Общественное объединение "Сутяжник"

Главная страница

Новости судебных дел

Судебное дело "Сутяжник против России (8269/02)"


Возражения Российской Федерации против уступки юрисдикции Большой Палате по делу Сутяжника

 

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


Если вы хотите поддержать нашу деятельность, то введите в поле ниже сумму в рублях, которую вы готовы пожертвовать и кликните кнопку рядом:

рублей.      


Поделиться в социальных сетях:

  Diaspora*

Комментарии:

Добавить комментарий:

Ваше имя или ник:

(Войти? Зарегистрироваться? Забыли пароль? Войти под OpenID?)

Ваш e-mail (не обязателен, если укажете - будет опубликован на сайте):

Ваш комментарий:

Введите цифры и буквы с картинки (защита от спам-роботов):