THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 47033/99

by Lyudmila Frantsevna TUMILOVICH

against Russia

The European Court of Human Rights (Third Section) sitting on 22 June 1999 as a Chamber composed of

Sir Nicolas Bratza, President,

Mr J.-P. Costa,

Mr L. Loucaides,

Mrs F. Tulkens,

Mr W. Fuhrmann,

Mr K. Jungwiert,

Mr K. Traja, Judges

with Mrs S. Dollé, Section Registrar;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 19 July 1998 by Lyudmila Frantsevna TUMILOVICH  against Russia and registered on 24 March 1999 under file no. 47033/99;

Having regard to the report provided for in Rule 49 of the Rules of Court;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Russian national, born in 1948 and living in Krasnodar.

The facts of the case, as submitted by the applicant, may be summarised as follows.

A. Particular circumstances of the case

The applicant worked as an engineer for the joint-stock company “Saturn” (АООТ «САТУРН») (“the company”). Because of the financial difficulties of the company the applicant was ordered to take unpaid leave for the period from 12 October 1993 to 1 November 1995. It appears that the applicant decided to take further unpaid leave until December 1996.

In 1996, while on leave, the applicant brought an action for damages against the company requesting compensation for losses she had incurred and reinstatement in her former job.

On 13 December 1996 the Prikubansk District Court (Прикубанский районный суд) refused to deal with the applicant’s action on the grounds that she had failed to comply with the procedural requirements.

On 11 February 1997 the same court, after a public hearing, dismissed the applicant’s rectified action finding, inter alia, that the company’s financial difficulties had an objective basis which was beyond the court’s control.

On 25 March 1997 the Krasnodarsk Regional Court (Краснодарский краевой суд), upon the applicant's appeal, upheld the judgment of the Prikubansk District Court.

On 8 April 1997, the applicant was dismissed from work following a reorganisation of the company.

The applicant lodged several complaints with various State administrative authorities. On 25 December 1996 and 19 May 1998 she was informed by the Regional Work Inspectorate (Государственная инспекция труда по Краснодарскому Краю) and the Federal Work Inspectorate (Федеральная инспекция труда) respectively that labour disputes fell within the competence of the national courts.

By letter of 17 June 1997 the Deputy Krasnodarsk Regional Prosecutor (заместитель прокурора Краснодарского края) rejected the applicant’s application to file an appeal for a supervisory review (hereafter referred to as an “application for a supervisory review”) (жалоба в порядке надзора) against the ordinary courts’ judgments, finding that the issues raised by the applicant had been properly dealt with by the national courts.

The applicant lodged another application for supervisory review with the Krasnodarsk Regional Court requesting that the ordinary courts’ judgments be quashed and her case reconsidered. By letter of 5 August 1997 the Deputy President of the Krasnodarsk Regional Court informed the applicant that her application had been rejected for being unsubstantiated, as confirmed by letter of 3 December 1997 from the President of the Regional Court.

By letter of 6 August 1997 the Krasnodarsk Regional Prosecutor (Прокурoр Краснодарского края) rejected the applicant’s third application for a supervisory review.

By letters of 8 August 1997 and 19 February 1998 the Prosecutor General Office (Генеральная прокуратура) dismissed the applicant’s fourth application for a supervisory review against the ordinary courts’ judgments.

  

By letter of 15 June 1998 the President of the Civil Chamber of the Supreme Court (Председатель состава Судебной коллегии по гражанским делам Верховного Суда) rejected the applicant’s fifth application for a supervisory review as unsubstantiated.

By letter of 14 October 1998 the Deputy Prosecutor General (Заместитель Генерального Прокурoра) rejected the applicant’s sixth and last application for a supervisory review.

By letter of 15 February 1999 the Constitutional Court (Конституционный Суд) informed the applicant that it was not competent to deal with her complaint.

B. Relevant domestic law

According to Article 319 of the Code of Civil Procedure (“the Code”), judgments, court rulings and decrees which have entered into force, may be reviewed by way of supervision following a “protest” (протест) lodged by the persons listed in Article 320 of the Code. 

According to Article 320 of the Code, the persons competent to lodge a protest are the Prosecutor General and the President of the Supreme Court.

According to Article 322 of the Code, the persons listed in Article 320 are entitled, subject to certain conditions, to obtain the case file in a civil case in order to establish whether there are any grounds for lodging a protest by way of supervision.

COMPLAINTS

1. The applicant complains under Article 6 § 1 of the Convention that her right to a fair hearing before an independent and impartial tribunal within a reasonable time was violated. She also complains that she did not have any effective remedy against the unlawful actions of the company.

2. The applicant further alleges that the company violated her labour rights.

THE LAW

1. The applicant alleges a violation of Article 6 § 1 of the Convention, which guarantees, inter alia, the right to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

The Court observes that the Convention only governs, for each Contracting Party, facts subsequent to its entry into force with respect to that Party. The final decision in the present case was the judgment of the Krasnodarsk Regional Court of 25 March 1997. The applicant's complaints concerning the civil proceedings thus relate to the period prior to 5 May 1998, which is the date of the entry into force of the Convention with respect to Russia.

It is true that the applicant's two last applications for a supervisory review were dismissed by the President of the Civil Chamber of the Supreme Court and by the Deputy Prosecutor General, about which the applicant was informed by letters of 15 June and 14 October 1998 respectively. However, these applications constitute extraordinary remedies, the use of which depends on the discretionary powers of the President of the Civil Chamber of the Supreme Court and the Deputy Prosecutor General, and do not, therefore, constitute effective remedies within the meaning of Article 35 § 1 of the Convention. Accordingly, these late rejections of the applicant’s applications for a supervisory review are not relevant to the determination of the Court’s competence ratione temporis (see, mutatis mutandis, no. 41974/98, Dec. 4.5.99, Fourth Chamber).

Moreover, the letter of the Constitutional Court of 15 February 1999, by which the applicant was informed about its lack of the competence to deal with her complaint, is not relevant to the determination of the jurisdiction of the present Court.

It follows that this part of the application is outside the competence ratione temporis of the Court and therefore incompatible with the provisions of the Convention, within the meaning of Article 35 § 3 of the Convention, and must be rejected pursuant to Article 35 § 4.

2. The applicant further alleges a violation of her labour rights by the administration of the company.

The Court recalls that in accordance with Article 34 of the Convention, it may only deal with complaints concerning actions of the State itself or matters for which the State may be held responsible under the Convention.  An individual cannot complain of the actions of a private person or body as such.

It follows that the applicant’s complaint against her ex-employer, a private company, is outside the competence ratione personae of the Court and therefore incompatible with the provisions of the Convention, within the meaning of Article 35 § 3 of the Convention, and must be rejected pursuant to Article 35 § 4.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

S. Dollé N. Bratza

Registrar President

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