European Court of Human Rights

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URL: http://www.bailii.org/eu/cases/ECHR/2008/131.html
Cite as: [2008] ECHR 131

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FIRST SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 38112/04
by Petr Vasilyevich KOROLEV
against Russia

The European Court of Human Rights (First Section), sitting on 24 January 2008 as a Chamber composed of:

Christos Rozakis, President,
Loukis Loucaides,
Nina Vajić,
Anatoli Kovler,
Elisabeth Steiner,
Khanlar Hajiyev,
Dean Spielmann, judges,
Søren Nielsen, Section Registrar,

Having regard to the above application lodged on 10 September 2004,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Petr Vasilyevich Korolev, is a Russian national who was born in 1951 and lives in Vladivostok. He is represented before the Court by Ms Y. Gavrilova, a lawyer practising in Vladivostok.

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

A. Labour dispute

Between September 1995 and October 1999 the applicant was the Master of the medium tanker Argun, a ship owned by the Russian Government.

The applicant and his crew brought proceedings in the High Court of South Africa for the unpaid wages.

By judgment of 25 November 1999, the High Court of South Africa declared the Russian Federation to be the lawful owner of the vessel.

On 24 September 2001 the Russian Federation (re)registered in Russia its title to the vessel.

By judgment of 12 September 2002, the High Court awarded the applicant 79,770.79 United States dollars against the vessel MT Argun and interest at the rate of 15.5% per annum on that amount. The MT Argun and the Russian Federation were to pay the applicant's costs and travel expenses.

On 16 May 2003 the Supreme Court of Appeal of South Africa heard the parties' appeals and upheld the judgment of 12 September 2002. The judgment was notified to the applicant on 19 September 2003.

In 2003 the vessel was sold at auction and the applicant received part of the judicial award.

It appears that that judgment remains without enforcement in part.

B. Criminal proceedings against the applicant

On 25 November 2002 the investigator initiated criminal proceedings in respect of the applicant.

On 12 February 2003 the applicant was charged with fraud and abuse of power in relation to his activities between 1995 and 1999. Additional charges were brought in June and December 2003.

In 2003 the investigator commissioned a number of forensic reports. The applicant challenged their findings in courts.

Between January 2004 and April 2005 the applicant and his counsel studied the case file.

In June 2005 the case was submitted for trial by the Leninskiy District Court of Vladivostok and was assigned to Judge I.

On 17 November 2005 the District Court refused to examine the case and ordered the prosecution to redraft the bill of indictment tainted with a number of serious defects.

On 6 July 2006 the District Court resumed the proceedings. A hearing was held on 11 July 2006. On 12 July 2006 the applicant was served with a new bill of indictment dated 23 November 2005.

On 24 July 2006 the District Court returned the case to the prosecutor for the same reasons.

In or about October 2006 the case was re-assigned for unspecified reasons to Judge P.

On 13 October 2006 the new presiding judge ordered the prosecution to provide the applicant with a new bill of indictment dated 14 August 2006 and adjourned the hearing until 3 November 2006.

In November and December 2006 the District Court held six hearings.

It appears that the criminal proceedings are pending.

C. Civil proceedings

In 2006 the applicant sued the State for the unpaid salary. On 5 May 2006 the Leninskiy District Court of Vladivostok declined jurisdiction in the case. On 28 June 2006 the Primorskiy Regional Court upheld that decision.

Thereafter, the applicant brought proceedings in the Tverskoy District Court of Moscow. On 3 October 2006 the District Court declined jurisdiction in favour of the Justice of the Peace. On 27 February 2007 the Moscow City Court upheld that decision. The applicant received a copy of the appeal decision on 24 April 2007. He did not raise his claims before the Justice of the Peace.

D. Obligation not to leave the town

On 27 November 2002 the investigating authority enjoined the applicant from leaving the place of his residence. It appears that that measure of restraint was lifted in December 2002 but was imposed again in early 2003.

In January 2003 the applicant unsuccessfully sought a renewal of his travel passport. In July 2003 he sued the Visa and Passport Service.

By judgment of 4 August 2003, the Frunzenskiy District Court of Vladivostok declined jurisdiction in favour of the Leninskiy District Court of Vladivostok. In August 2003 the Leninskiy District Court rejected his claims. The applicant did not appeal.

It appears that the applicant remains to date under the obligation not to leave Vladivostok.

E. Searches and seizures

On 16 January 2003 the applicant's flat was searched. The central unit of a computer, floppy disks and certain other items were seized. According to the applicant, all his documents, including legal materials and correspondence with counsel in proceedings before Russian and foreign courts, were also seized.

On 14 March 2003 another search was carried out in the applicant's flat. Certain documents and his daughter-in-law's notebook were seized.

On 4 August 2003 the applicant's flat was searched again and certain documents were seized.

The applicant challenged the search carried out in March 2003. By judgment of 11 November 2003, the Frunzenskiy District Court rejected the applicant's claims. On 22 December 2003 the Regional Court upheld the judgment.

COMPLAINTS

The applicant complained under Article 6 § 1 of the Convention about the allegedly excessive length of the criminal proceedings against him.

The applicant complained under Articles 6 and 13 of the Convention about the Russian courts' refusal to examine his claims against the State in respect of the unpaid salary.

The applicant complained under Articles 4 and 17 of the Convention and Article 1 of Protocol No. 1 in substance about non-enforcement of the judgment of 12 September 2002.

Referring to Articles 3, 4, 6, 13, 14, 17 and 18 of the Convention, the applicant raised a number of complaints relating to the alleged unfairness of, and irregularities in, the criminal proceedings against him. He alleged that he had not been apprised of the hearing on 11 November 2003 and, therefore, did not attend it.

He also complained that the proceedings in the courts of the Republic of South Africa had been in breach of Article 6 of the Convention.

The applicant complained under Article 8 of the Convention that the searches and seizures in his flat had been unlawful. He also contended that the seizure of his privileged correspondence with the lawyers, representing him in various proceedings before Russian and foreign courts, had been in breach of the rule of confidentiality.

The applicant complained under Article 1 of Protocol No. 1 about a violation of his property rights resulting from the seizure and retention of his documents, the central unit of the computer, his daughter-in-law's notebook and certain other items.

The applicant complained under Article 2 of Protocol No. 4 that his freedom of movement and his freedom to leave his own country had been restricted in an unlawful and disproportionate manner.

THE LAW

The applicant complained that the length of the criminal proceedings against him had been in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention. This provision reads in the relevant part as follows:

“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”

The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

With reference to Articles 4 and 17 of the Convention and Article 1 of Protocol No. 1, the applicant complained in substance about the Russian authorities' refusal to enforce the judgment of 12 September 2002 issued by the High Court of South Africa, as upheld by the Supreme Court of Appeal of South Africa. The Court considers that this complaint should be examined under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1, which read in the relevant parts as follows:

Article 6 § 1

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing within a reasonable time... 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 applicant complained under Article 6 of the Convention about the alleged irregularities in the preliminary investigation of the criminal case against him. The Court notes that the criminal proceedings against the applicant are pending and he still has an opportunity to raise these complaints before national courts. It follows that those complaints must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

The Court has also examined the remainder of the applicant's complaints as submitted by him. However, having regard to all the material in its possession, it finds that those complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant's complaints about the allegedly excessive length of the criminal proceedings against him and the alleged non-enforcement of a final judgment in his favour;

Declares the remainder of the application inadmissible.

Søren Nielsen Christos Rozakis
Registrar President