Судебное дело "Сутяжник против России (8269/02)"
19.05.2008
УПОЛНОМОЧЕННЫЙ РОССИЙСКОЙ ФЕДЕРАЦИИ ПРИ ЕВРОПЕЙСКОМ СУДЕ ПО ПРАВАМ
ЧЕЛОВЕКА
Representative
of the Russian Federation
at the European Court of Human Rights
Mr Soren NIELSEN
First Section Registrar,
European Court of Human Rights
COUNCIL OF EUROPE STRASBOURG-FRANCE
Applcation no. 8269/02
Sutyazhnik v. Russia
Dear sir,
With reference to your letter of 14 March 2008 informing the
authorities of the Russian Federation about the Chamber's intention to
relinquish jurisdiction in favour of the Grand Chamber I have the
inform you of the following.
According to the Article 30 of the Convention the relinquishment of
the jurisdiction to the Grand Chamber is possible under two
conditions: 1) the case pending before the Chamber raises a serious
question affecting the interpretation of the Convention or the
Protocols thereto, or where the resolution of the question before the
Chamber might have a result inconsistent with a judgment previously
delivered by the Court; 2) neither of the parties to the case object.
The authorities of the Russian Federation would like to draw the
attention of the honourable Chamber to the fact thar the present case
concerns the alleged violation of the applicant's right to a fair
trial resulting in the quashing of the final judgment in the
applicant's favour by way of supervisory review. The question in the
case Sutyajnik v. Russia is not the general or fundamental question,
it is the particular case which does not indicate the serious problems
of the application of Federal law On Public Associations and regular
violations of the rights of public association in the Russian
Federation
The autborities of the Russian Federation consider that the ground for
the quashing the judgment of Commercial Court of the Sverdlovsk Region
of 17 June 1999 and the decision of the Federal Commercial Court of
the Ural Circuit of 18 October 1999 by way of supervisory review was
the fundamental defect of proceedings in the sense of the case-law of
the European Court.
The European Court repeatedly stated in its judgment that "higher
courts' power to quash or alter binding and enforceabJe judicial
decisions should be exercised for correction of fundamental defects"
(see Kot v. Russia, no. 20887/03, S: 24,29, of 18 January 2007;
Nikitin v. Russia, no. 50l78/99, S: 20,21,31,34,45,46, of 20 July
2004; Radchikov v. Russia, no. 65582/01, S: 28,29, 40-42,54, of 24 May
2007; Fadin v. Russia, no. 58079/00 S: 27, 31, 32, of 27 July 2006;
Savinskiy v. Ukraine, no. 6965/02, S: 23,28, of 28 February 2006).
Such defect concluded in consideration of the case contrary to the
provisions of jurisdiction of the tribunal established by law {Article
6 S: I of the Convention). Under procedural legislation of the Russian
Federation the disputes on registration of nonprofit organizations are
considered by regular courts. Violation provisions on competence, as a
rule, is the basis for quashing the judgment.
It should be mentioned that the questions of the differentiation of
the competence between regular and commercial courts were solved in
number of the joint resolutions of the Plenum of Supreme Court of the
Russian Federation and the Plenum of the Supreme Commercial Court of
the Russian Federation. For the first time such resolution of the
supreme courts was adopted in 1992 (the Resolution of the Plenum of
Supreme Court of the Russian Federation and the Plenum of the Supreme
Commercial Court of the Russian Federation of 18 August 1992 no. 12/12
On Certain Questions about Jurisdiction of Disputes between Courts and
Commercial Courts).
Taking cognizance of the dispute at issue the commercial courts of
first and cassation instance made such fundamental mistake which could
be corrected only by quashing the judgments.
On 26 September 2000 the Presidium of the Supreme Commercial Court
stated that the dispute was outside the jurisdiction of the commercial
courts in view of the absence of economic character in this case.
Thus, the judgment of the Presidium corrected the fundamental defect
of proceedings made by the lower courts which examined the noneconomic
dispute.
Commercial courts are jurisdictional authority which have a competence
to consider disputes between legal entities and private entrepreneurs
in field of business or other economic activities. So. according to
the article 127 of the Constitution of the Russian Federation and
article 22 of the Code of Commercial Procedure 1995 the commercial
court is component to resolve the disputes of economic character.
Commercial courts do not consider the cases without economic content.
There are two criteria of differentiation of jurisdiction of the
Russian Federation courts: a) the parties of the dispute, b) the
character of the legal relationship (connected with business
activities or not).
The dispute on refuse to re-register of non-profit association does
not have economic character; it does not nflect on the economic rights
or interests in the field of business. The fact that the public
association "Sutyzhnik" is legal entity and formally is under the
jurisdiction of commercial courts, the dispute cannot be considered by
the commercial court as the main criterion is the character of the
legal relationship at issue (connection of the matter of dispute with
business or other economic activities). The status of legal entity
does not enable to refer the dispute to the jurisdiction of the
commercial courts.
Public association "Sutyazhnik" is a non-profit organization.
Non-profit organizations have another legal essence which does not
have economic content. The order of registration of non-profit
organisations differs from order of registration of the commercial
organizations (the former is registered by the Ministiy of Justice,
another - by the tax authorities). Concerning the non-profit character
of its activity the disputes with the non-profit association and the
disputes with commercial organizations are resolved in different
order.
The regular court was competent to resolve the dispute ot issue. The
judgment of the regular court could be a legal basis for the
re-registration of the public association "Sutyazhnik".
Thus the adjudication of the case at issue by the incompetent court
led to the fundamental defect non-correction of which might cause the
violation of rights and legal interests of public at large in the form
of repeated attempts to register the non-profit organizations through
the judgment of the incompetent court. Among such organisations can be
those which connected with terrorist activities or drug traffic. The
commercial courts do not have instruments to prevent such events. On
the ground of the aforesaid the Presidium of the Supreme Commercial
Court of the Russian Federation came to the well-founded conclusion
that the dispute was outside the competence of the commercial court.
In connection with the above said it should be examined the question
of mala fides of the applicant. Lodging the complaint to the
incompetent court the applicant defined himseif the destiny of his
claims: the procedural legislation of the Russian Federation, the
case-law of the national and international courts act on the premise
that the disputes outside the jurisdiction are dismissed. Assignment
of responsibility to the commercial courts for the consideration of
the application improperly lodged with the incompetent court is
unreasonable and unfair.
Moreover, it is significant to note that public association
"Sutyazhnik" acted from 1994. It is the human rights organization
which assists to the citizens in realization of their rights. The
areas of its activities are legal consultations, registration and
legal support of the public associations, represenring the interests
of the natural persons and legal entities in the court. Thus, tbe main
activity of the applicant is the legal aid to the population.
Consequently, it might be supposed that the applicant was aware ahout
the jurisdiction of the two branches of the judicial power in Russia
and about the judicial practice on the differentiation of the
competence between courts.
The authorities of the Russian Federation consider that the party
violated the imperative rule of court jurisdiction loose the right to
object against the competence of this court to quash the judgment (the
principle estoppel).
Thus, the Supreme Commercial Coutt of the Russian Federation acted
lawfully on the basis of the necessity to correct the fundamental
defect of proceedings.
The authorities of tbe Russian Federation would like to draw the
Court's attention to the fact that all these arguments are stated in
the ruling of the Presidium of the Supreme Commercial Court of the
Russiun Federation of 26 September 2000.
The authorities of the Russian Federation would like to note over that
the criteria of the differentation of jurisdiction between regular and
commercial courts were worked out by the case law of the national
court and described in detail in the procedural iegislalion. The
provisions of the Code of Commercial Procedure were in force for
scveral years. The applicant cannot allege the violation of the
principle of legal certainty in thr present case because he ought to
know about rhe jurisdiction of the commercial courts as the applicant
association provides legal aid to the population on a professional
basis.
Moreover, it is inadmissible to institute the court practice
contradicting to the procedural legislation.
Thus the Russian Fcderation authorities insist that the case-law of
the European Court in respect of the admissibility of quashing the
judgment by way of supervisory review, if the judgment is based on the
fundamental defect, as well as the case-law in respect of
establishment no violation of the principle of legal certainty, when
the expectations of the applicant (paricularly, possessing the
professional knowledge of jurisprudence) are not based on the law,
permit to make a conclusion that the present case can be considered by
the Chamber.
For these reasons 1 kindly ask the Chamber not to relinquish
jurisdiction in favour of the Grand Chamber in consideration of the
present case supposing that the Chamber is enough competent to
resolve this case. The case does not touch the questions of
interpretation of the Convention and is not contrary to the judgments
previously delivered bv the Court.
Yours faithfully,
Veronika Milinchuk
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