Communicated on 7 November 2016
THIRD SECTION
Application no. 63390/14
Yuriy Nikolayevich GUSEV and others
against Russia
lodged on 2 September 2014
STATEMENT OF FACTS
The applicants, Mr Y.N. Gusev, Mr N.T. Klimov, Mr V.F.Muzychenko and Mr V.A. Yarovoy-Simonenko, are Russian nationals who were born in 1942, 1952, 1943 and 1947 respectively and live in Krasnodar region of Russia.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
The applicants were members of a cooperative society whose main activity was the construction of apartments. The cooperative society signed an agreement with the construction company for a new block of flats. The applicants would have acquired title to the apartments upon finishing the block’s construction.
On 6 July 2011 the Anapa Town Court awarded the director of the construction company a title to the newly constracted block of flats, which he subsequently sold to the third parties.
1. Main proceedings
On an unspecified date the applicants brought proceedings against the director of the construction company challenging his title to the property and seeking to declare the sale contracts null and void.
On 27-28 March 2013 the Anapa Town Court granted the applicants’ claims, declared the sale contracts signed by the director with the third parties null and void and awarded the applicants title to the apartments.
On 2 July 2013 the Krasnodar Regional Court quashed this judgment on appeal and dismissed the applicants’ claims.
On different dates late August and early September the applicants lodged their cassation appeals with the Presidium of the Regional Court.
On 2 September 2013 a single judge of the Regional Court requested the case-file.
On 16 October 2013 the case-file was transferred to the Krasnodar Regional Court following its single judge’s request.
On 12 December 2013 a judge of the Krasnodar Regional Court refused to transfer the applicants’ cassation appeal for its examination on the merits on the ground that the appeal court did not committed any significant violations in its application of substantive and/or procedural legislation.
On 18 December 2013 one of the applicants, Mr Gusev, requested a copy of the decision of 12 December 2013. He received no reply to his request.
On 27 December 2013 another applicant, Mr Yarovoj-Simonenko, submitted a similar request to the Presidium of the Regional Court.
On 29 January 2014 a copy of the decision of 12 December 2013 was handed over to the applicants by the opponent party.
On 31 January 2014 the applicants received a copy of the same decision sent by the Regional Court.
No information was provided on whether the applicants lodged a second cassation appeal with the federal Supreme Court.
2. Proceedings for reinstatement of the time-limits
On 20 January 2014 all the applicants applied for extension of the time‑limits for lodging a second cassation appeal before the federal Supreme Court against the judgment of 2 July 2013. They indicated that the time-limit for the second cassation appeal expired because of the delay in examination of their first cassation appeal at regional level and consequently they cannot be held responsible for this delay.
On 20 February 2014 the Anapa Town Court rejected the applicants’ request, considering that the time-limit for lodging a cassation appeal with the Supreme Court expired on 2 January 2014 and the applicants did not present exceptional circumstances which could be considered by a court as a valid reason for non-compliance with the initial time-limits for appeal.
On 25 February and 3 March 2014 the applicants appealed.
On 15 April 2014 the Krasnodar Regional Court rejected the applicants’ appeal and upheld the findings of the Anapa Town Court. As regards the applicants’ argument according to which the time of consideration of their cassation appeal by a single judge at regional level should be excluded from the six-month time-limit, the Regional Court held that it was not provided by the legislation.
B. Relevant domestic law and practice
The relevant domestic law and practice governing the cassation review of judicial decisions after they become final in force as of 1 January 2012 is summed up in the Court’s decision in the case of Abramyan and Others v. Russia (nos. 38951/13 and 59611/13, §§ 32-41 and 49-53, 12 May 2015).
COMPLAINT
The applicants complain under Article 6 § 1 of the Convention about a violation of their right to access to a court, namely to the Supreme Court of the Russian Federation, a second cassation instance, on account of the Krasnodar Regional Court’s failure to examine their first cassation appeal within the time-limits set and to notify them the single judge’s refusal in time for them to lodge a second cassation appeal and of the domestic courts’ subsequent refusal to restore the time-limit for lodging a second cassation appeal.
QUESTIONS TO THE PARTIES
1. Has the applicant exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention? In particular, the Government is invited to comment on whether the request for the extension of the time‑limits for appeal constitutes an effective remedy in the applicants’ situation.
2. Was there a breach of the applicants’ “right of access to a court” as guaranteed by Article 6 § 1 of the Convention, having regard to the fact that their second cassation appeal became time-barred pending the examination by the regional single judge of their first cassation appeal and the receipt of that decision by the applicants (see Abramyan and Yakubovskiye, cited above, §§ 77 and 95)? In particular, were the applicants responsible for the delay? The Government is specifically invited to address the following questions:
- did the single judge at the Krasnodar Regional Court comply with the time-limits provided by the Code of Civil Procedure for examination of the admissibility of the applicants’ first cassation appeal?
- is the time elapsed between the request for the case file and its receipt by a single judge examining the admissibility of a cassation appeal excluded from the time-limits provided by the Code of Civil Procedure for the adoption of this decision by a single judge? If so, is the same period of time accordingly excluded from the overall six-month time-limit provided for the appellants for lodging both cassation appeals?
- should the time spent by a single judge at regional level be taken into account in the calculation of the overall six-month time-limit for lodging both cassation appeals?
- are there any time-limits for the notification of this decision to the appellant party? Did the Krasnodar Regional Court comply with these time‑limits as regards the notification the regional single judge’s refusal to the applicants?
- should a copy of the refusal of a regional single judge to accept a cassation appeal be appended to the second cassation appeal, failing which the latter shall be immediately returned to the appellant without any consideration?
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