THIRD SECTION
DECISION
Application no. 44870/15
Vladimir Sergeyevich TIMOFEYEV
against Russia
The European Court of Human Rights (Third Section), sitting on 26 September 2017 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 18 August 2015,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Vladimir Sergeyevich Timofeyev, is a Russian national, who was born in 1985 and lives in Lyudinovo, Kaluga Region.
The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. In 2013 the applicant was accused of an administrative offence of the refusal to take the alcohol test under Article 12.26 of the Federal Code of Administrative Offences (CAO).
4. A hearing was scheduled for 15 January 2014. On 14 January 2014 the applicant motioned for its adjournment for the purpose of preparation of his defence. The justice of the peace of the 34th Court Circuit of the Lyudinovo District of the Kaluga Region (Мировой судья судебного участка № 34 Людиновского района Калужской области) granted the applicant’s motion and rescheduled the hearing for 29 January 2014.
5. On 29 January 2014 the applicant motioned for suspension of the proceedings until adoption of a judgment in the then-pending criminal proceedings against him. By the decision (рус. определение) of 29 January 2014 the justice of the peace dismissed the applicant’s motion, referring to him as an “offender”, and adjourned the hearing until 4 February 2014.
6. The hearing was rescheduled for an unknown reason for 9 March 2014. The applicant was summoned via the SMS.
7. By a judgment of 9 March 2014 the justice of the peace found the applicant guilty of the administrative offence of the refusal to take the alcohol test under Article 12.26 of the CAO. The applicant was fined and his driving licence was suspended for one year and six months.
8. A copy of the judgment was sent to the applicant by registered mail on 11 March 2014. On 21 March 2014 it was returned “after expiry of the storage term”.
9. In the absence of an appeal the judgment became enforceable on 1 April 2014.
10. However, on 7 July 2014 the applicant filed an appeal against the judgment dated 9 March 2014 together with a motion for extension of the time-limit for lodging an appeal. The applicant claimed that he had been unaware of the date and time of the hearing of 9 March 2014 and of the judgment delivered in that hearing. He alleged that a copy of this judgment had been sent to him only on 30 June 2014 and he had received it on 4 July 2014. The applicant also pointed out that for the period from 7 till 26 March 2014 he had been taken into the local hospital for in-patient treatment.
11. On 22 August 2014 the Lyudinovo District Court of the Kaluga Region (Людиновский районный суд Калужской области) dismissed the applicant’s motion and returned his appeal complaint without examination on the merits. The District Court pointed out that the applicant had been duly summoned to the hearing of 9 March 2014 via the SMS. However, he had neither appeared in court nor motioned for adjournment of the hearing. A copy of the judgment was sent to him by registered mail on 11 March 2014. On 21 March 2014 it was returned “after expiry of the storage term”. The local State Traffic Safety Inspectorate informed the applicant by the notice dated 8 April 2014 that the judgment dated 9 March 2014 was subject to execution.
12. The applicant appealed and on 9 October 2014 the Kaluga Regional Court (Калужский областной суд) upheld the decision of 22 August 2014.
13. The applicant applied for review of the judgment dated 9 March 2014 and on 6 November 2014 the Regional Court dismissed his claims.
14. On 19 February 2015 the Supreme Court of Russia rejected the applicant’s application for review of the judgments of 9 March 2014 and 6 November 2014.
COMPLAINTS
15. The applicant complained under Article 6 § 1 of the Convention that 1) his right to a fair hearing had been breached on account of the failure to summon him to the first-instance hearing of 9 March 2014, 2) holding the hearing in his absence on Sunday, and 3) denial of access to court.
16. The applicant also complained under Article 6 § 2 of the Convention that the presumption of innocence had been breached by the national court referring to him as an “offender” before he was found guilty of the respective administrative offence.
17. Further, the applicant submitted a number of accessory complaints under Article 6 § 1 of the Convention.
THE LAW
18. The applicant complained under Article 6 §§ 1 and 2 of the Convention, which reads in the relevant part as follows:
“1. In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...
2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”
19. The Court observes that the proceedings at issue concerned an administrative offence and were governed, as regards both substance and procedure, by the provisions of the CAO of 2001, as in force after legislative amendments in 2008 in respect of the review procedure (see Smadikov v. Russia (dec.), no. 10810/15, §§ 17‑21 and 44, 31 January 2017).
20. In respect of the applicant’s complaints under Article 6 § 1 of the Convention concerning alleged failure to summon him to the first-instance hearing of 9 March 2014, holding it in his absence on Sunday, and denying him access to court, the Court notes at the outset that the available material indicates that the applicant was timely and duly informed of the time of the hearing dated 9 March 2014 and of the court in which it would be held.
21. The Court further notes that nothing in the present case gives reasons to doubt that the judgment dated 9 March 2014 was dispatched to the applicant in due time.
22. The Court observes that no convincing and valid reasons were advanced by the applicant to justify his failure to comply with the time‑limit for lodging an appeal against the judgment of 9 March 2014. The decisions of the domestic courts dismissing his motion for restoration of the specified time-limit were detailed and well-reasoned.
23. The Court has previously established that application for two-level review procedure under the CAO cannot be considered as a remedy for the purpose of Article 35 § 1 of the Convention (see Smadikov, (dec.), cited above).
24. It follows that neither of the two decisions, by which the applicant’s applications for review of the judgment dated 9 March 2014 were examined and rejected, should be taken into account for the purpose of applying the rule of exhaustion of domestic remedies and the six-month rule stipulated in Article 35 § 1 of the Convention (see Smadikov, (dec.), cited above, § 50).
25. In these circumstances the Court finds that the applicant had an effective remedy in the form of the appeal proceedings, but failed, for no evident and valid reason, to make use of it. Accordingly, his complaints under Article 6 § 1 of the Convention concerning alleged failure to summon him to the first-instance hearing of 9 March 2014, holding it in his absence on Sunday, and denying him access to court are inadmissible under Article 35 §§ 1 and 4 of the Convention.
26. In respect of the complaint under Article 6 § 2 of the Convention about an alleged breach of presumption of innocence, the Court observes that apparently the decision of 29 January 2014 could not be appealed directly under the CAO. It further observes that the applicant never challenged the “offender” reference in other proceedings, for example, in the appeal against the judgment of 9 March 2014. Presuming that the applicant did not have an effective domestic remedy at his disposal, he should have lodged the complaint with this Court within six months from the decision of 29 January 2014; however he did so only on 18 August 2015. Accordingly, this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention as lodged out of time.
27. Lastly, the Court having regard to all available material finds that the applicant’s other complaints under Article 6 § 1 of the Convention are inadmissible and must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 19 October 2017.
Fatoş AracıLuis López Guerra
Deputy RegistrarPresident
Full & Egal Universal Law Academy