FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 55609/00 
by Roza Aleksandrovna SITOKHOVA 
against Russia

The European Court of Human Rights (First Section), sitting on 2 September 2004 as a Chamber composed of:

Mr C.L. Rozakis, President
 Mr P. Lorenzen
 Mr G. Bonello
 Mrs N. Vajić, 
 Mrs S. Botoucharova, 
 Mr A. Kovler
 Mr V. Zagrebelsky, judges
and Mr S. Nielsen, Section Registrar,

Having regard to the above application lodged on 18 August 1999,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant is a Russian national, born in 1934 and living in Vladikavkaz. The respondent Government are represented by Mr. P.A. Laptev, representative of the Russian Federation at the European Court of Human Rights.

A.  The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

In 1990 the applicant was involved in negotiations to buy part of a house from a third party.

In 1998 the applicant brought a court action in connection with a contract which had been prepared during the negotiations. On 13 July 1998 the Vladikavkaz District Court granted her claim. The judgment was not challenged and it acquired legal force on 23 July 1998.

On 29 January 1999, pursuant to a “protest” (application for supervisory review) by the President of the Supreme Court of North Ossetia-Alania, the Presidium of the Supreme Court of the Republic of North Ossetia-Alania quashed the judgment and remitted the case to the first instance, indicating that the District Court had failed to observe the necessary procedural formalities. The applicant was present on that occasion.

On 15 October 1999 the applicant’s claim was dismissed by the District Court. On 8 February 2000 the Supreme Court of the Republic of North Ossetia-Alania upheld the decision given on 15 October 1999.

An application for supervisory review was rejected by the Supreme Court of Russia on 11 April 2000.

B.  Relevant domestic law

Code of Civil Procedure as in force at the relevant time

Article 319

“Judgments, court rulings and decrees which have entered into force, may be reviewed by way of supervision following a “protest” lodged by the persons listed in Article 320 of the Code”. 

Article 320

“The persons competent to lodge a protest are:

the Prosecutor General - against judgments, orders, and decisions of any court;

the chairman of the Supreme Court - against resolutions of the Presidium of the Supreme Court as well as against judgments and orders of the Judicial College on Civil Cases of the Supreme Court acting as a court of first instance;

Deputies of the General Prosecutor - against judgments, orders, and decisions of any court with the exception of the resolutions of the Presidium of the Supreme Court;

Deputies of the President of the Supreme Court - against orders and judgments of the Judicial College on Civil Cases of the Supreme Court acting as a court of first instance;

the chairman of the Supreme Court of an autonomous republic, area, regional, or city court, court of autonomous region, and court of an autonomous district, the Prosecutor of an autonomous republic, area, region city, autonomous region, and autonomous district - against judgements and orders of district (city) people’s courts and orders of Judicial Colleges on Civil Cases of respectively the Supreme Court of an autonomous republic, area, regional, city court, court of an autonomous region, and court of an autonomous district that reviewed the case according to an appellate procedure”.

Article 322

“The persons listed in Article 320 are entitled, subject to certain conditions, to obtain the case file in a civil case in order to establish whether there are any grounds for lodging a “protest” by way of a supervisory review”.

Article 323

“Officials who are entitled to lodge “protests” in accordance with the supervisory procedure may suspend execution of the judgments, orders, and decisions concerned until the supervisory review proceedings are completed”.

Article 329 § 2

“The court which carries out the supervisory review may annul the judgment in whole or in part and remit the case to the first or appeal instance for fresh consideration”.

COMPLAINTS

1. The applicant complains under Article 6 § 1 of the Convention of a violation of her right to a fair hearing since the decision of the Soviet District Court given in her favour was quashed by the Supreme Court of North Ossetia-Alania after it had acquired legal force. She also complains of the outcome of the proceedings.

2. Invoking Article 1 of Protocol 1 to the Convention, the applicant claims that there was a breach of her right to the peaceful enjoyment of possessions since the supervisory review Decree deprived her of a property right granted by the district court decision.

THE LAW

1. The applicant alleges a violation of Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention by virtue of the quashing of the judgment of 13 July 1998, which entered into force on 23 July 1998. Article 6 § 1 of the Convention provides, so far as relevant, as follows:

“In the determination of his civil rights and obligations... everyone is entitled to a fair... hearing ... by [a]... tribunal established by law...”

Article 1 of Protocol No. 1 reads, so far as relevant, as follows:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law...”

The Government underline that the quashing of the judgment of 13 July 1998 was carried out by the courts in accordance with the provisions of domestic law, and contend that the quashing was compatible with both Article 6 of the Convention and Article 1 of Protocol No. 1. The applicant disagrees with the Government, and maintains her complaint.

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 Brumărescu v. Romania [GC], no. 28342/95, § 62, ECHR 1999-VII; Ryabykh v. Russia, no. 52854/99, §§ 56-58, 24 July 2003). Furthermore, quashing such a judgment after it has become final and unappealable will constitute an interference with the judgment beneficiary’s right to the peaceful enjoyment of his possessions (see Brumărescu v. Romania, cited above, § 74; Ryabykh v. Russia, cited above, § 61). The Court further notes that the quashing of a final judgment is an instantaneous act, which does not create a continuing situation, even if it entails a re-opening of the proceedings, as in the instant case (see, mutatis mutandis, Voloshchuk v. Ukraine (dec.), no. 51394/99, 14 October 2003).

The Court recalls that, in accordance with Article 35 § 1 of the Convention, it may only examine complaints in respect of which domestic remedies have been exhausted and which have been submitted within six months from the date of the “final” domestic decision. If there is no adequate remedy against a particular act, which is alleged to be in breach of the Convention, the date when that act occurs is taken to be “final” for the purposes of the six months’ rule (see, e.g., Valašinas v. Lithuania (dec.), no. 44558/98, 14 March 2000).

The Court notes that at the material time the Russian law of civil procedure did not provide for any ordinary appeal against a ruling adopted by way of supervisory review by the Presidium of a regional court or the Presidium of the Supreme Court of the Russian Federation. Such a ruling could subsequently be quashed by way of new supervisory review proceedings and the original judgment could be reinstated. However, a new round of supervisory review proceedings could not be set in motion by a party itself and its granting depended on the exercise of discretionary powers of a State official. In any event, the Court has previously considered any subsequent attempts to conduct supervisory review, in a matter which had been once determined in a final judgment which was later quashed, not to be conducive to an improvement of legal certainty (see Ryabykh v. Russia (dec.), no. 52854/99, 21 February 2002, see also Sardin v. Russia (dec.), no. 6952/01, 12 February 2004).

In the absence of an effective remedy the Court concludes that it was the very act of quashing the final judgment of 13 July 1998 that triggered the start of the six-month time limit for lodging the present application with the Court. The first instance judgment in the present case was quashed in the applicant’s presence on 29 January 1999, and the application was introduced on 18 August 1999.

It follows that this part of the application has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

2. The applicant also complains, under Article 6 § 1 of the Convention, about the outcome of the proceedings.

The Court recalls that it is not called upon to examine alleged errors of fact and law committed by the domestic judicial authorities, provided that there is no indication of unfairness in the proceedings and provided the decisions reached cannot be considered arbitrary. On the basis of the materials submitted by the applicant, the Court notes that she was able to present her arguments as she wished, and the judicial authorities gave them due consideration (see, again, the above-mentioned Sardin v. Russia decision).

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Søren Nielsen Christos Rozakis 
 Registrar President

SITOKHOVA v. RUSSIA DECISION


SITOKHOVA v. RUSSIA DECISION