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


Judgment on the Case of Sutyazhnik v. Russia, 23 July 2009 (in english)

 

26.07.2009

 

                               FIRST SECTION

                        CASE OF SUTYAZHNIK v. RUSSIA

                         (Application no. 8269/02)

                                  JUDGMENT

                                 STRASBOURG

                                23 July 2009

   This  judgment  will  become  final  in  the  circumstances set out in
   Article 44  S: 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:

   Christos Rozakis, President,
   Anatoly Kovler,
   Elisabeth Steiner,
   Dean Spielmann,
   Sverre Erik Jebens,
   Giorgio Malinverni,
   George Nicolaou, judges,
   and Mr Sren Nielsen, Section Registrar,

   Having deliberated in private on 2 July 2009,

   Delivers the following judgment, which was adopted on that date:

   PROCEDURE

   1.  The  case  originated  in an application (no. 8269/02) 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  a  Russian  NGO,  Sutyazhnik  ("the applicant
   association"), on 21 January 2002.

   2.  The  applicant  association, which had been granted legal aid, was
   represented  by  Ms L. Churkina, a lawyer practising in Yekaterinburg.
   The Russian Government ("the Government") were represented by
   Mr  P.  Laptev and Mrs V. Milinchuk, the former Representatives of the
   Russian Federation at the European Court of Human Rights.

   3.  The  applicant  association  alleged  that  by  the  quashing of a
   judgment  of 17 June 1999 the authorities had breached its "right to a
   court", enshrined in Article 6 of the Convention.

   4.  By  a  decision of 2 March 2006 the Court declared the application
   admissible.

   5.  The  Government,  but not the applicant association, filed further
   written  observations  (Rule  59  S:  1).  The  Chamber decided, after
   consulting  the  parties,  that  no hearing on the merits was required
   (Rule 59 S: 3 in fine).

   THE FACTS

   I.  THE CIRCUMSTANCES OF THE CASE

   6.  The applicant association was registered in 1994 by the Sverdlovsk
   Regional  Department  of  Justice  ("the Department") at the following
   address:  10,  Revolution  Place, Verkh-Neyvinskiy, Sverdlovsk Region.
   However,  the  applicant association has since moved to 11-1, Turgenev
   Street,  Yekaterinburg.  As appears from the materials of the case, in
   particular,  from  the letter of 11 May 1999, the Department was aware
   of the applicant association's actual address.

   7.  In  1995  a new Law on non-governmental organisations was enacted.
   The   Law   required   that   all  NGOs  established  before  1995  be
   re-registered  before  1 July  1999. The applicant association applied
   twice   to   the  Department  seeking  re-registration.  However,  its
   applications were refused.

   8.  The applicant association brought an action against the Department
   seeking  re-registration  of  the  association.  On  17  June 1999 the
   Commercial  Court  of  the  Sverdlovsk  Region  allowed  the applicant
   association's  claim  and  ordered  the  Department  to  register  the
   applicant association. The Court also ordered the reimbursement by the
   Department  of  the court fees paid by the applicant association. That
   decision  was  upheld  by  the  Federal  Commercial  Court of the Ural
   Circuit on 18 October 1999.

   9.  On  22  August  2000  the Vice-President of the Supreme Commercial
   Court  brought  an extraordinary appeal (надзорная жалоба) against the
   decisions  of  17 June and 18 October 1999. As appears from the letter
   of  the  registry of the Supreme Commercial Court of 19 November 2001,
   on  29 August  2000  a  copy  of  the appeal was sent to the applicant
   association's  previous  address,  which appeared in the association's
   official  registration  documents. On 7 September 2000 the letter from
   the  registry  reached  its  destination,  but  it was returned to the
   sender   marked   by   the  postman  as  follows:  "no  [such]  public
   organisation is registered [at this address]".

   10.  On  26  September  2000  the  Presidium of the Supreme Commercial
   Court of the Russian Federation quashed the lower courts' decisions by
   way  of  a supervisory review. The reasoning of the Presidium reads as
   follows:

   "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.

   11.  On  10  October  2000  a  copy  of  the  decision  of the Supreme
   Commercial  Court  was  sent  to  the applicant association's previous
   address.  This  document  was delivered on 17 October 2000; however it
   was  also  returned  to the registry marked as follows: "[this is] the
   address  of  the  village  council,  the  receptionist refused to take
   delivery [of this letter]".

   12.  According  to  the applicant association, on several occasions it
   applied  to  the Commercial Court of the Sverdlovsk Region with a view
   to urging the Department of Justice to enforce the judgment of 17 June
   1999,  as upheld on 18 October 1999, and register the association, but
   to  no  avail.  In October 2001 a law clerk of the Commercial Court of
   the  Sverdlovsk  Region  informed  the  applicant  association  of the
   annulment  of  the  decision  of 17 June 1999, as upheld on 18 October
   1999.  On  22 October 2001 the applicant association wrote a letter to
   the President of the Supreme Commercial Court asking for a copy of the
   decision  of  that  court. The applicant association received it on 28
   November 2001.

   13.  Shortly  thereafter  the  applicant  association  challenged  the
   refusal  of  the  Department  of  Justice before the courts of general
   jurisdiction.  By  a  final  decision  of 1 August 2002 the Sverdlovsk
   Regional Court allowed the applicant association's claim, ordering the
   Department of Justice to register the applicant association.

   14.  In   2003  the  applicant  association  challenged  the  relevant
   provisions   of   the   Code  of  Commercial  Proceedings  before  the
   Constitutional  Court  of  the Russian Federation. On 18 December 2003
   the  Constitutional  Court  declared  this complaint inadmissible. The
   Court 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, therefore, the applicant's rights had not
   been breached by it.

   II.  RELEVANT DOMESTIC LAW

   15.  The  Law  On  Public  Associations  (No. 82-FZ of 19 May 1995, as
   amended), concerning non-profit NGOs, provided that the refusal of the
   competent Department of Justice to register a public association could
   be challenged before a court (Section 23 of the Law).

   16.  Since  the  1990s  the  Russian  judicial system has comprised of
   three elements - courts of general jurisdiction, commercial courts and
   constitutional  courts.  The Code of Commercial Procedure of 1995 (No.
   70-FZ  of  5 May 1995, in force at the material time but repealed on 1
   September  2002,  hereafter "the old Code") stated that the commercial
   courts   could   determine  "economic  disputes  arising  from  civil,
   administrative and other legal relationships ... between legal persons
   ..."  (Section  22  S:  1 of the old Code). Article 22 S: 2 of the old
   Code  provided  that  "economic  disputes  ...  include  disputes ....
   challenging  the  refusal  of  a State body to register a legal person
   where such registration is required by the Law".

   17.  The   Code  of  Commercial  Procedure  of  2002  (in  force  from
   1 September  2002,  hereafter  "the  new  Code")  contains  a  similar
   provision  which defined the competence of the commercial courts based
   on  two  criteria:  the  subject  matter  of  the  dispute  ("economic
   disputes")  and the status of the litigants ("legal persons"). Article
   33  of  the new Code stipulates that disputes concerning the creation,
   reorganisation  and  liquidation  of  legal  persons  was  within  the
   competence of the commercial courts.

   18.  Under  section  9  of the Law On Commercial Courts of the Russian
   Federation  (No.  1-FKZ, of 28 April 1995, as in force at the material
   time),  the  Supreme  Commercial  Court  had, inter alia, the right to
   issue  recommendations deriving from case-law (разъяснения по вопросам
   судебной  практики).  On  9 December 2002 the Supreme Commercial Court
   issued Recommendation no. 11, "On certain issues arising in connection
   with  the  enactment  of  the  Code  of  Commercial  Procedure", which
   interpreted inter alia Article 33 of the new Code. In Section 5 of the
   Recommendation,  the  Supreme  Commercial  Court  specified  that  the
   disputes  concerning  registration  of  non-profit  organisations fall
   outside the competence of the commercial courts.

   19.  The  Code  provided  that  the  judgments of commercial courts of
   first instance could be appealed within one month of the date of their
   adoption  (Article  147).  Decisions  of  the  courts  of  appeal were
   amenable  to appeal to the court of cassation also within one month of
   the date of their adoption (Article 164).

   20.  Chapter  22  of  the  Code  also established that any judgment or
   decision of any commercial court of the Russian Federation (except for
   the  decisions  of  the Presidium of the Supreme Commercial Court) was
   amenable  to  supervisory  review  initiated  on  application  by  the
   President  of  the  Supreme  Commercial  Court,  or his deputy, or the
   Prosecutor  General of the Russian Federation, or his deputy (Articles
   180  and  181).  The  Code  did  not  list  the grounds for lodging an
   application  for  supervisory review, or the time-limits for doing so.
   It  specified  that it could be lodged either on the initiative of the
   relevant State official or "in connection with a request by a party to
   the  proceedings"  (Article  185  S: 1). The summoning of parties to a
   hearing  before  the  Presidium  of the Supreme Commercial Court was a
   discretionary right of the Presidium (Article 186 S: 2).

   21.  The  Presidium  of  the Supreme Commercial Court was the court of
   final  instance  within  the  commercial  court  system; no appeal lay
   against its decisions (Article 180 S: 1 of the Code).

   THE LAW

   I.  THE GOVERNMENT'S PRELIMINARY OBJECTION

   22.  The  Government contended that the application was lodged outside
   the  six-month  time-limit  established  by  Article  35  S:  1 of the
   Convention.  First,  they reiterated their argument that the applicant
   association  had  failed to inform the authorities of its new address.
   Furthermore,  the  Government claimed that the decision of the Supreme
   Commercial  Court  of 26 September 2000 was published in no. 12 of its
   official  bulletin  for  2000  and  then  included  in  the electronic
   databases  of  legal material. Thus, the applicant should have learned
   of  the  decision  of  the  Supreme Commercial Court shortly after its
   official publication.

   23.  The  Court reiterates that it examined the question of compliance
   with  the  six-month  rule in its decision on admissibility of 2 March
   2006  and  dismissed the Government's objection. The Court does not in
   the  circumstances of the case see any reason to return to it now. The
   Court accordingly dismisses the preliminary objection.

   II.  ALLEGED VIOLATION OF ARTICLE 6 S: 1 OF THE CONVENTION

   24.  The applicant association complained that its "right to a court",
   enshrined  in  Article  6  of the Convention, had been breached by the
   quashing  of  the  decision  of  17 June 1999, as upheld on 18 October
   1999.  Article  6  of  the Convention, in so far as relevant, reads as
   follows:

   "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

   25.    The Government indicated that the applicant association's right
   to  a  court  had not been breached. First, the supervisory review had
   been  instigated  within  a  reasonable time after the decision of the
   Federal  Commercial  Court.  Second,  the  Presidium  of  the  Supreme
   Commercial  Court  had acted in compliance with the Code on Commercial
   Procedure and, thus, the applicant association had not been unprepared
   for  such  a development. Finally, the supervisory review had aimed at
   remedying  a  fundamental  defect  of the proceedings before the lower
   courts,  namely  the  lack of jurisdiction of the commercial courts to
   decide on that category of disputes.

   26. The applicant association maintained its complaint.

   B.  The Court's assessment

   27.  The  Court  notes  that  the central issue of the present case is
   whether the supervisory review procedure was compatible with Article 6
   and,  more  specifically, whether on the facts of the present case the
   principle of legal certainty was respected.

   28.  The  Court  notes  that  supervisory  review procedure within the
   commercial  court  system was at the relevant time very similar to the
   supervisory  review  in civil proceedings which was brought into focus
   in  the  Ryabykh judgment and subsequent cases (see Ryabykh v. Russia,
   no. 52854/99,  ECHR 2003-IX). It had the same characteristics which on
   many  occasions have led the Court to conclude that supervisory review
   in  civil  proceedings  was  against  the  "legal certainty" principle
   protected  by  Article 6, namely that decisions of the lower courts in
   the  commercial  court system were "liable to challenge indefinitely",
   and "on an application made by a State official", without a request by
   a  party  (see  Ryabykh  ibid., S: 56). In sum, the Court acknowledges
   that  the  structural  procedural  problems which it has identified in
   previous cases were present in the present case as well.

   29.  In  the  present  case the Government put forward three groups of
   argument  to  justify  the  departure  from  the  principle  of  legal
   certainty.  First,  they  claimed  that  the  supervisory  review  was
   instigated  within a "reasonable time". The Court notes that more than
   ten  months  elapsed from the decision of the Federal Commercial Court
   until the instigation of the supervisory review. In the opinion of the
   Court,  that delay may arguably by itself raise an issue under Article
   6  of  the  Convention,  especially  given  that  the  time-limits for
   bringing  an  "ordinary"  appeal or a cassation appeal were limited to
   one  month.  In any event, the Court considers that it was the absence
   of  any  time-limit  in  respect of the possible reopening of the case
   which created the uncertainty for the litigants. The fact that it took
   the  authorities  less  than  one  year to instigate the review in the
   present case does not affect this fundamental problem of uncertainty.

   30.  The  second  argument  of  the  Government  is that the applicant
   association  knew  that  the  decision  in  its  favour  was liable to
   challenge  by  way  of supervisory review. However, in the eyes of the
   Court the crux of the problem was that the applicant association could
   not  have  foreseen when the supervisory review would take place if it
   would  take  place  at  all.  Therefore,  this argument should also be
   dismissed   as  also  in  this  respect  the  problem  of  uncertainty
   persisted.

   31.  Finally,  the  Government  claimed that the supervisory review of
   the  decision in the applicant association's favour had been justified
   because  the  lower  courts  had acted outside their jurisdiction, and
   thus aimed at remedying a fundamental defect.

   32.  The  Court  would  refer  to  its  finding in the case of Ryabykh
   (cited  above)  where it held as follows, in so far as relevant to the
   instant case:

   "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."

   33.   The Court, however, stresses that the Ryabykh judgment contained
   an  important  reservation,  which, at least implicitly, admitted that
   supervisory review could be justified in particular circumstances. The
   Court said (see S: 52 ibid):

   "...  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".

   34.  In  the  case  of  Kot v. Russia (no. 20887/03, S: 29, 18 January
   2007), the Court developed that logic. It held as follows:

   "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."

   35.  Thus,  the  Court  accepts  that  in  certain circumstances legal
   certainty  can be disturbed in order to correct a "fundamental defect"
   or  a  "miscarriage  of  justice".  However, these notions do not lend
   themselves  to  precise  definition.  The Court has to decide, in each
   case,  to  what  extent  the  departure  from  the  principle of legal
   certainty  is  justified (see, in the context of criminal proceedings,
   the  case of Radchikov v. Russia, no. 65582/01, S: 44, 24 May 2007; in
   the  context  of  civil  proceedings,  see  the  cases of Protsenko v.
   Russia,  no.  13151/04,  S:S: 31 et seq., 31 July 2008; and Tishkevich
   v. Russia, no. 2202/05, S:S: 25-26, 4 December 2008).

   36.  Turning  to the present case, the Court notes that the reason for
   quashing  the  decisions  of  the  lower  courts was the fact that the
   dispute  between  the  applicant  association  and  the Department was
   outside  the  commercial  courts'  jurisdiction. The Court has already
   held  that  jurisdictional  errors, in principle, may be regarded as a
   "fundamental  defect"  susceptible to correction by way of supervisory
   review  (see  Luchkina  v. Russia, no. 3548/04, S: 21, 10 April 2008).
   The  question  arises  whether  in the particular circumstances of the
   case  the  breach  of the rules of jurisdiction may be considered as a
   "fundamental  defect" calling for the review of the decision which the
   applicant considered to be res judicata.

   37.    The  Court  observes  that,  in Russia, disputes concerning the
   official  registration  of  legal entities are, as a rule, examined by
   the   commercial   courts.   Registration  disputes  involving  public
   associations  are,  however,  exempted  from  the  jurisdiction of the
   commercial  courts,  seemingly because of the "non-economic" character
   of  those  disputes.  That reading of the old Code was proposed by the
   Supreme  Commercial  Court,  and  the Court does not see any reason to
   disagree  with  it.  However, it is noteworthy that both the applicant
   association  and  the defendant (the Department of Justice) considered
   that  the  commercial courts did have the power to decide on the case.
   Moreover,  the  commercial  courts,  at  two  levels  of jurisdiction,
   accepted  the  case and examined it on the merits. That shows that the
   relevant provisions of the old Code, taken in conjunction with the Law
   On   Public  Associations,  were  ambiguous  at  best.  The  rules  of
   jurisdiction  were  only  clarified  in  2002,  in connection with the
   enactment of the new Code, when the Supreme Commercial Court specified
   that disputes concerning registration of non-profit organisations fall
   outside  the  competence  of  the commercial courts (see the "Relevant
   domestic Law" part above).

   38.  Thus,  the  Court is satisfied that the decision of 17 June 1999,
   as upheld on 18 October 1999 appeared to be lawful. The effects of the
   judgment  of  17  June  1999  were very limited: it concerned only the
   parties  involved  in  the  proceedings, and did not conflict with any
   other  judicial  decision. The  Court  agrees  that,  as  a  matter of
   principle,  the rules of jurisdiction should be respected. However, in
   the  specific  circumstances  of  the  present case the Court does not
   detect any pressing social need which would justify the departure from
   the  principle  of legal certainty. 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.

   39.    In  sum,  in  the circumstances of the case the quashing of the
   judgment  of  17  June  1999,  as  upheld  on  18  October 1999, was a
   disproportionate  measure  and respect for legal certainty should have
   prevailed.  There  has therefore been a violation of Article 6 S: 1 of
   the Convention.

   III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

   40.  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."

   A.  Damage

   41.  The applicant association claimed 3,000 euros (EUR) in respect of
   non-pecuniary  damage.  It  claimed that for several years it had been
   unable  to  obtain  re-registration  and,  therefore,  was  at risk of
   liquidation.

   42.  The  Government  considered  that claim excessive. They indicated
   that  the  fear of eventual liquidation was groundless. They submitted
   that  a  finding  of  a  violation  would  constitute  sufficient just
   satisfaction.

   43.  The  Court  notes  that  that  it is possible to make an award in
   respect  of  non-pecuniary damage to a legal person in connection with
   the  "prolonged  uncertainty"  and  "inconvenience" it has suffered in
   relation  to  a violation found by the Court (see Comingersoll S.A. v.
   Portugal [GC], no. 35382/97, S: 36, ECHR 2000-IV).

   44.  The  Court  accepts  that the quashing of the judgment of 17 June
   1999,  as  upheld on 18 October 1999, caused the applicant association
   some   inconvenience.   At   the   same  time,  it  appears  that  the
   discontinuation  of  the  proceedings  ordered by the Presidium of the
   Supreme  Commercial  Court had little effect on the functioning of the
   applicant  association,  which  furthermore  had  the  possibility  to
   present  its  request  to a court with proper jurisdiction and finally
   obtained  a  favourable  judgment  from  such  a  court.  Ruling on an
   equitable  basis,  as provided for by Article 41, the Court awards the
   applicant association EUR 500 for the non-pecuniary damage sustained.

   B.  Costs and expenses

   45.  The  applicant  association  did  not  claim reimbursement of its
   costs  and  expenses  incurred before the domestic authorities and the
   Court. Accordingly, the Court does not make any award under this head.

   C.  Default interest

   46.  The  Court  considers  it  appropriate  that the default interest
   should  be  based on the marginal lending rate of the European Central
   Bank, to which should be added three percentage points.

   FOR THESE REASONS, THE COURT

   1.  Dismisses unanimously the Government's preliminary objection;

   2.  Holds  by  five  votes  to  two that there has been a violation of
   Article 6 of the Convention.

   3.  Holds by five votes to two

   (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 S: 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;

   4.  Dismisses unanimously the remainder of the applicant association's
   claim for just satisfaction.

   Done  in English, and notified in writing on 23 July 2009, pursuant to
   Rule 77 S:S: 2 and 3 of the Rules of Court.

   Sren Nielsen Christos Rozakis
   Registrar President

   In  accordance with Article 45 S: 2 of the Convention and Rule 74 S: 2
   of  the  Rules of Court, the joint dissenting opinion of Judges Kovler
   and Steiner is annexed to this judgment.

                                                                   C.L.R.
                                                                      S.N

                 JOINT DISSENTING OPINION OF JUDGES KOVLER
                                AND STEINER

   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
   S: 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, S: 52, ECHR 2003-IX, and Kot
   v.  Russia, no. 20887/03, S: 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.

   10 SUTYAZHNIK v. RUSSIA JUDGMENT

   SUTYAZHNIK v. RUSSIA JUDGMENT 9

   12 SUTYAZHNIK v. RUSSIA JUDGMENT

                              SEPARATE OPINION

   SUTYAZHNIK v. RUSSIA JUDGMENT 11

                              SEPARATE OPINION


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