by Mikhail BELSKIY
The European Court of Human Rights (First Section), sitting on 26 November 2009 as a Chamber composed of:
Christos Rozakis, President,
George Nicolaou, judges,
and Søren Nielsen, Section Registrar,
Having regard to the above application lodged on 1 July 2003,
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 Mikhail Sergeyevich Belskiy, a Russian national, was born in 1958 and died on 27 January 2008. The Russian Government (“the Government”) were represented by Mr P. Laptev, the then Representative of the Russian Federation at the European Court of Human Rights.
On 18 April 2009 Ms Darya Belskaya, the late applicant’s daughter (born on 23 December 1990), expressed her wish to pursue the proceedings before the Court. For the sake of convenience, the Court will, however, continue to refer to Mr Belskiy as “the applicant”.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
1. Criminal proceedings
In 1998 the applicant signed a loan agreement under the terms of which he borrowed 2,300,000 Russian roubles (RUB) from Mr T. As the loan had not been repaid, Mr T. sought initiation of criminal proceedings for fraud against the applicant and another person, Mr L. The applicant insisted that L. was the actual recipient of the loan and, therefore, any failure to repay the loan should be attributable to L. A criminal case was opened. Eventually, the prosecutor’s office discontinued the case against the applicant. On 9 April 2001 the Chelyabinsk Regional Court took the final decision upholding the prosecutor’s decision to discontinue the case against the applicant. The criminal case against L. was sent for trial. The trial court acquitted L. of the fraud charges. The appeal court refused to deal with the applicant’s observations on the case because he was not party to these criminal proceedings. On 26 May 2003 the Regional Court upheld L.’s acquittal.
2. Civil proceedings
(a) Initial proceedings
In separate civil proceedings, Mr T. sought to recover the loan debt and interest. The applicant lodged a counterclaim seeking annulment of his loan contract with Mr T. On 23 July 2002 the Tsentralniy District Court of Chelyabinsk rejected T.’s claims and granted the applicant’s claim. On 23 September 2002 the Regional Court upheld the judgment on appeal.
(b) Supervisory review
On an unspecified date the President of the Regional Court lodged a request for supervisory review of these judgments. On 6 March 2003 the Presidium of the Regional Court, composed of the President, chairing the hearing, and three other judges, quashed the judgments and ordered a re-examination of the case. Having heard the parties and a public prosecutor, the Presidium found that the courts below had omitted to give weight to certain circumstances or to provide reasons for refusing to take them into account. The applicant appealed against the ruling of 6 March 2003. On 22 August 2003 the Supreme Court of Russia confirmed the ruling.
(c) Subsequent proceedings
In the resumed proceedings, Mr T. amended his claims, directing them against both the applicant and his wife, Ms G. Belskaya. On 18 March 2004 the Tsentralniy District Court rejected T.’s claims and declared the loan agreement null and void ab initio.
Mr T. appealed to the Regional Court. A hearing was scheduled for 22 April 2004 but was apparently adjourned until 6 May 2004. However, on 5 May 2004 the applicant was admitted to hospital. The Regional Court was informed that the applicant would not be able for the time being to attend court hearings in view of his state of health.
It appears that on 5 or 6 May 2004 the Regional Court issued an adjournment for “approximately one month”. The applicant was not present on that date.
On 1 June 2004 the applicant lodged a request with the court’s registry asking for a stay of proceedings due to his illness and a request with the Supreme Court that jurisdiction be declined in the case in favour of another regional court. In reply to a renewed request from the Regional Court, by a letter of 2 June 2004 the hospital informed the court that the applicant was physically fit to appear before the court.
On 3 June 2004 the Regional Court held an appeal hearing. Regarding the applicant’s absence from the hearing, it found as follows:
“[The applicant] was present at the hearing on 22 April 2004 and made both oral and written submissions in relation to T.’s appeal. [The applicant] was absent from the hearings scheduled for 6 May and 3 June 2004, having lodged with the court’s registry various requests, including a request dated 1 June 2004 challenging the appeal panel, applying for suspension of the proceedings in view of his illness and a pending application before the Supreme Court. Those requests were declared unfounded by this court on 3 June 2004. On 5 May 2004 the appeal court adjourned for approximately one month, until 3 June 2004. However, [the applicant] did not appear before this court...”
Having heard T., who amended his claims, the Regional Court overturned the judgment of 18 March 2004 and granted T.’s amended claims against the applicant. The applicant was to pay Mr T. RUB 2,905,000 or 100,000 United States dollars (USD), the exchange rate on 3 June 2004, as well as RUB 300,000 as penalties and interest.
It is unclear whether any enforcement proceedings were instituted against the applicant on the basis of the judgment of 3 June 2004 or whether that judgment was enforced in full or in part.
B. Relevant domestic law
1. Supervisory review
A supervisory review procedure was set up under Chapter 36 of the RSFSR Code of Civil Procedure (CCP). Under its Article 320 § 2 the president of a regional court could lodge a request for supervisory review of judgments by district or town courts as well as by the regional court sitting on an appeal. On 1 February 2003 a new Code of Civil Procedure entered into force. However, supervisory review applications which had been lodged and remained pending before that date were to be examined under the RSFSR CCP no later than on 1 July 2003 (see Federal Law no. 137-FZ of 14 November 2002).
Succession is regulated by Part 3 of the Civil Code. It provides for two types of succession, by law or by testament (Article 1111). In the latter case, irrespective of the terms of the testament, minor or disabled children or a disabled spouse of a deceased have a right to a half of the succession to which they would be entitled in the case of succession by law (Article 1149). The succession includes the deceased’s property or pecuniary rights or claims but does not include rights or obligations intrinsically linked to the deceased’s person, such as alimony or a right to compensation for health damage (Article 1112). The deceased’s children, spouse and parents have priority in succession over other heirs (Article 1141-42). An heir should claim and accept succession, as well as obtain a succession certificate from a public notary (Articles 1152, 1162).
3. Enforcement proceedings
Under the Enforcement Act (Federal Law no. 229-FZ of 2 October 2007), if the judgment debtor has died the bailiff should obtain the appointment of the late debtor’s successor as the judgment debtor (section 52). All measures taken within the enforcement proceedings before such appointment should be binding for the successor to the extent that they were binding for the original debtor (ibid).
The applicant complained in relation to the proceedings before national courts. In particular, he complained about the alleged violations of Article 6 § 1 of the Convention on account of (i) the supervisory review proceedings in his civil case concerning a private loan agreement; and (ii) the authorities’ failure to afford him an opportunity to be present at the appeal hearing in that case.
The Government argued that because as of March 2009 nobody had applied for succession since the applicant’s death in January 2008, the Court should strike the application out of its list of cases. The late applicant’s daughter had not been involved in domestic proceedings and had not been his legal successor.
The late applicant’s daughter maintained her wish to pursue the proceedings before the Court after her father’s death. She submitted that she had acquired “all obligations arising in respect of her late father from the court decisions, in respect of which there was a violation of his right to a fair trial under Article 6 § 1 of the Convention and which formed the subject matter of his application before the Court”.
Article 37 § 1 of the Convention reads in the relevant part as follows:
“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; or
(b) the matter has been resolved; or
(c) for any other reason established by the Court, it is no longer justified to continue the examination of the 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...”
The Court reiterates that in a number of cases in which an applicant has died in the course of the proceedings before the Court it has taken into account the statements of the applicant’s heirs or of close family members expressing the wish to pursue the proceedings, or the existence of a legitimate interest claimed by a person wishing to pursue the application (see Léger v. France (striking out) [GC], no. 19324/02, § 43, ECHR 2009 ..., with further references).
Many such cases concerned complaints relating to claims under Article 1 of Protocol No. 1 (see, among others, Nerva and Others v. the United Kingdom, no. 42295/98, § 33, ECHR 2002 VIII). The Court has previously noted that the question whether such claims were transferable to the persons seeking to pursue an application was an important criterion, but could not be the only one (see OAO Neftyanaya Kompaniya YUKOS v. Russia (dec.), no. 14902/04, § 441, 29 January 2009, and Horváthová v. Slovakia, no. 74456/01, § 26, 17 May 2005). In fact, cases before the Court generally also have a moral dimension and persons close to an applicant may have a legitimate interest in seeing that justice is done even after the applicant’s death (ibid).
The Court has previously accepted that the late applicants’ close relatives could maintain applications with complaints concerning various aspects of Article 6 of the Convention (see Grosz v. France (dec.), no. 14717/06, 16 June 2009; Stojkovic v. “the former Yugoslav Republic of Macedonia”, no. 14818/02, § 26, 8 November 2007; Mihailov v. Bulgaria (dec.), no. 52367/99, 9 September 2004; and Andreyeva v. Russia (dec.), no. 76737/01, 16 October 2003). Thus, for instance, in Radchikov v. Russia ((dec.), no. 65582/01, 4 October 2005) the Court confirmed the late applicant’s daughters’ standing in relation to their pursuing his complaint about the quashing of his final acquittal by way of supervisory review. The Court referred to the daughters’ interest in re-establishing their late father’s good name.
However, in one case the Court held that the late applicant’s wife had no legitimate interest in pursuing his complaint under Article 6 § 1 of the Convention concerning the alleged unfairness of the domestic court proceedings in which he sought to “erase” his criminal record (see Gorodnichev v. Russia (dec.), no. 32275/03, 15 November 2007). The Court considered that, assuming those proceedings fell within the civil limb of Article 6 § 1, their “civil” nature was related to the late applicant’s wish to pursue the career of a lawyer. His death, however, put an end to his professional aspirations, so that his interest, being a strictly personal one, could not have been transferred to heirs.
Turning to the present case, the Court first reiterates that the late applicant complained before the Court about the alleged violations of Article 6 § 1 of the Convention on account of (i) the supervisory review proceedings in his civil case concerning a private loan agreement; and (ii) the authorities’ failure to afford him an opportunity to be present at the appeal hearing in that case.
The applicant died on 27 January 2008, after the introduction of the present application, while it was pending before the Court. His daughter, Ms Darya Belskaya, informed the Court that she wished to pursue the application.
It is noted that the late applicant and his wife were parties to the domestic proceedings, while their then underage daughter was not party to those proceedings. She was still a minor when the applicant died in January 2008. The Court observes in that connection that under Russian law (see “Relevant domestic law” above) a deceased’s child or spouse has priority in succession over other heirs. In the case of testamentary succession, irrespective of its terms, a minor child of the deceased inherits half of the succession to which they would be entitled in the case of succession by law. The succession includes the deceased’s property or pecuniary rights or claims but does not include rights or obligations intrinsically linked to the deceased’s person.
The Court cannot but note, however, that, having been afforded an opportunity to confirm her status as an heir, the applicant’s daughter failed to submit any document such as a succession certificate to confirm that she had accepted the succession or describing the contents of such a succession (see Raguzina v. Russia (dec.), no. 909/03, 7 September 2006). Nor did she explain whether the rights and obligations relating to the applicant’s complaints before the Court were at all subject to succession under Russian law. Neither is it clear whether she incurred any liability arising out of the judgment of 3 June 2004 (see “Relevant domestic law” above).
The Court considers that it is for the heir who wishes to pursue the proceedings before the Court to substantiate his or her standing to do so. In the present case the Court is not satisfied that the applicant’s daughter has met that requirement.
Nor does the Court consider that “respect for human rights as defined in the Convention and the Protocols” requires the examination of the application, despite the applicant’s death.
In these circumstances the Court considers that it is no longer justified to continue the examination of the application and concludes pursuant to Article 37 § 1 (c) of the Convention that the application should be struck out of its list of cases.
For these reasons, the Court unanimously
Decides to strike the application out of its list of cases.
Søren Nielsen Christos Rozakis