EHRM, 01-07-2010, nr. 25551/05

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

The applicant sued the Head of the Passport and Visa Department at the Regional Directorate of the Interior for having denied him access to documents pertaining to a delay in issuing his new travel passport.

On 25 September 2001 the Verkh-Isetskiy District Court of Ekaterinburg dismissed the applicant's claim. On 13 November 2001 the Sverdlovskiy Regional Court quashed the judgment on appeal and referred the case back to the district court.

On 16 April 2002 the district court allowed the applicant's claim, ordering the Head of the Passport and Visa Department to allow the applicant access to all the documents and materials relating to the issuing of his passport. The court also held that the Passport and Visa Department should pay the applicant 22.50 Russian roubles (RUB) in compensation for the court fees.

On 4 July 2002 this judgment was upheld on appeal and became final.

It is not evident from the case file if and when the respondent authority complied with the judgment in the part concerning the applicant's access to his file. All reported actions taken by the applicant in the wake of the judgment were solely aimed at recovering the RUB 22.50 awarded by the district court.

On 22 July 2002 the district court issued a writ of execution which was explicitly limited to the payment of the court's award of RUB 22.50. On 28 April 2003 the bailiff started the enforcement proceedings.

On 15 December 2003 the applicant challenged the bailiff's inactivity before the district court. On 22 December 2003 the judge found the complaint to fall short of the procedural requirements and requested the applicant to comply therewith by 5 January 2003. The applicant was in particular requested to substantiate the bailiff's alleged failure.

The applicant supplemented his complaint on 31 December 2003.

On 6 January 2004 the court found that the applicant had not complied with the said requirements and dismissed the complaint without considering its merits. On 10 February 2004 the Sverdlovskiy Regional Court upheld that decision.

The main element contained in the new admissibility criterion is the question of whether the applicant has suffered a ‘significant disadvantage’. It is common ground that these terms are open to interpretation and that they give the Court some degree of flexibility, in addition to that already provided by the existing admissibility criteria (see Explanatory Report, §§ 78 and 80).

In the Court's view, these terms are not susceptible to exhaustive definition, like many other terms used in the Convention. The High Contracting Parties thus expected the Court to establish objective criteria for the application of the new rule through the gradual development of the case-law (see Explanatory Report, § 80).

Inspired by the abovementioned general principle de minimis non curat praetor, the new criterion hinges on the idea that a violation of a right, however real from a purely legal point of view, should attain a minimum level of severity to warrant consideration by an international court. The assessment of this minimum level is, in the nature of things, relative and depends on all the circumstances of the case (see, mutatis mutandis, Soering v. the United Kingdom, 7 July 1989, § 100, Series A no. 161). The severity of a violation should be assessed, taking account of both the applicant's subjective perceptions and what is objectively at stake in a particular case.

In the circumstances of the present case, the Court is struck at the outset by the tiny and indeed almost negligible size of the pecuniary loss which prompted the applicant to bring his case to the Court. The applicant's grievances were explicitly limited to the defendant authority's failure to pay a sum equivalent to less than one euro awarded to him by the domestic court.

The Court is conscious that the impact of a pecuniary loss must not be measured in abstract terms; even modest pecuniary damage may be significant in the light of the person's specific condition and the economic situation of the country or region in which he or she lives. However, with all due respect for varying economic circumstances, the Court considers it to be beyond any doubt that the petty amount at stake in the present case was of minimal significance to the applicant.

The Court is mindful at the same time that the pecuniary interest involved is not the only element to determine whether the applicant has suffered a significant disadvantage. Indeed, a violation of the Convention may concern important questions of principle and thus cause a significant disadvantage without affecting pecuniary interest. It could even have been so in the present case had the applicant complained, for example, of the authorities' failure to enforce his legitimate right to consult his file at the Passport and Visa Department. Yet, the applicant did not challenge the execution of the domestic judgment in that part, limiting his claims solely to pecuniary damage. Thus, the Court can see no hindrance to the enforcement of the applicant's right of access to his file, which was the main purpose of the domestic litigation at issue.

Admittedly, the applicant's insistence on the payment of RUB 22.50 by the respondent authority may have been prompted by his subjective perception that it was an important question of principle. Although relevant, this element does not suffice for the Court to conclude that he suffered a significant disadvantage. The applicant's subjective feeling about the impact of the alleged violations has to be justifiable on objective grounds. However, the Court does not perceive any such justification in the present case, as the main issue of principle was in all likelihood resolved to the applicant's advantage.

In view of the foregoing, the Court concludes that the applicant has not suffered a significant disadvantage as a result of the alleged violations of the Convention.

The second element contained in the new criterion is intended as a safeguard clause (see Explanatory Report, § 81) compelling the Court to continue the examination of the application, even in the absence of any significant damage caused to the applicant, if respect for human rights as defined in the Convention and the Protocols thereto so requires. The Court notes that the wording is drawn from the second sentence of Article 37 § 1 of the Convention where it fulfils a similar function in the context of decisions to strike applications out of the Court's list of cases. The same wording is used in Article 38 § 1 as a basis for securing a friendly settlement between the parties.

The Court notes that the Convention organs have consistently interpreted those provisions as compelling them to continue the examination of a case, notwithstanding its settlement by the parties or the existence of any other ground for striking the case out of its list. A further examination of a case was thus found to be necessary when it raised questions of a general character affecting the observance of the Convention (see Tyrer v. the United Kingdom, no. 5856/72, Commission's report of 14 December 1976, Series B 24, p. 2, § 2).

Such questions of a general character would arise, for example, where there is a need to clarify the States' obligations under the Convention or to induce the respondent State to resolve a structural deficiency affecting other persons in the same position as the applicant. The Court has thus been frequently led, under Articles 37 and 38, to verify that the general problem raised by the case had been or was being remedied and that similar legal issues had been resolved by the Court in other cases (see, among many others, Can v. Austria, 30 September 1985, §§ 15–18, Series A no. 96, and Léger v. France (striking out) [GC], no. 19324/02, § 51, ECHR 2009-…).

Considering the present case in this way, as required by new Article 35 § 3 (b), and having regard to its responsibilities under Article 19 of the Convention, the Court does not see any compelling reason of public order (ordre public) to warrant its examination on the merits. First, the Court has on numerous occasions determined issues analogous to that arising in the instant case and ascertained in great detail the States' obligations under the Convention in that respect (see, among many others, Hornsby v. Greece, 19 March 1997, Reports of Judgments and Decisions 1997-II; Burdov v. Russia, no. 59498/00, ECHR 2002-III; and Burdov v. Russia (no. 2), no. 33509/04, ECHR 2009-…). Second, both the Court and the Committee of Ministers have addressed the systemic problem of non-enforcement of domestic judgments in the Russian Federation and the need for adoption of general measures to prevent new violations on that account (see Burdov (no. 2), cited above, and the Committee of Ministers' Interim Resolutions CM/ResDH(2009)43 of 19 March 2009 and CM/ResDH(2009)158 of 3 December 2009). An examination on the merits of the present case would not bring any new element in this regard.

The Court concludes that respect for human rights, as defined in the Convention and the Protocols thereto, does not require an examination of the present application on the merits.

Article 35 § 3 (b) does not allow the rejection of an application on the grounds of the new admissibility requirement if the case has not been duly considered by a domestic tribunal. Qualified by the drafters as a second safeguard clause (see Explanatory report, § 82), its purpose is to ensure that every case receives a judicial examination whether at the national level or at the European level, in other words, to avoid a denial of justice. The clause is also consonant with the principle of subsidiarity, as reflected notably in Article 13 of the Convention, which requires that an effective remedy against violations be available at the national level.

In the Court's view, the facts of the present case taken as a whole disclose no denial of justice at the domestic level. The applicant's initial grievances against the State authorities were considered at two levels of jurisdiction and his claims were granted. His subsequent complaint against the bailiff's failure to recover the judicial award in his favour was rejected by the district court for non-compliance with domestic procedural requirements. The applicant failed to comply with those requirements, not having resubmitted his claim in accordance with the judge's request. This situation does not constitute a denial of justice imputable to the authorities.

As regards the alleged breaches of domestic procedural requirements by those two courts, the Convention does not grant the applicant a right to challenge them in further domestic proceedings once his case has been decided in final instance (see Tregubenko v. Ukraine, no. 61333/00, 21 October 2003, and Sitkov v. Russia (dec.), no. 55531/00, 9 November 2004). That these complaints were not subject to further judicial review under domestic law does not, in the Court's view, constitute an obstacle for the application of the new admissibility criterion. To construe the contrary would prevent the Court from rejecting any claim, however insignificant, relating to alleged violations imputable to a final national instance. The Court finds that such an approach would be neither appropriate nor consistent with the object and purpose of the new provision.

The Court concludes that the applicant's case was duly considered by a domestic tribunal within the meaning of Article 35 § 3 (b).

In view of the foregoing, the Court finds that the present application must be declared inadmissible in accordance with Article 35 § 3 (b) of the Convention, as amended by Protocol No. 14. This conclusion obviates the need to consider if the application complies with other admissibility requirements.

For these reasons, the Court unanimously

Declares the application inadmissible.

Søren Nielsen

Registrar

Christos Rozakis

President