FIRST SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 32275/03
by Aleksandr Arsenyevich GORODNICHEV
against Russia
The European Court of Human Rights (First Section), sitting on 15 November 2007 as a Chamber composed of:
MrC.L. Rozakis, President,
MrL. Loucaides,
MrsN. Vajić,
MrA. Kovler,
MrsE. Steiner,
MrK. Hajiyev,
MrG. Malinverni, judges,
and Mr S. Nielsen, Section Registrar,
Having regard to the above application lodged on 31 July 2003,
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 Aleksandr Arsenyevich Gorodnichev, was a Russian national who was born in 1949. He was represented before the Court by his wife, Ms Y. Gorodnicheva. On 8 June 2004 the applicant died in Strasbourg. On 16 March 2005 Ms Y. Gorodnicheva, the applicant’s wife and representative, wrote a letter to the Court where she indicated that she continued to represent the interests of her late husband before the Court.
The Russian Government (“the Government”) were 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.
1. Facts prior to the communication of the application to the respondent Government
In 1999 the applicant was convicted of several counts of fraud and sentenced to eight years’ imprisonment by the Leninskiy District Court of Cheboksary. The court also awarded damages to the victims of fraud, to be recovered from the applicant.
On 26 May 2000 the State Duma passed an amnesty act that applied inter alia to disabled convicts. The applicant had the status of a disabled person, and on 19 June 2000 he was released.
In October 2000 the applicant joined a Moscow-based bar association as a barrister.
On an unspecified date the applicant moved to France where he sought political asylum.
In June 2002 the applicant brought proceedings before the Kalininskiy District Court of Cheboksary seeking to clear his criminal record.
On 24 October 2002 the court accepted his claim and ordered that his record be cleared. However, on 1 November 2002 the Regional Prosecutor appealed against this decision. On 19 December 2002 the Supreme Court of the Chuvash Republic, composed of Judges S., T. and Sh., examined the prosecutor’s appeal, quashed the decision of 24 October 2002 and remitted the case to the first instance court for new examination.
The hearing was set for 22 January 2003. On 21 January 2003 the applicant requested the court to adjourn the hearing alleging that he had not received a copy of the appeal court decision of 9 December 2002.
On 12 February 2003 the applicant sent a letter to the court requesting the proceedings to be discontinued.
On 14 February 2003 the Kalininskiy District Court of Cheboksary, in the absence of the applicant, delivered a new judgement. The court firstly indicated that on many occasions the applicant had failed to appear before the court without any excuse. The court further observed that the applicant had committed a serious crime and served only one year out of the eight years’ sentence imposed by the court in 1999. The court also found that the applicant had failed to compensate the victims of his crimes. On these grounds the court rejected the applicant’s claim, refusing to clear his criminal record.
The applicant appealed, but on 20 March 2003 the Supreme Court of the Chuvash Republic, composed of the same three judges (S., T. and Sh.), upheld the decision of 14 February 2003. The court noted that between 24 December 2002 and 14 February 2003 six official notifications had been sent to the applicant by post and by special delivery. The appeal court found that, as was evident from the applicant’s own motion to the first instance court, he knew about the date of the hearing, but failed to appear.
The Supreme Court upheld the decision of 14 February 2003 reiterating the reasons set by the first instance court. The court stated obiter dictum that the applicant’s being a barrister was against the law.
According to the applicant, following those court decisions he was disbarred under Article 9 § 2 point 2 of the law on barristers and bar associations.
2. Facts posterior to the communication of the application to the respondent Government
On 21 April 2004 the Court communicated the application to the Russian Government.
On 8 June 2004 the applicant died in Strasbourg.
On 11 June 2004 the Prosecutor of the Chuvash Republic initiated the supervisory review of the applicant’s case concerning his criminal record.
On 25 June 2004 the Presidium of the Supreme Court of the Chuvash Republic quashed the decision of the Supreme Court of the Chuvash Republic of 20 March 2003 for various procedural informalities, and remitted the case to the first instance court for a fresh examination.
On 29 October 2004 the Kalininskiy District Court of Cheboksary discontinued the proceedings referring to the fact of the death of the applicant. That decision was subject to appeal within ten days after its delivery; however, it appears that the decision was not appealed against.
B. Relevant domestic law
In the Russian law the criminal record (судимость) affects the legal status of a former convict in many respects. Thus, pursuant to Article 9 § 2 of the Federal Law “On Barristers” of 31 May 2002, a person with a criminal record can not be a barrister and, therefore, practise law in courts.
Pursuant to Article 86 of the Criminal Code, the criminal record is automatically cleared six years after the sentence has been served (for the category of crimes the applicant was sentenced to). Upon the convict’s request, the court may clear the record before this term expires, if the convicted person’ behaviour after his liberation was irreproachable.
COMPLAINTS
Under Article 6 of the Convention the applicant complained about the unfairness of the court proceedings in the case concerning his criminal record. He also complained that the appeal court judges in his case had not been impartial. The applicant also invoked Articles 3, 10, 13, 14, 17 of the Convention, as well as Article 4 of the Protocol no. 7 to the Convention in this respect.
THE LAW
A. Complaints under Article 6 of the Convention
The applicant complained about the alleged unfairness of the proceedings concerning his criminal record. Article 6 of the Convention, relied on by the applicant, insofar as relevant, reads as follows:
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”
In their additional observations of 14 December 2004 the Government insisted on striking the application out of the list of cases because of the death of the applicant.
The Court notes that in her letter of 16 March 2005 Ms Y. Gorodnicheva, the applicant’s widow, informed the Court that she continued to represent the applicant’s interests before the Court. The Court understands that she wishes to participate in the proceedings in her late husband’s stead. There is no doubt that Ms Gorodnicheva is the applicant’s heir; however, the Court still has to examine whether in the circumstances she can continue the proceedings instituted by the applicant.
The Court observes that Mr Gorodnichev died on 8 June 2004. That fact, however, does not in itself dispose of his complaint. In principle, it falls to the Court to decide whether the application should be further examined. In the examination of this question, special consideration should be given to the intentions expressed by the applicant’s legal successor as well as to the nature of the complaint (see Veit v. Germany, no. 10474/83, Commission decision of 6 May 1986, Decisions and Reports (DR) 47, p. 116, with further references).
On the other hand, the heirs of the deceased applicant cannot claim a general right to pursue the proceedings on their own behalf. The Court “must examine each application in the light of its particular facts and from the standpoint of whether the applicant’s interest at stake is of such a nature that it can be transferred to the heir, and, further, whether considerations relating to the general interest require the continued examination of the application” (S. v. the United Kingdom, no. 9502/81, Commission decision of 13 July 1983, DR 34, p. 103).
Turning to the present case the Court notes that the applicant’s complaint under Article 6 related to the proceedings in which the applicant sought to “erase” his criminal record. As to the applicability of Article 6 of the Convention to those proceedings, it is clear that the proceedings at issue were not aimed at deciding upon any criminal charge against the applicant. As to their relevance to the applicant’s “civil rights and obligations”, the Court finds that it can leave this question open since the application is in any event inadmissible for the following reasons.
First of all, even if the proceedings at issue had initially some connection with the applicant’s civil rights and obligations, that connection depended on the applicant’s willingness to pursue his career of a lawyer. His death, however, put an end to his professional aspirations. In the circumstances the Court considers that the applicant’s interest at stake was a strictly personal one, and could not have been transferred to his heirs. Therefore, as far as the original application is concerned, the applicant’s widow – who was not a party to the original application – cannot now claim to have a sufficient legal interest to justify the continued examination of the complaint (see S. v. the United Kingdom, cited above, p. 104).
Furthermore, the Court does not see any question of general interest which would justify the continued examination of the complaint (see, by contrast, Karner v. Austria, no. 40016/98, § 26, ECHR 2003‑IX).
Accordingly, the Court finds that the applicant’s widow in this case does not have the requisite standing under Article 34 of the Convention and that the complaints under Article 6 of the Convention must be rejected as incompatible ratione personae with the Convention in accordance with Article 35 §§ 3 and 4.
B. Other complaints
The Court has examined the remainder of the applicant’s complaints as submitted by him. Without deciding whether or not those complaints concerned transferable rights (see above), the Court concludes that, in the light of all the material in its possession, and in so far as the matters complained of were within its competence, these complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. Accordingly, it rejects this part of the application in accordance with Article 35 §§ 3 and 4 of the Convention as being manifestly ill-founded.
For these reasons, the Court unanimously
Declares the application inadmissible
Søren NielsenChristos Rozakis
RegistrarPresident
Full & Egal Universal Law Academy