FIRST SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 48041/99
by Dmitriy LUKACH
against Russia
The European Court of Human Rights (First Section) sitting on 16 November 1999 as a Chamber composed of
MrsE. Palm, President,
Mr L. Ferrari Bravo,
Mr Gaukur Jörundsson,
MrR. Türmen,
Mr T Pantiru
Mr R. Maruste,
Mr A. Kovler, judges,
andMrM. O’Boyle, Section Registrar;
Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 2 February 1999 by Dmitriy Lukach against Russia and registered on 10 May 1999 under file no. 48041/99;
Having regard to the report provided for in Rule 49 of the Rules of Court;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Russian national, born in 1970 and living in St Petersburg.
A.Particular circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant is physically handicapped.
The applicant applied to enter Law Faculty of the St Petersburg University. On 19 July 1998 he furnished the University Admission Commission (hereinafter referred to as “the commission”) with the relevant papers to be allowed to participate in the general entrance examinations, and was permitted to take part therein. He furnished no document to testify his disability at that point. The applicant sat the last examination on 25 July 1998. He failed the general examinations by one mark.
On 26 July 1998 the applicant presented the commission with a certificate of his disability, claiming that his performance in the examinations was sufficient to register him as a student on the specific ground of his disability. In this connection he referred to Article 16 of the Education Act (see the ‘Relevant domestic law’ part below). The commission dismissed the claim, as the applicant should have applied to take part in the entrance examinations as a “special” candidate, and should have submitted his disability certificate by 19 July 1998. The commission noted in particular that he had presented no plausible explanation as to why he had missed the deadline.
The applicant was thus refused admission.
He brought a court action (the first set of proceedings), alleging that the refusal of admission had been unlawful. He also claimed non-pecuniary damages.
On 5 October 1998 the St Petersburg Vasileostrovskiy District Court rejected the applicants’ action as unsubstantiated, finding that he had failed to pass the general examinations, and that he had missed the deadline to apply as a “special” candidate, regardless of the fact that he knew that that he could so apply. On 17 November 1998 the St Petersburg City Court dismissed the applicant’s appeal against the above judgment, finding that the first instance court had properly decided the case. The applicant’s efforts to have the case re-examined by way of special review were unsuccessful.
On 27 April 1999 the applicant lodged with the Supreme Court an action (the second set of proceedings) whereby he alleged that a specific provision of the regulations by the Ministry of Education on admission to higher educational establishments (hereinafter referred to as “the governmental regulations”) permitted various interpretations as to the deadline for applying on as a “special” candidate, and therefore breached his rights under the Education Act (see the Relevant domestic law part below). On 20 May 1999 the Supreme Court refused to examine the action, finding that the applicant was actually complaining about the actions of the commission rather than alleging nullity of the governmental regulations. Upon the applicant’s appeal, on 6 July 1999 the Supreme Court decided that it was in fact competent to decide the above case. It appears that the merits of this action have not yet been determined.
It is open for the applicant to re-apply to the university or other educational establishment.
B.Relevant domestic law
The Education Act entitles handicapped individuals, military officers and other specific categories of persons to be admitted to educational establishments on special beneficial conditions, without taking part in general competitions. These “special” candidates should apply to be admitted in accordance with the relevant rules of the university and regulations by the Ministry of Education.
The Constitution and the Public Authorities Wrongdoing Complaints Act entitle a person to defend his rights against the allegedly unlawful acts of the authorities by way of a court action, or a hierarchical complaint to a superior administrative body.
Article 12 of the Civil Code and Article 116 of the Code of Civil Procedure entitles a person to apply to the Supreme Court at first instance, alleging nullity of a governmental regulation or rule vis-à-vis a statute.
COMPLAINTS
1.Under Articles 6 and 13 of the Convention the applicant complains that he was denied a fair trial in connection with the determination of the refusal of his admission to the university and the claim of nullity of the governmental regulations. He alleges specifically that the courts wrongly decided the cases at issue.
2.The applicant further claims violation of Articles 3 of the Convention in connection with the refusal of admission to the university.
3.In the above regard he also complains under Article 2 of Protocol No. 1 to the Convention.
THE LAW
1.The applicant complains about fairness of proceedings under Articles 6 and 13 of the Convention.
Article 6 provides, insofar as relevant, as follows:
“1. In the determination of his civil rights and obligations … everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”
Article 13 reads:
“Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
Insofar as the applicant complains about the second set of the invoked proceedings, namely the determination of his action of nullity of the governmental regulations, the Court notes that the action is currently pending before the Supreme Court. Accordingly, the applicant cannot at this stage claim to be a “victim” of a violation of Article 6, and it would be premature for the Court to deal with this part of the application.
In any event, even assuming that both sets of the legal proceedings in question, i.e. the determination of the refusal of admission and the action of nullity, concerned the determination of the applicant’s “civil” rights for the purpose of Article 6 and that he could be considered as a “victim” of a violation of that provision in connection with the second set of proceedings, the Court notes that the applicant does not present any complaints regarding “fairness” within the meaning of Article 6. It is not the task of the Court to review alleged errors of fact and law committed by the domestic judicial authorities, but to ascertain whether the proceedings as a whole were fair (see, mutatis mutandis, the Bernard v. France judgment of 23 April 1998, RJD 1998-II, p. 879, § 37). On the basis of the applicant’s submissions and the material held, the Court cannot find any breach of Article 6 in connection with the above sets of proceedings.
The Court does not deem it necessary to examine this part of the application under Article 13 of the Convention, as the latter is a lex generalis with respect to Article 6.
It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, and that it must be rejected under Article 35 § 4.
2.To the extent that the applicant alleges breach of Article 3 of the Convention, which prohibits torture or inhuman or degrading treatment or punishment, the Court finds that the above allegation is not substantiated, and that the refusal of admission in the present case did not violate Article 3.
It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, and that it must be rejected under Article 35 § 4.
3.The applicant also alleges violation of his right to education under Article 2 of Protocol No. 1 to the Convention, which provides as follows:
“No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.”
The question arises first whether Article 2 of Protocol No. 1 guarantees the right to elementary education, or whether it also applies to higher education establishments, such as universities. The Court does not deem it necessary to determine the above question as Article 2 of Protocol No. 1 in any event permits limiting access to universities to those who duly applied for entrance and passed the examination. It cannot be held against the State that it, not being duly told about the applicant’s disability, dealt with him on this basis; the more so as it makes express, separate provisions for the disabled. Finally, the Court notes that, having failed to satisfy the relevant requirements to enter the university, the applicant was not prevented from enrolling in any university or other educational establishment. Consequently, he has not been denied the right to education.
It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, and that it must be rejected under Article 35 § 4.
For these reasons, the Court, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Michael O’BoyleElisabeth Palm
RegistrarPresident
Full & Egal Universal Law Academy