Access to the courts as a fundamental right of the ECHR
JUDGMENT
Nesterenko and Gaydukov v. Russia 24-10-2017 (no. 20199/14 and 20655/14)
SUMMARY
Militants are applying before courts for the privatization of the departments granted by the Department of Defense. Their claim was dismissed as inadmissible because they did not submit an application to the Ministry before requesting an application for privatization. No examination of their substantive claims. Right of access to trial.
PROVISION
Article 6 par. 1
PRINCIPAL FACTS
The applicants, Konstantin Ivanovich Nesterenko and Gennadiy Nikolayevich Gaydukov, are Russian nationals who were born in 1973 and 1965 respectively and live in Tikhoretsk (Krasnodar region). The case mainly concerned the right of access to a court by Mr Nesterenko and Mr Gaydukov, two servicemen who had requested the privatisation of the apartments assigned to them by the Ministry of Defence.
The Ministry of Defence assigned Mr Nesterenko and Mr Gaydukov apartments on a social lease contract, which the applicants hoped to have privatised. They contacted the agency managing the apartments and also the Ministry of Defence, which replied that since the relevant administrative regulations on the privatisation procedure were still at the drafting stage, they could not take the requisite action to privatise the apartments. Those authorities added that they could, however, secure ownership rights through the courts.
Mr Nesterenko and Mr Gaydukov lodged an action with the Tikhorestsk Court against the Ministry of Defence and the management agency, seeking recognition of ownership rights over their apartments. By preliminary decision of 24 July 2013 the court declared their actions inadmissible on the grounds that they had failed to submit a pre-litigation request before applying to the court. According to the court, claimants were required to use administrative channels, and to lodge a judicial appeal only if their pre-litigation request was rejected; consequently, since the Ministry had not, strictly speaking, rejected the applicants’ privatisation requests, the requirement on submitting a pre-litigation request had been flouted.
Mr Nesterenko and Mr Gaydukov appealed. In September 2013 the Krasnodar Regional Court of Appel dismissed their appeals and upheld the court’s decisions. Relying on Article 6 § 1 (right of access to court), Mr Nesterenko and Mr Gaydukov complained that their judicial remedies had not been examined on their merits.
THE DECISION OF THE COURT
Violation of Article 6 § 1
Just satisfaction: EUR 2,500 (non-pecuniary damage) each to Mr Nesterenko and Mr Gayduko(echrcaselaw.com editing).
