SECOND SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 61605/00 by Arkadiy Ivanovich VIKTOROV against Russia

The European Court of Human Rights (Second Section), sitting on 14 January 2003 as a Chamber composed of

Mr J.-P. Costa , President , Mr A.B. Baka , Mr Gaukur Jörundsson , Mr L. Loucaides , Mr C. Bîrsan , Mr M. Ugrekhelidze , Mr A. Kovler , judges , and Mrs S. Dollé , Section Registrar ,

Having regard to the above application introduced on 14 June 2000 and registered on 10 October 2000,

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, Arkadiy Ivanovich Viktorov , is a Russian national. He was born in 1941 and lives in Kazan . The respondent Government are represented by Mr P.A. Laptev , Representative of the Russian Federation in the European Court of Human Rights.

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

In March 1999, after obtaining planning permission from the Moskovskiy District Authority of Kazan , a co-operative society started to build sixteen garages near the applicant’s house. The existing amenities – a playground and shrubbery – were demolished. At the same time, the Head of the District Authority issued planning permission to construct open-air night-time parking facilities near the site of the garages and the applicant’s house.

In April and May 1999 the applicant and other residents in his house lodged several administrative complaints with various authorities about the garages, alleging that they would constitute a nuisance and adversely affect the environment. The authorities replied that the building works were lawful as they had been approved by the medical, architectural and fire services.

On 18 August 1999 the applicant filed a court complaint with the Moskovskiy District Court of Kazan about the illegal actions of the Moskovskiy District Authority and the co-operative society.

On 18 October 1999 the Moskovskiy District Court examined the applicant’s case and dismissed it, holding that the works complied with applicable rules and regulations. The court found, in particular, that the City Authority had rented the site to the District Authority for the construction of the garages. After the District Authority had obtained the consent of the medical and communal services, the construction plan was approved by the Ministry of the Environment of the Republic of Tatarstan . The court refuted the applicant’s allegation that the building works produced adverse effects on the environmental well-being of the neighbourhood.

The applicant appealed. One of the grounds of appeal was that in the course of the hearing the representative of the defendant – the District Authority – had allegedly presented in evidence a list of residents who would benefit from the garages and that the court had refused to allow the applicant to examine the list. Furthermore, even though the list had been admitted in evidence, the applicant was unable to find it in the case-file on later inspection.

The decision was upheld on appeal by the Supreme Court of Tatarstan on 21 December 1999. In its decision the Supreme Court found that the lower court had reached valid conclusions in the case. However, no assessment was made of the grievance about the list of residents.

COMPLAINT

The applicant complains under Article 6 § 1 of the Convention that he was unable to examine the list presented in evidence by the District Authority; that on 18 October 1999 the court proceeded with other cases without closing the hearing in the applicant’s case; that no proper transcript of the hearing was made; that the judgment was served on the applicant out of time thus complicating the appeal process, and that the judgment of the Moskovskiy District Court was not sufficiently reasoned.

THE LAW

The applicant complains with reference to Article 6 § 1 of the Convention that the Moskovskiy District Court did not let him comment on a document produced at the hearing by the defendant, and that a number of other procedural irregularities took place. Article 6 § 1, insofar as relevant, reads as follows:

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

The Government assert, firstly, that the document in question – the list of residents who would benefit from the garages – was added to the case-file and was examined in the course of the hearing. Furthermore, it was open to the applicant to take cognisance of that document at anytime.

The applicant submits that in spite of his persistent requests he was unable to see the document because it “simply was not there”. According to the applicant, it was only after the hearing that the court asked the District Authority to prepare the list and, for this reason, the list could not have been examined in the course of the hearing.

The Court reiterates that the concept of a fair hearing implies, among other things, the right to adversarial proceedings, according to which the parties must have the opportunity not only to make known any evidence needed for their claims to succeed, but also to have knowledge of, and comment on, all evidence adduced or observations filed, with a view to influencing the court’s decision (see the Nideröst -Huber v. Switzerland judgment of 18 February 1997, Reports of judgments and decisions 1997-I, p. 108, § 24, and the Mantovanelli v. France judgment of 18 March 1997, Reports 1997-II, p. 436, § 33).

Furthermore, a party to the proceedings must have the possibility to familiarise itself with the evidence before the court, as well as the possibility to comment on its existence, contents and authenticity in an appropriate form and within an appropriate time, if need be, in a written form and in advance (see Krcmár v. the Czech Republic , no. 35376/97, § 42, 3 March 2000).

As serious as a breach of the above principles may be, the Court notes, turning to the present case, that the applicant’s account of the facts lacks consistency. In his initial application – which reproduced most of the points of appeal lodged against the judgment of 18 August 1999 – the applicant maintained that the list had been produced by the defendant in the course of the hearing, but that the judge had refused the applicant’s request to examine it. In his comments on the Government’s observations, the applicant departs from the original story, claiming that the document only came into existence after the hearing of 18 August 1999 had been closed.

Whichever version of the events is true, the Court observes that the judgment of 18 August 1999 did not contain any reference to that list and was not directly based thereon. With this in mind, it cannot be said that the character and importance of this evidence was such that its alleged non-communication to the applicant rendered the proceedings before the Moskovskiy District Court generally unfair (see, a contrario , Krcmár , cited above, § 42).

In connection with the second part of the applicant’s complaint, namely, that the hearing before the Moskovskiy District Court on 18 October 1999 was blemished by a number of other procedural irregularities, the Government claim that the applicant’s allegations are wholly unfounded as the proceedings were carried out in compliance with the applicable procedural rules. The applicant points to factual inconsistencies in the Government’s submissions and insists that the alleged irregularities did take place.

However, having regard to the proceedings taken as a whole, as well as all the material in its possession, including the aforementioned case-law, the Court finds that these matters do not disclose any appearance of a violation of Article 6 § 1 of the Convention.

It follows that 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 the application inadmissible.

S. Dollé J.-P. Costa Registrar President