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EUROPEAN COURT OF
HUMAN RIGHTS
COUNCIL OF EUROPE
Strasbourg
Section Registrar
Soren Nielsen
9 July 2004
By fax and by mail
Application ą8269/02
SUTYAZHNIK v. Russia
ADDITION TO THE OBSERVATIONS OF THE APPLICANT
IN REPLY TO THE MEMORANDUM OF THE REPRESENTATIVE OF THE RUSSIAN FEDERATION
AT THE EUROPEAN COURT OF HUMAN RIGHTS DATED 20 APRIL 2004
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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