CASE OF PROTSENKO v. RUSSIA
No violation of Art. 6-1
Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
5. The applicant was born in 1951 and lives in Taganrog, the Rostov Region. 6. On 12 March 2003 the applicant purchased a recreation centre (“the centre”), comprising a group of cottages, from a private company. The centre was situated on a plot of land belonging to a collective farm. 7. The applicant asked the Registration Office to register the transfer of the title to the centre from the company to her. However, the applicant’s request was dismissed, because the company had not duly registered its title to the centre, and therefore was unable to transfer it to the applicant. 8. The applicant brought proceedings against the company seeking to obtain acknowledgement of her title to the centre. 9. On 7 April 2003 the Neklinovskiy District Court of the Rostov Region granted the applicant’s claim. 10. No ordinary appeal was lodged against the judgment. 11. On 18 April 2003 the judgment became final and enforceable. 12. On 23 June 2003 the Registration Office registered the applicant’s title to the centre. 13. On an unspecified date in 2003 the collective farm lodged an application for supervisory review of the judgment of 7 April 2003. It alleged that the said judgment was unfounded since, even though the collective farm owned the plot on which the centre in question was situated, it had not been invited to take part in the proceedings and its interests had not been taken into consideration by the domestic court. 14. On 3 December 2003 the Rostov Regional Court remitted the supervisory-review application for examination on its merits by the Presidium. 15. On 25 December 2003 the Presidium of the Rostov Regional Court held a supervisory-review hearing. It held that the first-instance court adopted the judgment with significant violations of substantive and procedural law. In particular, the Presidium pointed out that the first-instance court did not investigate that it failed to identify all the parties to the proceedings, to invite the owner of the land to participate in the proceedings and that it had pronounced judgment by which the rights of the latter were considerably affected. On these grounds the Presidium quashed the judgment of 7 April 2003 and remitted the matter for a fresh examination. 16. On 25 January 2005 the Neklinovskiy District Court of the Rostov Region dismissed the applicant’s claim, declared the purchase agreement void, annulled the registration of the applicant’s title to the centre and restored the parties to their original position. 17. On 30 March 2005 the Rostov Regional Court upheld the above judgment on appeal. 18. The Code of Civil Procedure of the Russian Federation (“the new Code”) was enacted on 14 November 2002 and replaced the RSFSR Code of Civil Procedure (“the old Code”) from 1 February 2003. It provides as follows: “1. Judicial decisions that have become legally binding, with the exception for judicial decisions by the Presidium of the Supreme Court of the Russian Federation, may be appealed against ... to a court exercising supervisory review, by parties to the case and by other persons whose rights or legal interests have been adversely affected by these judicial decisions. 2. Judicial decisions may be appealed against to a court exercising supervisory review within one year after they became legally binding ...” “Judicial decisions of lower courts may be quashed or altered by way of supervisory review on the grounds of substantial violations of substantive or procedural legal provisions.” “1. Having examined the case by way of supervisory review, the court may ... (2) quash the judicial decision issued by a court of first, second or supervisory-review instance in whole or in part and remit the matter for a fresh examination; ... (5) quash or alter the judicial decision issued by a court of first, second or supervisory-review instance and issue a new judicial decision, without remitting the matter for a fresh examination, if substantive legal provisions have been erroneously applied or interpreted.”