FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 69315/01 by Aleksey Petrovich SUKHORUBCHENKO against Russia

The European Court of Human Rights (First Section), sitting on 15 January 2004 as a Chamber composed of:

Mr C.L. Rozakis , President , Mr G. Bonello , Mrs F. Tulkens , Mrs N. Vajić , Mr E. Levits , Mr A. Kovler , Mrs E. Steiner, judges , and Mr S. Nielsen , Deputy Section Registrar ,

Having regard to the above application lodged on 11 January 2001,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Aleksey Petrovich Sukhorubchenko, is a Russian national, who was born in 1954 and lives in the town of Shakhty in the Rostov -on-Don Region. 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.

1. The applicant’s civil claim against an investment company

In 1994 the applicant deposited his savings with “Hermes-Finance”, a Russian investment company. In 1995 the applicant came to Moscow to recover his deposit, but he found the company’s offices closed.

On 12 August 1995 the applicant lodged a civil action against the company in the Taganskiy District Court of Moscow. The court disallowed the applicant’s action for lack of territorial jurisdiction.

On 31 October 1995 the applicant brought an action against the company before the Khoroshevskiy District Court of Moscow. Citing lack of territorial jurisdiction, on 17 November 1995 the Khoroshevskiy District Court transferred the case to the Tushinskiy District Court of Moscow. The Government submit that there is no indication in the case-file of the receipt of the claim by the Tushinskiy District Court. The applicant challenges this statement referring to the “forwarding note” of the Khoroshevskiy District Court of 17 November 1995, which was copied to him.

On 14 February 1996 the applicant sent a letter to the Tushinskiy District Court with a request to explain the delay in examination of his case. The applicant received no answer.

In April 1996 the applicant lodged yet another action against the company in the Moscow City Court. The City Court disallowed the applicant’s action for lack of hierarchical jurisdiction.

On 27 June 1996 the applicant brought an action against the company before the Supreme Court of the Russian Federation. On 9 August 1996 the Supreme Court forwarded the applicant’s statement of claim to the Moscow City Court, which, in turn, on 22 August 1996 sent the claim to the Tushinskiy District Court of Moscow.

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

2. Hearings on the applicant’s action

On 8 June 1998 the applicant received a summons to appear before the Tushinskiy District Court of Moscow on the same day at 2.10 p.m. The summons was delivered by regular mail and put in the applicant’s letter box.

On 29 September 1998 the applicant received in his letter box a summons to appear before the Tushinskiy District Court of Moscow on 21 September 1998.

According to the applicant, on 25 November 1998 he received a summons to appear before the Tushinskiy District Court of Moscow on 26 November 1998 at 2 p.m. The applicant submits that the summons was delivered into his letter box and he only opened it after coming back home from the office. The applicant indicates that the distance from Shakhty where he lived to Moscow is over a thousand kilometres and there were no direct flights. According to the Government, the applicant only received this summons on 30 November 1998 and the hearing was adjourned until 24 December 1998 because the parties had not appeared.

The applicant submits that subsequently he did not receive any summons or communications from the Tushinskiy District Court. The Government contend that on 21 December 1998 the applicant received the summons advising him of the hearing on 24 December 1998, but he failed to appear.

3. Dismissal of the applicant’s action for failure to appear

The Government submit that on 24 December 1998 the Tushinskiy District Court issued an interim decision ( определение ) to leave the applicant’s claim without examination on the ground that the parties had failed to appear for the second time.

The applicant claims that a copy of the decision of 24 December 1998 was never sent to him and that he only became aware of it upon receipt of the Government’s observations of 3 July 2003.

4. Applicant’s attempts to obtain information on the status of his civil action

On 29 March 2000 the applicant sent a letter to the Tushinskiy District Court, he requested to explain the delay in the proceedings. On 13 April 2000 the applicant’s letter was returned to him with a request to specify the date when the action had been lodged. The applicant wrote the date on the same letter and sent it back on 20 April 2000. The applicant never received an answer to his request.

The applicant submits that during the time period that lapsed since the beginning of the civil proceedings the defendant company has divested itself of its assets and at present an award made in the applicant’s favour would not be enforceable for the defendant’s impecuniosity.

B. Relevant domestic law

Article 99 of the Russian Civil Procedure Code of 11 June 1964 (in force at the material time) provided that civil cases were to be prepared for a hearing no later than seven days after the action had been lodged with the court. In exceptional cases, this period could be extended for up to twenty days. The civil cases were to be examined no later than one month after the preparation for the hearing had been completed.

Article 106 provided that summons were to be served on the parties and their representatives in such way so that they would have enough time to appear timely at the hearing and prepare their case. If necessary, the parties could be summoned by a phone call or a telegram.

Article 221 § 5 provided that the court could make an interim decision to leave the claim without examination ( определение об оставлении заявления без рассмотрения ) , in particular, if the parties did not waive their right to be present and failed to appear for the second time and the court did not consider it possible to determine the claim on the basis of the case-file. Article 222 required the judge to include in the decision specific instructions on how to eliminate the obstacles to the examination of the claim. Upon removal of the circumstances on which the decision to leave the claim without examination was grounded, an interested party could apply to the court for continuation of the proceedings. The court could reverse its decision to leave the claim without examination if the parties proved that they had had valid reasons for the absence. If the court refused the request, such refusal could be appealed against to a higher court.

Article 213 required that a copy of an interim decision to leave the claim without examination be sent to the absent party no later than three days after it was made.

COMPLAINTS

The applicant complains under Articles 6 and 13 of the Convention about violations of his right to access to court and his right to a fair trial within a reasonable time.

The applicant complains under Article 1 of Protocol No. 1 about a violation of his property rights as a result of the domestic courts’ failure to determine his claim within a reasonable time.

The applicant complains under Articles 14 and 17 of the Convention that the domestic courts did not respond to his letters and did not update him of the status of the proceedings on his claim.

THE LAW

1 . The Government argue that the application is inadmissible as the applicant failed to comply with the six-month rule in Article 35 § 1 of the Convention because he did not lodge his application within six months of the Tushinskiy District Court’s interim decision of 24 December 1998.

The applicant submits in reply that the interim decision of 24 December 1998 has never been notified to him, that his enquiries to the domestic courts concerning the status of his action saw no response and that he only became aware of the existence of the decision in question upon receipt of the Government’s observations on 3 July 2003.

The Court recalls its constant case-law according to which the object and purpose of Article 35 § 1 of the Convention are best served by counting the six-month period as running from the date of service of the written judgment in cases where the applicant is entitled, pursuant to domestic law, to be served ex officio with a written copy of the final domestic decision, irrespective of whether that judgment was previously delivered orally (see Worm v. Austria , judgment of 29 August 1997, Reports of Judgments and Decisions 1997 ‑ V, p. 1547, § 33; Venkadajalasarma v. the Netherlands (dec.), no. 58510/00, 9 July 2002).

The Court notes that the Government did not produce any evidence showing that a copy of the decision of 24 December 1998 has ever been made available to the applicant, notwithstanding the requirement of the domestic law that court decisions be served on the parties to the case no later than three days after they were made (Article 213 of the RSFSR Code of Civil Procedure). Furthermore, the Court notes that the Government did not enclose a copy of the decision in question in their observations and its exact wording is still unclear. The Court accepts therefore that the applicant first took cognisance of the existence of the interim decision of the Tushinskiy District Court of 24 December 1998 on 3 July 2003, the date on which the respondent Government referred to it in their observations. Accordingly, the application was introduced in time.

For these reasons, the Court dismisses the Government’s objection.

2 . The applicant complains about a violation of his right to a court under Article 6 § 1 of the Convention. Article 6 § 1 provides, in the relevant part, as follows:

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

The applicant complains in substance about the allegedly excessive length of the proceedings, which, according to him, began on 17 November 1995 and ended on 3 July 2003 when he became aware of the decision of the Tushinskiy District Court of 24 December 1998. They therefore lasted seven years, seven months and 16 days. According to the applicant, the length of the proceedings was in breach of the “reasonable time” requirement laid down in Article 6 § 1 of the Convention.

The Government accept that the length of proceedings in the present case violated the “reasonable time” requirement. However, in their observations they state that the proceedings only began on 22 August 1996 when the second version of the applicant’s claim reached the Tushinskiy District Court and ended on 24 December 1998 when the Tushinskiy District Court left the applicant’s claim without examination. According to their version of events, the proceedings lasted for two years, four months and two days.

The Court notes that, according to either version of events, a part of the period lies outside the Court’s jurisdiction ratione temporis as the Convention came into force in respect of Russia on 5 May 1998. However, the Court may take this period into account when deciding if the total length of the proceedings was “reasonable” (see, as a recent authority, Sawicka v. Poland , no. 37645/97, §§ 42-43, 1 October 2002).

The Court considers, in the light of the criteria established in its case-law on the question of “reasonable time” (the complexity of the case, the applicant’s conduct and that of the competent authorities), and having regard to all the information in its possession, that an examination of the merits of this complaint is required.

3 . The applicant complains under Article 13 of the Convention about the absence of an effective domestic remedy against the delays in the examination of his action. Article 13 of the Convention provides as follows:

“Everyone whose rights and freedoms as set forth in [the] 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 accept that there has been a violation of the applicant’s right to an effective remedy in the present case.

The applicant did not address this issue in his observations.

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.

4 . The applicant complains under Article 1 of Protocol No. 1 that during the unreasonably long examination of his action the defendant company has divested itself of its assets and that for this reason an eventual judgment in his favour would not be enforceable. Article 1 of Protocol No. 1 reads, in the relevant part, as follows:

“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 accept that there has been a violation of the applicant’s right to peaceful enjoyment of his possessions in the present case.

The applicant did not make any additional comments on this aspect.

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.

5 . Finally, the applicant invokes Articles 14 and 17 of the Convention to complain about the “inactivity” of the Russian authorities in respect of his civil action.

The Court notes that the applicant did not substantiate his complaint under either of these Convention provisions.

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

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicant’s complaints concerning the compliance with the “reasonable time” requirement, lack of an effective remedy against the procedural delays , and an alleged violation of his property rights;

Declares the remainder of the application inadmissible.

Søren Nielsen Christos Rozakis              Deputy Registrar President