Sergey Smirnov v. Russia (dec.)

Information Note on the Court’s case-law No. 88

July-August 2006

Sergey Smirnov v. Russia (dec.) - 14085/04

Decision 6.7.2006 [Section I]

Article 35

Article 35-1

Exhaustion of domestic remedies

Effective domestic remedy

Admissibility of civil action in domestic courts dependent on registration of fixed residence: admissible

Article 6

Civil proceedings

Article 6-1

Access to court

Civil rights and obligations

Admissibility of citizenship claims and civil actions dependent on registration of fixed residence: admissible

The applicant, a resident of Moscow, was sentenced to a term of imprisonment in 1986. His residence registration in Moscow was cancelled as a consequence. Upon his release, in 1991, he was issued with a new USSR identity document that contained no stamp of residence registration. The applicant returned to live in Moscow. In January 2002 the applicant tried to exchange his USSR identity document for a Russian one. This was refused on the ground that the applicant could not establish his residence in Russia on the key date 6 February 1992 and thus his Russian citizenship. The applicant unsuccessfully challenged this decision before the courts. He next instituted non-contentious proceedings seeking to establish a fact of legal significance, namely the fact of his residence in Russia on 6 February 1992. This application was declared inadmissible; however, on the ground that since the applicant did not have temporary or permanent legal residence in Moscow, the Moscow courts had no territorial jurisdiction. In parallel, the applicant was refused services by two private companies on the ground that he had no fixed residence; he took both companies to court but was met with rejections of his claims on the ground that he could not give a registered address.

Exhaustion of domestic remedies: The Government submitted that the applicant had not challenged the relevant provision of domestic procedure (currently Article 131 § 2 of the new Code of Civil Procedure) before the Constitutional Court of the Russian Federation. The Court, for its part, observes that the Russian Constitutional Court is competent to examine individual complaints lodged to challenge the constitutionality of a law. An individual constitutional complaint can only be lodged against a law which infringes constitutional rights and freedoms and which has been applied or may be applicable in an individual case. Thus, the procedure of constitutional complaint cannot serve as an effective remedy if the alleged violation resulted only from erroneous application or interpretation of a statutory provision which, in its content, is not unconstitutional. The applicant does not contest the compatibility of Article 131 with the Constitution, rather he questions the way in which the domestic courts applied the requirements contained in that Article to his case. It appears that in those circumstances an application to the Constitutional Court would have had no prospects of success. Therefore, the application cannot be rejected for non-exhaustion of domestic remedies.

Article 6(1):

a) The applicant sought to establish the fact of his residence in Russia in order to confirm his Russian citizenship and to obtain a Russian passport. The Court notes that neither a right to citizenship nor a right to a passport is a civil right, given that it is not of a pecuniary or otherwise of a private character. Incompatible ratione materiae.

b) Proceedings against two private companies, complaint about lack of access to a court: admissible.

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This summary by the Registry does not bind the Court.

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