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

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Rozakis , President ,   Mr   P. Lorenzen ,   Mrs   N. Vajić ,   Mrs   S. Botoucharova ,   Mr   A. Kovler ,   Mrs   E. Steiner ,   Mr   K. Hajiyev, judges , and Mr S. Nielsen , Section Registrar , Having regard to the above application lodged on 28 August 2001, 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   October 2005, Having deliberated, decides as follows: THE FACTS The applicant, Mr Aleksey Valentinovich Nosov, is a Russian national, who was born in 1964 and lives in Omsk. He is represented before the Court by Mr A. Shepelin, a lawyer practising in Omsk. The respondent Government are represented by Mr   P. 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.     Debt collection proceedings On 21 December 1996 the limited liability company Azimut-Elita, in which the applicant owned fifty per cent, sold petrol to the public company Technopribor. On 25 April 1997 Technopribor paid a part of the stipulated purchase price. Following unsuccessful attempts to recover the amount outstanding, Azimut-Elita assigned debt to the limited liability company Kompanyony, of which the applicant was, in his submission, director but not the owner. The Government referred to the Kompanyony company as “belonging” to the applicant. In early 1998 Kompanyony sued Technopribor for the amount outstanding and interest thereon. On 5 January 1999 the Commercial Court of the Kabardino-Balkaria Republic granted the action and awarded Kompanyony 2,292,000 Russian roubles (“RUR”). The Kompanyony company was represented by a Mr G., acting on the basis of a form of authority of 14 March 1999. On 15 April 1999 the Appellate Collegium of the Commercial Court of the Kabardino-Balkaria Republic upheld the judgment of 5 January 1999. The judgment became enforceable and on 27 April 1999 a writ of execution was issued. On 30 April 1999 Kompanyony assigned the debt to Mr Sh., a sole trader. On 5 May 1999 the writ was submitted to the court bailiffs’ service for enforcement. As no cassation appeal was lodged within the established time-limit, on 15 May 1999 the judgment became final. On an unspecified date in 1999 the Kompanyony company went into liquidation pursuant to a judicial decision in unrelated proceedings. On 25 December 2000 Mr Sh. assigned the debt to the limited liability company Pamir-99, in which the applicant was, in his submission, director but not the owner. The Government indicated that the company “belonged” to the applicant but its director in 1997 and 1998 had been a certain Mr M. On 28 December 2000 Pamir-99 sued Technopribor for damages incurred through its failure to comply with the judgment. 2.     Re-opening of the proceedings On 31 January 2001 Judge R. of the Federal Commercial Court of the North-Caucasian Circuit issued two procedural orders ( определение ). The first order granted Technopribor an extension of the time-limit for the submission of a cassation appeal and ordered that the so submitted cassation appeal should be examined. The second order granted Technopribor a deferral of court fees in connection with its cassation appeal. Both orders were issued on standard printed forms: in the first order the words “[the defendant] refers to the fact that it missed the time-limit because of” were struck through; no grounds for granting the extension were given. Similarly, in the second order the words “[on the basis of] the [defendant’s] certificate no. ___ of ____ 2000 showing its insufficient funds” were struck through and replaced with the words “at the [defendant’s] request” without any further details. On 21 February 2001 the applicant filed his objections to the procedural orders which he signed as the director of Pamir-99. He informed the court that he had been the director of Kompanyony from January 1998 to November 1999 when the company had gone into liquidation without succession. The debt was assigned, by the mediation of Mr Sh., to Pamir-99. The applicant argued that, in conformity with Article 85 (4) of the Code of Commercial Procedure, the proceedings could not be re-opened or resumed because the original plaintiff had been liquidated. If the court would nevertheless consider it possible to examine the appeal, he asked that Pamir-99 be joined to the proceedings and copies of the request for the extension of the time-limit and statement of appeal be served on it. On 28 February 2001 the Federal Commercial Court of the North-Caucasian Circuit, sitting in a three-judge formation presided over by Judge R., quashed the judgments of 5 January and 15 April 1999 on the ground that the courts had given an incorrect assessment of the relevant facts, and remitted the claim for a new examination. As regards the reasons for the re-opening, the court held as follows: “The public company Technopribor has lodged a cassation appeal... Pursuant to Article 99 of the Code of Commercial Procedure, the time-limit for lodging a cassation appeal has been extended... [The court] has not received observations on the points of appeal. The court received a telegram from the Kompanyony company that contained a request to adjourn the proceedings until the evidence showing liquidation of the Kompanyony company had been produced. The request for adjournment was dismissed.” The Federal Commercial Court instructed the first-instance court to examine whether the Kompanyony company had gone into liquidation and, if so, discontinue the proceedings in accordance with Article 85 of the Code of Commercial Procedure. On 5 March 2001 the Commercial Court of the Kabardino-Balkaria Republic discontinued proceedings in the action for damages lodged by Pamir-99 on 28   December 2000 because the underlying judgment had been quashed. On 28 May 2001 the Commercial Court of the Kabardino-Balkaria Republic issued a new decision. It noted that, according to the information from the tax authorities, the Kompanyony company had been liquidated. The summons addressed to the company was returned as undelivered. The court held to discontinue the proceedings because the plaintiff failed to appear and ordered the Kompanyony company to bear RUR   24,148.95 in court fees. On 20 June 2001 Pamir-99 sold the applicant the right to claim the debt and damages arising out of the judgment of 5 January 1999. According to a receipt of 10   January 2002, the applicant paid the stipulated amount of RUR 35,000 (approximately EUR 1,100) in cash. 3.     Challenge to the procedural orders On an unspecified date the applicant complained to the Supreme Commercial Court of the Russian Federation about the procedural orders of 31 January 2001. He referred to the fact that the time-limit had been extended two years after it had expired, whilst the defendant was a big factory with large administrative staff. Furthermore, he noted that the Federal Commercial Court failed to give any reasons for the extension. On 5 December 2001 Judge A. of the Supreme Commercial Court responded that there were no grounds for lodging an application for supervisory review. The applicant’s arguments about the absence of a justification for granting the extension were not addressed in the response. 4.     Claim for damages against Technopribor The Pamir-99 company sued Technopribor for the damage incurred through its failure to comply with the judgment of 5 January 1999. On 5 March 2001 the Commercial Court of the Kabardino-Balkaria Republic dismissed the Pamir-99’s claim. It noted that the judgment of 5   January 1999 had been quashed on 28 February 2001 and that the plaintiff failed to prove the existence of damage and the causal link with the defendant’s actions. On 31 May 2001 the Appellate Collegium of the Commercial Court of the Kabardino-Balkaria Republic upheld the judgment of 5 March 2001. B.     Relevant domestic law Code of Commercial Procedure of 5 May 1995 (Law no. 70-FZ, in force at the material time) Articles 47 and 49 provided that organisations could be represented before commercial courts by their bodies, acting within the scope of powers conferred on them by law, regulations or articles of association, or by special representatives acting on the basis of a form of authority. Article 85 (4) established that the commercial court should discontinue the proceedings if the organisation which was a party to the case was liquidated. Article 99 provided that the commercial court could extend a time-limit at the request of a party if it established that the party had missed the time-limit for a good reason. Article 164 set the time-limit for lodging a cassation appeal at one month after the judgment or decision of the commercial court became enforceable. Articles 166 and 168 required the service of copies of the cassation appeal on all parties to the proceedings, failing which the appeal would be disallowed. COMPLAINTS The applicant complained under Article 6 § 1 of the Convention that the re-opening of the proceedings and the quashing of a judgment two years after it became final and enforceable violated his right to a fair trial. The applicant complained under Article 1 of Protocol No. 1 that the quashing of the final and enforceable judgment interfered with his property rights. THE LAW A.     The Government’s objection that the application was not validly lodged on the applicant’s behalf In their written submissions the Government disputed that Mr Shepelin was duly authorised to lodge and sign the application form on the applicant’s behalf. They submitted, firstly, that the power of attorney of 31   July 2001 should have borne the certification inscription in the form established by the Order of the USSR Ministry of Justice of 29   December 1973 which was in force at the time the application was lodged. Secondly, the applicant did not issue Mr Shepelin with a separate form of authority for his representation before the Court. The applicant disagreed. He submitted, in particular, that the 1973 Order was not publicly accessible. The Court notes that the Government have not contested the authenticity of the applicant’s signature on the form of authority issued to Mr Shepelin. They have not claimed that the application was lodged fraudulently or without the applicant’s knowledge. In fact, it appears from the form that the applicant signed it before a notary public who checked his identity and capacity to act. The Court reiterates that, pursuant to Rule 45 of the Rules of Court, a written authority is valid for the purposes of proceedings before the Court. Neither the Convention nor the Rules of the Court require any form of certification of that document (see Moiseyev v.   Russia (dec.), no.   62936/00, 9   December 2004; Isayeva and Others v.   Russia (dec.), nos.   57947/00, 57948/00 and 57949/00, 19 December 2002). Nor is the applicant required to submit a separate form of authority for the representation before the Court. The document in the Court’s possession indicates that the applicant entrusted to Mr Shepelin his representation “before all judicial bodies”, of which the Court is undeniably one. The Court is therefore satisfied that the application has been validly introduced and that Mr Shepelin has been duly authorised to represent the applicant. The Government’s objection on this point must be dismissed.   B.     Admissibility of the complaints The applicant complained under Article 6 and Article 1 of Protocol No. 1 that the judgment of the Federal Commercial Court, by which the judgments of 5 January and 15 April 1999 had been quashed, had violated his right to a fair trial and his property rights. Article 6, in the relevant part, provides as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...” Article 1 of Protocol No. 1 reads 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.” 1.     Arguments by the parties (a)     The Government The Government submitted, firstly, that the applicant had introduced the application outside the six-month time-limit. In their view, in so far as the applicant complained about the re-opening of the proceedings, the time-limit started running on 31 January 2001 when the Federal Commercial Court had accepted the appeal for consideration, whereas he only lodged the application on 28 August 2001, that is more than six months later. Secondly, the Government pointed out that the parties to the domestic proceedings had been the companies owned by the applicant rather than the applicant himself. For that reason the applicant could not claim to be a “victim” of the alleged violations (see Roseltrans, Finlease and Myshkin v. Russia (dec.), no. 60974/00, 27 May 2004). Moreover, it was established that at least in May 2001 the Kompanyony company had legally existed as an independent legal entity and had been able to defend its interests in court. Furthermore, the applicant did not produce documents showing the assignment of the judgment debt from Kompanyony to Pamir-99. Pamir-99 had not sought its recognition as the legal successor of Kompanyony. Neither Pamir-99 nor the applicant asked the domestic courts to be joined to the commercial proceedings as a third party, whereas such possibility was provided for in Articles 38-40 of the Code of Commercial Procedure. This suggested that the applicant had not exhausted the domestic remedies. (b)     The applicant The applicant maintained that he was a victim of the alleged violations because, following the debt assignment agreement of 20 June 2001, he acquired all claims against Technopribor. Moreover, he was director of both Kompanyony and Pamir-99 companies throughout the domestic proceedings. Under the Russian company law, the director was responsible for the economic well-being of a company and competent to institute proceedings against third parties on its behalf or authorise a representative to do the same. In case of differences of opinions between the shareholders and the director, the shareholders could appoint another director. 2.     The Court’s assessment (a)     Compliance with the six months’ rule The Court notes that the applicant complained about the re-opening of the proceedings and the quashing of a final and enforceable judgment. Indeed, the Federal Commercial Court accepted a belated appeal for consideration on 31 January 2001. However, that decision had no appreciable effect on the rights vindicated by the applicant as it had not affected the validity of the previous judgments. The Court reiterates that an infringement of the litigant’s “right to a court” only occurs when a higher court quashes a final and enforceable judicial decision (see Brumărescu v. Romania [GC], no.   28342/95, §   62, ECHR 1999 ‑ VII; Ryabykh v. Russia , no. 52854/99, §§   56-58, 24   July 2003). In the present case the quashing took place on 28 February 2001. In accordance with the Court’s constant approach where no effective remedy exists against a particular act which is alleged to be in breach of the Convention, the date when that act takes place is taken to be “final” for the purposes of the six months’ rule (see Sardin v. Russia (dec.), no. 69582/01, 12 February 2004; Sitokhova v. Russia (dec.), no.   55609/00, 2 September 2004). In the present case no further ordinary appeal lay against the judgment of 28 February 2001, by which the earlier judgments had been quashed. It follows that it was the very act of quashing that triggered the start of the six-month time-limit for lodging the application to the Court (see Sardin and Sitokhova , cited above). As the applicant introduced the application on 28   August 2001, that is within exactly six months of that date, the Government’s objection must be dismissed. (b)     The applicant’s status as a “victim” of the alleged violations The Court reiterates that the term “victim” in Article 34 of the Convention denotes the person directly affected by the act or omission which is at issue. It further recalls that disregarding a company’s legal personality as regards the question of being a “victim” will be justified only in exceptional circumstances, in particular where it is clearly established that it is impossible for the company to apply to the Court through the organs set up under its articles of incorporation or – in the event of liquidation or bankruptcy – through its liquidators or trustees in bankruptcy (see Capital Bank AD v. Bulgaria (dec.), no. 49429/99, 9 September 2004; Camberrow MM5 AD v. Bulgaria (dec.), no. 50357/99, 1 April 2004; G.J. v. Luxembourg , no. 21156/93, § 23, 26 October 2000; Agrotexim and Others v. Greece , judgment of 24 October 1995, Series A no. 330, p. 25, §   66). On the other hand, the Court reiterates that the sole owner of a company can claim to be a “victim” within the meaning of Article 34 of the Convention in so far as the impugned measures taken with regard to his company are concerned, because in case of a sole owner there is no risk of differences of opinion among shareholders or between shareholders and a board of directors as to the reality of infringements of the Convention rights or the most appropriate way of reacting to such infringements (see Ankarcrona v.   Sweden (dec.), no. 35178/97, 27 June 2000; Dyrwold v. Sweden , no. 12259/86, Commission decision of 7 September 1990). The Court notes the divergence of views as to who was the actual owner of the Kompanyony and Pamir-99 companies. Whereas in the application form of 28 August 2001 the applicant claimed that he had been a “co-owner” of both companies, in his observations on the admissibility and merits of 13 August 2004 he maintained that he had been director but not the owner of either company. In their oral submissions at the hearing, the Government consistently referred to both companies as belonging to the applicant. However, neither party produced any documents showing the ownership of either company’s shares. In these circumstances the identity of shareholders of either company cannot be established with sufficient clarity, the Court therefore cannot identify the applicant with either company, in contrast with the above-mentioned Ankarcrona and Dyrwold cases. (a)     As regards the complaint under Article 6 § 1, the Court reiterates that a person cannot complain about a violation of his or her rights in the proceedings, to which he or she was not a party, despite the fact that she or he was a shareholder and/or executive director of the company which was the party to the proceedings (see, e.g., F. Santos Lda. and Fachadas v. Portugal (dec.), no.   49020/99, 19 September 2000; Pires da Silva and Pereira v. Portugal , no. 19157/91, Commission decision of 5   July 1993). The Court observes that the applicant was not a party to the proceedings in which a final judgment had been given in favour of the Kompanyony company and subsequently quashed. The company was represented by a certain Mr G. and there is no indication of the applicant’s involvement in these proceedings. Nor does it appear from the elements in the case-file that the applicant ever attempted to join the proceedings in his personal capacity. It follows that the applicant cannot claim to be a “victim” of the alleged violation of Article 6. It follows that this complaint is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35   §   3 and must be rejected in accordance with Article 35   §   4. (b)     As regards the complaint under Article 1 of Protocol No. 1, the Court notes that by the time the judgment of 5 January 1999 was quashed, the debt arising out of that judgment had been assigned to the Pamir-99 company. In June 2001, that is after the quashing had occurred, the applicant acquired for himself the right to claim the debt and damages arising out of that judgment. It has been the Court’s constant case-law that a “claim” can only constitute a “possession” within the meaning of Article 1 of Protocol No. 1 if it is sufficiently established to be enforceable (see Grishchenko v. Russia (dec.), no. 75907/01, 8 July 2004; Burdov v. Russia , no. 59498/00, §   40, ECHR 2002 ‑ III), and an assignment of a debt is capable in principle of amounting to such a “possession”. However, as the judgment debt which was assigned to the applicant had already been quashed at the date of the assignment, and in the absence of any other apparent benefit to the applicant from the assignment, the Court does not accept that the assignment resulted in the acquisition by the applicant of a “possession” within the meaning of Article 1 of Protocol No. 1. In so far as the quashing might have affected the property rights of the Pamir-99 company who owned the judgment debt at the material time, the Court notes that no application has been lodged by that company. It has not been claimed that it has ceased to exist as a legal entity or that it could not present an application in its own name for any other reasons of exceptional nature. Nor did the applicant claim that he intended to introduce an application in the name of the Pamir-99 company. Furthermore, the very fact that he had purchased the right to claim from the company is a clear indication of his intention to have introduced the application in his own name rather than on behalf of the Pamir-99 company (compare with J.W. v. Poland , no.   27917/95, Commission decision of 11 September 1997). It follows that this part of the application is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35   §   3 and must be rejected in accordance with Article 35   §   4. For these reasons, the Court by a majority Declares the application inadmissible.   Søren Nielsen   Christos Rozakis   Registrar   President