FIRST SECTION

DECISION

Application no. 68419/01 
by AO ALROSA and Others 
against Russia

The European Court of Human Rights (First Section), sitting on 9 November 2004 as a Chamber composed of:

Mr C.L. Rozakis, President
 Mr P. Lorenzen
 Mrs N. Vajić
 Mrs S. Botoucharova
 Mr A. Kovler
 Mrs E. Steiner, 
 Mr K. Hajiyev, judges
and Mr S. Nielsen, Section Registrar,

Having regard to the above application lodged on 15 December 2000,

Having regard to the observations submitted by the respondent Government,

Having deliberated, decides as follows:

THE FACTS

The first applicant is a Russian limited company “Alrosa” (закрытое акционерное общество «Алроса», “the applicant company”) registered in the Sakha (Yakutia) Republic of the Russian Federation. The second, third and fourth applicants, Messrs Gamlet Vaginakovich Akopyan, Sergei Vasilievich Bokov and Alexei Nikolayevich Vishnevskiy, are the applicant company's shareholders. The applicants are represented before the Court by Messrs S. Kuteynikov and S. Kuchushev, lawyers practising in Moscow. The respondent Government are represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights.

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

On 4 August 1994 the applicant company's logistics department entered into a sale-purchase contract with “MUM World Enterprises Co. Ltd.” (“MUM”), an Australian company, for the delivery of certain consumer goods.

On 14 May 1996 MUM brought an action against the applicant company before the International Commercial Arbitration Court at the Trade and Industry Chamber of the Russian Federation (Международный коммерческий арбитражный суд при Торгово-промышленной палате РФ, “ICCA”). MUM claimed the outstanding payments for delivered goods and interest thereon. On 24 May 1996, 27 February and 4 September 1998 MUM supplemented its original claims and increased their amount to take account of the accrued interest.

The applicant company objected to the examination of the action by the ICCA and insisted that the arbitration clause in the contract had not been valid.

On 30 September 1998 the International Commercial Arbitration Court granted MUM's claims and ordered the applicant company to pay USD 3,110,482.05 of the outstanding debt and interest thereon and USD 22,927 of arbitration fees. On 5 August 1999 the ICCA amended its judgment to reflect changes in the names of the applicant company and of the plaintiff company.

The applicant company applied to the Moscow City Court with a request to annul (ходатайство об отмене) the ICCA judgment on procedural grounds. It submitted, in particular, that the ICCA had not been competent to examine the dispute because the arbitration clause had not contained any reference to the ICCA.

On 1 October 1999 the Civil Chamber of the Moscow City Court granted the applicant company's request and annulled the ICCA judgment of 30 September 1998.

On 12 November 1999 the Civil Chamber of the Supreme Court of the Russian Federation upheld the judgment of the Moscow City Court and it became final.

On an unspecified day in April 2000 Judge S., a deputy President of the Supreme Court of the Russian Federation, lodged an application for supervisory review (протест в порядке надзора) of the decisions of 1 October and 12 November 1999. Judge S. submitted that the courts had wrongly applied the substantive law and the ICCA judgment had been valid.

On 27 April 2000 the applicant company was notified of the supervisory-review hearing and received a copy of the application for supervisory review.

On 28 June 2000 the Presidium of the Supreme Court of the Russian Federation, composed of the President of the Supreme Court and ten other judges, including Judge S., quashed, by way of supervisory review, the rulings of 1 October and 12 November 1999 and dismissed the applicant company's request to annul the ICCA judgment of 30 September 1998.

The applicants subsequently applied to the Presidium of the Supreme Court of the Russian Federation to re-open the proceedings claiming that there had been a judicial mistake; their attempts proved to be unsuccessful.

COMPLAINTS

1.  The applicants complained under Article 6 § 1 of the Convention about a violation of their right to a court in connection with the decision of the Presidium of the Supreme Court of the Russian Federation of 28 June 2000 that had quashed all earlier court decisions in the matter.

2.  The applicants complained under Article 13 of the Convention that they had not had an effective remedy after the Presidium of the Supreme Court had quashed the earlier judgments.

3.  The applicants complained under Article 1 of Protocol No. 1 to the Convention that the enforcement of the ICCA judgment confirmed by the Presidium of the Supreme Court on 28 June 2000 would result in substantial financial losses for the applicant company.

THE LAW

On 13 October 2003 the application was communicated to the respondent Government.

On 1 March 2004 the Government's observations on the admissibility and merits of the application were received and the applicants' representatives were invited to submit written observations in reply by 28 April 2004.

On 31 March 2004 the English version of the Government's observations was forwarded to the applicants. The time-limit for the submission of the applicants' observations remained unaffected.

As the applicants' observations on the admissibility and merits had not been received by 28 April 2004, on 2 June 2004 the applicants' representatives were advised by fax and by registered mail that the failure to submit observations might result in the strike-out of the application.

The applicants have not replied.

The Court recalls Article 37 of the Convention which, in the relevant part, reads as follows:

“1. The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that

(a) the applicant does not intend to pursue his application;

...

However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.”

The Court notes that the applicants were advised that they were to submit written observations on the admissibility and merits of the case. They subsequently received a reminder thereof. No response has been received to date. The Court infers therefrom that the applicants do not intend to pursue the application. Furthermore, it considers that respect for human rights as defined in the Convention and its Protocols does not require it to continue the examination of the case.

In these circumstances it considers that the case should be struck out of the list in accordance with Article 37 § 1 (a) of the Convention.

For these reasons, the Court unanimously

Decides to strike the application out of its list of cases.

Søren Nielsen Christos Rozakis 
 
Registrar President

AO ALROSA AND OTHERS v. RUSSIA DECISION


AO ALROSA AND OTHERS v. RUSSIA DECISION