CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 2 mars 2006

.s800EAC49 { font-size:12pt } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .sBB9EE52A { font-family:Arial } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .s61ED8A2B { width:14.36pt; display:inline-block } .s61E420C2 { font-family:Arial; font-variant:small-caps } .sA36B60A1 { font-family:Arial; font-style:italic } .s84D0D60A { width:8.36pt; display:inline-block } .s7ED160F0 { text-decoration:none } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .s967D43C6 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s7EE1C8F0 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .sC702907E { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s8378218E { margin-top:12pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s88A92475 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sDD165512 { margin-top:12pt; margin-left:14.2pt; margin-bottom:0pt; text-align:justify } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .s636D9C1 { width:38.55pt; display:inline-block } .s2999663D { width:158.72pt; display:inline-block } .sA2E62387 { width:204.97pt; display:inline-block } .sF6A12959 { width:33%; height:1px; text-align:left } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } FIRST SECTION DECISION AS TO THE ADMISSIBILITY OF Application no. 8269/02 by SUTYAZHNIK against Russia The European Court of Human Rights (First Section), sitting on 2 March 2006 as a Chamber composed of:   Mr   C.L. Rozakis , President ,   Mrs   S. Botoucharova ,   Mr   A. Kovler ,   Mrs   E. Steiner ,   Mr   K. Hajiyev ,   Mr   D. Spielmann ,   Mr   S.E. Jebens, judges , and Mr S. Quesada , Deputy Section Registrar , Having regard to the above application lodged on 21 January 2002 [1] , 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 is a Russian non-governmental organisation “Sutyazhnik”, registered in the Sverdlovsk Region (hereinafter referred to as “the applicant association”). They are represented before the Court by Ms   L.   Churkina, a lawyer practising in Yekaterinburg. The respondent Government (“the Government”) were represented by Mr P. Laptev, the 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. The applicant association was registered in 1994 by the Sverdlovsk Regional Department of Justice (“the Department”) at the following address: 10, Revolution place, Verkh-Neyvinskiy village, Sverdlovsk Region. However, at the relevant time its actual address has changed: the applicant association has moved to 11-1, Turgeneva street, Yekaterinburg. As appears from the materials of the case, in particular, from the letter of 11   May 1999, the Department was aware of the association’s actual address. In 1995 a new law on non-governmental organisations was adopted. The law required that all NGOs established before 1995 be re-registered before 1   July 1999. The applicant association applied twice to the Department seeking re-registration. However, its applications were refused. The applicant association brought an action against the Department seeking re-registration of the association. On 17 June 1999 the Commercial Court of the Sverdlovsk Region satisfied the applicant association’s claim and ordered the Department to register the applicant association. The Court also ordered the reimbursement by the Department of the court fees, paid by the applicant association. That decision was upheld by the Federal Commercial Court of the Ural Circuit on 18 October 1999. The applicant association maintained that in the proceedings they had always referred to its actual address in Yekaterinburg, and that all correspondence from the court and the defendant had been sent to and received at that address. On 30 November 1999 the court delivered a writ of execution ordering to recover from the account of the Department the amount awarded to the applicant association on 17 June 1999, as upheld on 18 October 1999. On 16   February 2001 the execution proceedings in this respect were closed, on the ground that the defendant had paid the amount due. On 22 August 2000 the Vice-President of the Supreme Commercial Court brought an extraordinary appeal (надзорная жалоба) against the decisions of 17   June and 18 October 1999. As appears from the letter of the Registry of the Supreme Commercial Court of 19 November 2001, on 29   August 2000 a copy of the appeal was sent to the applicant association’s “old” address in Verkh-Neyvinskiy village, which appeared in the association’s official registration documents. On 7 September 2000 the letter from the Registry reached its destination, but it was returned to the sender with the following caption made by the postman: “no [such] public organisation is registered [at this address]”. On 26 September 2000 the Presidium of the Supreme Commercial Court of the Russian Federation quashed the lower courts’ decisions by way of supervisory review on the ground that the dispute at issue was outside the competence of the commercial courts. The Supreme Court noted that the applicant association was a non-profit organisation, whereas the commercial courts were only competent to resolve the disputes of “economic character”. As a result, the proceedings were discontinued. The hearing took place in absence of the parties. On 10   October 2000 a copy of the decision of the Supreme Court was sent to the applicant’s old address. This document was delivered on 17   October 2000; however it was also returned to the Registry with the following caption: “[this is] the address of the village council, the receptionist refused taking delivery [of that letter]”. According to the applicant association, on several occasions it applied to the Commercial Court of the Sverdlovsk Region with a view to urge the Department of Justice to enforce the judgment of 17 June 1999, as upheld on 18 October 1999, and register the association, but to no avail. In October 2001 a law clerk of the Commercial Court of the Sverdlovsk Region informed the applicant association about the annulment of the decision of 17   June 1999, as upheld on 18 October 1999. On 22   October 2001 the applicant association wrote a letter to the President of the Supreme Commercial Court asking for a copy of the decision of that court. The applicant association received it on 28 November 2001. Shortly thereafter the applicant association challenged the refusal of the Department of Justice before the courts of general jurisdiction. By a final decision of 1   august 2002 the Sverdlovsk Regional Court satisfied the applicant association’s claim, ordering the Ministry of Justice to register the applicant association. In 2003 the applicant association challenged the relevant provisions of the Code of Commercial Proceedings before the Constitutional Court of the Russian Federation. On 18 December 2003 the Constitutional Court declared this complaint inadmissible. The Court found that, although the provisions challenged did not establish any time-limits for bringing an extraordinary appeal, the time within which the appeal was brought in the applicant’s case had not exceeded the “reasonable time”, and, therefore, the applicant’s rights had not been breached by it. B.     Relevant domestic law The Code of Commercial Procedure (no. 70-FZ of 5 May 1995, in force at the material time; was abolished on 1 September 2002) established that final judgments and decisions of all commercial courts of the Russian Federation were amenable to supervisory review initiated on an application by the President of the Supreme Commercial Court or his deputy or by the Prosecutor General of the Russian Federation or his deputy (Articles 180 and 181). The Code did not list the grounds for lodging an application for supervisory review, or time-limits for doing so. It only specified that it could be lodged “also in connection with a request by a party to the proceedings” (Article 185 § 1). Summoning of parties to the hearing before the Presidium of the Supreme Commercial Court was a discretionary right of the Presidium (Article 186 §   2). The Presidium of the Supreme Commercial was the supreme judicial instance within the commercial courts system; no appeal lied against its decisions (Article 180 § 1 of the Code). COMPLAINT Under Article 6 § 1 of the Convention the applicant association complains that its right to a court was breached by the domestic courts as a result of the quashing of the final judgment of 17 June 1999. THE LAW The applicant association complains that its “right to a court”, enshrined in Article 6 of the Convention, was breached by the quashing of the decision of 17 June 1999. Article 6 of the Convention, insofar as relevant, reads as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...” 1. Position of the Government The Government indicate that the summons and a copy of the decision of the Presidium of 26 September 2000 were forwarded at the applicant’s official address in August - September 2000. The Government stress that “the risk of indication of the wrong mailing address in the documents shall be borne by the applicant”. They conclude that that the applicant missed the six-months time-limit, established by Article 35 § 1 of the Convention, since his application was introduced in February 2002. The Government presented no observations on the merits of the case. 2. Position of the applicant The applicant’s arguments in reply to those of the Government may be summarised as follows. The courts of the first and second instances, as well as the defendant in the case (the Ministry of Justice) were aware of the applicant’s actual address in Yekaterinburg. The address in the Verkh-Neyvisnkiy village has never appeared in the correspondence with those instances. Indeed, in accordance with Article 111 of the Commercial Procedure Code «persons, participating in a case, are obliged to inform the commercial court about any change of their address in the course of the proceedings». However, the case was, in the domestic terms, ended on 18   October 1999 with the decision of the court of cassation. The applicant association could not have reasonably foreseen the institution of the supervisory review, which is an extraordinary stage of the proceedings. In these circumstances, the risk of misdirecting the mail was fully on the State authorities, which initiated the extraordinary proceedings. Moreover, on 16 February 2001 the court bailiffs closed the enforcement proceedings on the ground that the decision had been properly executed by the defendant, although the decision at issue ceased to exist more than four months before that. It appears that nor the defendant (the Ministry of Justice), neither the court bailiffs were aware of the fact of the annulment of the decision by way of supervisory review. The applicant association learned about the quashing only in November 2001, when it received the reply to their letter of 22   October 2001. The application to the European Court was submitted on 21 January 2002. Therefore, it was introduced within the time-limit set in Article   35 § 1 of the Convention. As to the merits of the case, the applicant maintained its earlier complaints and indicated that the quashing of the final judgment in their favour by way of supervisory review breached the principle of “legal certainty”, enshrined in Article 6 § 1 of the Convention. 3. The Court’s assessment a. As to the compliance with the six-months rule The Court recalls that, according to Article 35 § 1 of the Convention, it “may only deal with [a] matter ... within a period of six months from the date on which the final decision was taken”. The Commission and the Court consistently interpreted this rule to the effect that the six months period begins to run from the moment when the applicant has learned or should have learned of the final domestic decision or, if no remedy is available, of the act of which he complains (see in this respect Hilton v. the United Kingdom (dec.), no. 12015/86, 6 July 1988; Sukhorubchenko v. Russia (dec.), no. 69315/01 15 January 2004). Turning to the circumstances of the present case, the Court notes that no ordinary appeal lies against the decision of the Presidium of the Supreme Commercial Court. Therefore, the six months period should be calculated from the moment when the applicant association became aware (or should have become) aware about the decision of 26 September 2000 (see, mutatis mutandis , Sardin v. Russia (dec.), no. 69582/01, 12   February 2004). The Court further recalls that it is incumbent on the interested party to display special diligence in the defence of his interests (see Teuschler v. Germany (dec.), no. 47636/99, 4   October   2001). This principle, usually applied in the context of Article 6, may be extended to the requirements of Article 35: in certain circumstances the applicant may be required to inquiry about the decisions taken in his case (see Shatunov and Shatunova v. Russia (dec.), no.   31271/02, 30   June 2005; see also Haralambidis v. Greece , no.   36706/97, §   38, 29 March 2001). The Court notes that, as the Government correctly pointed out, the application was introduced more than six months after the adoption of the that decision. However, as transpires from the materials of the case, the applicant learned about that decision only in November 2001. Therefore, the main subject of controversy is whether the applicant should be held responsible for the belated notification of the decision of the Supreme Commercial Court of Russia. From the materials of the case it transpires that the applicant’s valid address in Yekaterinburg was known to the commercial courts at two instances, as well as to the defendant, the Ministry of Justice. This facts is not disputed by the Government. Thus, it cannot be said that the applicant had failed to inform the courts about its actual address. However, it appears that the materials of the case-file before the domestic courts also contained the “old” address of the applicant association (in the Verkh-Neyvisnkiy village), which was referred to by the Registry of the Supreme Commercial Court. Indeed, if the applicant association knew about the extraordinary appeal, or could reasonable foresee that stage of the proceedings, it could have made an inquiry about the development of the case. However, in the present case the institution of that stage of the proceedings was completely out of its knowledge or control, and Sutyazhnik has reasonably acted as if the case was completed. Moreover, both letters sent by the Registry of the Supreme Commercial Court have been returned to the sender. So, as from 7 September 2000 the Registry knew that the address they referred to was wrong. It would have required a minimal effort to re-direct those letters to the applicant’s actual address, which the Registry could have easily found in the materials of the case-file or by way of contacting the lower courts. However, it has not been done. Finally, the fact that the court bailiffs and the Ministry of Justice were not properly informed about the supervisory review also shows certain lack of diligence on the part of the Registry of the Supreme Commercial Court and ill coordination between different State bodies. In sum, the Court concludes that the misdirection of the letters, which was the cause of the belated notification of the applicant association about the decision at issue, was imputable rather to the State than to the applicant association. In these circumstances the six months time-limit started running from 28   November 2001, when the applicant had received copies of the decision complained of. The application was lodged on 21 January 2002; therefore, it was introduced within the time-limits, established by Article 35 § 1 of the Convention. Consequently, the Government’s objection should be dismissed. 2. As to the merits The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not 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 Declares admissible, without prejudging the merits, the applicant’s complaint concerning the supervisory review of the decision of the Commercial Court of the Sverdlovsk Region of 17   June 1999, as upheld by the Federal Commercial Court of the Ural Circuit on 18 October 1999.   Santiago Quesada   Christos Rozakis Deputy Registrar   President     [1] The application form is dated “21 January 2001”.   It was received by the Registry of the European Court on 7 February 2002, and the text of the application form contains references to the events which took place in November 2001. Therefore, it is evident that the year in the date was indicated by the applicant erroneously: the date of introduction should be read as “21 January 2002”.