FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 59502/00 
by Mikhail Nikolayevich MARKIN 
against Russia

The European Court of Human Rights (First Section), sitting on 16 September 2004 as a Chamber composed of

Mr C.L. Rozakis, President
 Mr P. Lorenzen
 Mr G. Bonello
 Mrs F. Tulkens
 Mrs N. Vajić
 Mr A. Kovler, 
 Mr V. Zagrebelsky, judges
 and Mr S. Nielsen, Section Registrar,

Having regard to the above application lodged on 1 July 2000,

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, Mikhail Nikolayevich Markin, is a Russian national. He was born in 1936 and lives in Kumertau, the Republic of Bashkortostan, which is a republic located in East European Russia. The applicant is represented before the Court by Mr Y. Kareyev, a lawyer practising in Ufa. The Government are represented by Mr P. Laptev, the 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 September 1994 the applicant purchased an imported second-hand car from a third person. After the Bashkir Customs Board (“the Board”) had discovered that the car had been customs cleared on the basis of forged documents, on 13 May 1997 it fined the applicant and confiscated the car pursuant to Article 280 of the Customs Code.

1.  First judgment of Sovetskiy District Court

On 15 May 1997 the applicant challenged the Board’s decision in court. On 24 June 1997 the Sovetskiy District Court of Ufa upheld the Board’s decision. The judgment was final and not subject to appeal.

On an unspecified date the applicant requested the Supreme Court to examine the case under the supervisory-review procedure.

On 23 December 1998 a Deputy President of the Supreme Court lodged an application for supervisory review of the judgment on the ground that the applicant’s guilt had not been established.

On 5 February 1999 the Presidium of the Supreme Court of Bashkortostan, presided by Judge Davydov, allowed the application. The Presidium set the judgment aside and remitted the case for re-examination.

2.  Second judgment of Sovetskiy District Court

On 19 March 1999 the Sovetskiy District Court re-examined the case. It found that the applicant had not known that the customs clearance was improper and satisfied his complaint against the Board. The judgment was final and not subject to appeal.

On an unspecified date the Board requested to examine the case under the supervisory-review procedure.

On an unspecified date the acting President of the Supreme Court of Bashkortostan, Judge Davydov, lodged an application for supervisory review of this judgment. He maintained, essentially, that had the applicant acted in good faith, he would have known that customs clearance could only be done by a competent authority and not by the seller of the car.

On 23 July 1999 the Presidium of the Supreme Court of Bashkortostan allowed the application. Judge Davydov sat as a member of the Presidium. The Presidium quashed the judgment and remitted the case for  
re-examination.

3.  Third judgment of Sovetskiy District Court

On 28 April 2000 Judge Golubeva of the Sovetskiy District Court dismissed the applicant’s complaint. She found that the applicant had acted carelessly because he could have and should have known that imported cars must be customs cleared and that it was only the customs authorities who might do this.

The applicant appealed against this judgment on the sole ground that Judge Golubeva had allegedly not been duly appointed to her post.

On 5 June 2000 the Supreme Court of Bashkortostan dismissed the appeal. The court found in particular that the judge had been appointed to her post for a period of ten years by virtue of a Decree of the Supreme Soviet (legislature) of Bashkortostan in accordance with the republic’s Law on the Judiciary.

According to the Government, the judge was appointed to office on 29 October 1992 for a period of ten years.

4.  Further proceedings

On an unspecified date a Deputy President of the Supreme Court of Bashkortostan lodged an application for supervisory review of the decisions of 23 July 1999, 28 April and 5 June 2000.

On 3 June 2002 the Supreme Court allowed the application. It found that the decision of 23 July 1999, by which the Presidium of the Supreme Court of Bashkortostan had quashed the judgment of 19 March 1999, favourable to the applicant, had been an excess of authority. The Supreme Court therefore considered that all subsequent judicial acts should be quashed. The Supreme Court thus re-instated the judgment of 19 March 1999 which granted the applicant’s complaint against the Customs Board.

It appears that the applicant’s car has not been returned to him.

B.  Relevant domestic law

1.  Appointment of judges

The basics of the procedure for appointments to judicial office are set out in the Constitution of the Russian Federation of 1993:

Article 128

“1.  Judges of the Constitutional Court of the Russian Federation, of the Supreme Court of the Russian Federation and of the Supreme Arbitration Court of the Russian Federation shall be appointed by the Federation Council following nomination by the President of the Russian Federation.

2.  Judges of other federal courts shall be appointed by the President of the Russian Federation in accordance with procedures established by federal law.”

The above principles are supplemented by the Law “On the Legal Status of Judges” of 26 June 1992 as amended by the Law of 21 June 1995, Section 6 of which, insofar as relevant, reads:

“3.  Judges of other federal courts of ordinary jurisdiction and arbitration courts shall be appointed by the President of the Russian Federation on the proposal of the President of the Supreme Court of the Russian Federation and the President of the Supreme Arbitration Court of the Russian Federation respectively, regard being had to the opinion of the legislature of the respective federation entity of the Russian Federation.”

The earlier wording of this Section in force before 21 June 1995, read:

“4.  Judges of courts of the constituent republics of the Russian Federation shall be appointed according to the legislation of these republics.”

Whilst the basic principle of the Constitution of 1993 was that it was the President who could nominate judges, the Constitution contained transitional provisions, according to Section 5 of which judges already acting at the moment of the adoption of the Constitution were to remain in office until the expiration of their terms.

2.  Breach of rules for importing goods

Article 280 of the Customs Code of 1993 establishes the responsibility for non-compliance with the rules for importing goods:

“Transportation, storage and acquisition of goods and vehicles imported into the customs territory of the Russian Federation without due customs control, or avoiding such control, or with fraudulent use of documents or identification means, or with a violation of declaration rules ...

shall be penalised by a fine in the amount ranging from fifty to two hundred per cent of the cost of the goods and vehicles which are the object of the offence, with or without their confiscation, or with the recovery of the cost of such goods and vehicles, or with or without the revocation of a licence.”

COMPLAINTS

1.  The applicant complained under Article 6 of the Convention that the proceedings before the national courts had been unreasonably lengthy.

2.  He complained furthermore that his case had not been examined by “an impartial tribunal established by law”.

He submitted in this respect that Judge Golubeva and the judges of the Supreme Court of Bashkortostan who had given the decision of 5 June 2000 had not been appointed to office by a presidential decree as required by the Constitution.

In addition, the applicant argued that Judge Davydov had acted as a “judge in his own case” when he sat on 23 July 1999 as a member of the Presidium that examined the application which Judge Davydov had himself lodged under the supervisory-review procedure.

3.  Finally, the applicant complained that since his car had not been returned, or compensation provided, his right under Article 1 of Protocol No. 1 to the peaceful enjoyment of his possessions was breached.

THE LAW

1.  The applicant complained under Article 6 of the Convention that the proceedings before the national courts had been unreasonably lengthy. Article 6, insofar as relevant, 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 Government submitted that the whole of the proceedings lasted almost 5 years (from 24 June 1996 to 3 June 2002). They admitted that this period was quite long, but this duration was caused by the intervention of the supervisory-review authorities, following which the applicant’s claims were in the end satisfied.

The applicant has not made any specific comment in this connection.

The Court recalls that the reasonableness of the length of proceedings coming within the scope of Article 6 § 1 must be assessed in each case according to the particular circumstances. The Court has to have regard, inter alia, to the complexity of the factual or legal issues raised by the case, to the conduct of the applicants and the competent authorities and to what was at stake for the former (see Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII). In addition, only delays attributable to the State may justify a finding of a failure to comply with the “reasonable time” requirement (see Pedersen and Baadsgaard v. Denmark, no. 49017/99, § 44, 19 June 2003).

The Court first needs to determine the period to be considered. In the Government’s submission, this period comes close to 5 years. To reach this time, the Government have, it seems, taken without exception the whole span between the beginning of the proceedings and their end. The Court does not, however, agree that this time reflects the true length of the determination of the applicant’s civil rights by the domestic courts.

The Court considers it more appropriate to take into account only the periods when the case was actually pending before the courts, i.e. the periods when there was no effective judgment in the determination of the merits of the applicant’s dispute and when the authorities were under an obligation to pass such a judgment. The periods during which the domestic courts decided whether or not to re-open the case should also be excluded since Article 6 does not apply to such proceedings (see, for example, Rudan v. Croatia (dec.), no. 45943/99, 13 September 2001; Petersen v. Denmark, no. 28288/95, Commission decision of 16 April 1998).

According to the information available to the Court, the applicant first took his case to court on 15 May 1997, and the action was dismissed in a final judgment on 24 June 1997. The proceedings resumed on 5 February 1999 after the decision of the supervisory-review authority to re-open the case. A new final judgment was passed on 19 March 1999. On 23 July 1999 this judgment was quashed too. After a fresh examination, the case ended with a decision of 5 June 2000.

It follows, that the proceedings lasted 1 year, 1 month and 6 days. Of this period only 11 months and 28 days fall within the Court’s competence ratione temporis because the Convention came into force in respect of Russia on 5 May 1998.

During this time the merits of the case were examined three times, and there do not appear to be any substantial periods of inactivity of the domestic courts. The Court finds that the “reasonable time” requirement has been respected.

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 applicant complained, furthermore, that his case had not been examined by “an impartial tribunal established by law”. Article 6, insofar as relevant, reads as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.”

With regard to the complaint that the judge who gave the judgment on 28 April 2000 lacked power, the Government submitted that Judge Golubeva had been appointed to office by a Decree of the Supreme Soviet of Bashkortostan of 29 October 1992 for a period of ten years. Even though the Constitution of 1993 indeed placed the nomination of judges within the province of the President, Judge Golubeva rightfully retained her power since transitional provisions permitted judges to serve their terms to the end. The Government concluded that in any event this issue had lost its importance because the judgment passed by Judge Golubeva had been quashed.

The applicant made no specific submission in respect of the power of Judge Golubeva.

The Court recalls that the phrase “established by law” covers not only the legal basis for the very existence of a “tribunal” but also the composition of the bench in each case (see Buscarini v. San Marino (dec.), no. 31657/96, 4 May 2000; or, as a more recent authority, Posokhov v. Russia, no. 63486/00, § 37, ECHR 2003-IV).

Even assuming that the applicant, whose complaint against the Customs Board was eventually upheld and the disputed judgment quashed, can claim to be a victim of the alleged breach of the Convention, the Court notes that Judge Golubeva was appointed to office on 29 October 1992 for a term of ten years according to the then effective law. Section 5 of the transitional provisions of the Constitution, passed in 1993, preserved the authority of already acting judges.

The Court therefore has no ground to consider that the court that gave judgment on 28 April 2000 was not “established by law” within the meaning of Article 6 § 1. Likewise, the Court has found no reason to believe that the Supreme Court of the Republic of Bashkortostan was not “established by law”.

Accordingly, there is no appearance of a violation of Article 6 on this account and this aspect of the application is inadmissible as being manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

With regard to the complaint that the applicant was denied the right to a fair trial because Judge Davydov sat as a member of the court that examined the appeal which this judge had himself lodged under the supervisory-review procedure, the Government affirmed that this issue was no longer of any importance as the decision of 23 July 1999—the one in which Judge Davydov was involved—had been quashed.

The applicant argued that by re-considering his case the State did not, in fact, try to restore his rights. He claimed that the judges of the domestic courts were inconstant; that he had still not recovered the property confiscated by the Customs Board; and that he had no guarantee that the judicial confusion inspired by considerations of the moment would not continue.

The Court notes that the decision of the Supreme Court of 3 June 2002 upheld the judgment of the Sovetskiy District Court of 19 March 1999. The Court further notes that the complaint the applicant makes in connection with the actions of Judge Davydov relates to the examination of the application for supervisory review on 23 July 1999 which has now been set aside. The Court considers that this deprives the applicant of his status as a “victim” of the alleged breach of the Convention.

It follows that this aspect of the complaint is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

3.  Finally, the applicant complained under Article 1 of Protocol No. 1 to the Convention that he has been deprived of his car. Article 1 of Protocol No. 1 reads as follows:

“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 emphasised that the purpose of the proceedings in question was to determine the lawfulness of the penalty imposed on the applicant. Pursuant to the rules of civil procedure in force at the material time, in the end of such proceedings the court could only grant or refuse the complaint. Where the court granted the complaint, the injured party could bring separate proceedings for the return of the unlawfully imposed fine or confiscated items. The Government concluded that since the applicant had not brought such proceedings, he had not exhausted all domestic remedies, as required by Article 35 § 1 of the Convention.

The applicant insisted that he had exhausted all available domestic remedies.

The Court is of the view that these arguments are closely linked with the substance of the applicant’s complaint. Consequently, they should be joined to the merits of the application.

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

For these reasons, the Court unanimously

Decides to join to the merits the Government’s objection concerning the non-exhaustion of domestic remedies in respect of the confiscation of the car;

Declares admissible, without prejudging the merits, the applicant’s complaint concerning the confiscation of his car;

Declares the remainder of the application inadmissible.

Søren Nielsen Christos Rozakis 
 Registrar President 

MARKIN v. RUSSIA DECISION


MARKIN v. RUSSIA DECISION