BELAYEV v. RUSSIA
Inadmissible
Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
The applicant, Mr Igor Vasilyevich Belayev, is a Russian national who was born in 1957 and lives in Pyatigorsk, the Stavropol Region. The applicant is a retired military serviceman. “... the military commissioner is to reinstate Belayev in the list of military personnel and to eliminate the violations of the procedure of his discharge from work... and then [again] exclude Belayev from the list of military personnel, after having provided him with all kinds of military provisions, including monetary ones...” On 12 January 2004 the Military Commissioner replied to the applicant stating that in 1990 he had been provided with a flat in Magadan, that in 1997 his wife had privatised the flat and that in 1999 she had sold it. The letter further stated: “... Thus, you have forfeited your entitlement to be provided with housing by the State or by the Ministry of Defence...” On 27 March 2004 the applicant brought proceedings against the Military Commissioner at the Garrison Court. On 2 June 2004 the Garrison Court refused to examine the applicant’s complaint stating that the same complaint had been already examined by the court’s decision of 15 November 2001. The applicant appealed against this decision to the court of the North-Caucasus Military Circuit Court (the Circuit Court). On 13 October 2004 the Circuit Court overruled this decision and returned the case for a fresh examination. On 21 October 2004 the Garrison Court rejected the applicant’s complaint. The court referred to the Military Commissioner’s letter of 12 January 2004 and stated that the applicant had missed the three-month statutory time-limit for the appeal against actions of officials. The text of the court’s decision stated, inter alia, the following: “... During the hearing the applicant stated that he did not miss the three-month time-limit for appeal of actions of officials, as he had received the Military Commissioner’s written refusal ... on 12 January 2004 and that he had lodged his complaint with the court on 27 March 2004... The court finds that the applicant’s reference [to the above dates] is unsubstantiated for the following reasons: ... according to Article 239 of the former Civil Procedure Code and Article 256 of the acting Civil Procedure Code, a citizen must lodge his complaint within three months from the date when he learnt about a violation of his rights [by a State official]. The Court finds that it is obvious that after the sale of his flat in Magadan on 18 February 1999 the applicant was aware of the absence of housing for him and his family. Further, by the Military Commissioner’s order no. 161 issued on 27 December 1999 the applicant was excluded from the list of the military personnel. Being aware of the exclusion from the list, the applicant appealed this order in June 2001 to the Garrison Court. In these circumstances, the court finds that the applicant was aware of the exclusion from the list of military personnel [and of the relevant entitlements] ...and the violation of his rights by the State official in June 2001... ...The applicant’s [current] complaint was received by the Garrison Court on 17 May 2004. In this situation the Court finds that the three-month time limit for appeal against the actions of the Military Commissioner ... was missed by the applicant. As to the applicant’s reference that the time limit started running over again after ... in January 2004 he had received the written refusal of the State official, the court finds it unconvincing as the time limit [for the appeal against actions of officials] should be calculated from the earliest event...” The applicant appealed this decision to the Circuit Court. On 16 February 2005 the Circuit Court upheld the decision of the Garrison Court and it became final. Article 256 of the Code of Civil Procedure, in force as of 1 February 2003 stipulates: “Limitation period for judicial complaints: 1. A citizen has the right to apply to a court within the period of three months starting from the day when he leant about the violation of his rights [by a State official].”