FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 55129/00 by Aleksandr KOZLOV against Russia

The European Court of Human Rights (First Section), sitting on 18 April 2002 as a Chamber composed of

Mr C.L. Rozakis , President , Mrs F. Tulkens , Mr P. Lorenzen , Mrs N. Vajić , Mr E. Levits , Mr A. Kovler , Mr V. Zagrebelsky , judges , and Mr E. Fribergh , Section Registrar ,

Having regard to the above application lodged on 1 September 1999,

Having regard to the observations submitted by the respondent Government,

Having regard to the fact that the applicant has submitted no observations in reply,

Having deliberated, decides as follows:

THE FACTS

The applicant, Aleksandr Kozlov, is a Russian national, who was born in 1957 and lives in Moscow. The respondent Government were represented by Mr P. Laptev, Representative of the Russian Federation before the Court.

A. The circumstances of the case

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

The applicant, a manager of a private company International Commercial Bank Corporation, ICBC Trust Ltd (“the company”), was suspected of breaches of currency regulations and unlawful banking activities. The applicant’s trial is currently pending.

Seizure of the applicant’s and the company’s assets and freezing of their bank accounts

From October to December 1997 the police conducted a number of searches at the company’s offices in Moscow, seizing the applicant’s and the company’s property, including cash, securities and various movable items. In October 1997 the prosecutors also froze the company’s accounts in several banks. The decision to freeze was lifted a year later.

The applicant tried to claim damages for the seizure of the assets and the freezing of the bank accounts by way of a criminal action, in the context of the criminal case against him. The investigation of these complaints had been suspended, but is now again pending. 

In his own name and on behalf of the company the applicant also tried to bring a civil action for damages in connection with the seizure of the assets and freezing of the bank accounts, claiming damages in his own name and on behalf of the company. The civil actions were disallowed by decisions of the Moscow City Preobrazhenskiy District Court on 19 July 1999, the Moscow City Tver District Court on 5 November 1999, the Moscow City Izmailovo District Court on 20 December 1999 and 21 January 2000, the Moscow City Preobrazhenskiy District Court on 10 March 2000, and the Moscow City Presnya District Court on 3 April 2000, on the ground inter alia that he applicant should have applied to a court of arbitration. He did not apply to an arbitration court.

The applicant’s other actions

The applicant was also unsuccessful in bringing criminal proceedings against various prosecutors and judges in connection with the seizure of his and the company’s assets and other procedural acts and decisions carried out by the authorities in the course of the criminal proceedings against him. He also tried to institute separate court proceedings in order to claim damages from various law enforcement officials and judges in relation to the allegedly inadequate performance of their public duties in conducting the criminal case against him. However, the above actions were not examined by the courts inter alia as there was no basis in Russian law to claim damages from public authorities in connection with the performance of their official duties, let alone in cases where they concerned a breach of personal rights. As the applicant’s actions did not concern such an issue, they were disallowed.             

B. Relevant domestic law and practice

Under Article 22 of the Arbitration Procedure Code, arbitration courts shall examine cases concerning certain disputes arising out of breaches of civil contracts, administrative and other provisions where parties to the dispute are legal persons (organisations), or certain natural persons involved in business activities (Paragraph 1).

Pursuant to the second paragraph of Article 22, among disputes which shall be examined by arbitration courts are cases concerning alleged violations of property rights and claims for damages in this respect.   

COMPLAINTS

1. Under Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention the applicant complains that the authorities unjustifiably interfered with his property rights in the course of the investigation of the criminal case against him. He claims in particular that his and the company’s property was seized, and their bank accounts had been frozen, and that a large part of the seized assets was never returned to him. The applicant further complains about the absence of access to a court to claim damages in this connection.

2. Under Article 6 the applicant also complains about unfairness of the criminal proceedings against him, alleging that the criminal case has been fabricated.

3. Under Article 6 of the Convention the applicant further complains about the inability to institute separate court proceedings in order to claim damages against various law enforcement officials and judges in connection with the alleged lack of their professional competence which resulted in the fabricated criminal case against him. 

THE LAW

1. Under Article 6 of the Convention and Article 1 of Protocol No. 1 the applicant complains about the seizure of his and his company’s assets and the freezing of the bank accounts, and the inability to claim damages in court in this respect.

Article 6 states, insofar as relevant, as follows:

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

Article 1 of Protocol No. 1 to the Convention reads:

“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 preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

The Government claim that only the company’s, not the applicant’s, assets were seized, and the bank accounts had been frozen. He cannot therefore claim to be a victim of a violation of the Convention in this respect. Insofar as the case has been brought by the applicant on behalf of the company, the application should be rejected for non-exhaustion in view of the applicant’s failure to apply to an arbitration court to claim damages with respect to the allegedly unlawful seizure of their assets and the freezing of the bank accounts.

The Court is not required to determine whether the applicant may claim to be a “victim” because this part of the application should in any event be rejected for the following reasons.

The Court recalls that, under the terms of Article 35 § 1 of the Convention, it may only examine complaints in respect of which domestic remedies have been exhausted.

To the extent that the applicant alleges a violation of his and the company’s property rights as a result of the seizure of their assets and the freezing of the bank accounts, the Court notes that the applicant has not replied to the Government’s argument that he could have applied to an arbitration court. It is noted that the domestic courts on a number of occasions refused to examine his claims submitted by way of civil procedure on the ground that he should have applied to an arbitration court. However, the applicant did not do so. In these circumstances, and with reference to Article 22 of the Arbitration Procedure Code, the Court finds that the applicant has not exhausted domestic remedies as required by Article 35 § 1 of the Convention.

To the extent that the applicant alleges absence of access to a court to claim damages in connection with the seizure of their assets and the freezing of the bank accounts, the Court reiterates its finding above that the applicant had the possibility to apply to an arbitration court. It follows that his complaint is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

Accordingly, this part of the application must be declared inadmissible pursuant to Article 35 §§ 1, 3 and 4 of the Convention.

2. To the extent that the applicant complains under Article 6 that he did not have a fair trial in that the criminal case against him has been fabricated, the Court recalls that the fairness of criminal proceedings must be examined on the basis of the proceedings as a whole. The Court notes that the trial in the present case is still pending. Accordingly, it would be premature for the Court to deal with the applicant’s complaints under Article 6 until the domestic courts have finally determined the criminal offences with which he is charged. In these circumstances, the Court concludes that the applicant cannot at this stage claim to be a victim of a violation of the above provision in regard to this aspect of the case.

It follows that this part of the application must be rejected in accordance with Article 35 § 4 of the Convention.

3. The applicant also complains under Article 6 of the Convention about the absence of access to a court to complain about the alleged lack of professional competence of various law enforcement officers and judges in connection with the performance of their public duties in the context of the criminal case against him. However, the applicant has not shown that these attempts to complain about the lack of professional competence of the State officials concerned the determination of his “civil rights and obligations” or of a “criminal charge” against him. It is clear that the applicant has access to a criminal court to determine the “criminal charge” against him. Furthermore, the Court observes that the applicant also has access to a domestic court to complain about the alleged interference with his property rights. The Court therefore finds that this complaint is unsubstantiated.

It follows that this part of the application must be rejected as manifestly ill-founded under Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Erik Fribergh Christos Rozakis Registrar President