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July 2004
Section Registrar 
Soren Nielsen
9 July 2004 

By fax and by mail
Application ą8269/02


As the European Court of Human Rights (hereinafter – “Court”) has noted, Article 35 of the Convention does not require rigid, mechanistic application in determining the date from which the six-month period should be calculated.  On the contrary, 

special considerations could apply in exceptional cases where applicants first avail themselves of a domestic remedy and only at a later stage become aware, or should have become aware, of the circumstances which make that remedy ineffective.  In such a situation, the six months period might be calculated from the time when the applicant becomes aware, or should have become aware, of these circumstances. (See, Eur. Court HR, Ekinci v. Turkey Decision as to the Admissibility of  8 June 1999.)

The concept that adjudicatory time limits should not be administered in a way that penalizes a litigant for delay caused by events unknown to him or by circumstances otherwise beyond his control is a matter of basic fairness and is broadly and strongly rooted in many jurisdictions and areas of the law.  In the human rights context, in a case involving a time limit provision analogous to Article 35, the European Commission of Human Rights observed that 

the running of the six months period might be interrupted or suspended by the existence of special circumstances and, in any event, can only begin to run from the moment the applicant learns of the act or decision of the public authority of which he complains. (Eur. Commision HR, Hilton v. United Kingdom Decision As to Admissibility of 6 July 1988.)

The same principle underlies the application of time limits for instituting an appeal under the rules of appellate procedure of the United States federal courts.  For example, in a civil rights case against New York City police officers, the plaintiff/appellant did not become aware of an adverse judgment for reasons similar (and, indeed, somewhat less compelling) to those in this case: although his lawyer had received the court’s adverse opinion, he did not receive notice of the entry of  judgment because that document was mailed to him at the address shown on the court docket sheet, from which he had moved during the pendency of the case without informing the Clerk’s office of his change of address.  It is only upon inquiry, after the time period for appeal had passed, that the lawyer learned of the entry of judgment.  The court reopened the time for filing the appeal because the plaintiff/appellant made his request for the re-opening within the requisite time from the date on which his lawyer had actually learned of the judgment.  (Rodriguez v. City of New York, 1999 WL 314175 (S.D.N.Y.); acccord, Cordon v. Greiner, 274 F. Supp.2d 434 (S.D. N.Y. 2003)); cf. Nunley v. City of Los Angeles, 52 F.3d 792 (9th Cir. 1995).) 

Similarly, the United States Supreme Court has at times recognized exceptions to time limits for the taking of various actions to institute an appeal or a petition for certiorari in cases where the appellant “has not himself been guilty of laches or want of diligence,” see, e.g.Grigsby v. Purcell, 99 U.S. 505 (1878), and “where the delay [in seeking certiorari] was wholly caused by circumstances entirely beyond the petitioner’s control.” Teague v. Regional Commissioner of Customs, 394 U.S. 977 (1969) (dissenting opinion of Black, J., and Douglas, J., and cases cited therein)  Likewise, the application of statutes of limitations in the United States incorporates the so-called “discovery rule,”   mainly through judicial definition of when a cause of action accrues and thus triggers the running of the limitations period.  Under this rule, “a claim accrues when the plaintiff discovers, or in the exercise of reasonable diligence should have discovered, the factual basis for the cause of action.”  McIntyre v. U.S., 367 F.3d 2004 (2004); see generally  51 American Jurisprudence 2d §§179-182. 

This Court has expressed sensitivity to special circumstances that could render mechanistic application of Article 35 unjust in a case where, as in the present case, a ruling quashing by way of supervisory review a final domestic judgment in applicant’s favor was the act alleged to have violated the applicant’s rights under the Convention.  (Eur. Court HR, Sardin v. Russia Decision as to Admissibility of 12 February, 2004.) 

In Sardin, The Court recalls its constant case-law to the effect that the quashing by a higher court, by way of supervisory review on application of a prosecutor or another State official, of a judicial decision which had become final and binding may render the litigant’s right to a court illusory and infringe the principle of legal certainty (see Brum?rescu v. Romania [GC], no. 28342/95, § 62, ECHR 1999 VII; Ryabykh v. Russia, no. 52854/99, §§ 56-58, 24 July 2003). 
However this principle did not aid the applicant because, as the Court expressly noted, “[n]othing in the applicant’s submissions indicates that he was not immediately aware of the ruling, especially bearing in mind that his representative was present at the hearing.” (Ibid.)  By contrast, in this case, the entire supervisory review proceeding – from the extraordinary appeal of the Vice-president of the Russian Federation Supreme Commercial Court, to the hearing and the decision to quash, to notice of that decision - occurred without Sutyazhnik’s or its counsel’s knowledge until 28 November 2001. Thus Sutyazhnik bore no responsibility for the delay in receiving notice of the decision to quash.
In sum, under the circumstances here, the six-month period for applying to this Court must be measured from 28 November 2001 and Russia’s objection to the admissibility of  Sutyazhnik’s application as untimely must be rejected. 

Ludmila Churkina
Legal representative of Sutyazhnik 
for proceedings before the European Court of Human Rights_____________

The document was prepared by Natasha C. Lisman, a partner in the Boston law firm of Sugarman, Rogers, Barshak & Cohen and a member of the Board of Directors and a volunteer with the International Senior Lawyers Project. Sutyajnik expresses gratitude to the International Senior Lawyers Project for providing support through Natasha Lisman's assistance. 

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