THIRD SECTION
DECISION
Application no. 14191/06
Vasiliy Vasilyevich RUDOV
against Russia
The European Court of Human Rights (Third Section), sitting on 16 January 2018 as a Committee composed of:
Luis López Guerra, President,
Dmitry Dedov,
Jolien Schukking, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 24 February 2006,
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
1. The applicant, Ms Vasiliy Vasilyevich Rudov, is a Russian national who was born in 1960 and lives in Sertolovo, Leningrad Region. He was represented before the Court by Mr R.A. Zarbeyev, a lawyer practising in St Petersburg. By a letter dated 7 February 2007, the applicant’s representative informed the Court that the applicant had died on 5 March 2006 and that his wife, Mrs Galina Vasilyevna Komarova, wished to pursue the application.
2. The Russian Government (“the Government”) were initially represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. The applicant is a former military serviceman. Before 22 October 2001 he served in military unit no. 20160 in Russia.
5. On 25 October 2001 he left Russia for Bosnia and Herzegovina to join the Russian peacekeeping contingent in military unit no. 29760. He served there between 25 October 2001 and 31 October 2002.
6. In April 2002 the applicant requested the command of military unit no. 29760 to pay him a settlement allowance in United States dollars, but his request was refused.
7. The applicant lodged a claim for a settlement allowance against military unit no. 29760.
8. On 18 May 2005 the Military Court of the Sertolovo Garrison dismissed his claim. The court based its decision on the instructions of the Military Section of the Supreme Court of Russia (“the Supreme Court”) “Overview of the case-law relating to claims of servicemen against military authorities and military officers in 2002” (Обзор судебной практики рассмотрения гражданских дел по искам и жалобам военнослужащих на действия и решения органов военного управления и воинских, должностных лиц, 2002) (“the Instruction”). The Instruction contained references to the Federal Law on the Status of Servicemen (“the Servicemen Act”) and to decision no. 24 of the Council of Ministers of the Union of Soviet Socialist Republics of 8 January 1981, decisions of the Russian Government no. 554 of 26 July 2001 and no. 143 of 6 March 2003 (together referred to as “the Decisions” and separately referred to as “the Committee Decision” and “the Government Decision”), and stating that the applicant was not entitled to the allowance. Moreover, the applicant should have lodged his claim against military unit no. 20160 rather than against military unit no. 29760. The texts of the Decisions were never published due to their secret nature.
9. The applicant lodged an appeal against the decision of 18 May 2005, stating that he had been unable to study the secret regulations and that the proceedings had therefore been unfair.
10. On 25 August 2005, following an appeal by the applicant, the Leningrad Circuit Military Court upheld the decision of the first-instance court. It reiterated that the applicant should have asked military unit no. 20160 to pay him the settlement allowance before leaving Russia.
B. Relevant domestic practice
11. In 2002 the Supreme Court analysed the existing case-law of domestic courts relating to disputes between servicemen and the military command, the Servicemen Act, and the Decisions, and issued the Instruction. The Supreme Court instructed the courts to apply the following approach when dealing with disputes on settlement allowances: if a serviceman is going to serve in a military contingent abroad, notwithstanding the length of service, he or she shall receive a settlement allowance (in roubles) in the amount of two times the basic monthly salary for the position in question (должностной оклад, получаемый по основной штатной должности) before leaving Russia. Soldiers serving in a Russian military contingent abroad are not entitled to any additional allowances in foreign currency, the only exception being the staff of cryptography divisions, who are paid an extra sum in foreign currency.
COMPLAINTS
12. The applicant complained under Article 6 of the Convention that his right to a fair trial had been violated by the domestic courts, which had based their decisions on secret documents inaccessible to him.
13. He complained under Article 6 of the lack of independence and impartiality of the domestic court dealing with his case.
14. He also complained under Article 1 of Protocol No. 1 that the authorities had failed to pay him a settlement allowance.
THE LAW
A. Standing of the applicant’ s wife to pursue the application
15. The applicant died on 5 March 2006. In a letter of 7 February 2007 Mrs Komarova, the applicant’s wife and heir, expressed her intention to pursue the application.
16. The Court considers that the applicant’s wife has a legitimate interest in taking the applicant’s place (see Dalban v. Romania [GC], no. 28114/95, §§ 1 and 39, ECHR 1999‑VI, and Ernestina Zullo v. Italy [GC], no. 64897/01, § 37, 29 March 2006).
17. Accordingly, the Court holds that Mrs Komarova has standing to continue the present proceedings.
B. Complaint about the violation of the right to fair trial
18. The applicant complained that the domestic courts’ decisions had been based on secret legal regulations which had not been accessible to him. He relied on Article 6 § 1 of the Convention, which provides, in so far as relevant:
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing...”
19. The Government submitted that neither the applicant nor his lawyer had been present at the hearings before the first-instance and appeal courts and had not asked for the hearings to be postponed. Moreover, the applicant could have asked to be provided with access to the classified information, in accordance with the Federal Law “On State Secrets”. In any event, the courts had based their decision on the Instruction issued by the Supreme Court, rather than on the secret regulations. They concluded that the equality of arms principle had been respected and the proceedings had been fair as a whole.
20. The applicant maintained his complaint. He stated that neither he nor the domestic courts or defendant had had access to the documents used by the domestic courts when resolving his dispute with the military authorities. On 20 October 2000 the Ministry of Justice, at the request of the applicant’s lawyer, had confirmed in an official letter that the Committee Decision had been secret and could not have been published. As to the Government Decisions, they had been “for official use only” and had not been published either. According to the applicant, these documents had been decisive for the resolution of the dispute.
21. The Court reiterates that it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention (see Garcia Ruiz v. Spain [GC] no. 30544/96, § 28, ECHR 1999-I). Similarly, it is in the first place for the national authorities, in particular the courts, to interpret domestic law, and the Court will not substitute its own interpretation for theirs in the absence of arbitrariness. That being said, the Court’s task remains to ascertain whether the proceedings in their entirety were fair (see Tamminen v. Finland, no. 40847/98, § 38, 15 June 2004).
22. The rights deriving from the “fair trial” principle are not absolute. The Court has already ruled, in a number of judgments, on the particular case in which precedence is given to superior national interests, such as national security, when denying a party a fair trial. The Contracting States enjoy a certain margin of appreciation in this area. However, it is for the Court to determine in the last instance whether the requirements of the Convention have been complied with (see, mutatis mutandis, Regner v. the Czech Republic [GC], no. 35289/11, § 147, ECHR 2017, with further references).
23. Turning to the circumstances of the present case, the Court notes that the Instruction contained an analysis of the domestic case-law and legal acts, as well as the conclusions reached by the Supreme Court relating, among other things, to the payment of settlement allowances. The Supreme Court held that the provisions of the Decisions should be applied to the extent that they complied with the Servicemen Act, which was not secret and had been duly published. It held that the Committee Decision’s provisions on the calculation of the allowance had not been in line with the Servicemen Act and it therefore gave instructions as to how to calculate the settlement allowance on the basis of an analysis of the Servicemen Act and the Decisions.
24. The Court further notes that the domestic courts cited the text of the Instruction word for word. Thus, the Court is satisfied that their decisions were based on the Instruction rather than on secret regulations and that the applicant had had access to the Instruction and had been aware of its contents.
25. Moreover, in the present case the domestic courts held that the applicant had lodged his claim against an improper defendant (ненадлежащий ответчик). This conclusion was decisive when those courts dismissed the applicant’s claim. Therefore, the domestic courts’ considerations regarding the allowance were not important in their reaching the final decision.
26. Accordingly, the Court holds that the proceedings were not unfair overall and that the application is manifestly ill-founded. It must therefore be declared inadmissible under Article 35 §§ 3 and 4.
C. Other alleged violations of the Convention
27. The applicant also complained that the court that had considered his case had not been independent and impartial and had refused to award him the allowance.
28. However, 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.
29. 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.
Done in English and notified in writing on 8 February 2018.
Fatoş AracıLuis López Guerra
Deputy RegistrarPresident
Full & Egal Universal Law Academy