THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 74156/01 by Sergey Vitalyevich POSOKHOV against Russia

The European Court of Human Rights (Third Section), sitting on 9 January 2003 as a Chamber composed of

Mr  G. Ress , President , Mr  L. Caflisch , Mr  P. KÅ«ris , Mr  J. Hedigan , Mrs M. Tsatsa-Nikolovska , Mrs H.S. Greve , Mr A. Kovler , judges , and Mr V. Berger , Section Registrar ,

Having regard to the above application lodged on 19 June 2001,

Having deliberated, decides as follows:

THE FACTS

The applicant, Sergey Vitalyevich Posokhov , is a Russian national who was born in 1966 and lives in Taganrog . He is represented before the Court by Mr Aleksandr Kiryanov and Ms Yekaterina Kiryanova , lawyers practising in Taganrog .

A. The circumstances of the case

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

1. Proceedings before the Constitutional Court

On 5 July 1996, the applicant was arrested and detained on suspicion of having committed a serious breach of customs regulations.

On 8 July 1996, he was remanded in pre-trial custody by the decision of an investigative officer approved by the Public Prosecutor of Taganrog .

After two extensions of the detention, on 26 December 1996, the applicant was released.

On an unspecified date, the applicant lodged an application to the Constitutional Court seeking a declaration of the unconstitutionality of Articles 122 and 90 of the Code of Criminal Procedure which empowered investigative authorities to arrest suspects without judicial authorisation. The applicant’s position was that any period of detention longer than forty-eight hours should be ordered by a court, as required by Article 22 § 2 of the Constitution.

On 2 April 2001, the Constitutional Court dismissed the applicant’s case as inadmissible under the Law on the Constitutional Court. The court agreed that Article 22 § 2 of the Constitution made periods of detention longer than forty-eight hours possible only if ordered by a judge. However, the Constitution enacted in 1993 contained a transitional provision preserving the existing procedure for pre-trial detention pending the updating of the relevant laws. The court noted that despite the fact that over seven years had elapsed since the Constitution was passed, the lawmaker had failed to bring the detention procedure in line with the basic law of the country. Nevertheless, the applicant had been affected by this situation for only two and a half years – the period between the enactment of the Constitution and the applicant’s arrest – and, for this reason, could not be regarded as a victim of the alleged breach.

2. Proceedings against the investigative authorities

On 17 May 2000, the applicant filed an application to the North Caucasian Transport Prosecutor requesting that criminal proceedings be opened against the investigator who had dealt with his case. It was alleged that the investigator had been aware of the applicant’s innocence but had abused his authority by initiating an unfounded criminal prosecution.

As no reply was received from the North Caucasian Transport Prosecutor, on 11 June 2000, the applicant filed a complaint to the Prosecutor General. The applicant asked that the subordinate prosecutor be punished for negligence.

An official of the Prosecutor General’s Office forwarded the applicant’s complaint to the North Caucasian Transport Prosecutor, whose staff on 11 July 2000 issued an order refusing the applicant’s initial complaint about the investigator.

The applicant considered that the Prosecutor General’s Office did not have the right to transmit his complaint to the official complained about and on this ground issued proceedings against the Prosecutor General’s Office. He requested that the decision to transmit be found unlawful and invalidated.

The case was examined and dismissed on 22 June 2001 by the Taganrog Town Court. The court found that the Prosecutor General’s Office had not breached the law by forwarding the complaint, and that it gave a reply on the substance of the applicant’s allegations.

On appeal, this decision was upheld by the Rostov Regional Court on 9 January 2002.

B. Relevant domestic law

According to Section 40 of the Federal Constitutional Law on the Constitutional Court of 24 June 1994, all applications reaching the court are registered unless they manifestly fall outside the court’s competence, do not meet formal requirements, are lodged by an improper person or are not accompanied by a fee. The registry of the court may inform an applicant that his or her application is not compatible with the above requirements, but the applicant has the right to insist that a decision to that effect be taken by the court.

According to Section 42 of the Law, a decision as to whether or not an application should be accepted for consideration ( prinyatie obrashcheniya k rassmotreniyu ) is taken by the court’s plenary. Only those cases which fall within the court’s jurisdiction, are not inadmissible in accordance with the Law, and do not repeat issues previously addressed by the court, are accepted for consideration.

Pursuant to Section 71 of the Law, the court’s final decision on the substance of a case is called a postanovleniye (a judgment). If a judgment declares a law unconsitutional , the effect of the judgment cannot be overcome by a re-enactment of the law.

All other decisions given in the course of constitutional proceedings are called an opredeleniye (a decision).

COMPLAINTS

1. With regard to the proceedings before the Constitutional Court, the applicant complains under Article 6 § 1 of the Convention that the consideration of his complaint was unfair insofar as the court avoided examining the merits of the case. The applicant claims that since the decision consisted, inter alia , of an evaluation of the constitutionality of the law that it was sought to impugn, the findings should have been formalised as a judgment ( postanovleniye ) and not as a decision ( opredelniye ), the former having more legal weight.

2. With regard to the proceedings against the investigative authorities, the applicant complains under Article 13 of the Convention about the allegedly negligent examination by the national authorities of his complaint about the investigator and the officials of the Prosecutor General’s Office. The applicant claims further that the judicial review of his complaint against the Prosecutor General’s Office did not meet the requirements of Article 6 of the Convention because the reasoning of the court did not take full account of his submissions and the court was composed unlawfully.

THE LAW

1. The applicant complains with reference to Article 6 § 1 of the Convention that he did not enjoy effective access to constitutional justice insofar as the Constitutional Court declared his application inadmissible by a decision rather than a judgment, but a decision based on substantive reasoning. The applicant believes that an assessment of the substance of his application would have only be appropriate if made in a judgment on the merits. Article 6 § 1, insofar as relevant, reads as follows:

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.”

To the extent that the proceedings before the Constitutional Court to challenge the investigative authorities’ power to order arrests can be viewed as attracting the protection of Article 6 of the Convention, the Court considers that this complaint is manifestly ill-founded for the following reasons.

The right of access to court, as widely interpreted in the Convention case-law, implies that the State cannot frustrate the essential guarantees of Article 6 by creating obstacles which prevent individuals from instituting proceedings (see Golder v. the United Kingdom , judgment of 21 February 1975, Series A no. 18, § 36).

Turning to the facts of the present case, the Court finds no indication of such obstacles.

Indeed, the applicant did initially have access to bring his claim to the Constitutional Court and the proceedings were issued. On 2 April 2001, the court examined the applicant’s case in a plenary sitting of 17 judges and declared it inadmissible. The decision contained a statement of general principles as well as their application to the applicant’s personal situation by which the applicant was affected. It was assessed that a period of two and a half years was still within the discretion of the legislature to fulfil its obligation resulting from Article 22 § 2 of the Constitution. Whether the fact that until then the legislature had failed to update the relevant law amounts to a violation of the Constitution seems to be a question in abstracto which goes well beyond the applicant’s personal situation.

In these circumstances, the Court is not in a position to say that the Constitutional Court failed to deal with the applicant’s case. The fact that the Constitutional Court reached its conclusions in the form of a decision on admissibility ( opredeleniye ) and not in a judgment ( postanovleniye ) does not mean that the applicant’s access to justice was blocked. Furthermore, the decision of 2 April 2001 was final and binding and contained sufficient reasons.

Furthermore, examining the substance of the applicant’s complaint to the Constitutional Court in the light of Article 5 § 3 of the Convention, the Court notes Russia’s reservation in respect of the provisions of this Article. The Court observes that the reservation refers, inter alia , to the provisions of the Code of Criminal Procedure, under which a person may be detained on a decision of investigative authorities without there being any requirement for judicial supervision of the detention. The reservation has been found to comply with the requirements of Article 57 of the Convention (see Labzov v. Russia (dec.), no. 62208/00, unreported).

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 further about the allegedly negligent manner in which the domestic authorities dealt with his complaint against the investigator who was in charge of his case and the public prosecutor who was allegedly reluctant to supervise the investigator’s actions. In support of this complaint the applicant invokes Articles 6 and 13 of the Convention.

Insofar as the applicant complains that his application against the investigator filed on 17 May 2000 to the North Caucasian Transport Prosecutor was not pursued, the Court recalls that it has recently examined this complaint in the framework of another application by the applicant (see Posokhov v. Russia (dec.), no. 63486/00, 9 July 2002, unreported) and found it inadmissible.

Since this part of the complaint is substantially the same as a matter that has previously been examined by the Court, it is inadmissible within the meaning of Article 35 §§ 2 (b) and 4 of the Convention.

Insofar as the applicant complains about the manner in which the judicial review of his complaint against the General Prosecutor’s Office was carried out, the Court considers that the proceedings in question – a complaint about a civil servant who had referred a matter to his subordinates instead of dealing with it himself – did not involve the determination of the applicant’s civil rights and obligations or a criminal charge against him and thus fell outside the scope of Article 6 of the Convention.

It follows that this part of the complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

For these reasons, the Court unanimously

Declares the application inadmissible.

Vincent Berger Georg Ress Registrar President