the applicants had requested examination of the case in their absence, they had not been properly notified of the hearing in breach of Article 157 of the Code of Civil Procedure. This resulted in the applicants’ non ‑ attendance, which, in turn, adversely affected the fairness of the trial.

On 26 February 2001 the Supreme Court of Russia granted the application, quashed the said decisions and remitted the case for a fresh examination at first instance.

(c) Decision not to entertain the claim and its quashing on supervisory review

On 30 January 2002 the Town Court refused to examine the applicants’ case on the ground of the applicants’ persistent failure, namely on five occasions, to appear before the court. It appears that the applicants did not appeal and the decision came into force.

On 31 May 2002 the Deputy President of the Supreme Court of Russia lodged an application by way of a supervisory review, requesting the Supreme Court of the Republic of Adygeya to quash the decision of 30 January 2002 on the grounds of the court’s failure to deal properly with the applicants’ reluctance to attend the court hearings, for example by examining the case in their absence, and the court’s failure to send them a summons to appear to all known addresses and not just to one address.

On 27 August 2002 the Presidium of the Supreme Court of the Republic of Adygeya granted the application, quashed the decision and remitted the case to the first-instance court for a fresh examination.

(d) Fresh examination of the case

On 10 October 2002 the Town Court dismissed the applicants’ claims. The court observed that on 29 July 1998 the applicants received compensation of RUR 79,676 and RUR 12,524 for the loss of their real property and for the movable items left in Chechnya. The court next held that the applicants had not substantiated their case to the extent that they had claimed to have lost further real or movable items. Their claims were accordingly rejected. The applicants, who were duly notified of the hearing, failed to attend it.

The applicants appealed against the judgment. It appears that they did not express in their appeal any concern about the first-instance court’s examination of the case in their absence.

On 5 November 2002 the Supreme Court of the Republic of Adygeya rejected the appeal and upheld the judgment of 10 October 2002. It appears that neither the applicants nor the respondents attended the appeal hearing.

2. Other sets of court proceedings

The applicants were involved in a number of other legal disputes with the authorities concerning various social benefits, including, in particular, their claims for a new car, higher salary and pension, and index-linked savings. The domestic courts examined those claims and dismissed them as unfounded.

COMPLAINTS

1. The applicants complained under Article 6 of the Convention about the fairness of the proceedings, which ended with the decision of the Supreme Court of the Republic of Adygeya of 17 August 1999, in that the case had been examined in their absence.

2. The applicants further complained, invoking Article 6 of the Convention and Article 1 of Protocol No. 1, about the outcome of all the proceedings to which they were a party.

THE LAW

1. The applicants complained about the hearing of their case in absentia . They relied on Article 6 of the Convention, which, insofar as relevant, provides as follows:

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

The Government submitted that following communication of the application by the Court, on 13 January 2001 the Deputy President of the Supreme Court of the Russian Federation lodged an application for supervisory review of the applicants’ case in view of the applicants’ absence from the trial . The Government concluded that in the light of such actions aimed at providing the applicants with redress for the alleged violation of the Convention, it was premature to submit any observations on the admissibility and merits of the case. The Government later informed the Court that the application for supervisory review had been granted by the Supreme Court on 26 February 2001, t he decisions of 23 June and 17 August 1999 were quashed and the case was remitted to the first-instance court for a fresh examination.

The applicants maintained their initial complaints.

The Court considers that t he Government’s submissions can be interpreted as implying that, in the light of the reopening of the proceedings, the applicants can no longer claim to be victims of the alleged violation of the Convention.

The Court recalls that to deprive an individual of his or her status as a “victim” the national authorities have to acknowledge, either expressly or in substance, and then afford redress for, the breach of the Convention (see Amuur v. France judgment of 25 June 1996, Reports of Judgments and Decisions 1996-III, p. 846, § 36).

In the present case, on 26 February 2001 the Supreme Court quashed the decisions in the applicants’ case on the ground that the applicants had not been properly notified of the trial, which entailed their non ‑ attendance. This in turn adversely affected the fairness of the proceedings. Assessing the initial set of proceedings as a whole, the Court finds that the above decision of the Supreme Court can be seen as an acknowledgement, in substance, of the alleged violation of the applicants’ right to a fair trial in that they were not notified properly of the hearing of their case whereas their opponent was present.

The Court further notes that by its decision of 26 February 2001 the Supreme Court quashed the decisions in the applicants’ case and ordered a fresh examination. It recalls that a court judgment in civil proceedings, acknowledging an alleged breach of the Convention rights, may constitute in itself sufficient redress (see Enders v. Germany , no. 25040/94, Commission decision of 12 April 1996). In the present case, the Supreme Court , having found that the proceedings were unfair, quashed the decisions of the first-instance court and the appeal court and ordered a fresh examination of the case. The latter eventually took place on 10 October and 5 November 2002 and there is no indication of any procedural unfairness in those proceedings. By virtue of the Supreme Court’s decision the applicants were afforded the opportunity to have their claims determined anew in accordance with a new and fair procedure. The Court finds that this decision, taken together with the subsequent proceedings, can be regarded as sufficient redress for the alleged procedural unfairness of the initial proceedings. The applicants thus ceased to be victims of the alleged breach of the Convention.

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 Court has examined the remainder of the applicants’ complaints as submitted by them. 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

Declares the application inadmissible.

S. Dollé J .-P. C osta Registrar President