AS TO THE ADMISSIBILITY OF
Application no. 42212/02
by Aleksandr Vladimirovich KIRYANOV
The European Court of Human Rights (First Section), sitting on 9 December 2004 as a Chamber composed of:
Mr C.L. Rozakis, President,
Mr L. Loucaides,
Mrs N. Vajić,
Mrs S. Botoucharova,
Mr A. Kovler,
Mr K. Hajiyev,
Mr D. Spielmann, judges,
and Mr S. Nielsen, Section Registrar,
Having regard to the above application lodged on 14 July 2002,
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 applicant, Mr Aleksandr Vladimirovich Kiryanov, is a Russian national who was born in 1966 and lives in Taganrog. The respondent Government were represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
In 1998 the applicant applied to a bank for a low-interest loan to which he was allegedly entitled under the Law on Veterans. His application was refused on the grounds that the implementation of the above law required a Government's directive on the matter, which had never been issued.
The applicant challenged the Government's failure to issue the directive in question.
On 17 November 1998 the Taganrog Town Court of the Rostov Region declared the Government's failure to issue the directive unlawful and required it to do so within one month.
As submitted by the Government, on 10 December 1998 the same court examined another claim brought by the applicant against the Ministry of Finance of the Russian Federation and the Ministry of Finance of the Rostov Region. He sought a low-interest loan to be provided to him by the authorities. The court dismissed his claim having found that the right to a low-interest loan as set out in the Law on Veterans was not directly enforceable, and could not be implemented in the absence of a Government directive.
On 5 April 2004, after the case was communicated to the Government, the President of the Rostov Regional Court ordered supervisory review to be conducted over the judgment of 10 December 1998, and it was quashed in view of the allegedly unlawful composition of the court.
The applicant complained under Article 6 § 1 of the Convention and under Article 1 of Protocol No. 1 to the Convention that the judgment of 17 November 1998 has not been enforced by the State authorities.
The applicant complained that continued non-enforcement of the judgment of 17 November 1998 violated his “right to a court” under Article 6 § 1 of the Convention and his right to the peaceful enjoyment of possessions provided in Article 1 of Protocol No. 1 to the Convention. These Articles in so far as relevant provide as follows:
Article 6 § 1
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... 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.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
The Government contest the admissibility of the application. First, they point out that following amendments made to the Law on Veterans on 18 November 1998 the system of providing low-interest loans had to be established through adoption of federal laws. By the Federal Law of 27 December 2000 the adoption of such laws was suspended until 30 December 2001, and then, by subsequent laws, until 31 December 2003. The Government also point out that the judgment of 17 November 1998 did not make any specific award in the applicant's favour. They refer to the separate set of proceedings, in which the applicant's individual rights and obligations were determined, and which ended on 10 December 1998. In those proceedings the applicant's claim for a loan was refused as lacking legal grounds. They therefore consider that the enforcement proceedings in question did not fall under Article 6. They also contend that the applicant had no claim which could have arguably constituted possessions within the meaning of Article 1 of Protocol No. 1.
The applicant, in reply, does not dispute the existence and the conclusions of the judgment dated 10 December 1998. However, he claims that it should be disregarded as it was taken by a court the composition of which was unlawful, as established in supervisory review proceedings in 2004. As to the change of legislation, he claimed that in 1998-2000 the authorities were under an obligation to adopt legislation setting up the mechanism for the provision of low-interest loans.
The Court notes that the applicant's complaint concerns the authorities' alleged failure to execute the judgment of 17 November 1998 which required the State authority to issue a directive within its competence. It appears, however, that legislative changes of 18 November 1998, of which the court could not have taken account, made the compliance with this judgment meaningless and virtually impossible.
In any event, the Court does not find it necessary to examine whether the lack of enforcement was justified in the circumstances, as the proceedings at issue fell outside the scope of Article 6. The Court finds that the judgment of 17 November 1998 required the competent authority to take a measure of general application. It is not sufficiently established how and to what extent such a measure would have affected the applicant's potential individual entitlement. By contrast, the applicant's individual interest was at stake in the dispute which was resolved on 10 December 1998.
It follows that the judgment of 17 November 1998 did not constitute a determination of the applicant's civil rights and obligations within the meaning of Article 6 of the Convention.
The Court also finds that the applicant in the present case was not provided by the judgment of 17 November 1998 with any claim which was sufficiently established and enforceable to constitute a “possession” within the meaning of Article 1 of Protocol No. 1 (see, by contrast, Burdov v. Russia, no. 59498/00, § 40, ECHR 2002-III; Stran Greek Refineries and Stratis Andreadis v. Greece, judgment of 9 December 1994, Series A no. 301-B, p. 84, § 59).
It follows that the application is manifestly ill-founded, within the meaning of Article 35 § 3 of the Convention. The procedure under Article 29 § 3 of the Convention must therefore be discontinued and the case rejected, in accordance with Article 35 § 4 of the Convention.
For these reasons, the Court unanimously
Decides to discontinue the application of Article 29 § 3 of the Convention.
Declares the application inadmissible.
Søren Nielsen Christos Rozakis
KIRYANOV v. RUSSIA DECISION
KIRYANOV v. RUSSIA DECISION