CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 3 mai 2007

.s800EAC49 { font-size:12pt } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .sBB9EE52A { font-family:Arial } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .s61ED8A2B { width:14.36pt; display:inline-block } .s61E420C2 { font-family:Arial; font-variant:small-caps } .sA36B60A1 { font-family:Arial; font-style:italic } .s84D0D60A { width:8.36pt; display:inline-block } .s967D43C6 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sB8084949 { width:138.49pt; display:inline-block } .s34D46E87 { margin-top:12pt; margin-bottom:6pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s29100277 { font-family:Arial; font-weight:bold } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s88A92475 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sDD165512 { margin-top:12pt; margin-left:14.2pt; margin-bottom:0pt; text-align:justify } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .s2DF49AA6 { width:24.54pt; display:inline-block } .sD79BB263 { width:196.1pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block } FIRST SECTION DECISION AS TO THE ADMISSIBILITY OF Application no. 3352/05 by Nadezhda Alekseyevna DERKACH against Russia The European Court of Human Rights (First Section), sitting on 3   May   2007 as a Chamber composed of:   Mr   C.L. Rozakis, President,   Mr   L. Loucaides,   Mrs   N. Vajić,   Mr   A. Kovler,   Mr   K. Hajiyev,   Mr   D. Spielmann,   Mr   S.E. Jebens, judges, and Mr S. Nielsen, Section Regitrar, Having regard to the above application lodged on 24 November 2004, Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together, 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, Ms Nadezhda Alekseyevna Derkach, is a Russian national who was born in 1958 and lives in Temnolesskaya – a locality in the Apsheronskiy District of the Krasnodar Region. The respondent Government were represented by Mr P. Laptev, 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. The applicant is a school teacher. In 2002 she was dismissed from work. She brought proceedings against her employer – a municipal school owned and funded by the local authority – for reinstatement, pecuniary and non-pecuniary damages. On   12 August 2002 the Apsheronskiy District Court of the Krasnodar Region found for the applicant. The court ordered the applicant’s reinstatement and awarded her 9,414.20 Russian roubles (RUR) in pecuniary damage, RUR 3,000 in non-pecuniary damage and RUR 600 in costs and expenses. On 19 September 2002 the Krasnodar Regional Court upheld the judgment on appeal. On 17 June 2004 the applicant was again dismissed from work and once again brought proceedings seeking to be reinstated and awarded non-pecuniary damage. On 16 July 2004 the Apsheronskiy District Court of the Krasnodar Region dismissed the applicant’s claims. The applicant appealed, claiming that the first-instance court had wrongly evaluated the circumstances of the case. However, on   2   September   2004 the Krasnodar Regional Court upheld the judgment on appeal. It appears that the judgment of 12 August 2002, as upheld on 19   September 2002, was enforced in so far as pecuniary damage was concerned, whereas the award of RUR 3,000 for non-pecuniary damage as well as of RUR 600 awarded for costs and expenses remained unenforced. On an unspecified date the applicant applied for indexation of the remaining judgment debt. On 25   November 2005 the Apsheronskiy District Court of the Krasnodar Region acknowledged that the judgment of 12 August 2002 as upheld on appeal on 19 September 2002 remained partially unenforced and awarded the applicant RUR   5,148. The awarded sum represented the sum of the remaining principal debt (RUR 3,600) and the damages for inflation losses (RUR 1,548). On 12 May 2006 the enforcement proceedings were set in motion. On 2 June 2006 RUR 5,148 were transferred on the applicant’s bank account. COMPLAINTS   1.     Without invoking any Convention Article the applicant complained about the non-enforcement of the judgment of the Apsheronskiy District Court of the Krasnodar Region of 12   August 2002. 2.     The applicant further complained under Article 6 about the alleged unfairness of the proceedings which ended with the decision of Krasnodar Regional Court of 2 September 2004. In particular, she claimed that the court had failed to ascertain the circumstances of her dismissal and had drawn wrongful conclusions. THE LAW 1.     The applicant complained about the authorities’ failure to enforce the judgment of 12 August 2002, as upheld on appeal on 19 September 2002. The complaint falls to be examined under Article   6   §   1 of the Convention and under Article 1 of Protocol No. 1 thereto. The relevant parts of these provisions read as follows: Article   6   §   1 “In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing within a reasonable time ... by [a] ... tribunal...” Article 1 of Protocol No. 1 “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...” As regards the applicability of Article 6 to the present case the Government accepted that the applicant, being a school teacher, had not filled such a position which, in connection with the obligations and responsibility assigned to her by virtue of the position would have implied direct or indirect participation in exercise of public powers and duties designed to safeguard the general interests of the State or other public authorities. Furthermore, the Government submitted that the partial non ‑ enforcement of the judgment of 12 August 2002, as upheld on 19   September   2002, was not compatible with Article 6 of the Convention and Article 1 of Protocol No. 1. Nevertheless, taking into account that on 25   November 2005 the Apsheronskiy District Court had already found a violation of the applicant’s rights with regard to lengthy non-enforcement of its judgment of 12 August 2002 and index-linked the unpaid sum, and that the latter sum had been timely paid to the applicant, she could no longer claim to be a victim of the alleged violation. The applicant responded that she had had to wait almost four years to have the judgment of 12 August 2002 enforced. The Court recalls that under Article 34 of the Convention the Court is entitled to receive applications from persons, non-governmental organisations or groups of individuals “claiming to be the victim of a violation” by a High Contracting Party of the rights contained in the Convention and its Protocols. In situations where an alleged violation has already occurred, subsequent events can give rise to a loss of the status of “victim”, provided that the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see, among other authorities, Amuur v. France , judgment of 25   June 1996, Reports of Judgments and Decisions 1996-III, p. 846, § 36). Accordingly, in principle, where domestic proceedings include an admission of the breach by the national authorities and the payment of a sum of money amounting to redress, the dual requirements established in Amuur are satisfied and the applicant can no longer claim to be a victim of a violation of the Convention (see Rechachi and Abdelhafid v. the United Kingdom (dec.), no. 55554/00, 10 June 2003). Turning to the circumstances of the present case, the Court observes that, on 12 August 2002 the applicant obtained a judgment by which her former employer - a municipal school owned and funded by the local authority, was to pay her pecuniary and non-pecuniary damages and expenses incurred as a result of the proceedings in a particular amount. The judgment became enforceable on 19   September   2002. Since the judgment remained partially unenforced, on 25   November 2005 the Apsheronskiy District Court of the Krasnodar Region acknowledged the delay in enforcement of the judgment and awarded the applicant the damages for inflation losses. The sum was paid to the applicant on 2 June 2006, that is 4 months and 26 days after the judgment of 25 November 2005 had become final. The Court also observes that the applicant did not appeal against the judgment of 25 November 2005. Thus it appears that the applicant did not object to the amount of compensation awarded by the domestic court. Having regard to the content of the judgment of 25 November 2005, the applicant’s unwillingness to appeal against it and the fact that it was enforced within a relatively short period of time which did not impair the essence of the applicant’s right to a court (see Burdov v. Russia , no.   59498/00, §§ 33-42, ECHR 2002-III; Grishchenko v. Russia (dec.), no.   75907/01, 8 July 2004; Denisov v. Ukraine (dec.), no. 18512/02, 1   February 2005; Presnyakov v. Russia (dec.), no. 41145/02, 10   November   2005), the Court finds that the national authorities have acknowledged and then afforded redress for the alleged breach of the Convention. It follows that the applicant can no longer claim to be a victim of a violation of the Convention within the meaning of Article 34 of the Convention (see Khaziyev v. Russia (dec.), no. 15193/03, 10   November   2005; and, most recently, Yeremenko v. Russia (dec.), no.   24535/04, 23 May 2006, and Klushina v. Russia (dec.), no. 44384/04, 12   October 2006) and that this part of the application is to be rejected, pursuant to Articles 34 and 35 §§ 3 and 4. 2.     The applicant also complained that in the proceedings which came to an end on 2 September 2004 the domestic courts had made a wrongful assessment of the facts, had drawn wrongful conclusions, and that the proceedings were unfair. With regard to the judicial decisions of which the applicant complains, the Court recalls that, in accordance with Article 19 of the Convention, its only task is to ensure the observance of the engagements undertaken by the parties to the Convention. In particular, it is not competent to deal with an application alleging that errors of law or fact have been committed by domestic courts, except when it considers that such errors might have involved a possible violation of any of the rights and freedoms set out in the Convention. It is true that the applicant also complained that the proceedings were unfair in violation of Article 6 of the Convention. In this respect the Court recalls that the applicant’s case was examined by the domestic courts at two levels of jurisdiction. The applicant has not submitted any evidence which could lead to the conclusion that the applicant was unable to participate in these proceedings or was unable to present to the court all the evidence which in her opinion would be of relevance to the outcome of the case. In these circumstances the Court finds that the case does not disclose any appearance of a violation of Article 6 of the Convention. It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. Accordingly, it must be rejected pursuant to Article 35 § 4 of the Convention. For these reasons, the Court unanimously Decides to discontinue the application of Article 29 § 3 of the Convention and declares the application inadmissible.   Søren Nielsen   Christos Rozakis   Registrar   President