CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 25 novembre 2010

.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 } .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 } .s507451D6 { width:4.53pt; display:inline-block } .s4A0CEAF8 { width:194.77pt; display:inline-block } FIRST SECTION DECISION AS TO THE ADMISSIBILITY OF Application no. 34673/03 by Yuriy Kondratyevich BUZDUGAN against Russia The European Court of Human Rights (First Section), sitting on 25   November 2010 as a Chamber composed of:   Christos Rozakis, President,   Anatoly Kovler,   Elisabeth Steiner,   Dean Spielmann,   Sverre Erik Jebens,   Giorgio Malinverni,   George Nicolaou, judges, and Søren Nielsen, Section Registrar, Having regard to the above application lodged on 5 September 2003, 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 Yuriy Kondratyevich Buzdugan, is a Russian national who was born in 1964 and lives in Yakutsk. He was represented before the Court by Ms N. Yurtayeva, a lawyer practising in Yakutsk. The Russian Government (“the Government”) were represented by Ms V. Milinchuk, the 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. The applicant was a shareholder of a private company. During the period of his absence, a general meeting of shareholders decided to sell the company’s property. On 29 August 2000 he brought proceedings before a   court of general jurisdiction against two private companies and two individuals contesting the decision of the general meeting and seeking nullity of the sale. On 21 June 2002 the law on the entry into force of a new Code of Commercial Procedure was adopted. It expanded the jurisdiction of commercial courts and established that the cases pending before courts of general jurisdiction but falling into jurisdiction of commercial courts should be transferred to commercial courts within two weeks, provided that the plaintiff consented. If the plaintiff did not agree to the transfer, the proceedings on the case were to be discontinued. By decision of 25 November 2002, the Yakutsk Town Court of the Yakutiya (Sakha) Republic discontinued the proceedings on the applicant’s claim. He appealed on the ground that the Town Court had not inquired whether he had consented, or not, to the transfer of the case. By decision of 16 December 2002, the Supreme Court of the Yakutiya Republic quashed the decision of 25 November 2002 and remitted the case to the first-instance court for a fresh examination. On 20 January 2003 the Town Court held a new hearing. The applicant agreed to the transfer, the defendants objected claiming that the two-week time-limit established for the transfer had expired. The Town Court decided to transfer the case to the Commercial Court of the Yakutiya Republic. On 26 February 2003, on appeal by the defendants, the Supreme Court of the Yakutiya Republic quashed the decision of 20 January 2003 and discontinued the proceedings on the ground that courts of general jurisdiction no longer had authority over the claim and that the time-limit for transfer had expired. The applicant was not present at the hearing as a   summons had been dispatched by the court’s registry on   27   February 2003, the following day after the hearing, and had reached him on   1   March 2003. The adversary party to the proceedings attended the hearing and made oral submissions. The applicant lodged several requests for supervisory review proceedings. On 9 March 2006 the Supreme Court of the Russian Federation quashed the decision of 26 February 2003 and remitted the case to the Supreme Court of the Yakutiya Republic for a fresh examination. It   held in particular that the belated notification of the appeal hearing had deprived the applicant of an opportunity to argue his position in adversarial proceedings and, for that reason, had breached his right to a court. On 3 May 2006 the Supreme Court of the Yakutiya Republic held a new appeal hearing that was attended by the applicant’s representative. The appeal court upheld the decision of 20 January 2003 by which the applicant’s case was to be transferred to the Commercial Court of the Yakutiya Republic for the examination on the merits. By decision of 12 July 2007, the Commercial Court discontinued the examination of the applicant’s case on the ground that on 19 December 2006 one of the respondents, a private company, had become insolvent and that the applicant’s claim could not be determined without that participant. It is unknown whether the applicant appealed against that decision. COMPLAINT The applicant complained under Article 6 § 1 of the Convention that on 26 February 2003 the Supreme Court of the Yakutiya Republic had held an appeal hearing in his absence. He did not take part in the hearing because he had not been notified. THE LAW 1.     The applicant complained that he had not been afforded an opportunity to attend the appeal hearing on 26 February 2003. He relied on Article 6   §   1 of the Convention, which provides, in its relevant part, as follows: “In the determination of his civil rights and obligations..., everyone is entitled to a fair and public hearing ... by [a] tribunal...” The Government did not contest the fact that the applicant had been belatedly notified. They argued, however, that his participation in the appeal hearing had been unnecessary. Furthermore, the appeal court’s judgment delivered on 26   February 2003 in his absence had been overruled and in 2006 his civil case had been transferred to a commercial court for the examination on the merits. The applicant maintained his complaint. By Article 34 of the Convention, “the Court may receive applications from any person ... claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto ...”. The question whether or not the applicant can claim to be a victim of the violation alleged is relevant at all stages of the proceedings under the Convention (see E.   v.   Austria , no. 10668/83, Commission decision of 13   May 1987, Decisions and Reports 52, p. 177). 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). The Court reiterates that the machinery for the protection of fundamental rights established by the Convention is subsidiary to the national systems safeguarding human rights. The Convention does not lay down for the Contracting States any given manner for ensuring within their internal law the effective implementation of the Convention. The choice as to the most appropriate means of achieving this is in principle a matter for the domestic authorities, who are in continuous contact with the vital forces of their countries and are better placed to assess the possibilities and resources afforded by their respective domestic legal systems (see Swedish Engine   Drivers’ Union v. Sweden , 6 February 1976, §   50, Series A no.   20;   Chapman v. the United Kingdom [GC], no.   27238/95, §   91, ECHR 2001-I; and Sisojeva and Others v. Latvia [GC], no. 60654/00, § 90, ECHR 2007-II). The Supreme Court of the Russian Federation and subsequently the Supreme Court of the Yakutiya Republic in the appeal proceedings explicitly acknowledged that, by the belated notification of the appeal hearing of 26 February 2003 the applicant’s right to a court, in particular his right to argue his case in adversarial proceedings, had been infringed. On   3   May 2006 the appeal court held a new hearing. The outcome of that hearing was a decision to transfer the applicant’s civil case to a competent commercial court for the examination on the merits. It follows that the adverse effect of the proceedings which formed the basis for the applicant’s complaints has thus been removed. Therefore, having regard to the contents of the judgments of 9   March 2006 and 3 May 2006, the Court finds that the national authorities have acknowledged, and then afforded redress for, the alleged breach of the Convention (compare Babunidze v.   Russia (dec.), no. 3040/03, 15 May 2007; and Nikishina v.   Russia (dec.), no. 45665/99, 12 September 2000). It follows that the applicant can no longer claim to be a “victim” of the alleged violation of Article 6 § 1 of the Convention within the meaning of Article 34 of the Convention and that this complaint must be rejected pursuant to Articles 34 and 35 §§ 3 and 4.   2.     In his subsequent submissions to the Court the applicant claimed that though he had eventually obtained a new appeal hearing and his case had been transferred to the commercial court, it had not had any practical effect. The civil proceedings had had to be discontinued because, by the time when the case had arrived at the competent court, one of the respondents had been dissolved and the determination of his action had become impossible. The Court notes that this allegation by the applicant was not part of his initial complaint and was only raised after the communication of the case to the respondent Government. The Court, thus, will not take it into account for the purposes of the present application (see, mutatis mutandis, Vigovskyy v.   Ukraine , no.   42318/02, §   14, 20   December 2005; and Sharkunov and Mezentsev v.   Russia (dec.), no.   75330/01, 2   July 2009). For these reasons, the Court unanimously Declares the application inadmissible.   Søren Nielsen   Christos Rozakis Registrar President