THIRD SECTION

DECISION

Application no . 11230/08 Vladimir Aleksandrovich SALMIN and Vitaliy Vladimirovich BESKISHEV against Russia

The European Court of Human Rights (Third Section), sitting on 2 May 2017 as a Commitee composed of:

Branko Lubarda , President, Pere Pastor Vilanova , Georgios A. Serghides , judges,

and Fatoş Aracı , Deputy Section Registrar ,

Having regard to the above application lodged on 14 January 2008,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

1. The applicants, Mr Vladimir Aleksandrovich Salmin and Mr Vitaliy Vladimirovich Beskishev , are Russian nationals, who were born in 1989 and 1988 respectively and live in Krasnodar. They were represented before the Court by Ms A. Kharchenko , a lawyer practising in Krasnodar.

2. The Russian Government (“the Government”) were represented initially by Mr G. Matyushkin , Representative of the Russian Federation to the European Court of Human Rights , and then by Mr A. Fedorov , Head of the Office of the Representative of the Russian Federation to the Court .

A. The circumstances of the case

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

4. The applicants were suspected of manslaughter. On 17 December 2006 the criminal proceedings against them were discontinued and they were informed of their “right to rehabilitation” under Article 134 of the Code of Criminal Procedure.

5. The applicants filed a claim for compensation in respect of pecuniary and non-pecuniary damage against the Krasnodar prosecutor ’ s office and the Ministry of Finance.

6. By a decision of 4 June 2007, the Leninskiy District Court declared the claim inadmissible ( отказ в принятии искового заявления ) as being not amenable to examination in the civil proceedings. It pointed out that they should have exercised their “right to rehabilitation” under the Code of Criminal Procedure. It also informed the plaintiffs that the inadmissibility decision would constitute a procedural bar to subsequent claims lodged on the same grounds against the same defendants.

7. The applicants did not appeal against the District Court ’ s decision and it became final on 15 June 2007. Instead, they resubmitted their statement of claim on 20 June 2007, seeking to recover non-pecuniary damage from the Ministry of Finance.

8. On 16 August 2007 the Leninskiy District Court rejected their claim for being substantially the same as the one that had been declared inadmissible by the decision of 4 June 2007 which had the force of res judicata . On 25 September 2007 the Krasnodar Regional Court upheld that decision on appeal.

B. Relevant domestic law and practice

1. Code of Criminal Procedure: the “right to rehabilitation”

9. Article 133 governs the exercise of the “right to rehabilitation” which is, in essence, the restoration of the person to the status quo ante following termination or discontinuation of criminal proceedings. This right includes the right to compensation in respect of pecuniary and non-pecuniary damage and reinstatement of labour, pension, housing and other rights.

10. Article 134 specifies that the “right to rehabilitation” must be recognised in the decision on the discontinuation of criminal proceedings. The injured party must receive a notice setting out the procedure for claiming damages incurred on account of unlawful criminal prosecution.

11. Article 135(2), as worded at the material time, established that the injured party should submit an application for compensation in respect of pecuniary damage to the authority which discontinued the proceedings.

12. Article 136(2) provides that a claim for compensation in respect of non-pecuniary damage must be submitted in accordance with the rules of civil procedure.

2. Code of Civil Procedure

13. Article 134 § 1 provides that a judge shall declare a claim inadmissible if it is not amenable for consideration in civil proceedings (subparagraph 1) or if there exists a final judicial decision relating to a dispute between the same parties and the same subject-matter (subparagraph 2). Article 134 § 3 establishes that an inadmissibility decision may be appealed against to a higher court.

COMPLAINTS

14. The applicants complained under Article 6 of the Convention that their claim for compensation had not been examined on the merits.

THE LAW

15. The applicants complained in substance about a breach of their right of access to a court enshrined in Article 6 of the Convention which reads in the relevant part as follows:

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

16. The Government submitted that the complaint was inadmissible for non-exhaustion of domestic remedies because the applicants had not appealed against the inadmissibility decision of 4 June 2007. It was also belated because the application to the Court had been lodged more than six months after that inadmissibility decision had become final.

17. The applicants emphasised that their re-submitted claim had been distinct from the original claim. The original claim concerned compensation in respect of both pecuniary and non-pecuniary damage against two defendants, the re-submitted claim solely included a claim for non-pecuniary damage and was lodged against the Ministry of Finance.

18. The Court reiterates that the right of access to a court – that is, the right to institute proceedings before the courts in civil matters – constitutes an element which is inherent in the right set out in Article 6 § 1 of the Convention (see, as a recent authority, Baka v. Hungary [GC], no. 20261/12, § 120, 23 June 2016). However, the right of access to a court is not absolute and may be subject to limitations that do not restrict or reduce the access left to an individual in such a way or to such an extent that the very essence of the right is impaired (see Markovic and Others v. Italy [GC], no. 1398/03, § 99, ECHR 2006-XIV, and Stanev v. Bulgaria [GC], no. 36760/06, § 230, ECHR 2012).

19. Following a discontinuation of criminal proceedings against them, the applicants sought compensation in respect of pecuniary and non-pecuniary damages they had incurred in that connection. The Russian Code of Criminal Procedure establishes a special procedure for the exercise of what is known as the “right of rehabilitation”, that is to say, the right to obtain reparation for the unlawful criminal prosecution (see paragraph 9 above). The modalities for the exercise of that right were to be explained to the applicants in a notice (see paragraph 10 above). They did not indicate that they had not received it or that its contents had been incomplete or unclear.

20. The “rehabilitation” procedure comprised an extrajudicial and a judicial element: an application for reimbursement of pecuniary damage was to be submitted to the authority which had discontinued the proceedings and a claim for non-pecuniary damage to a civil court (see paragraphs 11 and 12 above). Without heeding those provisions, the applicants submitted their claims for both pecuniary and non-pecuniary damages to a court which proceeded to declare them inadmissible for the failure to comply with the rules of jurisdiction (see paragraph 6 above). The court alerted the applicants to the consequences of the inadmissibility decision that would preclude them from re-submitting identical claims. The decision was amenable to an appeal to a higher court (see paragraph 13 above) and, if the applicants disagreed with it in its entirety or in the part relating to the claim for non-pecuniary damages, they could have raised that matter on appeal. They did not file such an appeal. Whatever their motives were (see paragraph 7 above), the Court notes that they did not exhaust the effective domestic remedies as regards their complaint that the District Court had refused to examine the merits of their compensation claim.

21. The re-submitted claim was declared inadmissible for being substantially the same as the previously rejected original claim. The Court reiterates that the refusal to hear the matter which was already res judicata is compatible with the principles of the rule of law and legal certainty under Article 6 of the Convention (see Dimitrova and Others v. Bulgaria ( dec. ), no. 54833/07, § 27, 3 November 2016). The appeal court ’ s finding that the re-submitted claim was a subset of the original claim against a smaller number of defendants and was therefore identical to it, does not appear arbitrary or unreasonable. The Court finds accordingly that the restrictions on the applicants ’ right of access to a court were not disproportionate or abusive.

22. Accordingly, the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 24 May 2017 .

FatoÅŸ Aracı Branko Lubarda              Deputy Registrar President