FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 46671/99 by Pavel BURKOV against Russia

The European Court of Human Rights ( First Section) , sitting on 30 January 2001 as a Chamber composed of

Mrs E. Palm , President , Mr L. Ferrari Bravo , Mr Gaukur Jörundsson , Mr R. Türmen , Mr B. Zupančič , Mr T. Panţîru , Mr A. Kovler , judges , and Mr M. O’Boyle , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 23 June 1998 and registered on 9 March 1999,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the communication of the case to the respondent Government on 11 January 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 is a Russian citizen born in 1951 in Semipalatinsk ( Kazakhstan ). He currently lives in Stavropol (Russia).

A. The circumstances of the case

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

Until 1969 the applicant lived in Semipalatinsk . During a period from 1949 to 1963, large-scale underground and above-ground nuclear tests were carried out by the Soviet authorities in the test-site near Semipalatinsk .

In November 1997 the applicant applied to the Stavropol City Lenin District Court, claiming special social benefits on the ground of health damage suffered as a result of the Semipalatinsk tests. He alleged in particular that he suffered from chronic radiation sickness, and that thus he was a “radiation victim” within the meaning of the Social Protection of the Semipalatinsk Tests’ Victims Act (see the ‘Relevant domestic law’ part below). He presented several medical documents showing his damaged health, but did not have sufficient evidence to be recognised as a “radiation victim” within the meaning of the statute.

On 28 October 1998 the Stavropol City Lenin District Court ordered an expert examination of the applicant. The court requested medical experts to state in particular whether the applicant suffered from the radiation sickness and, if so, whether it had been caused when he lived in Semipalatinsk .

By a letter of 20 November 1998 the experts informed the court that there was no legal basis to order a free medical examination, and that the applicant was required to pay 5,400 Russian roubles (RUR) for the examination. The applicant refused to pay, stating that he was a pensioner, and that the amount requested constituted the half of his yearly income.

On 28 December 1998 the Stavropol City Lenin District Court disallowed the claim by reference to Article 221 of the Code of Civil Procedure, holding that the applicant had to bear the experts’ costs, and that it could not determine the facts of the case without the expert conclusions.

The applicant did not appeal against the decision.

Upon a “special appeal” ( протест ) of the Deputy President of the Supreme Court for “supervisory review” ( надзор ) of the case, on 20 April 2000 the Stavropol Regional Court quashed the decision of 28 December 1998 and sent the case to be newly examined by the District Court. On 6 May 2000, on account inter alia of the expert examinations of the applicant, the Stavropol City Lenin District Court accepted the applicant’s claim, recognising him as a “radiation victim”.

B. Relevant domestic law

Statutes on social benefits for “radiation victims”

The Social Protection of the Semipalatinsk Tests’ Victims Act 1995, other legislative provisions and governmental regulations entitle persons resident in specific regions of Russia and outside its territory during the period from 1949 to 1963 and who suffer from the radiation sickness to be granted the status of a “radiation victim” in order to obtain special social benefits.

Decisions disallowing court actions

A court action can be disallowed under Article 221 of the Code of Civil Procedure, provided that the legal basis for the claim exists but its determination is impossible for specific procedural reasons. Pursuant to Article 222 of the Code, the person concerned is entitled to apply again to the court that disallowed his claim, provided that the circumstances specified in the initial decision have been remedied.

Under Article 282 of the Code of Civil Procedure, first instance decisions, including those disallowing legal actions, can be appealed against to a higher court.

“Supervisory review”

Article 11 of the Code of Civil Procedure provides that higher courts conduct “supervisory review” of the activities of the lower courts. This means, according to Articles 319, 320 and 327, that the President of the Supreme Court, the Prosecutor General, their Deputies and Presidents of regional courts may, at any time, by request of a person or of their own motion, lodge with a higher court a “special appeal” against the final decision of a lower court on all questions of fact and law. The “supervisory review” procedure has to be distinguished from the proceedings whereby a case may be reviewed on the ground of new or newly established facts (Articles 333 - 337).

COMPLAINTS

The applicant complains that his health was severely damaged as a result of the nuclear tests in the 1940s to 1960s, and that he was subsequently deprived of access to court, by way of the decision of 28 December 1998, to claim social benefits under the special legislation for victims of the Semipalatinsk tests.

THE LAW

1 . The applicant complains that he was denied access to a court in breach of Article 6 § 1 of the Convention, which provides, insofar as relevant, as follows:

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

The Government submit that the applicant failed to exhaust domestic remedies in connection with this complaint as he failed to appeal against the decision of 28 December 1998, pursuant to Article 282 of the Code of Civil Procedure. They submit that this decision was in any event quashed, and the applicant’s claim was examined. His complaint about the absence of access to a court is therefore unsubstantiated.

While the applicant essentially admits that the action, which he brought, has now been accepted, he claims that the court decisions entitling him to the statutory social benefits will not remedy the damage done by the nuclear tests.

The Court considers that a question arises whether the proceedings concerning the recognition of the applicant’s status as a “radiation victim” under the impugned domestic legislation involved a determination of “civil” rights of the applicant within the meaning of Article 6 of the Convention. However, the Court does not deem it necessary to determine this question as this part of the application should in any event be rejected for the following reasons.

The Court notes that the applicant failed to appeal against the decision of 28 December 1998 disallowing his action, pursuant to Article 282 of the Code of Civil Procedure. He thus failed to exhaust domestic remedies in this regard as required by Article 35 § 1 of the Convention.

In any event, it is noted that the decision of 28 December 1998 was subsequently quashed, and the applicant’s action was newly examined and accepted. He was therefore afforded access to a court to claim the status of a “radiation victim” under the legislation at issue. Consequently, his complaint about the absence of access to a court is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. 

It follows that that this part of the application must be rejected under Article 35 of the Convention.

2 . The applicant further complains that the nuclear tests carried out in Semipalatinsk from 1949 to 1963 severely damaged his health. He also seems to complain about the absence or insufficiency of social benefits for victims of the Semipalatinsk tests. The Court considers that Article 3 of the Convention, which prohibits torture, inhuman or degrading treatment, is relevant in connection with this aspect of the case.

To the extent that the applicant complains about the Semipalatinsk nuclear tests, the Court observes that the facts complained of in this part of the application relate to a period prior to 5 May 1998, which is the date of the entry into force of the Convention with regard to Russia. It is recalled that the Convention only governs facts subsequent to its entry into force in respect of each Contracting Party. It follows that this part of the application is outside the Court’s competence ratione temporis . It is therefore incompatible with the provisions of the Convention, within the meaning of Article 35 § 3.

Insofar as the applicant seems to complain about the absence of social benefits for victims of the Semipalatinsk tests, the Court notes that the applicant was granted the “radiation victim” status, and that he is now entitled to benefit from the provisions of the Social Protection of the Semipalatinsk Tests’ Victims Act. It has not been alleged that there has been an interference with the applicant’s right to a social benefit to which he is entitled under the domestic provisions. This complaint is therefore manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. 

To the extent that the applicant is unsatisfied with the provisions of domestic law affording the social guarantees for Semipalatinsk “radiation victims”, the Court recalls that, in principle, it cannot substitute itself for the national authorities in assessing or reviewing the level of financial benefit available under a social benefit scheme (see, mutatis mutandis , Pancenko v. Latvia, no. 40772/98, 28.10.1999 [Section II] (dec.)). Consequently, this part of the application is outside the Court’s competence ratione materiae . It is therefore incompatible with the provisions of the Convention as stated in Article 35 § 3.

There is no evidence that the applicant has been subjected to treatment contrary to Article 3 of the Convention after 5 May 1998. This aspect of the case is therefore manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

It follows that that this part of the application must be rejected under Article 35 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Michael O’Boyle Elisabeth Palm Registrar President