EUROPEAN COURT OF HUMAN RIGHTS
FIRST SECTION
CASE OF ROSELTRANS v. RUSSIA
(Application No. 60974/00)
JUDGMENT <*>
(Strasbourg, 21.VII.2005)
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<*> This judgment will become final in the circumstances set
out in Article 44 з 2 of the Convention. It may be subject to
editorial revision.
In the case of Roseltrans v. Russia,
The European Court of Human Rights (First Section), sitting as
a Chamber composed of:
Mr C.L. Rozakis, President,
Mr L. Loucaides,
Mrs F. Tulkens,
Mr P. Lorenzen,
Mrs {N. Vajic} <*>,
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<*> Здесь и далее по тексту слова на национальном языке набраны
латинским шрифтом и выделены фигурными скобками.
Mrs S. Botoucharova,
Mr A. Kovler, judges,
and Mr S. Quesada, Deputy Section Registrar,
Having deliberated in private on 30 June 2005,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
1. The case originated in an application (No. 60974/00) against
the Russian Federation lodged with the Court under Article 34 of
the Convention for the Protection of Human Rights and Fundamental
Freedoms ("the Convention") by Rossiyskiy Electrotransport, also
known as Roseltrans, a Russian open joint-stock company ("the
applicant company"), on 14 August 2000.
2. The applicant company was represented by Mr A.A. Pavlov, a
lawyer practising in Moscow. The Russian Government ("the
Government") were represented by Mr P.A. Laptev, Representative of
the Russian Federation at the European Court of Human Rights.
3. The applicant company alleged, in particular, that a
judgment in its favour was quashed in supervisory review
proceedings, in breach of Article 6 з 1 of the Convention.
4. The application was allocated to the First Section of the
Court (Rule 52 з 1 of the Rules of Court). Within that Section,
the Chamber that would consider the case (Article 27 з 1 of the
Convention) was constituted as provided in Rule 26 з 1.
5. By a decision of 27 May 2004, the Court declared the
application partly admissible.
6. The applicant company and the Government each filed
observations on the merits (Rule 59 з 1). The Chamber having
decided, after consulting the parties, that no hearing on the
merits was required (Rule 59 з 3 in fine), the parties replied in
writing to each other's observations.
7. On 1 November 2004 the Court changed the composition of its
Sections (Rule 25 з 1). This case was assigned to the newly
composed First Section (Rule 52 з 1).
THE FACTS
I. The circumstances of the case
8. The applicant is a Russian open joint-stock company which
was set up in Moscow in 1994 by the Federal Ministry of State
Property Management ("the Ministry") in pursuance of a directive
from the President of Russia and a Government decree. Its purpose
was to hold shares of former state enterprises which produced
electrical equipment for the railways. The applicant company's
initial capital was formed by State property. Various individuals
and private companies also became shareholders at a subsequent
point.
9. On 14 November 1995, following a directive to that effect by
the President of Russia, the Ministry adopted a resolution by
which the applicant company was liquidated and a liquidation
committee was appointed.
10. The applicant company, represented by its director general,
joined proceedings brought by one of its minority shareholders
before the Lyublinskiy District Court of Moscow seeking to have
the Ministry's resolution of 14 November 1995 and a number of
follow-up resolutions declared void.
11. The applicant company asked the District Court to issue an
interim injunction prohibiting liquidation pending a trial and to
strip the liquidation committee of its powers. On 29 October 1998
the District Court issued the injunction. It also prohibited the
liquidation committee from acting on behalf of the applicant
company in legal proceedings.
12. On 17 May 2000 the District Court found in favour of the
applicant company and its co-plaintiffs. The court noted that the
decision to liquidate the applicant company was one that could be
taken only by a general assembly of its shareholders. The Ministry
held less than 50% of the applicant company's shares at the
material time, and its decision to liquidate the applicant company
ran counter to the law. The court held that the resolution of 14
November 1995 and the follow-up resolutions were void and ordered
the Ministry to annul them. The Ministry did not appeal and the
judgment came into force on 28 May 2000.
13. Some time later the Ministry successfully applied for
intervention in the proceedings by the Moscow public prosecutor.
On 10 April 2001 the prosecutor lodged an application for
supervisory review (протест в порядке надзора) of the judgment of
17 May 2000, seeking to have it set aside.
14. On 10 May 2001, further to the prosecutor's request, the
Presidium of the Moscow City Court, which was composed of five
judges, reviewed the case. The court heard submissions from the
acting public prosecutor of Moscow, who supported the request. The
applicant company did not attend the hearing as it had not been
informed that it was to be held.
15. Referring to the outcome of other proceedings before
different courts in 1997 - 1999, the Presidium of the Moscow City
Court stated that the Ministry had been the sole shareholder of
the applicant company at the material time. It was thus empowered
to take a decision on liquidating the applicant company in
accordance with the relevant substantive law. The director general
had no authority to bring proceedings on behalf of the applicant
company, since his authority had been ended by the ministerial
resolutions in dispute. The District Court should have ensured
that the liquidation committee took part in the proceedings. Its
failure to do so had made it impossible to establish all the facts
which were relevant for the proper examination of the case.
16. The Presidium of the Moscow City Court granted the
prosecutor's request, quashed the judgment of 17 May 2000 and
ordered a fresh examination of the case by the Lyublinskiy
District Court, with a different composition.
17. The applicant company was not served with either a copy of
the prosecutor's request or a copy of the decision of 10 May 2001.
It learned of those developments in October 2001.
18. Following jurisdictional changes the case was transferred
to the Commercial Court of Moscow, which examined it on 25 March
2003. That court held that the fact that the proceedings had been
brought by the applicant company, in the person of its director
general, was consistent with the applicant company's regulations.
The director general had never been relieved of his post through
an established procedure. The dispute originated in the
liquidation of the applicant company and concerned, inter alia,
the lawfulness of the liquidation committee's appointment. That
being the case, the applicant company could not be deprived of its
right to a court and its action ought to be examined. The court
further held that the Ministry had not been the sole shareholder
of the applicant company and that it had had no authority under
the legislation to liquidate the applicant company unilaterally.
19. By a decision of 25 March 2003, the Commercial Court of
Moscow found for the applicant company and its co-plaintiffs. It
declared void the resolution of 14 November 1995 and the follow-up
resolutions and ordered the Ministry to annul them. The Ministry
did not appeal and the judgment entered into force on 25 April
2003.
II. Relevant domestic law
20. The Court's judgment in the case of Ryabykh v. Russia
contains the following description of the relevant domestic law
concerning supervisory review proceedings, which also applied in
the present case (see Ryabykh v. Russia, No. 52854/99, зз 31 - 42,
ECHR 2003-IX):
"Under the 1964 Code of Civil Procedure, which was in force at
the material time, judgments became final as follows:
Article 208
Coming into force of judgments
"Court judgments shall become legally binding on the expiration
of the time-limit for lodging a cassation appeal if no such appeal
has been lodged. If the judgment is not quashed following a
cassation appeal, it shall become legally binding when the higher
court delivers its decision...."
The only further means of recourse was the special supervisory
review procedure that enabled courts to reopen final judgments
(пересмотр в порядке судебного надзора):
Article 319
Judgments, decisions and rulings amenable
to supervisory review
"Final judgments, decisions and rulings of all Russian courts
shall be amenable to supervisory review on an application lodged
by the officials listed in Article 320 of the Code."
The power of officials to lodge an application (протест)
depended on their rank and territorial jurisdiction:
Article 320
Officials who may initiate supervisory review
"Applications may be lodged by:
(1) the Prosecutor General - against judgments, decisions and
rulings of any court;
(2) the President of the Supreme Court - against rulings of the
Presidium of the Supreme Court and judgments and decisions of the
Civil Division of the Supreme Court acting as a court of first
instance;
(3) Deputy Prosecutors General - against judgments, decisions
and rulings of any court other than rulings of the Presidium of
the Supreme Court;
(4) Vice-Presidents of the Supreme Court - against judgments
and decisions of the Civil Division of the Supreme Court acting as
a court of first instance;
(5) the Prosecutor General, Deputy Prosecutor General, the
President and Vice-Presidents of the Supreme Court - against
judgments, decisions and rulings of any court other than rulings
of the Presidium of the Supreme Court;
(6) the President of the Supreme Court of an autonomous
republic, a regional court, a city court, a court of an autonomous
region or a court of an autonomous district, the public prosecutor
of an autonomous republic, a region, a city, an autonomous region
or an autonomous district - against judgments and decisions of
district (city) people's courts and against decisions of civil
divisions of, respectively, the Supreme Court of an autonomous
republic, regional court, city court, court of an autonomous
region or court of an autonomous district that examined the case
on appeal."
The power to lodge such applications was discretionary, that is
to say it was solely for the official concerned to decide whether
or not a particular case warranted supervisory review.
Under Article 322 officials listed in Article 320 who
considered that a case deserved closer examination could, in
certain circumstances, obtain the case file in order to establish
whether good grounds for lodging an application existed.
Article 323 of the Code empowered the relevant officials to
stay the execution of the judgment, decision or ruling in question
until the supervisory review proceedings had been completed.
Article 324 of the Code provided that the official concerned
should draft the application and forward it - in sufficient copies
for each of the parties - with the case file to the relevant
court.
Article 325 read as follows:
"The parties... shall be served copies of the application. If
circumstances so require, the parties... shall be informed of the
time and place of the hearing.
The copies of the application shall be served on the parties by
the court [examining the application]. The court shall give the
parties sufficient time before the hearing to submit a written
reply to the application and any additional material."
Under Article 328 of the Code, proceedings on an application
for supervisory review were normally oral and the parties were
invited to make comments once the judge concerned had reported to
the court.
Courts hearing applications for supervisory review had
extensive jurisdiction in respect of final judgments:
Article 329
Powers of supervisory review courts
"The court that examines an application for supervisory review
may:
(1) uphold the judgment, decision or ruling and dismiss the
application;
(2) quash all or part of the judgment, decision or ruling and
order a fresh examination of the case at first or cassation
instance;
(3) quash all or part of the judgment, decision or ruling and
terminate the proceedings or leave the claim undecided;
(4) uphold any of the previous judgments, decisions or rulings
in the case;
(5) quash or vary the judgment of the court of first or
cassation instance or of a court that has carried out supervisory
review and deliver a new judgment without remitting the case for
re-examination if substantive laws have been erroneously construed
and applied."
The grounds for setting aside final judgments were as follows:
Article 330
Grounds for setting aside judgments on supervisory review
"...
(1) wrongful application or interpretation of substantive laws;
(2) significant breach of procedural rules which led to the
delivery of an unlawful judgment, decision or ruling..."
There was no time-limit for lodging an application for
supervisory review, and, in principle, such applications could be
lodged at any time after a judgment had become final."
THE LAW
1. Alleged violation of Article 6 з 1 of the Convention
21. The applicant company complained under Article 6 з 1 of the
Convention that the decision of the Presidium of the Moscow City
Court of 10 May 2001 had set aside the judgment in its favour by
the Lyublinskiy District Court of 17 May 2000. It also complained
that the proceedings before the Presidium of the Moscow City Court
had been unfair in that the decision had been taken in its absence
and that it had not been afforded an opportunity to submit
observations in response to the prosecutor's request that the
judgment be quashed.
The relevant part of Article 6 з 1 reads as follows:
"In the determination of his civil rights and obligations...
everyone is entitled to a fair and public hearing... by [a]
tribunal..."
22. The Government stated that the Presidium of the Moscow City
Court had quashed the judgment in question and ordered a fresh
examination of the case because the substantive law had been
wrongly applied and there had been fundamental breaches of
procedural law. That decision had complied fully with Article 330
of the Code of Civil Procedure.
23. The applicant company maintained its complaint. It
submitted, inter alia, that the proceedings before the Presidium
of the Moscow City Court had not been adversarial and that that
court's decision had been in breach of the domestic law.
A. Supervisory review procedure: substantive issues
24. The Court reiterates that the right to a fair hearing
before a tribunal as guaranteed by Article 6 з 1 of the Convention
must be interpreted in the light of the Preamble to the
Convention, which, in its relevant part, declares the rule of law
to be part of the common heritage of the Contracting States. One
of the fundamental aspects of the rule of law is the principle of
legal certainty, which requires, among other things, that where
the courts have finally determined an issue, their ruling should
not be called into question (see {Brumarescu} v. Romania [GC], No.
28342/95, з 61, ECHR 1999-VII).
25. Article 6 з 1 secures to everyone the right to have any
claim relating to his civil rights and obligations brought before
a court or tribunal. In this way it embodies the "right to a
court", of which the right of access, that is the right to
institute proceedings before courts in civil matters, constitutes
one aspect. However, that right would be illusory if a Contracting
State's domestic legal system allowed a final, binding judicial
decision to remain inoperative to the detriment of one party. It
would be inconceivable that Article 6 з 1 should describe in
detail procedural guarantees afforded to litigants - proceedings
that are fair, public and expeditious - without protecting the
implementation of judicial decisions; to construe Article 6 as
being concerned exclusively with access to a court and the conduct
of proceedings would be likely to lead to situations incompatible
with the principle of the rule of law which the Contracting States
undertook to respect when they ratified the Convention (see
Hornsby v. Greece, judgment of 19 March 1997, Reports 1997-II, pp.
510 - 11, з 40).
26. The Court has found a violation of the above principle of
legal certainty and of the right to a court in the case of Ryabykh
v. Russia, where a final and binding judgment in the applicant's
favour was set aside, on the ground of misinterpretation of the
law, by a higher court in supervisory review proceedings following
an application by a president of a regional court, whose power to
make such applications was not subject to any time-limit, so that
judgments were liable to challenge indefinitely (see Ryabykh v.
Russia, cited above, зз 51 - 58).
27. In the present case, the supervisory review of the judgment
of 17 May 2000, which had become final and binding under Article
208 of the Code of Civil Procedure, was set in motion by the
Moscow public prosecutor. The latter was not a party to the
proceedings. He enjoyed the power to intervene by virtue of
Articles 319 and 320 of the Code of Civil Procedure, and could
exercise it without any time-limit. By its decision of 10 May
2001, the Presidium of the Moscow City Court quashed the judgment
of 17 May 2000 and ordered a fresh examination of the case,
putting forward reasons which appear to represent a view on the
subject matter of the dispute which was not shared by the other
domestic courts involved in determining the case (see paragraphs
12, 18 and 19 above). It is true that as a result of the fresh
examination of the case the applicant's claims were granted by the
judgment of the Commercial Court of Moscow of 25 March 2003.
However, the applicant had to endure legal uncertainty for more
than a year and ten months after the final judgment of 17 May 2000
was quashed.
28. The Court finds no reason to depart from its judgment in
the aforementioned Ryabykh case. It concludes that the setting
aside of the judgment of 17 May 2000 in supervisory review
proceedings violated Article 6 з 1 of the Convention.
B. Supervisory review procedure: procedural issues
29. With regard to the complaint about the procedural defects
of the proceedings before the Presidium of the Moscow City Court,
the Court finds that, having concluded that there has been an
infringement of the applicant company's "right to a court" by the
very use of the supervisory review procedure, it is not necessary
to consider whether the procedural guarantees of Article 6 of the
Convention were available in those proceedings (see Ryabykh v.
Russia, cited above, з 59).
2. Application of Article 41 of the Convention
30. Article 41 of the Convention provides:
"If the Court finds that there has been a violation of the
Convention or the Protocols thereto, and if the internal law of
the High Contracting Party concerned allows only partial
reparation to be made, the Court shall, if necessary, afford just
satisfaction to the injured party."
31. The Court points out that under Rule 60 of the Rules of
Court any claim for just satisfaction must be submitted in writing
together with the relevant supporting documents or vouchers,
"failing which the Chamber may reject the claim in whole or in
part".
32. On 2 June 2004, after the present application had been
declared partly admissible, the Court invited the applicant
company to submit its claims for just satisfaction by 20 September
2004. No such claims were submitted within the specified time-
limit.
33. In these circumstances, the Court makes no award under
Article 41.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds that there has been a violation of Article 6 з 1 of
the Convention;
2. Decides to make no award under Article 41 of the Convention.
Done in English, and notified in writing on 21 July 2005,
pursuant to Rule 77 зз 2 and 3 of the Rules of Court.
Christos ROZAKIS
President
Santiago QUESADA
Deputy Registrar
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