CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 1 octobre 2009

.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 } .sA36B60A1 { font-family:Arial; font-style:italic } .s967D43C6 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s7EE1C8F0 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .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 } .sC702907E { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s8378218E { margin-top:12pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; 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 } .s507451D6 { width:4.53pt; display:inline-block } .s4A0CEAF8 { width:194.77pt; 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. 29926/03 by Sergey Yuryevich PAVLOV against Russia The European Court of Human Rights (First Section), sitting on 1   October 2009 as a Chamber composed of:   Christos Rozakis, President,   Nina Vajić,   Anatoly Kovler,   Elisabeth Steiner,   Khanlar Hajiyev,   Dean Spielmann,   Sverre Erik Jebens, judges, and Søren Nielsen, Section Registrar , Having regard to the above application lodged on 13 August 2003, 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, Mr Sergey Yuryevich Pavlov, is a Russian national who was born in 1967 and lives in St. Petersburg. The Russian Government (“the Government”) were represented by Ms V. Milinchuk, former 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. A.     The applicant’s housing entitlement On 26   August 1982 the applicant was put on a waiting list with a view to provision with state housing. On 12   October 1989 the applicant was put on a waiting list for participation in cooperative housing construction. On 21   September 1994 it was established that the applicant was entitled to a four-room cooperative flat. On 11   October 2000 the St. Petersburg City Housing Committee (the “Housing Committee”) ruled that the applicant be provided with a four-room cooperative flat regardless of his order of priority on the waiting list. The regard was had to the fact that the applicant, who was married with three minor children, was living in a room in a communal flat. On 15   February 2001 the Housing Committee ruled that the applicant may obtain the membership in the housing construction cooperative ZhSK-1393 (the “Cooperative”). On 21   September 2005 the Housing Committee quashed its decision of 11   October 2000 noting that no four-room flat was available in the Cooperative to be given to the applicant. B.     The first set of proceedings On 19 July 2000 the applicant lodged a claim against the Housing Committee with the Oktyabrskiy District Court of St.   Petersburg seeking provision of a cooperative flat for his family. On 18   September 2000 the court held a preparatory hearing. It sent a request to the Cooperative to obtain certain documents and scheduled the first hearing for 10   April 2001. On 10   April 2001 the applicant partially modified his claims. He claimed that the payment for the cooperative flat be made by the State due to the authorities’ failure to fulfil their obligation with regard to provision of his family with housing. He also lodged claims against the Cooperative and asked the court to obtain certain documentary evidence from it. The court adjourned the hearing until 9   August 2001 pending receipt of the documents. The court adjourned the hearing on 9   August 2001 due to the applicant’s failure to appear. The court further adjourned the hearing of the matter on 25   December 2001 and 23   May and 28   November 2002, granting the applicant’s request to obtain new documentary evidence and serve process on a witness. On 3   June 2003 the court adjourned the hearing pending receipt of the documents requested earlier. The next hearing was scheduled for 13   November 2003. It was adjourned due to the failure of the applicant’s representative to appear. On 9   June 2004 the applicant asked the court to obtain certain documentary evidence. The court granted the applicant’s request and adjourned the hearing until 9   February 2005 pending the receipt of the documents. On 9   February 2005 the respondent’s representative failed to appear. The court further adjourned the hearing scheduled for 11   August 2005 due to the applicant’s failure to appear. The court heard the matter and dismissed the applicant’s claims on 22   November 2005. The court relied on the decision issued by the Housing Committee of 21   September 2005 where it noted that no four-room flat was available. The court also dismissed the applicant’s monetary claims. Neither the applicant nor his representative were present. On 24   May 2006 the St.   Petersburg City Court upheld the judgment of 22   November 2005 on appeal. C.     The second set of proceedings On 29 January 2002 the applicant brought another claim with the Oktyabrskiy District Court against the Housing Committee. The applicant alleged that the respondent party had failed to take certain measures to ensure his membership in a housing construction cooperative. The first hearing took place on 30   October 2002. It was adjourned pending receipt of documentary evidence requested by the applicant. The next hearing took place on 2   April 2003. The applicant challenged the authenticity of the documents received and asked the court to obtain certified copies. The court granted the request and adjourned the hearing until 3   June 2003. On 3   June 2003 the respondent’s representative failed to appear and the court adjourned the hearing until 13   November 2003. The court further adjourned the hearing of the matter on 13   November 2003 due to the failure of the applicant’s representative to appear, on 9   June 2004 and 9   February 2005 pending receipt of the documents requested by the applicant, on 11   August and 30   November 2005 due to the applicant’s failure to appear. On 15   February 2006 the applicant challenged the authenticity of the materials in the case file. The court granted the request lodged by the Housing Committee to obtain original copies of the said materials. The applicant further asked for adjournment of the hearing on 29   March and 30   May 2006 pending consideration of his complaint by another court and his representative’s illness respectively. On 16   August and 9   October 2006 the applicant’s representative did not appear and the hearings were adjourned. The court adjourned the hearing on 2   November 2006 granting the applicant’s request for other documentary evidence. On 14   December 2006 the District Court dismissed the applicant’s claims. The St. Petersburg City Court upheld the judgment on appeal on 17   May 2007. D.     The third set of proceedings On 25 October 2002 the applicant brought another action against the Housing Committee and other state bodies and a housing construction cooperative seeking annulment of an agreement signed by them. On 6 December 2005 the Oktyabrskiy District Court of St. Petersburg discontinued the proceedings due to the applicant’s repeated failure to appear in court. On 19   April 2006 the District Court dismissed the applicant’s request to resume examination of the claim. On 24 May 2006 the St. Petersburg City Court upheld the decision on appeal. E.     The fourth set of proceedings On 25 April 2002 the applicant brought an action against the Cooperative and the Housing Committee seeking enforcement of the decision of 15   February 2001 to obtain the membership in the Cooperative and be provided with a four-room flat. On 4 June 2003 the Moskovskiy District Court of St. Petersburg discontinued the proceedings noting that the applicant’s claims were similar to the ones already pending before the Oktyabrskiy District Court of St.   Petersburg. On 9 October 2003 the St. Petersburg City Court quashed the decision and remitted the case for examination on the merits. On 19 August 2004 the District Court dismissed the applicant’s claim. The court noted that there was no four-room flat available in the Cooperative to be granted to the applicant. On 7   December 2004 the City Court quashed the judgment and remitted the case for a new examination. The court held that the District Court had relied in its findings only on the testimony of the chairman of the Cooperative that was not confirmed by any documentary evidence. On 22 November 2005 the District Court dismissed the applicant’s claim. On 25 January 2006 the St. Petersburg City Court upheld the judgment. F.     The fifth set of proceedings On 20 December 2005 the applicant challenged a decision of the Housing Committee of 21   September 2005 concerning his entitlement to a cooperative flat. On 12   February 2006 the court adjourned the hearing due to the failure of the applicant’s representative to appear. On 15   March 2006 the court further adjourned the hearing pending receipt of the documentary evidence requested by the applicant. The documents were not delivered on time and the court adjourned another hearing on 20   April 2006. On 24   May and 13   September 2006 the court adjourned the hearing due to the failure of the applicant’s representative to appear. On 18   October 2006 the Kuibyshevskiy District Court of St. Petersburg dismissed the applicant’s claims. The St.   Petersburg City Court upheld the said judgment on appeal on 5   December 2006. COMPLAINTS The applicant complained under Article 6 § 1 of the Convention that the civil proceedings he initiated exceeded reasonable time. The applicant complained under Article 8 of the Convention and Article   1 of Protocol No.   1 that he had not been provided with housing for many years. THE LAW 1.     The applicant complained that the length of the first and second sets of civil proceedings had been incompatible with the “reasonable time” requirement set forth in Article 6   §   1 of the Convention, which reads as follows: “In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...” The Court notes from the outset that doubts might arise as to whether both sets of the proceedings initiated by the applicant fall within the scope of Article   6 of the Convention. The Court does not find it necessary to examine this issue as the applicant’s complaints are, in any event, inadmissible for the following reasons. The Court will examine each set of the proceedings having regard to its established case-law according to which the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the criteria established by its case-law, particularly the complexity of the case, the conduct of the applicant and of the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, §   43, ECHR 2000-VII). 1.     The parties’ submissions The Government submitted that the length of the proceedings complied with the “reasonable time” requirement. The proceedings were complex. Some of the delays were caused by the applicant’s or the respondent parties’ failure to appear in court. On several occasions the applicant modified his claims and asked the court to obtain further documentary evidence to substantiate them. He also appealed against the procedural decisions and judgments rendered by courts of the first instance. According to the Government, the domestic judicial authorities had not contributed to the length of the proceedings. They held the hearing of the matter on a regular basis and there were no significant periods of inactivity in the proceedings. The applicant maintained his complaint. He submitted that the proceedings had not been complex. The hearings were not scheduled regularly. There were long intervals between them. 1.     The Court’s assessment (a)     The first set of the proceedings The Court observes that the applicant introduced his claim on 19   July 2000. The City Court rendered the final decision on the matter on 24   May 2006. Accordingly, the first set of the proceedings lasted approximately five years and ten months. During that period the case was examined by courts at two levels of jurisdiction. The Court considers that the proceedings at issue were of a certain complexity. They concerned the applicant’s housing entitlement and required examination of considerable documentary evidence. The task of the domestic courts was rendered more difficult by the fact that the courts had to deal with issues dating back to 1982. As regards the applicant’s conduct, the Court observes as follows. At the first hearing, the applicant modified the claims and lodged them against a new party to the proceedings. Then, on five occasions, the consideration of the merits of the case could not be completed because the applicant asked the court to obtain new evidence and each time the proceedings were adjourned pending the receipt of the documents. Admittedly, it was in the applicant’s best interest to obtain that evidence to take full advantage of the resources afforded by national law to prove his case. However, the Court is not convinced that the applicant made use of that opportunity with due diligence. There is nothing in the applicant’s submissions to suggest that he was unable to prepare his case thoroughly when initially lodging the claims and/or to ask the District Court to obtain all the required documents during the preparatory stage of the proceedings. Furthermore, on four occasions the court had to adjourn the consideration of the case due to the applicant’s or his representative’s failure to appear. As regards the conduct of the domestic courts, the Court notes that the first hearing took place only nine months after the applicant had introduced his claims. However, during five years and four months the District Court scheduled twelve hearings, that is, on average, one hearing approximately every five months. Nevertheless, the Court considers that it was primarily the applicant’s conduct which caused the length of the proceedings under consideration, given that all but one hearing were adjourned by the District Court owing to him. Having regard to the above, the Court concludes that the length of the civil proceedings which ended on 24   May 2006 did not exceed the “reasonable time” requirement set out in Article   6   §   1 of the Convention. It follows that this part of the application must be rejected as being manifestly ill-founded pursuant to Articles   35   §   3 and   4 of the Convention. (b)     The second set of the proceedings The Court observes that the proceedings were opened on 29 January 2002 when the applicant lodged his complaint and ended on 18   May 2007 when the City Court adopted the final decision on the matter. Accordingly, the total length of the proceedings amounted to five years and three and a half months. The case was pending before the court at the first level of jurisdiction for four years and ten and a half months. During that period fifteen hearings were held. Even assuming that the proceedings in question were only of relative complexity, that an important interest was at stake for the applicant, and that it took the District Court almost nine months to start the consideration of dispute on the merits, the Court considers that it was primarily the applicant’s conduct which caused the length of the proceedings. All but one hearing were adjourned by the District Court owing to the applicant. On six occasions he or his representative failed to appear. Six more adjournments were due to the applicant’s request to obtain further evidence from various sources. Having regard to the above, the Court considers that the length of the civil proceedings which ended on 17   May 2007 did not exceed the “reasonable time” requirement set out in Article   6   §   1 of the Convention either. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35   §§   3 and   4 of the Convention. 2.     The Court finally notes that the applicant also complained under Article   6   §   1 of the Convention of the length of the third to fifth sets of the proceedings initiated by him and that he complained under Article   8 of the Convention and Article   1 of Protocol No.   1 of the State’s failure to provide his family with housing. Having regard to all the material in its possession, the facts of this part of the application as submitted by the applicant and in so far as these complaints fall 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. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article   35   §§   3 and 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