Information Note on the Court’s case-law No. 80
November 2005
Nosov v. Russia (dec.) - 30877/02
Decision 20.10.2005 [Section I]
Article 34
Victim
Judgment debt assigned to the applicant already quashed at the date of assignment: inadmissible
In 1996 limited liability company A., in which the applicant owned fifty per cent, sold petrol to company T. which in the end paid only a part of the stipulated purchase price. Following unsuccessful attempts to recover the outstanding amount, A. assigned debt to the limited liability company K., of which the applicant was, in his submission, director but not the owner. K. sued T. for the outstanding amount. In 1999 a regional commercial court found in K.’s favour and an appellate panel upheld the judgment, following which it became enforceable and a writ of execution was issued. Later that year K. assigned the debt to Mr Sh., a trader, following which the writ was submitted to the bailiff for enforcement. As no cassation appeal had been lodged within the established time-limit, the judgment became final on 15 May 1999. Later in 1999 K. went into liquidation pursuant to a judicial decision in unrelated proceedings. In 2000 Mr Sh. assigned the debt to the limited liability company P., in which the applicant was, in his submission, director but not the owner. Later in 2000 P. sued T. for damages incurred through its failure to comply with the 1999 judgment.
In January 2001 a federal commercial court issued procedural orders granting T. an extension of the time-limit for its submission of a cassation appeal as well as a deferral of court fees payable in that connection. On 28 February 2001 the federal commercial court quashed the 1999 judgment and remitted the claim for a new examination on the ground that the facts had been assessed incorrectly. The commercial court instructed the first-instance court to examine whether K. had gone into liquidation and, if so, to discontinue the proceedings. Meanwhile, the proceedings regarding the action for damages lodged by P. in 2000 were discontinued as the 1999 judgment had been quashed. Later in 2001 the regional commercial court discontinued the proceedings regarding the 1999 judgment as K. had been liquidated. P. then sold to the applicant the right to claim the debt and damages arising out of the 1999 judgment.
The applicant complained under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 that the re-opening of the proceedings and the quashing of the 1999 judgment two years after it had become final and enforceable had violated his right to a fair trial as well as his property rights.
The Court reiterated that the term “victim” in Article 34 denotes the person directly affected by the act or omission which is at issue. 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. On the other hand, the sole owner of a company may claim to be a “victim” in so far as the impugned measures taken with regard to his or her 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.
The Court noted the divergence of views as to who was the actual owner of companies K. and P. Neither party had produced any documents showing the ownership of either company’s shares. As in these circumstances the identity of shareholders of either company could not be established with sufficient clarity, the Court could not identify the applicant with either company. The applicant was not a party to the proceedings in 1999 ending with an enforceable judgment in favour of company K. Nor did it appear that he ever attempted to join the proceedings in his personal capacity. Accordingly, he could not claim to be a “victim” of the alleged violation of Article 6.
As for the complaint under Article 1 of Protocol No. 1, the Court noted that by the time when the 1999 judgment had been quashed, the debt arising out of that judgment had been assigned to company P. Only after the quashing had the applicant acquired for himself the right to claim the debt and damages arising out of the 1999 judgment. 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. 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 assignment did not result in the acquisition by him 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 P. which had owned the judgment debt at the material time, no application had been lodged by that company. It had not been claimed that P. had 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 had the applicant claimed that he had intended to introduce an application in the name of P. Furthermore, the very fact that he had purchased the right to claim from that company was a clear indication of his intention to introduce the application in his own name rather than on behalf of P. Incompatible ratione personae.
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