FIRST SECTION
AS TO THE ADMISSIBILITY OF
Application no. 26528/03
by Vladimir KOLOBOV
against Russia
The European Court of Human Rights (First Section), sitting on 28 June 2011 as a Chamber composed of:
Nina Vajić, President,
Anatoly Kovler,
Peer Lorenzen,
Elisabeth Steiner,
Khanlar Hajiyev,
Julia Laffranque,
Linos-Alexandre Sicilianos, judges,
and Søren Nielsen, Section Registrar,
Having regard to the above application lodged on 10 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 Vladimir Ivanovich Kolobov, is a Russian national who was born in 1955 and lives in Magnitogorsk, in the Chelyabinsk Region. The Russian Government (“the Government”) were represented by Ms V. Milinchuk, the then Representative of the Russian Federation at the European Court of Human Rights.
The facts of the case, as submitted by the parties, may be summarised as follows.
A. The impounding of the car
In 1999 the applicant’s son, A. Kolobov, was suspected of several offences, including murder. On 12 March 1999 the applicant’s son was driving the applicant’s car VAZ-2108 when he was stopped by the police. A car inspection record was drawn up on the same day. The car was taken to the district police station car park. The applicant was told that the car was subject to a restraint order (решение о наложении ареста на имущество).
On 29 July 1999 an investigator from the Magnitogorsk prosecutor’s office issued an impounding order in respect of the car, worded as follows:
“[H]aving examined the criminal case file in respect of A. Kolobov, and given that his criminal activity has caused pecuniary damage to [the victims]; considering that the damage has not been remedied in full, as well as the fact that Kolobov used the car for committing criminal offences; noting that the investigation has established that certain parts of the car were taken as a result of assaults and murders against their owners; for the purpose of returning the property, securing civil claims and confiscating property, and pursuant to Article 175 of the RSFSR Code of Criminal Procedure, I order that the car, owned by V. Kolobov and currently in the possession of A. Kolobov, be impounded and placed in the [police station] car park”.
According to the inventory list drawn up on 29 July 1999 after a visual inspection of the car’s exterior (because no key was available), the car was in good condition.
In reply to the applicant’s complaint, by a letter of 15 November 1999 the prosecutor informed him as follows:
“...the impounding order imposed by the investigator on the car...was lawful and justified because the car was a piece of physical evidence in the case. The seizure did not seek to secure civil claims or a confiscation order in respect of A. Kolobov’s property since he was not the owner of the car in question.
A request for lifting the impounding order should be addressed to the court trying the case against A. Kolobov.”
On 26 April 2000 the Chelyabinsk Regional Court convicted the applicant’s son of murder and robbery. He was sentenced to a term of imprisonment and ordered to pay compensation to the victims. According to the Government, it could be seen from the judgment that the robbery had been committed with the use of the applicant’s car, as various items taken away from the victims and firearms had been transported in that car.
In the same judgment, the trial court lifted the restraint order and ordered the authorities to return the car to the applicant. However, it also held that unspecified “parts of the car body should be destroyed”. The judgment became final on 19 February 2001.
In reply to the applicant’s request for the car to be returned, on 18 April 2001 the town prosecutor’s office advised him that he should contact the person in charge of the police station car park for further information. The police station, in their turn, told the applicant that he was obliged to pay a parking fee. The applicant refused. On 15 June 2001 the town prosecutor’s office confirmed that this requirement was unlawful.
In reply to the applicant’s further complaint, on 31 July 2001 the regional prosecutor’s office informed him that the car would be returned to him on 3 August 2001. The car was returned to him on that date in a dilapidated condition. According to the applicant and an expert report drawn up on the same date, tyres were damaged and two fog lights were missing. The applicant and Mr K. also alleged that several objects (a stereo and its speakers, a radio scanner, a first-aid kit, a fire extinguisher, floor mats, etc.) were missing.
B. Compensation proceedings
In September 2001 the applicant brought civil proceedings against the town prosecutor’s office and the police department. His claims read as follows:
“On 12 March 1999 my car was taken to the Pravoberezhniy district police station car park. However, a restraint order was issued only on 29 July 1999. On the same day, an inventory list was drawn up...As followed from the judgment of 26 April 2000 concerning my son, the car had to be returned to me...The judgment became final on 19 February 2001...The car was not returned to me because the [authorities] told me that I had to be a fee...I sustained pecuniary damage because of the loss or deterioration of several parts of the car...Unreasonable and unlawful actions of the authorities caused moral suffering because I had to spend time and effort to initiate proceedings and complaints...”
The case was assigned to a justice of the peace in the First Circuit of the Leninskiy District of Magnitogorsk. He held several hearings and ordered several adjournments, in particular at the applicant’s request, to collect evidence and to hear witnesses. The judge decided that the Pravoberezhniy police station, as well as the federal Ministry of Finances and the Prosecutor General’s Office, were the appropriate defendants in the case.
On 14 August 2002 the court established that the car had been considered as physical evidence in the criminal case against the applicant’s son; it had been lawfully placed in the police station car park. The justice of the peace, however, considered that the authorities’ refusal to return the car after February 2001 and the requirement to pay for its safekeeping had been unlawful. With reference to the inventory list drawn up on 29 July 1999, the court considered that the available materials confirmed the loss of the fog lights, the stereo and its speakers, the radio scanner and the floor mats, as well as the damage to the tyres. The court granted the pecuniary claim in part, as well as the court, expert and lawyer’s fees. It awarded the applicant 11,725.37 Russian roubles. The court also held as follows:
“As to the claim in respect of non-pecuniary damage, the court reiterates that compensation in respect of moral or physical suffering caused by actions affecting non-property rights or interest may be awarded under Article 151 of the Civil Code. [The applicant] adduced no evidence to confirm that the respondents’ actions had violated his personal non-property rights or interests. Under Article 1099 § 2 of the Civil Code compensation in respect of moral suffering caused by an action or inaction affecting material rights should be awarded, if prescribed by law. The applicable legislation does not provide for compensation in respect of moral suffering caused by the damaging of a car or by the delay in its return to the owner...”
The applicant appealed arguing as follows:
“The first-instance court wrongly rejected one part of my pecuniary claims...Also, I was refused compensation in respect of non-pecuniary damage...As to moral suffering, from 12 March to 29 July 1999 and from 19 February to 3 August 2001 I could not use my car; I was unlawfully required to pay a parking fee and had to spend my time and effort seeking redress before national authorities...”
On 5 February 2003 the Leninskiy District Court of Magnitogorsk upheld the judgment in the following terms:
“The court rightly dismissed the claim concerning non-pecuniary damage because [the applicant] had omitted to justify it with reference to any ill health or psychological distress. Instead, he justified it with reference to real losses owing to the impossibility of using the car and the loss of time in reclaiming it.”
In November 2003 the applicant received the amount awarded.
COMPLAINTS
The applicant complained about the authorities’ failure to make good for the damage and loss resulting from the allegedly unlawful impounding of his car and its delayed return to him.
Furthermore, the applicant alleged that the authorities had not enforced the civil court’s award within a reasonable time.
Lastly, the applicant complained that the court which delivered the judgment of 26 April 2000 had not been “established by law”, as required by Article 6 § 1 of the Convention.
THE LAW
1. The applicant complained about the authorities’ failure to make good for the damage and loss resulting from the impounding of his car and its delayed return to him. The Court will examine the above complaints under Article 1 of Protocol No. 1, which reads 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 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 applicant alleged that despite his complaints, there had been an unjustified delay in returning the car to him. No compensation had been paid despite the fact that the applicant had been prevented from using the car during that period. The civil court should have remedied in full the material damage to his car and should have made an award in respect of non-pecuniary damage.
The Government argued that in view of the civil court’s award and the return of the car to the applicant, his claims before the Court were devoid of purpose since his rights had been restored at the national level. The national courts had carefully examined the pecuniary claims and had granted those which had been properly substantiated. The civil court judgment was based on the available evidence submitted by the applicant; the remainder could not be granted for lack of appropriate evidence, including for the claim in respect of non-pecuniary damage. The applicant took no steps after 19 February 2001 to regain possession of the car. Although the Government admitted that there had not been a lawful basis for keeping the car during that period, they insisted that the authorities had taken all reasonable measures to speed up the return of the car to the applicant and the payment of the civil court award.
The Court reiterates that under Article 34 of the Convention it may receive applications from any person claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. It falls first to the national authorities to redress any alleged violation of the Convention. In this regard, the question whether an applicant can claim to be a victim of the violation alleged is relevant at all stages of the proceedings under the Convention (see, among others, Burdov v. Russia (no. 2), no. 33509/04, §§ 54-60 and 100, ECHR 2009‑...). A decision or measure favourable to an applicant is not, in principle, sufficient to deprive him of his status as a “victim” unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see Dalban v. Romania [GC], no. 28114/95, § 44, ECHR 1999-VI). As to the redress which is appropriate and sufficient in order to remedy a breach of a Convention right at national level, the Court has generally considered this to be dependent on all the circumstances of the case, having regard, in particular, to the nature of the Convention violation at stake (see, as recent authorities, Gäfgen v. Germany [GC], no. 22978/05, § 116 et seq., ECHR 2010‑..., and Sakhnovskiy v. Russia [GC], no. 21272/03, §§ 76-84, 2 November 2010).
Turning to the circumstances of the case, the Court observes that the main thrust of the applicant’s complaint concerns the national authorities’ failure to keep his car in good condition and to return it without undue delay after the criminal court had lifted the restraint order on 19 February 2001.
It is noted that the national courts acknowledged that the applicant had sustained material damage on account of the violation of the authorities’ obligation under Russian law to look after the car. The courts in the present case carefully examined the applicant’s pecuniary claims and granted those of them which were properly substantiated.
Furthermore, the national courts acknowledged the unlawfulness of the retention of the applicant’s car after the judgment in his son’s criminal case had become final in February 2001. The courts did not consider that the applicant suffered any particular non-pecuniary damage finding that he had not put forward any such argument.
The Court finds no reason to disagree with the above assessment, which does not appear unreasonable or arbitrary. In the circumstances of the case and having regard to the above findings, the Court considers that the authorities acknowledged in substance the violations complained of and that the payment of the pecuniary award amounted to adequate redress.
In view of the foregoing, the applicant should be considered as having lost his victim status in relation to the present complaints (see, for comparison, Watkins v. the United Kingdom (dec.), no. 35757/06, 6 October 2009, and Vladimir Polishchuk and Svetlana Polishchuk v. Ukraine, no. 12451/04, §§ 27-31 and 46-48, 30 September 2010).
Thus, the Court concludes that the applicant is no longer a victim of the alleged violations and that this part of the application must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
2. As to the remaining complaints raised by the applicant, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of 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.
Søren NielsenNina Vajić
RegistrarPresident
Full & Egal Universal Law Academy