Information Note on the Court’s case-law No. 161
March 2013
Oleynikov v. Russia - 36703/04
Judgment 14.3.2013 [Section I]
Article 6
Civil proceedings
Article 6-1
Access to court
Courts’ refusal to examine a claim concerning repayment of a loan made to the trade representation of North Korea: violation
Facts – In 1997 the applicant lent USD 1,500 to the Khabarovsk Office of the Trade Counsellor of the Embassy of the Democratic People’s Republic of Korea (“the DPRK Trade Counsellor”) on the understanding that it would be paid back. After the DPRK Trade Counsellor had failed to repay its debt, the applicant and his counsel sent several letters of claim which remained unanswered. His counsel subsequently wrote to the Russian Ministry of External Affairs, which considered that the DPRK Trade Counsellor had acted on the DPRK’s behalf and therefore enjoyed immunity from a lawsuit. It advised the applicant to obtain the consent of a competent North Korean authority before lodging a claim against the DPRK Trade Counsellor with the Russian courts. As the DPRK Embassy refused to answer, the applicant lodged a claim against it with the district court. The claim was returned without examination on the grounds that the Code of Civil Procedure provided for absolute immunity of a foreign State before the Russian courts. In 2004 the regional court upheld that decision on appeal.
Law – Article 6 § 1: The limitation had pursued the legitimate aim of complying with international law in order to promote comity and good relations between States through the respect of national sovereignty. Nevertheless, Russia had signed the 2004 Convention on Jurisdictional Immunities of States and their Property, which endorsed the principle of restricted immunity when a State engages in a commercial transaction with a foreign natural person. Moreover, the President of Russia, the Constitutional Court and the Supreme Commercial Court had acknowledged that restrictive immunity had become a principle of customary law. Finally, the new Code of Commercial Procedure adopted in 2002 provided for restrictive immunity and the 1960 Treaty on Trade and navigation between the USSR and the DPRK subjected all disputes arising out of foreign trade transactions concluded or guaranteed by the Trade Representation within the territory of the State of sojourn to the jurisdiction of the latter’s courts. However, the domestic courts had rejected the applicant’s claim without examination, without any analysis of the applicable provisions of the said treaty and the relevant principles of customary international law which under the Constitution form an integral part of the Russian legal system. Indeed, the domestic courts had applied absolute State immunity from jurisdiction without trying to establish whether the claim related to the acts of the DPRK performed in the exercise of its sovereign authority or as a party to a transaction of a private-law nature. Therefore, by rejecting the applicant’s claim without examination of the essence of the dispute and without giving relevant and sufficient reasons, and notwithstanding the applicable provisions of international law, the domestic courts had failed to preserve a reasonable relationship of proportionality and had thus impaired the very essence of the applicant’s right of access to court.
Conclusion: violation (unanimously).
Article 41: claim in respect of pecuniary damage dismissed; no claim made in respect of non-pecuniary damage.
(See also Sabeh El Leil v. France [GC], no. 34869/05, 29 June 2011, Information Note no. 142; and Cudak v. Lithuania [GC], no. 15869/02, 23 March 2010, Information Note no. 128)
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