FIRST SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 1867/04
by Valeriy Petrovich GLUKHIKH
against Russia
The European Court of Human Rights (First Section), sitting on 25 September 2008 as a Chamber composed of:
Christos Rozakis, President,
Nina Vajić,
Anatoly Kovler,
Elisabeth Steiner,
Khanlar Hajiyev,
Giorgio Malinverni,
George Nicolaou, judges,
and André Wampach, Deputy Section Registrar,
Having regard to the above application lodged on 8 December 2003,
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, Mr Valeriy Petrovich Glukhikh, is a Russian national who was born in 1953 and lives in Stepnoye, a village in the Kurgan region. The Russian Government (“the Government”) were represented by Mr P. Laptev and Ms V. Milinchuk, former Representatives 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 is a farmer. On an unspecified date the Ministry of Finance sued him in order to recover a debt under a loan agreement.
On 18 March 2003 the Commercial Court of the Kurgan Region (“the Commercial Court”) ruled against the plaintiff and in the applicant's favour. The judgment could be appealed against within one month from the date of its delivery. However, no appeal was lodged within this time-limit by the Ministry of Finance.
On 6 June 2003 the Commercial Court, however, granted the plaintiff's request for the extension of the time-limit for lodging an appeal and scheduled the appeal hearing for 1 July 2003.
On 1 July 2003 the Appeals Division of the Commercial Court adjourned the examination of the case. It noted that the applicant did not appear and that he had been duly informed of the hearing by a letter of 17 June 2003.
On 14 August 2003 the Appeals Division of the Commercial Court, after having noted that the applicant had been duly informed of the hearing and had failed to appear, granted the appeal by the Ministry of Finance and recovered from the applicant the amount of the loan and legal costs. That decision acquired legal force on the same date. It also stated that an appeal could be lodged against it to the Federal Commercial Court of the Uralskiy Circuit within two months.
On 19 August 2003 the Commercial Court issued a writ of execution.
On 1 December 2003 a bailiff instituted enforcement proceedings.
According to the applicant, he learnt that the appeal had been lodged and that an appeal hearing had taken place in August 2003 from the bailiff's decision of 1 December 2003 to institute the enforcement proceedings. He did not indicate the exact date when he had received that decision.
On 16 December 2003 the bailiff summoned him to his office.
The applicant alleged that he had been notified neither of the appeal having been lodged, nor of the date of the appeal hearing. He had not been provided with a copy of the appeal decision either. The applicant did not apply for leave to lodge a cassation appeal out of time.
The applicant submitted that he had informed the Commercial Court of the Kurgan Region that he intended to apply to the Court and needed to make copies of certain documents from the case file for this purpose. He alleged, that when he had arrived at the Commercial Court of the Kurgan Region he had not been allowed to enter.
B. Relevant domestic law
The Code of Commercial Procedure of the Russian Federation of 24 July 2002 provides, in its relevant parts as follows:
Parties to the proceedings may appeal against the decisions of the Appeals Division of the Commercial Court to the Cassation Division of the Commercial Court (Article 273).
A cassation appeal may be lodged within two months from the date of the entry into force of the contested decision. At a request by a party to the proceedings, the Cassation Division of the Commercial Court may extend the time-limit for lodging a cassation appeal if such a request is lodged within six months from the date of entry into force of the contested decision and if the court finds that the time-limit has not been met for valid reasons (Article 276).
The Cassation Division of the Commercial Court verifies the lawfulness of decisions and judgments adopted by the Appeals Division, by establishing whether substantive and procedural law has been applied properly during the examination of the case and by having regard to the arguments of cassation appeal (Article 286).
After having examined the cassation appeal, the Cassation Division of the Commercial Court may quash the contested decision and remit the case to the court which adopted that decision for a new examination in the case of that court having violated procedural laws (Article 287).
The examination of the case in the absence of a party to the proceedings who was not duly informed of the hearing is a ground for the Cassation Division of the Commercial Court to quash the contested decision (Article 288).
COMPLAINTS
1. The applicant complained under Articles 13 and 17 of the Convention that he had been notified neither about the appeal having been lodged against the judgment of the Commercial Court of the Kurgan Region of 18 March 2003, nor about the appeal hearing itself.
2. The applicant also complained under Article 34 of the Convention that he had not been allowed to enter the Commercial Court of the Kurgan Region in order to make copies of some documents for his application to the Court.
THE LAW
1. The applicant complained that the domestic courts had not properly notified him of the appeal lodged by his opponent and of the appeal hearing. As a result, he was deprived of the possibility to plead his case before the appeal court. The Court considers that this complaint falls to be examined under Article 6 of the Convention, which, in its relevant part, reads as follows:
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing ... by [a] ... tribunal ...”
The Government submitted that the applicant had been duly notified of the appeal hearing. The notification had been sent to the address which he had indicated to the Commercial Court. However, it had not reached the applicant because in the meantime he had moved to a different address. The applicant had not informed the Commercial Court about his new address. In the absence of any information about the applicant's new address and in order to avoid further delays in the examination of the case the Appeals Division of the Commercial Court examined the case in the applicant's absence. The Government further argued that in any event the applicant had not exhausted domestic remedies as required by Article 35 § 1 of the Convention. He should have lodged a request for the extension of the time-limit for lodging a cassation appeal against the decision of the Appeals Division of the Commercial Court of 14 August 2003. Such a possibility is provided for by Article 276 of the Code of Commercial Procedure (see “Relevant domestic law” above). However, he failed to do so.
The applicant contested the Government's submissions. He argued that the domestic authorities had been aware of his new address, as they had sent him the writs of execution to his new address. He learnt about the appeal having been lodged and about the appeal hearing only from the bailiff's decision of 1 December 2003 to institute the enforcement proceedings. The applicant did not indicate when he had received that decision. He did not make any comments as regards the non-exhaustion of domestic remedies.
The Court reiterates that, according to Article 35 § 1 of the Convention, it may only deal with an issue after all domestic remedies have been exhausted. While in the context of the machinery for the protection of human rights the rule of exhaustion of domestic remedies must be applied with some degree of flexibility and without excessive formalism, it does not require merely that applications should be made to the appropriate domestic courts and that use should be made of remedies designed to challenge impugned decisions which allegedly violate a Convention right. It normally requires also that the complaints intended to be made subsequently at international level should have been aired before those same courts, at least in substance and in compliance with the formal requirements and time‑limits laid down in domestic law (see, among other authorities, Azinas v. Cyprus [GC], no. 56679/00, § 38, ECHR 2004-III).
The object of the rule on exhaustion of domestic remedies is to allow the national authorities (primarily the judicial authorities) to address the allegation made of a violation of a Convention right and, where appropriate, to afford redress before that allegation is submitted to the Court (see Kudła v. Poland [GC], no. 30210/96, § 152, ECHR 2000-XI).
The Court observes that it is not clear from the applicant's submission on which date he learnt that his opponent had lodged an appeal against the judgment of 18 March 2003 and that an appeal hearing had taken place in August 2003. However, the Court observes that the applicant lodged his application before it on 8 December 2003. It means that by that date at the latest he had learnt about the appeal decision of 14 August 2003. It was open for the applicant to request the extension of the time-limit for lodging an appeal under Article 276 of the Code of Commercial Procedure. The six month time-limit for lodging such a request had not expired by the moment at which the applicant at the latest should have known about the alleged violation of his rights. Furthermore, it follows from Article 288 of the Code of Commercial Procedure that the examination of the case in the absence of a party to the proceedings who was not duly informed of the hearing is a ground for the Cassation Division of the Commercial Court to quash the contested decision.
Having regard to the system of domestic remedies, the Court considers that the applicant would have had reasonable prospects of success if he had tried to apply for the extension of the time-limit for lodging a cassation appeal to the Federal Commercial Court of the Ural Circuit. However, the applicant failed to do so through his own fault and chose to complain to this Court.
In the absence of any plausible objection from the applicant in respect of the availability or effectiveness of this remedy, the Court considers that the applicant did not provide the Russian courts with the opportunity which is in principle intended to be afforded to a Contracting State by Article 35 of the Convention, namely the opportunity of addressing, and thereby preventing or putting right, the particular Convention violation alleged against it (see, among other authorities, Hentrich v. France, 22 September 1994, § 33, Series A no. 296-A, and Remli v. France, 23 April 1996, § 33, Reports of Judgments and Decisions 1996-II). The Government's argument that the relevant “effective” domestic remedy was not used by the applicant in the instant case is therefore well-founded. It follows that this part of the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
2. The applicant also complained that his rights under Article 34 had been violated in that he had not been allowed to enter the Commercial Court of the Kurgan Region in order to make copies of certain documents for his application before the Court. However, in the light of all the material in its possession, and in so far as the matter complained of is within its competence, the Court finds that it does not disclose any appearance of a violation of the provisions referred to. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
André WampachChristos Rozakis
Deputy RegistrarPresident
Full & Egal Universal Law Academy