THIRD SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 68798/01
by Nikolay BOGONOS
against Russia
The European Court of Human Rights (Third Section), sitting on 5 February 2004 as a Chamber composed of
MrG. Ress, President,
MrL. Caflisch,
MrP. Kūris,
MrR. Türmen,
MrsM. Tsatsa-Nikolovska,
MrK. Traja,
MrA. Kovler, judges,
and Mr V. Berger, Section Registrar,
Having regard to the above application introduced on 14 February 2001,
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, Mr Nikolay Petrovich Bogonos, is a Russian national, who was born in 1952 and lives in the village of Ivanovka, Ukraine. The respondent Government are represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
In 1984 the applicant was severely injured as a result of an industrial accident at the site of his employer, State-owned enterprise Deputatskiy GOK, located in the Sakha (Yakutia) Republic of the Russian Federation. The applicant was paralysed and he moved back to his home village in Ukraine. Since 1984 the applicant has been receiving a disability pension from his employer.
Following the rampant inflation in Russia in 1990s, the purchasing power of the applicant’s disability pension has greatly depreciated. The applicant sued his former employer for an increase of the amount of compensation to take account of inflation.
On 6 June 2000 the Ust-Yanskiy District Court of the Sakha (Yakutia) Republic (Усть-Янский улусный суд Республики Саха (Якутия)) granted the applicant’s action and awarded him RUR 7,970.63 for back payments. The applicant notified the court that he could not attend the hearing because he lived more than 10,000 kilometres away and his mobility was reduced.
On 20 July 2000 a copy of the decision of 6 June 2000 was sent by post to the applicant’s address in the town of Lutsk.
On 1 August 2000 the defendant filed an appeal, a copy of which was sent to the applicant.
On 9 September 2000 the applicant sent by post his observations on the appeal.
On 15 September 2000 the applicant was informed by a letter that the appeal hearing was fixed for 25 September 2000 and the case file, including the appeal and his observations, had been transferred to the Supreme Court of the Sakha (Yakutia) Republic (Верховный суд Республики Саха (Якутия), «the Yakutia Supreme Court»). The letter reached the applicant at his address in the town of Lutsk.
On 25 September 2000 the Yakutia Supreme Court upheld the judgment of 6 June 2000 in the part concerning the applicant’s former employer.
In November-December 2000 the applicant called the Yakutia Supreme Court several times on the phone, but no response was given to him whether the hearing had taken place and, if so, what its outcome had been.
On 10 January 2001 the Ust-Yanskiy District Court sent a copy of the judgment of 25 September 2000 to the applicant’s address in Lutsk.
On an unspecified date the applicant sent a request to the President of the Yakutia Supreme Court to be provided with a copy of the appeal decision. On 30 January 2001 his request was transferred to the acting President of the Ust-Yanskiy District Court. The applicant did not receive a response to his request.
On 2 February 2001 the applicant sent a complaint to the Ministry of Justice of the Sakha (Yakutia) Republic about the courts’ failure to provide him with information on the outcome of the proceedings. No response was received.
On 9 June 2001 the Ust-Yanskiy District Court again sent a copy of the judgment of 25 September 2000 to the applicant’s address in Lutsk.
On an unspecified date the applicant renewed his request to the President of the Yakutia Supreme Court to be provided with a copy of the appeal decision. On 2 April 2002 his request was transferred to the acting President of the Ust-Yanskiy District Court. The applicant did not receive a response to his request.
B. Relevant domestic law
Article 20 of the Minsk Convention on Legal Aid and Legal Relations in Civil, Family and Criminal Proceedings of 22 January 1993 provides that a civil action against a legal entity shall be lodged before the courts of the Contracting Party in whose territory such legal entity has the head office. The Minsk Convention does not provide for any specific form of service of court judgments.
Article 2841 of the RSFSR Code of Civil Procedure (of 11 June 1964, in force at the material time) provided that a regional court was to examine an appeal against a first-instance judgment within ten days upon receipt of the case file. In exceptional circumstances the president of the court could extend this period for additional ten days. Article 2135 required that a copy of a decision made in the absence of a party to the proceedings should be sent to such party within three days of its pronouncement.
COMPLAINTS
The applicant complains under Article 6 of the Convention that the lack of any information on the outcome of the proceedings for determination of his civil rights is a violation of fair trial guarantees.
The applicant complains under Article 1 of Protocol No. 1 about a delay in crediting the amounts awarded to him to his bank account.
The applicant complains under Article 14 of the Convention about being discriminated against on the ground of his disability.
THE LAW
1. The applicant complains under Article 6 of the Convention that he has never received a copy of the judgment of the appeal court and therefore had no information on the outcome of his civil action. Article 6 § 1 provides as follows:
“In the determination of his civil rights and obligations... everyone is entitled to a fair and public hearing within a reasonable time... Judgment shall be pronounced publicly...”
The Government submit that on 25 September 2000 the Supreme Court of the Sakha (Yakutia) Republic (“the Yakutia Supreme Court”) examined on appeal the applicant’s civil claim and upheld the judgment of the first instance court in the part concerning the applicant’s former employer. The appeal judgment became enforceable on the same day. On 6 December 2000 the case file was returned to the Ust-Yanskiy District Court. The Government provide copies of documents showing that on 10 January and 9 June 2001 a judge of the Ust-Yanskiy District Court sent a copy of the judgment of 25 September 2000 to the applicant’s address in Lutsk, Ukraine. The Government emphasise that these letters were sent to the same address as that used for transmitting the information on the hearing before the Yakutia Supreme Court, despatched on 15 September 2000, which the applicant had received.
The applicant responds that he first saw a copy of the judgment of 25 September 2000 in November 2003 as an attachment to the Government’s observations. He claims that his requests of 10 January and 2 February 2001 and of 2 April 2002 to obtain a copy of the judgment would have been meaningless, had he received it before. The applicant also submits a certificate issued by a local post office in Lutsk on 27 October 2003 to the effect that no registered mail in the applicant’s name was received; the certificate does not specify the time period to which it relates. The applicant claims that the respondent Government should have produced “more convincing proof” that the judgment had been sent to him, such as evidence that he had been informed of the judgment through a notary public or through the Russian Embassy in Ukraine or that he or a member of his household had signed for the registered mail. Finally, the applicant submits that his rights under Article 6 § 1 of the Convention were violated because his disability made it impossible to cover the distance of ten thousand kilometres to inquire about the contents of the judgment in person, because he had no legal representation in the Yakutia Republic and because he could not financially afford the assistance of local Ukrainian lawyers. The remainder of the applicant’s observations concerns the alleged persecution of local trade unions in Ukraine and is irrelevant to the subject-matter of the application.
The Court notes that Article 6 of the Convention does not provide for specific forms of service of documents. The question is whether an individual’s access to court has been denied in the circumstances of the case (see, generally, Hennings v. Germany, judgment of 16 December 1992, Series A no. 251‑A; Teuschler v. Germany (dec.), no. 47636/99, 4 October 2001). In the present case, the Court notes that the applicant was undoubtedly in a difficult position, as he lived many kilometres away from the courts which heard his claim and outside the jurisdiction. However, that is not sufficient in itself to constitute a denial of access to court as it is not a matter for which the Government can be held responsible (cf. Paar v. Hungary (dec.), no. 40867/98, 20 September 2001).
The Court notes that the Government have submitted copies of two letters which were sent to the applicant enclosing copies of the final judgment in the case, sent on 10 January 2001 and 9 June 2001. The letter of 10 January 2001 appears to have been the letter by which the applicant was informed of the judgment of 25 September 2000, and the letter of 9 June 2001 appears to have been in reply to the applicant’s subsequent requests for information. In fact, the latter reads as follows: “The Ust-Yanskiy District Court is sending you again a copy of the judgment of the Yakutia Supreme Court...” Those letters do not appear to have been sent by registered mail, and the applicant contends that he did not receive them. The Court notes that both letters were sent to the applicant’s address in Lutsk, which he consistently used in his correspondence with the Ust-Yanskiy District Court at the material time, and an earlier letter of 15 September 2000 had indeed reached the applicant at that address. Furthermore, it does not appear that the applicant indicated his intention to receive replies to a different address (cf., e.g., Mladenić v. Croatia (dec.), no. 48485/99, 14 June 2001).
Whilst the Court has no reason to doubt the applicant’s contention that he did not receive the letters of 10 January and 9 June 2001, sent to his address in Lutsk, it does not consider that the obligation on a government to ensure access to court can automatically include a requirement that judgments be sent to parties by registered mail or, for that matter, notified through an Embassy to a party outside their jurisdiction. Given the letters which were sent, and the fact that the applicant was not merely far from the relevant courts but outside the jurisdiction, the Court considers that the applicant has not been denied access to court (cf. Darnay v. Hungary, no. 36524/97, Commission decision of 16 April 1998).
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 under Article 1 of Protocol No. 1 about late payment of the amounts awarded to him. Article 1 of Protocol No. 1 provides, in the relevant part, as follows:
“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 Government argue that since 1 December 2002 the applicant has been receiving a disability pension of 17,176.73 Russian roubles which a local Moscow branch of the Russian Social Security Fund transfers to him regularly by postal order. According to the Government, the applicant never complained about the amount or the method of transfer of his pension.
The applicant reiterates that his rights under Article 1 of Protocol No. 1 were violated because “the money had been received, but after a delay and with non-pecuniary damage [sic]”.
The Court first notes that the Government’s observations relate to a time-period posterior to the events which gave rise to the application. It further observes that the applicant’s allegations are unsubstantiated: he has failed to provide any details about the actual time period when the judgment had allegedly not been enforced and whether such delay could have been attributable to the State.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
3. The applicant complains under Article 14 of the Convention that he was discriminated against on account of his disability. Article 14 reads as follows:
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
The applicant alleged in broad terms that he was the victim of discrimination because his disability prevented him from attending the hearings before the domestic courts and from getting first-hand knowledge of their judgments. The Court considers that, to the extent this claim is not subsumed in the applicant’s general complaint that he was denied access to a court, there is no indication in the present case of any discrimination within the meaning of Article 14 of the Convention.
It follows that this complaint is also 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.
Vincent Berger Georg Ress
RegistrarPresident
Full & Egal Universal Law Academy