Last Updated on May 22, 2019 by LawEuro
THIRD SECTION
DECISION
Application no. 26668/09
Gennadiy Anatolyevich NOSOV
against Russia
The European Court of Human Rights (Third Section), sitting on 18 September 2018 as a Committee composed of:
Helen Keller, President,
Pere Pastor Vilanova,
María Elósegui, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 16 March 2009,
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, Mr Gennadiy Anatolyevich Nosov, is a Russian national, who was born in 1976 and lives in Belgorod. He was represented before the Court by Mr K. Markin, a lawyer practising in Velikiy Novgorod.
The Russian Government (“the Government”) were represented initially by Mr G. Matyushkin, former Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.
The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
On 12 September 1992 the applicant married N. and on 23 July 1993 their daughter was born.
1. First set of divorce proceedings
In 2008 the applicant moved out of the flat where he lived with N. On 24 September 2008 he filed for divorce. He submitted that he and N. had been living separately and that it was impossible for them to preserve their marriage.
On 5 December 2008 the Justice of Peace of Judicial Circuit No. 8 of Zapadniy Okrug of Belgorod dismissed the applicant’s claim. The Justice took into account the interests of the applicant’s daughter, who was a minor at the time, and reasoned that it was possible for the applicant and N. to preserve their marriage.
Following an appeal by the applicant, on 19 February 2009 the Oktyabrskiy District Court of Belgorod upheld the judgment of 5 December 2008.
2. Second set of divorce proceedings
The applicant lodged another action for dissolution of marriage. It was dismissed on 25 August 2009 by the Justice of the Peace of Judicial Circuit No. 9 of Zapadniy District of Belgorod. The Justice reasoned that the applicant had failed to submit sufficient evidence to prove that it was impossible to preserve the marriage. The applicant did not attend the hearing.
On 24 November 2009 the Oktyabrskiy District Court of Belgorod quashed the judgment of 25 August 2009 for the lower court’s failure to notify the applicant of the date and time of the court hearing and re‑examined the case. It dismissed the applicant’s claim finding unsubstantiated the applicant’s argument that he had been living as a family with another woman.
On 18 February 2010 the Presidium of the Belgorod Regional Court quashed the judgment of 24 November 2009 by way of supervisory review and remitted the matter for fresh consideration to the District Court noting that the lower court’s decision had disclosed a violation of the applicant’s right to respect for his private life.
On 19 March 2010 the District Court granted the applicant’s claims and dissolved his marriage with N.
3. The applicant’s new marriage
On 10 June 2010 the applicant married V.
COMPLAINT
The applicant complains under Articles 8 and 12 of the Convention that he was unable to obtain dissolution of the marriage with N.
THE LAW
The applicant complained about the domestic courts’ refusal to grant him a divorce. He relied on Articles 8 and 12 of the Convention which read, in so far as relevant, as follows:
Article 8
“1. Everyone has the right to respect for his private and family life … .
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
Article 12
“Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.”
The Government submitted that the applicant had failed to inform the Court promptly of the important developments in his case. In particular, back in 2010, prior to the communication of the complaints, the appeal judgment dismissing the applicant’s application for divorce had been quashed and a new judgment in his favour had been delivered. In the Government’s view, such inaction should be construed as an abuse of petition on the applicant’s part. The Government further argued that the applicant could no longer claim to be a victim of the alleged violation. Alternatively, the Government suggested that the applicant’s complaints had been incompatible ratione personae. The applicant had not shown that he had founded de facto another family.
The applicant considered that the first judgment dismissing his application for divorce had remained in force and, as a result, he could still claim to be a victim of the violations of the Convention. Nor had he received any compensation in respect of the acknowledged violation.
As regards the Government’s first objection, the Court reiterates that, except in extraordinary cases, an application may only be rejected as abusive if it was knowingly based on untrue facts (see Akdivar and Others v. Turkey, 16 September 1996, §§ 53‑54, Reports of Judgments and Decisions 1996-IV; I.S. v. Bulgaria (dec.), no. 32438/96, 6 April 2000; and Varbanov v. Bulgaria, no. 31365/96, § 36, ECHR 2000‑X) or if incomplete and therefore misleading information was submitted to the Court (see, among the most recent authorities, Podeschi v. San Marino, no. 66357/14, § 85, 13 April 2017). Similarly, an application can be rejected as abusive if applicants – despite their obligation under Article 47 of the Rules of Court – fail to inform the Court about new, important developments regarding their pending applications given that such conduct prevents the Court from ruling on the matter in full knowledge of the facts (ibid.).
The Court notes that the applicant has indeed failed to inform it promptly of the favourable outcome in their case at the national level. However, it does not consider this failure, albeit regrettable, to amount to an abuse of the right of petition, regard being had to the circumstances of the present case (compare Plekhova v. Russia, no. 42752/04, § 19, 31 January 2008). The Court therefore rejects the Government’s objection.
The Court further reiterates that under Article 34 of the Convention it may receive applications from any person claiming to be a victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. It falls first to the national authorities to redress any alleged violation of the Convention. In this regard, the question whether an applicant can claim to be a victim of the violation alleged is relevant at all stages of the proceedings under the Convention. A decision or measure favourable to an applicant is not, in principle, sufficient to deprive him of his status as a “victim” unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see, for example, Scordino v. Italy (no. 1) [GC], no. 36813/97, §§ 178-80, ECHR 2006‑V).
Turning to the circumstances of the present case, the Court notes that, as claimed by the Government and not contested by the applicant, the judgment dismissing his application for divorce had been quashed by way of supervisory review. The supervisory-review court expressly acknowledged the violation of the applicant’s right and remitted the matter for fresh consideration. Subsequently the court at the second level of jurisdiction granted the applicant’s claims in full. Accordingly, the effect of the proceedings which formed the basis for the applicants’ complaints under Articles 8 and 12 of the Convention has thus been annulled (compare, (see Lyakhevich v. Russia (dec.), no. 26704/02, 12 November 2013). In the circumstances of the case, the Court considers that such redress was sufficient and adequate, having the effect of rendering the applicants “no longer a victim” of the alleged violations.
As to the applicant’s argument that judicial decisions rejecting his first application for divorce had remained in force, the Court finds it without merit. It has not been shown that such refusal created res judicata or prevented the applicant from submitting a new application for divorce (compare, Babiarz v. Poland, no. 1955/10, § 55, 10 January 2017).
It follows that the application must be rejected in accordance with Article 35 §§ (a) and 4 of the Convention.
This conclusion dispenses the Court from addressing the Government’s preliminary objection of incompatibility ratione personae.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 11 October 2018.
Fatoş Aracı Helen Keller
Deputy Registrar President
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