NOSOV v. RUSSIA
Inadmissible
Christos Rozakis
The applicant, Mr Aleksey Valentinovich Nosov, is a Russian national, who was born in 1964 and lives in Omsk. He is represented before the Court by Mr A. Shepelin, a lawyer practising in Omsk. 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 21 December 1996 the limited liability company Azimut-Elita, in which the applicant owned fifty per cent, sold petrol to the public company Technopribor. On 25 April 1997 Technopribor paid a part of the stipulated purchase price. Following unsuccessful attempts to recover the amount outstanding, Azimut-Elita assigned debt to the limited liability company Kompanyony, of which the applicant was, in his submission, director but not the owner. The Government referred to the Kompanyony company as “belonging” to the applicant. In early 1998 Kompanyony sued Technopribor for the amount outstanding and interest thereon. On 5 January 1999 the Commercial Court of the Kabardino-Balkaria Republic granted the action and awarded Kompanyony 2,292,000 Russian roubles (“RUR”). The Kompanyony company was represented by a Mr G., acting on the basis of a form of authority of 14 March 1999. On 15 April 1999 the Appellate Collegium of the Commercial Court of the Kabardino-Balkaria Republic upheld the judgment of 5 January 1999. The judgment became enforceable and on 27 April 1999 a writ of execution was issued. On 30 April 1999 Kompanyony assigned the debt to Mr Sh., a sole trader. On 5 May 1999 the writ was submitted to the court bailiffs’ service for enforcement. As no cassation appeal was lodged within the established time-limit, on 15 May 1999 the judgment became final. On an unspecified date in 1999 the Kompanyony company went into liquidation pursuant to a judicial decision in unrelated proceedings. On 25 December 2000 Mr Sh. assigned the debt to the limited liability company Pamir-99, in which the applicant was, in his submission, director but not the owner. The Government indicated that the company “belonged” to the applicant but its director in 1997 and 1998 had been a certain Mr M. On 28 December 2000 Pamir-99 sued Technopribor for damages incurred through its failure to comply with the judgment. On 31 January 2001 Judge R. of the Federal Commercial Court of the North-Caucasian Circuit issued two procedural orders (определение). The first order granted Technopribor an extension of the time-limit for the submission of a cassation appeal and ordered that the so submitted cassation appeal should be examined. The second order granted Technopribor a deferral of court fees in connection with its cassation appeal. Both orders were issued on standard printed forms: in the first order the words “[the defendant] refers to the fact that it missed the time-limit because of” were struck through; no grounds for granting the extension were given. Similarly, in the second order the words “[on the basis of] the [defendant’s] certificate no. ___ of ____ 2000 showing its insufficient funds” were struck through and replaced with the words “at the [defendant’s] request” without any further details. On 21 February 2001 the applicant filed his objections to the procedural orders which he signed as the director of Pamir-99. He informed the court that he had been the director of Kompanyony from January 1998 to November 1999 when the company had gone into liquidation without succession. The debt was assigned, by the mediation of Mr Sh., to Pamir-99. The applicant argued that, in conformity with Article 85 (4) of the Code of Commercial Procedure, the proceedings could not be re-opened or resumed because the original plaintiff had been liquidated. If the court would nevertheless consider it possible to examine the appeal, he asked that Pamir-99 be joined to the proceedings and copies of the request for the extension of the time-limit and statement of appeal be served on it. On 28 February 2001 the Federal Commercial Court of the North-Caucasian Circuit, sitting in a three-judge formation presided over by Judge R., quashed the judgments of 5 January and 15 April 1999 on the ground that the courts had given an incorrect assessment of the relevant facts, and remitted the claim for a new examination. As regards the reasons for the re-opening, the court held as follows: “The public company Technopribor has lodged a cassation appeal... Pursuant to Article 99 of the Code of Commercial Procedure, the time-limit for lodging a cassation appeal has been extended... [The court] has not received observations on the points of appeal. The court received a telegram from the Kompanyony company that contained a request to adjourn the proceedings until the evidence showing liquidation of the Kompanyony company had been produced. The request for adjournment was dismissed.” The Federal Commercial Court instructed the first-instance court to examine whether the Kompanyony company had gone into liquidation and, if so, discontinue the proceedings in accordance with Article 85 of the Code of Commercial Procedure. On 5 March 2001 the Commercial Court of the Kabardino-Balkaria Republic discontinued proceedings in the action for damages lodged by Pamir-99 on 28 December 2000 because the underlying judgment had been quashed. On 28 May 2001 the Commercial Court of the Kabardino-Balkaria Republic issued a new decision. It noted that, according to the information from the tax authorities, the Kompanyony company had been liquidated. The summons addressed to the company was returned as undelivered. The court held to discontinue the proceedings because the plaintiff failed to appear and ordered the Kompanyony company to bear RUR 24,148.95 in court fees. On 20 June 2001 Pamir-99 sold the applicant the right to claim the debt and damages arising out of the judgment of 5 January 1999. According to a receipt of 10 January 2002, the applicant paid the stipulated amount of RUR 35,000 (approximately EUR 1,100) in cash. On an unspecified date the applicant complained to the Supreme Commercial Court of the Russian Federation about the procedural orders of 31 January 2001. He referred to the fact that the time-limit had been extended two years after it had expired, whilst the defendant was a big factory with large administrative staff. Furthermore, he noted that the Federal Commercial Court failed to give any reasons for the extension. On 5 December 2001 Judge A. of the Supreme Commercial Court responded that there were no grounds for lodging an application for supervisory review. The applicant’s arguments about the absence of a justification for granting the extension were not addressed in the response. The Pamir-99 company sued Technopribor for the damage incurred through its failure to comply with the judgment of 5 January 1999. On 5 March 2001 the Commercial Court of the Kabardino-Balkaria Republic dismissed the Pamir-99’s claim. It noted that the judgment of 5 January 1999 had been quashed on 28 February 2001 and that the plaintiff failed to prove the existence of damage and the causal link with the defendant’s actions. On 31 May 2001 the Appellate Collegium of the Commercial Court of the Kabardino-Balkaria Republic upheld the judgment of 5 March 2001. Articles 47 and 49 provided that organisations could be represented before commercial courts by their bodies, acting within the scope of powers conferred on them by law, regulations or articles of association, or by special representatives acting on the basis of a form of authority. Article 85 (4) established that the commercial court should discontinue the proceedings if the organisation which was a party to the case was liquidated. Article 99 provided that the commercial court could extend a time-limit at the request of a party if it established that the party had missed the time-limit for a good reason. Article 164 set the time-limit for lodging a cassation appeal at one month after the judgment or decision of the commercial court became enforceable. Articles 166 and 168 required the service of copies of the cassation appeal on all parties to the proceedings, failing which the appeal would be disallowed.