CASE OF SUTYAZHNIK v. RUSSIA
(Application no. 8269/02)
23 July 2009
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Sutyazhnik v. Russia,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
Sverre Erik Jebens,
George Nicolaou, judges,
and Mr Søren Nielsen, Section Registrar,
Having deliberated in private on 2 July 2009,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
“Pursuant to Article 22 of the Code of Commercial Procedure commercial courts could determine economic disputes arising from civil, administrative and other legal relationships.
Under Articles 50 and 117 of the Civil Code, as well as Article 5 of the Law On Public Associations a public association is a non-profit organisation.
Disputes concerning [State] registration or re-registration of non-profit organisations are not economical by their nature and [hence] do not fall within the competence of the commercial courts.”
As a result, the proceedings were discontinued. The hearing took place in the absence of the parties.
II. RELEVANT DOMESTIC LAW
I. THE GOVERNMENT'S PRELIMINARY OBJECTION
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”
A. The submissions by the parties
B. The Court's assessment
“51. ... 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...
52. Legal certainty presupposes respect for the principle of res judicata ..., that is the principle of the finality of judgments. This principle underlines that no party is entitled to seek a review of a final and binding judgment merely for the purpose of obtaining a rehearing and a fresh determination of the case. ...
56. ... The right of a litigant to a court would be ... illusory if a Contracting State's legal system allowed a judicial decision which had become final and binding to be quashed by a higher court on an application made by a State official.”
“... The review should not be treated as an appeal in disguise, and the mere possibility of there being two views on the subject is not a ground for re-examination. A departure from that principle is justified only when made necessary by circumstances of a substantial and compelling character”.
“It is unavoidable that in civil proceedings the parties would have conflicting views on application of the substantive law. ... The Court observes that before an application for supervisory review was lodged, the merits of the applicant's claim had been examined... by the first-instance and appeal courts. It has not been claimed that the courts acted outside their competences or that there was a fundamental defect in the proceedings before them. The fact that the Presidium disagreed with the assessment made by the first-instance and appeal courts was not, in itself, an exceptional circumstance warranting the quashing of a binding and enforceable judgment and re-opening of the proceedings on the applicant's claim.”
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“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.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT
(a) that the respondent State is to pay the applicant association, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 500 (five hundred Euros) in respect of non-pecuniary damage, to be converted into Russian roubles at the rate applicable at the date of settlement, plus any tax that may be chargeable;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 23 July 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the joint dissenting opinion of Judges Kovler and Steiner is annexed to this judgment.
JOINT DISSENTING OPINION OF JUDGES KOVLER
To our regret, we do not share the opinion of the majority that there has been a violation of Article 6 of the Convention.
In this particular case, the supervisory review – even under the old system of the arbitration (commercial) procedure – was intended to remedy a fundamental error in the proceedings before the lower courts. As the Court reiterates in the present judgment (see paragraphs § 33-34 of the judgment), a departure from the principle of legal certainty is justified only when this is made necessary by circumstances of a substantial and compelling character (see, inter alia, Ryabykh v. Russia, no. 52854/99, § 52, ECHR 2003-IX, and Kot v. Russia, no. 20887/03, § 29, 18 January 2007). In other words, the requirement of legal certainty is not absolute. The Court is consistent in accepting that legal certainty may be disturbed in order to correct a “fundamental defect” or a “miscarriage of justice” (see paragraph 35, with relevant references).
The reason for quashing the lower courts' decisions was the fact that the dispute between the applicant association and the Regional Department of Justice lay outside the commercial courts' jurisdiction: we agree with the Court's conclusion that the relevant provisions of the old Code of Commercial Procedure, taken in conjunction with the Law on Public Associations, were ambiguous at best. Thus, the task of the Supreme Commercial Court was, precisely, to remedy the situation and to give instructions concerning the registration of non-profit organisations, which was clearly outside the jurisdiction of the commercial courts.
That lack of jurisdiction was at its most fundamental and strict, as it meant a complete absence of authority to determine the case. Consequently, the judicial decisions adopted by the lower courts in the applicant association's favour were not only objectionable from the perspective of procedural or substantive legislation: they were simply void. The lower courts' decisions affected the whole organisation of the judicial system and the separation of powers within it. Our Court recognises that the rules of jurisdiction were clarified in 2002: disputes concerning the registration of non-profit organisations fall outside the competence of the commercial courts. To a certain extent the initiative by the Vice President of the Supreme Commercial Court anticipated this clarification. With all due respect to the opinion of our colleagues, we do not agree that “the judgment was quashed primarily for the sake of legal purism, rather than in order to rectify an error of fundamental importance to the judicial system” (see paragraph 38). On this occasion we regret that the respondent State opposed the relinquishment of the case to the Grand Chamber, where the concept of “fundamental error” could have been clarified further.
As to the applicant association, it appears that the discontinuation of proceedings ordered by the Presidium of the Supreme Commercial Court had little effect on its functioning. Furthermore, the applicant association had a possibility to submit its request to a court that did have proper jurisdiction, and ultimately obtained a favourable judgment from such a court (see paragraph 13). We would also point out that the Constitutional Court of the Russian Federation found that, although the provisions challenged did not establish any time-limits for bringing an extraordinary appeal, the time within which the appeal was brought in the applicant's case had not exceeded the “reasonable time” and the applicant's rights had not been breached by it (see paragraph 14). Thus, the quashing of wrongly rendered judgments in the circumstances of the case was not a disproportionate measure.
Last but not least: the applicant association is an association whose aim is to protect the rule of law and human rights. The protection of legal order comprises the correction of fundamental errors within that order, even if such correction places one or other of the persons concerned in an uncomfortable situation. We trust that our position will be understood.