KOVALEVA AND OTHERS v. RUSSIA

FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 6025/09
by Galina Vasilyevna KOVALEVA and Others
against Russia

The European Court of Human Rights (First Section), sitting on 25 June 2009 as a Chamber composed of:

Christos Rozakis, President,
Nina Vajić,
Anatoly Kovler,
Elisabeth Steiner,
Khanlar Hajiyev,
Giorgio Malinverni,
George Nicolaou, judges,
and Søren Nielsen, Section Registrar,

Having regard to the above application lodged on 24 December 2008,

Having deliberated, decides as follows:

THE FACTS

The applicants, Ms Galina Vasilyevna Kovaleva and 11 others are Russian nationals living in Novokuznetsk, Kemerovo region. Their names and dates of birth are listed in the appendix.

A.  The circumstances of the case

The facts of the case, as submitted by the applicants, may be summarised as follows.

The applicants are co-owners of a company “Hairdressing saloon Viola” located in Novokuznetsk (“the company”).

On 24 November 2006, the company sued the Municipal Property Management Committee of Novokuznetsk in the Kemerovo Regional Commercial Court, claiming property rights on a building located in Novokuznetsk and used by the company for its professional activities.

On 9 August 2007, the court dismissed the company's claims finding that the building at issue had not been included in the real estate subject to privatisation and that the company's action was time barred.

The company lodged an appeal with the Appellate Instance of the Kemerovo Regional Commercial Court, contesting the lower court's finding that the action was time-barred. On 30 October 2007, the Appellate Instance upheld the first instance judgment.

The Appellate Instance of the Kemerovo Regional Commercial Court continued to consider commercial cases on appeal until 7 December 2007 when the Seventh Commercial Court of Appeal started its activities in Novosibirsk.

The company applied to the Federal Commercial Court for the West-Siberian Circuit against the lower court's decisions on the ground that they had distorted the facts and violated material law. On 28 April 2008 the court dismissed the company's complaint and upheld the previous judgments.

On an unspecified date, the company lodged an application for supervisory review with the Supreme Commercial Court. On 3 July 2008, a single judge declared the application admissible.

On 23 July 2008 the Supreme Commercial Court, sitting in a committee of three judges, dismissed the company's application for supervisory review of the lower courts' judgments. The court concluded that the application, which relied upon “violations of substantive and procedural law”, was in effect aiming at the reconsideration of the lower courts' conclusions. Therefore, the court did not find any ground for examination of the case by the Presidium of the Supreme Commercial Court in accordance with Article 304 of the Code of Commercial Procedure.

B.  Relevant domestic law

1. Establishment of the Commercial Court of Appeal for Kemerovo Region

The Federal Constitutional Law (No. 4-ФКЗ) in force since 4 July 2003 provided for setting up of commercial courts of appeal. It provided, in particular, that the Seventh Commercial Court of Appeal be set up by 1 January 2006 for review of judicial decisions of commercial courts of the Altay, Kemerovo, Novosibirsk, Tomsk regions and of the Altay Republic (Article 3 and new Article 33 § 1(4) introduced in the Federal Constitutional Law on commercial courts of the Russian Federation (No. 1-ФКЗ) of 28 April 1995).

Under Article 2, a commercial court of appeal is considered as set up once the minimum of three judges are appointed on its bench; its activities start on the date to be determined by the Plenum of the Supreme Commercial Court; the appellate instances of regional commercial courts continue reviewing cases on appeal up until the start of activities of the relevant court of appeal.

On 15 November 2007 the Plenum of the Supreme Commercial Court, after having examined the report of the President of the Seventh Commercial Court of Appeal, decided that the activity of the latter would start on 7 December 2007.

2. Supervisory review in the Supreme Commercial Court

a. Old Code of Commercial Procedure

The Code of Commercial Procedure (no. 70-FZ of 5 May 1995) in force before 2003 provided that final judgments and decisions of commercial courts 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).

b. New Code of Commercial Procedure in force after 2003

On 1 January 2003, Chapter 36 of the new Code of Commercial Procedure “Proceedings for the review of courts' decisions by way of supervision” (“Производство по пересмотру судебных актов в порядке надзора”) entered into force.

According to Article 292, an application for supervisory review may be lodged with the Supreme Commercial Court by the parties to the case or certain other persons entitled by the Code if they consider that the contested judicial decision substantially violates their rights and legitimate interests in commercial or other economic activities due to a breach or improper application by a commercial court of material or procedural law. The application for supervisory review may be lodged within three months after the contested judicial decision enters into force, if all other judicial remedies were exhausted.

According to the transitional provisions of the Law on the Introduction of the Code of Commercial Procedure of 24 July 2002 (Федеральный закон «О введении в действие Арбитражного процессуального кодекса РФ» No. 96-ФЗ), the supervisory review proceedings against the court decisions delivered before 1 January 2003 could be brought before the Supreme Commercial Court within three months from this date (Article 9).

The admissibility of the application (вопрос о принятии заявления или представления к производству) is decided by a single judge within five days after receipt of the application (Article 295). Once declared admissible, the application is considered by a committee of judges, which decides, within one month after receipt of the application or of the case-file, whether to send the case to the Presidium of the Supreme Commercial Court for supervisory review (Article 299). If the conditions provided for in Article 304 are satisfied, the court makes a decision to send the case for supervisory review and transmits the case to the Presidium within five days after this decision (Article 299). The Presidium will consider the case within three months after the decision to transmit the case to the Presidium (Article 303).

Article 304, as originally adopted, provided as follows:

Article 304 Grounds for revising or repealing by way of supervision of the judicial decisions entered into legal force

“Judicial decisions of the commercial courts entered into legal force shall be revised or repealed if the Presidium of the Supreme Commercial Court of the Russian Federation reviewing the case by way of supervision finds that the contested judicial decision:

1) violates the uniformity of the interpretation of the legal norms by commercial courts;

2) prevents the delivery of a lawful judicial decision in another case;

3) violates the rights and legitimate interests of an undetermined number of people or other public interests.”

On 5 April 2005, the Federal Law of 31 March 2005 (No. 25-ФЗ) entered into force replacing the point 2 above by the following:

“2) violates the human and citizens' rights and freedoms in accordance with the universally recognised principles and norms of international law and the international treaties of the Russian Federation; (...).”

3. Reopening of commercial proceedings on the basis of newly discovered circumstances

Article 311 of the Code of Commercial Procedure provides for reopening of commercial proceedings on the basis of newly discovered circumstances. One of the grounds allowing such reopening is a violation of the Convention found by the European Court of Human Rights in the examination of a particular case by a commercial court on account of which the applicant complained to the European Court (Article 311 § 7).

COMPLAINTS

The applicants complained under Article 6 of the Convention that the Appellate Instance of the Kemerovo Regional Commercial Court, which considered their company's case on appeal, was not a tribunal established by law. They also complained under Article 1 of Protocol No. 1 that their company had been unlawfully deprived of its property.

THE LAW

The Court notes that the applicants complained of certain alleged violations of their company's rights under the Convention. The Court will not consider whether the applicants have standing in the proceedings before the Court in view of its finding below that the complaints are inadmissible on the grounds provided for by Article 35 of the Convention. The relevant parts of this Article read as follows:

“1.  The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken.

(...)

3.  The Court shall declare inadmissible any individual application submitted under Article 34 which it considers (...) manifestly ill-founded (...).”

A. Six months

The applicants lodged their application with the Court more than six months after the decision in cassation instance (28 April 2008) and less than six months after the dismissal of their supervisory-review application by the Supreme Commercial Court (23 July 2008). The Court will first examine whether the application is lodged in time.

The Court recalls at the outset its case-law according to which the application for supervisory-review under the former Code of Commercial Procedure in force before 1 January 2003 was not considered an effective remedy for the purposes of Article 35 § 1 of the Convention (see AO “Uralmash” v. Russia (dec.), no. 13338/03, 10 April 2003). Nor did the Court consider effective for the same purpose the transitional remedy under the Law of 24 July 2002 introducing the new Code, which allowed any “old” decision delivered before 1 January 2003 to be challenged through the new supervisory-review procedure within three months after this date. The Court found the latter process to be akin to reopening of proceedings by means of an extraordinary transitional remedy (see AO “Uralmash”, cited above).

The Court notes however that the present case does not concern the recourse to supervisory review in the Supreme Commercial Court as an extraordinary transitional remedy. Under Chapter 36 of the new Code of Commercial Procedure in force since 1 January 2003, the company brought the supervisory-review proceedings against the judgment delivered on 28 April 2008 by the Federal Commercial Court for the West-Siberian Circuit within the three-month' time-limit after this judgment. The Court must therefore determine whether this supervisory-review procedure constituted an effective remedy for the purpose of Article 35 § 1 of the Convention.

The Court reiterates that the purpose of Article 35 § 1 is to afford the Contracting States the opportunity of preventing or putting right – usually through the courts – the violations alleged against them before those allegations are submitted to the Court (see Fressoz and Roire v. France [GC], no. 29183/95, § 37, ECHR 1999‑I). The effective and available remedies are those which are accessible, capable of providing redress in respect of the applicant's complaints and offer reasonable prospects of success (see Akdivar and Others v. Turkey, judgment of 16 September 1996, § 68, Reports of Judgments and Decisions 1996‑IV). The requirement of exhaustion of domestic remedies is closely interrelated with the six-month rule, which constitutes an element of legal stability (De Wilde, Ooms and Versyp v. Belgium, 18 June 1971, § 50, Series A no. 12).

According to the Court's established case-law, an application for supervisory-review in civil and criminal proceedings in the Russian Federation has so far not been considered as a remedy to be exhausted under Article 35 § 1 (see Denisov v. Russia (dec.), no. 33408/03, 6 may 2004; and Berdzenishvili v. Russia (dec.), no. 31697/03, ECHR, 17 September 2003). In Denisov, the Court noted that the supervisory-review proceedings in civil cases, once launched, may last indefinitely through a number of instances, thus creating the uncertainty that would render nugatory the six-month rule. In Berdzenishvili, the Court came to a similar conclusion for criminal proceedings, noting furthermore that supervisory-review complaints may be brought at any time after a judgment becomes enforceable, even years later.

The Court notes that the supervisory-review procedure provided for by the new Code of Commercial Procedure presents important differences in this regard. Indeed, the supervisory-review proceedings are conducted before a single instance, the Supreme Commercial Court, and subject to clear and strict time-limits.

The application for supervisory review may be lodged with the Supreme Commercial Court only by the parties or certain other persons affected within three months of the entry into force of the contested judicial decision, and only if all other judicial remedies were exhausted. The admissibility of the application is to be decided by a single judge within five days after receipt of the application. Once declared admissible, the application is to be considered by the Supreme Commercial Court, sitting in a committee of judges, within one month after receipt of the application or, if appropriate, after receipt of the case-file from the lower court. If the grounds for supervisory review are satisfied, the court delivers a decision to transmit the case to the Presidium of the Supreme Commercial Court; the case is transmitted to the Presidium within five days after this decision; and the Presidium decides on whether to revise or repeal the contested judicial decision by way of supervision within three months of the decision to transmit the case to the Presidium. The grounds for supervisory review are explicitly limited (see relevant domestic law cited above).

Turning to the present case, the Court notes that the company lodged an application for supervisory review with the Supreme Commercial Court within three months after the decision of 28 April 2008 delivered in the cassation instance. On 3 July 2008 a single judge of the court declared the application admissible. On 23 July 2008 the court dismissed the application in a committee of three judges.

Thus, the binding and enforceable decisions delivered by the commercial courts in the company's case were not liable to challenge indefinitely, but only once, before a supreme judicial instance, upon the party's request, on the basis of restricted grounds and within a clearly defined and limited time-frame. As a result, the procedure followed in the present case was not incompatible with the principle of legal certainty enshrined in the Convention (see, mutatis mutandis, MPP Golub v. Ukraine (dec.), no. 6778/05, ECHR 2005‑XI). In the Court's view, the supervisory review so construed appears as an ultimate element in the chain of domestic remedies at the disposal of the parties rather than an extraordinary means for reopening of judicial proceedings in a case, such as those provided for by the transitional provisions of the Law of 24 July 2002 on the Introduction of the Code of Commercial Procedure (compare AO “Uralmash”, cited above) or by current Article 311 of the Code.

That the lower courts' judgments became binding and enforceable before the application for supervisory review does not in itself make the later extraordinary or otherwise unsuitable for exhaustion under Article 35 § 1. Indeed, a judgment that has become enforceable is not necessarily final for Convention purposes. For example, the Court found that the cassation instance in the Russian commercial procedure (third level of jurisdiction) was effective and subject to exhaustion under Article 35 § 1, notwithstanding that the judgment delivered on appeal (second level of jurisdiction) had become binding and enforceable (see Glukhikh v. Russia, no. 1867/04, 25 September 2008). Likewise, supreme judicial instances in numerous Contracting States decide on a case after lower courts' judgments have become binding and enforceable. This does not obviate the requirement for the applicants under Article 35 § 1 to submit their grievances to such supreme instances, provided they are considered effective for remedying alleged violations of the Convention (see, among other references, K., F. and P. v. the United Kingdom, no. 10789/84, Commission decision of 11 October 1984, Decisions and Reports (DR), 40, p. 298 at pp. 299-300; Civet v. France [GC], no. 29340/95, § 41, ECHR 1999‑VI, and Gnahoré v. France, no. 40031/98, § 46, ECHR 2000‑IX).

The Court notes in this last mentioned respect that, since 5 April 2005, one of the grounds for supervisory review in the Supreme Commercial Court is a violation of human rights and freedoms provided for by the international treaties (Article 304 § 2 of the Code of Commercial Procedure). This provision clearly opened a way for the Supreme Commercial Court to remedy any alleged violation of the Convention in supervisory-review proceedings.

In view of the foregoing, the Court concludes that the application for supervisory-review before the Supreme Commercial Court has to be considered as an effective remedy capable of preventing and putting right possible violations of the Convention at the domestic level. The decision of the Supreme Commercial Court of 23 July 2008 dismissing the company's application for supervisory review thus constitutes the “final decision” within the meaning of Article 35 § 1 of the Convention and the starting point for calculation of the six-month time-limit laid down by that provision. The application to the Court must therefore be considered as lodged in time.

B. Other admissibility criteria

1. Complaint about unlawfulness of the Appellate Instance of the Kemerovo Regional Commercial Court

Referring to Article 6, the applicants alleged that their company's appeal had not been adjudicated by a tribunal established by law.

The Court considers that the application is to be declared inadmissible for the reasons set out below.

First, contrary to the applicants' allegations, it does not transpire from the case-file that their company's complaint about unlawfulness of the Appellate Instance of the Kemerovo Regional Commercial Court was submitted during consideration of the case by a higher instance, the Federal Commercial Court for the West-Siberian Circuit. Nor did the company invoke the alleged violation of the Convention as a valid ground for supervisory review by the Supreme Commercial Court in accordance with Article 304 § 2 of the Code of Commercial Procedure.

Second, even assuming that the alleged violation of the Convention was implicitly invoked among “violations of substantive and procedural law” relied upon by the company before the Supreme Commercial Court, this complaint is in any event manifestly ill-founded under Article 35 § 3 of the Convention for the following reasons.

In accordance with the Federal Constitutional Law of 4 July 2003 (No. 4‑ФКЗ), the Seventh Court of Appeal had to be set up for the West‑Siberian Circuit by 1 January 2006. However, this legal provision cannot be understood as rendering unlawful as from that date its predecessors, the appellate instances of the regional courts concerned. To the contrary, the law empowered the appellate instances to continue reviewing cases on appeal until the date when the competent court of appeal would start its activities (Article 2 of the Law, cited above). In a judicial reform of this magnitude, such temporary arrangements were obviously necessary to ensure smooth transition from an old system to a new one, thus preventing any jurisdictional gap that would have hampered effective administration of justice.

The transition ended on 7 December 2007, when the Seventh Commercial Court of Appeal started its activities in accordance with the decision taken on 15 November 2007 by the Plenum of the Supreme Commercial Court pursuant to Article 2 of the Law (see relevant domestic law cited above).

In view of the above and given that no other criticism was made by the applicants as to the lawfulness of the composition or operation of the Appellate Instance of the Kemerovo Regional Commercial Court, the latter should be considered as a tribunal established by law as required by Article 6 of the Convention.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

2. Complaint about an alleged violation of the property rights

Referring to Article 1 of Protocol No. 1, the applicants complained of unlawful deprivation of their company's property as the building allegedly belonging to the company remained on the list of the municipality' real estate.

The Court notes that this complaint was considered at four levels of jurisdiction, which all concluded, after having established the relevant facts, that the company had no property title to the building at issue under domestic law. The applicants seek reconsideration of this issue by the Court. Yet, the domestic judgments in this case and other material at the Court's disposal do not disclose any unlawfulness or arbitrariness in the domestic procedures that would cast any doubt on the facts, as established by domestic courts. The Court reiterates that its role is not to review, in such circumstances, the determination made by national courts (see García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999-I, with further references). It therefore finds that the present complaint discloses no appearance of a violation of Article 1 of Protocol No. 1.

It follows that this complaint 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.

Søren NielsenChristos Rozakis
RegistrarPresident

ANNEX

List of applicants

Name

Date of birth

1

Kovaleva Galina Vasilyevna

11/11/1963

2

Banelyan Lyudmila Vasilyevna

17/06/1953

3

Denisova Olga Nikolayevna

15/05/1961

4

Denisenko Valentina Abramovna

30/09/1952

5

Ilyinykh Tamara Petrovna

03/08/1940

6

Kondrashova Zoya Aleksandrovna

31/10/1937

7

Nyunkina Lyubov Aleksandrovna

16/08/1950

8

Okrugina Yekaterina Grigoryevna

20/01/1942

9

Pokidova Olga Vladimirovna

24/02/1974

10

Svobodina Tatyana Nikolayevna

31/05/1966

11

Tyumentseva Lyubov Mikhaylovna

12/09/1941

12

Vysotskaya Raisa Aminovna

23/03/1953

 

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