Application no. 26789/02
by Dmitriy Viktorovich LYMAR
The European Court of Human Rights (Third Section),
3 November 2005 as a Chamber composed of:
Mr B.M. Zupančič, President,
Mr L. Caflisch,
Mr A. Kovler,
Mr V. Zagrebelsky,
Mrs A. Gyulumyan,
Mrs R. Jaeger,
Ms I. Ziemele, judges,
and Mr V. Berger, Section Registrar,
Having regard to the above application lodged on 12 April 2001,
Having regard to the observations submitted by the respondent Government,
Having deliberated, decides as follows:
The applicant, Mr Dmitriy Viktorovich Lymar, is a Russian national, who was born in 1960 and lives in Krasnodar. The respondent Government are 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.
1. Civil proceedings against the applicant
In 1996 the applicant undertook to build a house on a plot of land owned by his brother S for subsequent sale to Mr B. After the applicant built the house it was bought by Mr B.
On an unspecified date Mr B brought proceedings for damages against the applicant and his brother S claiming that the house was built with substantial defects.
On 25 November 1999 the Oktyabrskiy District Court of Krasnodar granted the claim and ordered damages against the applicant and his brother S in the amount of RUR 931,574 (approximately USD 35,274). No appeal was lodged against the judgment.
On 29 December 2000 the Deputy Prosecutor General filed an application for supervisory review of the judgment.
On 25 January 2001 the Presidium of the Krasnodar Regional Court granted the application. The Presidium quashed the judgment and remitted the case for a fresh examination.
On 10 May 2001 the Oktyabrskiy District Court of Krasnodar granted the claim and ordered damages against the applicant in the amount of RUR 931,574 (approximately USD 32,168).
On 31 May 2001, on appeal, the Krasnodar Regional Court upheld the judgment.
On 4 December 2001 the Deputy Prosecutor General filed an application for supervisory review of the judgment.
On 10 January 2002 the Presidium of the Krasnodar Regional Court dismissed the application.
On 26 February 2002 the Deputy Prosecutor General filed an application for supervisory review of the dismissal.
On 1 April 2002 the Supreme Court of Russia dismissed the application.
In 2002-2003 the applicant filed several applications for supervisory review of the judgment with the Presidium of the Supreme Court of Russia. All of them were dismissed.
2. Execution proceedings
On 3 November 2000, in an unrelated set of proceedings, a writ of execution ordering the applicant to pay RUR 694,500 to Mr K was issued.
On 15 September 2000 a writ of execution ordering the applicant to pay RUR 931,574 to Mr B was issued.
On an unspecified date the execution proceedings under both writs were joined with execution proceedings under a number of bailiffs’ orders to pay certain fees.
On an unspecified date the applicant’s house was sold by auction within the framework of the joint execution proceedings. It appears that the amount received covered only State fees and bailiffs’ fees.
On 28 December 2001 the execution proceedings were closed.
3. Criminal proceedings against the applicant
In November 2000 criminal proceedings for deceit and unlawful entrepreneurial activity were instituted against the applicant.
On 17 October 2001 the applicant was detained.
On 8 November 2001 the applicant was released under an obligation not to leave his place of residence.
On 11 February 2002 the Oktyabrskiy District Court of Krasnodar convicted the applicant of deceit and unlawful entrepreneurial activity and sentenced him conditionally to four years’ imprisonment.
On 13 March 2002, on appeal, the Krasnodar Regional Court upheld the judgment in the part relating to the conviction for unlawful entrepreneurial activity and terminated the criminal proceedings concerning the offence of deceit as there was no indication that a crime had been committed.
On 18 April 2002 the Presidium of the Krasnodar Regional Court quashed the judgments of 11 February 2002 and 13 March 2002 under supervisory review procedure and terminated the criminal proceedings against the applicant as there was no indication of a crime.
4. Alleged ill-treatment in pre-trial detention and subsequent proceedings
According to the applicant, on 6 November 2001 he was beaten by prison officers.
According to the Government, on 6 November 2001 the applicant was requested to participate in certain investigative actions. However, he refused and physically aggressed the prison officers. In order to suppress the aggression the officers used a rubber truncheon. Thereafter a report on use of force in respect of the applicant was drawn. On the same date the applicant was examined by a doctor who stated bruises on his buttocks. After two days the applicant was released from the remand prison.
On 9 November 2001 the applicant was again examined by a doctor. He made the following statement to the doctor:
“On 6 November 2001 ... three or four prison officials caused me injuries. [They] beat me with their hands, feet, a rubber truncheon, throttled me, beat me with the ulnar side of their hands on my neck. When I fell (they pushed me against a table), I hit my face against a metal object. I did not faint, everything went dark before my eyes, I had dizziness during the first days...”
According to the conclusion of the medical report the following injuries were caused to the applicant:
“...subcutaneous compound wound of his head and extravasation of his face, abrasions and bruises of [his arms], a bruise of his thorax, traumatic oedema of ... the first finger of the right hand, extensive bruises of both buttocks, a bruise of the left lower leg.”
On an unspecified date the applicant lodged a complaint concerning the ill-treatment before the Prosecutor’s Office.
On 3 December 2001 the Prosecutor’s Office informed the applicant about the refusal to institute criminal proceedings against the prison officials.
It appears that the applicant appealed against the refusal.
On 24 December 2001 the Prosecutor’s Office informed the applicant that the materials concerning his complaint about ill-treatment had been sent to the Prosecutor of Krasnodar for additional inspection due to insufficiency of the inspection which constituted the basis for the refusal to institute criminal proceedings. It was stated that the applicant would be informed about the results of the ispection.
On 25 March 2002 during an appointment with the Chairman of the Krasnodar Regional Court the applicant filed a claim for damages caused by ill-treatment. The Chairman passed the claim to a justice of peace for examination.
On an unspecified date the justice of peace during an appointment with the applicant refused to accept the claim for consideration on the grounds that it was unsubstantiated.
1. The applicant complained under Article 3 of the Convention that he had been beaten in the remand prison.
2. The applicant complained under Article 5 of the Convention that his pre-trial detention had been unlawful because the criminal case against him had been fabricated.
3. The applicant complained under Article 6 of the Convention about the outcome of the civil proceedings.
4. Invoking Article 13 of the Convention the applicant complained that domestic authorities had failed to consider properly his complaints and applications.
5. Invoking Article 1 of Protocol No. 4 the applicant alleged that he had been detained for inability to fulfil a contractual obligation.
6. The applicant complained that as a result of execution proceedings he had been deprived of his only dwelling and the authorities had failed to provide him with housing. He also complained about allegedly unlawful search at his parents’ home.
The Court, having regard to the events that occurred after the notice of the application had been given to the Russian Government and after they had submitted their observations on the admissibility and merits of the case, considers that it does not have to examine the present application and that Article 37 § 1 of the Convention should be applied. That provision, in its relevant part, reads:
“1. The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that
(a) the applicant does not intend to pursue his application;
However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.”
In this respect the Court
notes that on 9 June 2004 the Registry informed the applicant in a letter
that a notice of the application had been given to the respondent Government.
On 17 September 2004 the Registry sent the applicant the Government’s
observations on the admissibility and merits of the application and
invited him to submit his observations in reply by 19 October 2004. On
22 October 2004 the Registry informed the applicant that the President
of the Chamber has agreed to extend to
22 December 2004 the time allowed for submission of his observations. The applicant did not reply. On 24 March 2005 the Court advised the applicant that he had not complied with the time-limits for submission of his observations, and that in the absence of an application for extension of the time-limits the Court might conclude that he was no longer interested in pursuing the application and decide to strike it out of its list of cases. On 21 April 2005 the Court received a postal notice with the applicant’s signature acknowledging the receipt of the Court’s letter on 8 April 2005.
In these circumstances, having regard to Article 37 § 1 (a) of the Convention, the Court concludes that the applicant has lost interest in his application and no longer intends to pursue it before the Court. Furthermore, in accordance with Article 37 § 1 in fine, the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the examination of the application to be continued.
For these reasons, the Court unanimously
Decides to strike the application out of its list of cases.
Vincent Berger Boštjan
LYMAR v. RUSSIA DECISION
LYMAR v. RUSSIA DECISION