SAKHANOV v. RUSSIA
Inadmissible
Alena Poláčková;Branko Lubarda;Dmitry Dedov;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova
1. The applicant, Mr Vitaliy Viktorovich Sakhanov, is a Russian national who was born in 1969 and lives in Moscow. 3. From 25 December 2009 to 20 December 2011 the applicant was the director general of a Russian limited liability company, OOO VA INVEST (hereinafter “the company”). 4. On 16 November 2012 the Commercial Court of Moscow declared the company bankrupt and opened liquidation proceedings. The proceedings were closed on 25 June 2013. 5. On 4 July 2013 the Commercial Court of Moscow considered a request from the Federal Tax Service to hold the applicant jointly liable for the company’s debts because of the company’s inability to cover all its debts with its remaining assets. Although duly notified, the applicant was not present at the hearing. 6. The Federal Tax Service’s request was granted and the applicant was found liable to pay 1,194,434 Russian rubles (RUB, approximately 27,732 euros). 7. On 27 August 2013 the company officially went into liquidation. 8. The applicant only became aware of the outcome of the proceedings against him in May 2014 when money was seized from his bank account. 9. The applicant appealed against the decision of the Commercial Court of Moscow of 4 July 2013. 10. The 9th Commercial Court of Appeal considered the appeal on the merits and on 6 November 2014 discontinued the appeal proceedings. With reference to the position of the Supreme Commercial Court, the appeal court concluded that it was impossible to adjudicate bankruptcy-related disputes concerning a company that had already gone into liquidation. The operative part of the appeal decision stated that the applicant could file a cassation appeal. 11. On 22 December 2014 the Commercial Court of Moscow Region dismissed a cassation appeal of the applicant. Reasoning adopted by the appeal court was upheld in full. The applicant did not appeal further against that decision. 12. In 2015 the applicant attempted to initiate a separate set of proceedings before the Constitutional Court of Russia, but his complaint was found inadmissible. 13. On 6 February 2014 several amendments to the Constitution introduced by the Constitutional Amendment Act No. 2-FKZ (Закон РФ о поправке к Конституции РФ от 05.02.2014 No. 2-ФКЗ) entered into force. Among other things, the amendments provided that the Supreme Commercial Court was to be abolished following a provisional period of six months and all its functions were to be gradually transferred to the Supreme Court. 14. With some material and procedural exceptions, final court decisions issued by a first-instance and appeal courts in commercial cases may be challenged by way of cassation appeal before a commercial court of a Circuit (Article 273 of the Code). 15. On 6 August 2014 amendments to the Code of Commercial Procedure (“the Code”) came into effect. The Supreme Court was empowered to consider cassation and supervisory review appeals against the final decisions of commercial courts. There were no specific transitional provisions. For a detailed description of the procedure in force before the amendments refer to Kovaleva and Others v. Russia ((dec.), no. 6025/09, 25 June 2009). 16. A cassation appeal may be lodged within two months after the last impugned court decision became final (Article 276 of the Code). A panel of judges examines a cassation appeal within two months (Articles 284-285 of the Code). The scope of review includes the issues of legality as raised by the parties and, proprio motu 17. Article 291.1 § 1 of the Code provides that final judicial decisions of commercial courts that have already been subjected to review in a cassation appeal by regional courts may be challenged further in cassation appeal proceedings before the Chamber of the Supreme Court. The proceedings may be taken by the parties to a case and by others whose rights or legal interests have been adversely affected by those decisions. 18. According to Article 291.2 § 1 cassation appeals may be filed within two months of the date the last judicial decision in the case became legally binding. 19. Article 291.2 § 2 sets out that the deadline for submitting a cassation appeal may be extended in exceptional circumstances at the request of the appellant. An extension, however, is only possible if the request is submitted either by a party to the proceedings within six months of the date the last judicial decision in the case became legally binding, or by a third party affected by the case within six months of the date he or she became aware of a violation of his or her rights. 20. Article 291.6 §§ 1 and 7 provide that the admissibility of a cassation appeal is considered by a single judge of the Supreme Court. The judge can either find the cassation appeal inadmissible or refer it to the Chamber of the Supreme Court for consideration. 21. According to Article 291.7 §§ 1 and 2 the admissibility of a cassation appeal is to be considered within two months if the case file has not been requested from the lower court, and within three months if the file has been requested. That time-limit excludes the period between the request for the case file and its receipt. The time-limits may be extended by two months by the President of the Supreme Court or his or her deputy. 22. Article 291.12 § 1 states that the Chamber of the Supreme Court is to examine the case within two months of the date of the admissibility decision. 23. Article 291.14 § 1 provides that following examination of the case, the Chamber of the Supreme Court may, among other things, quash wholly or in part one or all of the judgments previously delivered in the case by the first-instance, appeal or cassation courts and remit the case for reconsideration by any of those courts. 24. Chapter 26 of the Code provided that final judgments could be challenged by way of supervisory review before the Supreme Commercial Court of Russia (see further Kovaleva and Others v. Russia (dec.), cited above). When the Supreme Commercial Court of Russia ceased to exist, the review of final judgments in commercial cases was assigned to the Supreme Court of Russia according to the rules of new Chapter 36.1 of the Code. 25. A newly introduced chapter, Chapter 36.1, provides that the Presidium of the Supreme Court of the Russian Federation can consider applications from parties for supervisory review of binding judgments issued by lower judicial instances. 26. According to Article 308.1 § 3 (3), in an ordinary civil case where the proceedings started at a first-instance commercial court, parties may lodge an application for supervisory review only if their case has previously been examined in cassation proceedings by the Chamber of the Supreme Court. Such applications may be brought within three months of the date on which the impugned decision became binding (Article 308.1 § 4). 27. According to Article 308.4 § 1 and 308.5 the admissibility of an application is decided by a single judge of the Supreme Court, who may dismiss the application or transfer it for examination by the Presidium. That decision must be taken within two months if the case file has not been requested and within three months if it has been requested. The time-limit excludes the period between the request for the case file and its receipt. 28. Article 308.4 § 7 provides that a decision by a single judge to dismiss an application may be overruled by the President or Deputy President of the Supreme Court. The Code contains no explicit time-limit for the exercise of that power. 29. Following examination of a case the Presidium of the Supreme Court may, in accordance with Article 308.11 § 1, uphold, vary or quash any of the judgments previously delivered in a case, be it by the first-instance, appeal or cassation courts. If it does so, the Presidium may adopt a new decision or send the case back for reconsideration. Article 308.8 provides that binding decisions may be quashed on supervisory review if they breach: (1) human rights and freedoms enshrined in the Constitution or principles of international law and international treaties to which the Russian Federation is a party; (2) the rights and legitimate interests of an undefined group of people or other public interests; (3) the uniformity of case-law. 30. Article 208.9 § 5 states that the Presidium of the Supreme Court is to examine cases within two months of the date of the admissibility decision.