CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 20 mars 2005

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Rozakis , President ,   Mr   L. Loucaides ,   Mr   P. Lorenzen ,   Mrs   N. Vajić ,   Mrs   S. Botoucharova ,   Mr   A. Kovler ,   Mr   K. Hajiyev, judges , and Mr   S.   Nielsen , Section Registrar , Having regard to the above application lodged on 28 January 2000, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant, Having regard to the parties' oral submissions at the hearing on 20   January 2005, Having deliberated, decides as follows:       THE FACTS The applicant, Mr Vladimir Alekseyevich Zhigalev, is a Russian national, who was born in 1949 and lives in Nemcha Village of the Kursk Region. He is represented before the Court by Ms   M.   Voskobitova, a lawyer of International Protection Centre, an NGO based in Moscow. At the oral hearing on 20   January 2005 the applicant was also represented by Mrs   K.   Moskalenko, a lawyer practising in Moscow. The respondent Government are represented by Mr   P.   A.   Laptev, Representative of the Russian Federation at the European Court of Human Rights. A.     The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. 1.     The allocation of land for farming The applicant is a farmer. On 9 March 1992 he lodged an application with the Administration of the Bolshesoldatskiy District of the Kursk Region (“district administration”) for the allocation of land for setting up a farming enterprise “Luch” (“Luch Farm”) for the growing of beet and grain crops. He also requested a state registration of Luch Farm. According to the applicant, he alone took a decision to establish Luch Farm and hired, as employees of Luch Farm, five individuals who together with him were members of a collective farm («колхоз» ). On 11 April 1992 the administration of the collective farm decided that the applicant and the other five farmers in question would leave the collective farm, where they had worked so far, with a share of land of 5.15   ha each. On 14 April 1992 the district administration issued Resolution 111 by which 31 ha of land, which previously belonged to the collective farm, were given, free of charge, for setting up Luch Farm. The resolution referred in this regard to the above decision of the administration of the collective farm. By the same resolution the district administration ordered that 315 ha of land be leased to Luch Farm for five years. The resolution confirmed the applicant as a head of Luch Farm and the other five persons as members of Luch Farm. By the same resolution the Bolshesoldatskiy District Committee on Land Reform and Land Resources (“land committee”) was directed to delimit the plot of land on the spot and issue a state certificate on the right to use the land. By Resolution 112 issued on the same day the district administration ordered to register Luch Farm as a legal entity. A relevant state registration certificate stated, with a reference to Resolution 112, that the applicant was the only founder and the head of the farm. On 14 July 1992 the district administration issued Resolution 167 by which Resolution 111 was amended in that the 315 ha of land were transferred to the applicant and each of the other five members of the farm in equal shares, 52.5 ha to each person as their “lifetime inheritable possession” (« право пожизненного наследуемого владения» ). Following Resolution 111, the land committee issued, on an unspecified date, state land certificate no.   30020006 according to which for the purposes of establishing Luch Farm the applicant was granted the 30.9 ha of land free of charge as his property and the 315 ha of land as his “lifetime inheritable possession”. 2.     Proceedings concerning the validity of the land certificate On 23 July 1997 the district administration adopted Resolution 157 which declared the applicant's land rights as given in breach of the law and against the interests of the other members of the farm. By this resolution state land certificate no.   30020006 was declared invalid and Resolution 112 on the registration of Luch Farm was supplemented with a list of five members of the farm identical to that determined by Resolution 111 concerning the allocation of land. The applicant brought proceedings challenging Resolution 157. The proceedings ended with the decision of the Federal Commercial Court of the Central Circuit of 10 December 1997 by which the said resolution was declared invalid. The court found that there had been no grounds for the amendment of Resolution 112 on the registration of the farm. The court also held that the district administration had had no authority to annul the state land certificate as the law only allowed this to be done through court proceedings. On 16 February 1999 a public prosecutor brought an action of nullity against the district administration's Resolution 111 in so far as it concerned the 315   ha, Resolution 167 and the state land certificate no.   30020006. The proceedings were brought against the district administration and the land committee before the Commercial Court of the Kursk Region. The prosecutor stated inter alia that the land certificate attesting the applicant as a sole owner of the land impaired the interests of the other five members of the farm each of whom should have received their share of land equal to 5.15 ha upon leaving the former collective farm as well as their share of the land given for the establishment of Luch Farm as a “lifetime inheritable possession”. On 10 March 1999 the Commercial Court of the Kursk Region ordered the parties to produce documentary evidence, scheduled a hearing for 31   March 1999 and, following the prosecutor's relevant motion, ordered the applicant's participation in the proceedings as a third party with reference to Article 39 of the Code of Commercial Procedure of 1995. The court noted that no objections to the prosecutor's action had been submitted from the defendants. The applicant submitted to the court that the prosecutor's action should be rejected as not founded in law and that it was clearly time-barred as a statutory three-year limitation period running from the date of the challenged acts had expired. On 31 March 1999 the court adjourned the hearing to 21 April 1999 in view of the land committee's failure to produce the documentary evidence. The court stated again that the defendants had not submitted any objections to the prosecutor's action. At the hearing on 21 April 1999 the district administration and the land committee accepted the prosecutor's claims in full. The applicant requested the court to allow his participation in the proceedings as a co-defendant. The court rejected his request on the ground that the prosecutor's action concerned the local authorities' acts. The applicant requested the court to dismiss the prosecutor's action in view of expiration of the three-year limitation period. However, with reference to Article 199 of the Civil Code, the court held that the limitation period could be applied only upon a request of a party to a case. Therefore, in view of the applicant's “third party” status, such a reason for rejecting the prosecutor's action could not be applied. By judgment of 21 April 1999 the Commercial Court found that the district administration's Resolution 111 as amended by Resolution 167 was lawful. The court also found that as regards the 31 ha, Resolution 111 should read as providing for the transfer of this plot of land to each of the six members of the farm including the applicant in equal shares, 5.15 ha to each person in pursuance of the relevant decision of the administration of the collective farm. In these circumstances the court rejected the prosecutor's claim seeking for invalidation of Resolutions   111 and 167. As regards the land certificate, the court found that the certificate had no date of issue and, since the applicant had been indicated as the sole owner of the land, the certificate had not complied with Resolution 111 and the Law on Farming Enterprise ( «О крестьянском (фермерском) хозяйстве» ), according to which a property of a farming enterprise belonged to its members as their common ownership. Therefore, the court declared the land certificate null and void. The applicant appealed against the judgment. He based his appeal on the fact that the Commercial Court had refused to examine his submission concerning the statutory limitation period. On 8   June 1999 the judgment of 21 April 1999 was upheld by the Appeals Division of the Commercial Court of the Kursk Region. With reference to Article 39 of the Code of Commercial Procedure and Article 199 of the Civil Code, it dismissed the applicant's appeal holding that it was not open to the applicant, who was not a party to the case, to request the application of a limitation period. Following the applicant's cassation appeal, on 29 July 1999 the Federal Commercial Court of the Central Circuit upheld the judgment of 21   April   1999 and the decision of 8 June 1999 having confirmed the lower courts' reasoning, including that in relation to the applicant's limitation period submission. According to the Government, following the proceedings a new land certificate no.   300200167 was issued. It provides that the ownership to the land is equally shared between the all six members of the farm, including the applicant. According to the applicant, the land in question has not been farmed and still remains deserted. B.     Relevant domestic law and practice 1.     “Third parties” in proceedings According to Article 34 of the Code of Commercial Procedure of 1995 in force at the material time there are two parties to the proceedings having full and equal procedural rights: a plaintiff and a defendant. Under Article 38 of the Code third parties with independent claims in respect of the subject-matter of the dispute may enter into proceedings before the rendering of the decision by the court. They enjoy practically all procedural rights of a plaintiff. Under Article 39 of the Code third parties without independent claims in respect of the subject-matter of the dispute may enter into proceedings on the side of a plaintiff or a defendant before the rendering of the decision by the court, providing the decision may affect their rights or obligations towards one of the parties to the case. They enjoy procedural rights of a party to proceedings except the renunciation of suit, the right to alter the ground or the subject-matter of the suit, to increase or reduce the amount of the claim, to admit the suit, to conclude a friendly settlement agreement and to request for the forced execution of the court decision. 2.     Limitation periods According to Article 199 of the Civil Code a limitation period shall be applied by a court only upon a relevant request of a party to a dispute which is made before the rendering of a decision by the court. In case of such a request the expiry of the limitation period shall be a ground for the court to reject the suit. Under Article 196 of the Civil Code the general limitation period is three years. Under Article 181 of the Civil Code an action seeking for application of consequences of a void transaction may be brought within ten years from the date when the performance thereof commenced. 3.     “Lifetime inheritable possession” According to the Land Code of 1991 certain categories of land can only be owned as a “lifetime inheritable possession” (« право пожизненного наследуемого владения» ), which means that the land can be possessed, used and left for the succession, but cannot be sold to anyone, except the State. 4.     Farming enterprise Under Article 5 of the Law on Farming Enterprise ( «О крестьянском (фермерском) хозяйстве» ) No.   348-1 of 1990 in force at the material time, a local authority transfers, by its decision, a plot of land to an individual wishing to set up a farming enterprise who has lodged a relevant application. The land for setting up farming enterprises is transferred into ownership free of charge within statutory norms and is subject to payment in cases exceeding such norms. Where a plot of land is transferred into ownership a decision of a local authority serves as a basis for the allotment of land on the spot and the issue of a state certificate which certifies the ownership to the land. When determining the size of a plot of land to be given for establishing a farming enterprise the local authority should take into consideration the number of members of the farming enterprise. Under Article 8 § 3 of the law a member of a collective farm has a right to leave a collective farm with a share of its land and found a farming enterprise. Under Article 14 of Section IV of the law the property of a farming enterprise comprises plants, residential and household buildings, cattle, engineering and equipment, vehicles and other property necessary for carrying out its activity. Under Article 15 of Section IV of the law the property of a farming enterprise belongs to its members as their common ownership. COMPLAINTS 1.     The applicant complained under Article 6 of the Convention about the unfairness of the proceedings brought by the public prosecutor on 16   February   1999. He claimed in particular that through his “third party” status he was unable to state his case. Thus, his argument concerning the application of the limitation period was not examined by the courts. 2.     The applicant further complained under Article 1 of Protocol No. 1 that as a result of the outcome of these proceedings he was deprived of the land, which he allegedly lawfully owned and successfully farmed, without any compensation. THE LAW 1.     The applicant complained about the unfairness of the proceedings instituted by the public prosecutor on 16   February   1999. In particular, the courts did not examine his submission concerning a limitation period on account of his procedural status. He relied on Article 6 of the Convention which, in so far as relevant, reads as follows: “1.     In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” The Government submitted that the proceedings in question belonged to a special category of proceedings aiming at judicial supervision over non ‑ normative acts of state and municipal bodies. A defendant in such proceedings, as was the case here, is a body which has issued the relevant act and not a beneficiary or other person whose interests are affected by the act. The Government accepted that the proceedings determined the applicant's civil rights and obligations within the meaning of Article 6 of the Convention and maintained that the applicant's status as a third party afforded him ample opportunities to state his case, practically in the same way as a party to the case. He fully enjoyed his right to a court and adversarial proceedings by participating in hearings and submitting observations and appeals against court decisions. The complaint should, thus, be rejected as manifestly ill-founded. The Government further submitted that it was not open to the applicant to raise an issue of expiry of a limitation period due to his procedural status of a third party. This was a result of the domestic commercial courts' interpretation of the law, which was approved by Resolution of the Plenary Supreme Commercial Court of 2001 No.   15/18, which instructed the courts that a limitation period be applied on request of a party to a case, that is a plaintiff or a defendant, and not a third party. The Government asserted that such a restriction was justified and lawful and was supported by the law and court practice of other member states of the Convention. The Government noted that the prosecutor's action had been lodged within the ten-year limitation period. The Government finally claimed that it was open to the applicant to lodge a separate suit for asserting his rights to the land in dispute, in which case he could have enjoyed full procedural rights of a plaintiff. As the applicant did not avail himself of this opportunity the complaint should be rejected for non-exhaustion of domestic remedies. The applicant noted that his request to acknowledge him as a co ‑ defendant in the case was rejected by the court. The court ordered his participation in the proceedings as a “third person without independent claims” which implied limited procedural rights. The limited scope of those rights did not allow him, for example, to have his submission concerning a limitation period examined by the court. He asserted that the district administration and the land committee as defendants had not argued the case and fully accepted the prosecutor's claims. Thus, the local authorities and the prosecutor acted jointly against the interests of the applicant whose procedural rights were restricted. The applicant concluded that the proceedings were not adversarial and his right of access to court was violated. The applicant asserted furthermore that the domestic courts' refusal to examine his request for application of a limitation period violated the principle of equality of arms and rendered the proceedings unfair. The applicant claimed that the relevant domestic law which made the above violation possible was unclear and that the public prosecutor's role in the sphere of property rights of individuals should be limited. As regards the Government's submission of non-exhaustion, t he Court finds that it is closely related to the merits of the complaint. Accordingly, the Court holds that this question should be joined to the merits and reserved for later consideration. In the light of the parties' submissions, the Court finds that this part of the application raises complex questions of fact and law, the determination of which should depend on an examination of the merits. Therefore, this complaint cannot be rejected as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established. 2.     The applicant further complained about the deprivation of his land rights and the lack of compensation therefor. He relied on Article 1 of Protocol No. 1 which provides as follows: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” The Government submitted that the land certificate granting the applicant land rights had been found by the courts to be invalid as issued in breach of the Law on Farming Enterprise. Article 15 of that law provided that the property of a farm should belong to the farm's members as their common ownership. The invoked law provision aimed at a fair distribution of property rights between members of a farm thus pursuing public interest. The land rights were given to the applicant erroneously whereas Luch Farm belonged to five more members. As a result of the proceedings the local authority issued a new land certificate no.   300200167 according to which the ownership to the land is equally shared between all six members of the farm, including the applicant. The Government further submitted that under Article 181 of the Civil Code a limitation period in respect of an action seeking for invalidation of state acts granting land rights was ten years as is the case in respect of any void transactions. The Government asserted that the interference with the applicant's property rights was lawful, did not entail a deprivation of property and met the requirement of a fair balance between private and public interests. The Government considered that the complaint should be rejected as manifestly ill-founded. The Government submitted further that as a result of the proceedings brought by the prosecutor the land certificate entitling the applicant to the land was declared void ab initio . Therefore the applicant did not have lawful possessions within the meaning of Article 1 of Protocol   No.   1 which could entail applicability of this Convention provision to his case. Lastly, the Government submitted that it was open to the applicant to lodge, after the proceedings brought by the prosecutor had come to an end, a separate action for asserting his rights to the land but he failed to avail himself of this remedy. The applicant contested the Government's view. He submitted that he was the only owner of Luch Farm and that the other five farmers in question were employees of the farm. As a result of the proceedings brought by the prosecutor after the three-year statutory limitation period had expired he was deprived of the land, without any compensation, while he had lawfully owned and successfully farmed it during at least five years making use of agricultural methods of cultivation aiming at improving the quality of the land. The applicant asserted that such interference breached the requirement to strike a fair balance between public and private interests and imposed an excessive burden on him. He also noted that after the land had been taken away from him it was not farmed and remained deserted. As regards the Government's objection in relation to the exhaustion of domestic remedies, the Court is of the view that it is closely linked with the substance of the applicant's complaint. Consequently, it should be joined to the merits of the application. In the light of the parties' submissions, the Court finds that this part of the application raises complex questions of fact and law, the determination of which should depend on an examination of the merits. Therefore, this complaint cannot be rejected as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established. For these reasons, the Court unanimously Decides to join to the merits the issue of exhaustion of domestic remedies; Declares the application admissible, without prejudging the merits of the case.   Søren Nielsen   Christos Rozakis   Registrar   President