Постановление Европейского суда по правам человека от 22.12.2009 «Дело Безымянная (bezymyannaya) против России» [англ.]

Город принятия

(Application No. 21851/03)
(Strasbourg, 22.XII.2009)
*This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Bezymyannaya v. Russia,

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

Nina {Vajic}*, President,

*Здесь и далее по тексту слова на национальном языке набраны латинским шрифтом и выделены фигурными скобками.

Anatoly Kovler,

Elisabeth Steiner,

Khanlar Hajiyev,

Sverre Erik Jebens,

Giorgio Malinverni,

George Nicolaou, judges,

and {Soren} Nielsen, Section Registrar,

Having deliberated in private on 3 December 2009,

Delivers the following judgment, which was adopted on that date:

1. The case originated in an application (No. 21851/03) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") by a Russian national, Ms Galina Aleksandrovna Bezymyannaya ("the applicant"), on 5 June 2003.

2. The applicant was represented by Mr I. Skripnichenko, a lawyer practising in Belgorod. The Russian Government ("the Government") were represented by Mr P. Laptev, former Representative of the Russian Federation at the European Court of Human Rights.

3. The applicant alleged, in particular, that she had been denied effective access to a court due to the domestic courts' refusal to examine the merits of her claim.

4. On 22 June 2006 the President of the First Section decided to give notice of the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3).

I. The circumstances of the case
5. The applicant was born in 1973 and lives in the town of Belgorod in the Belgorod Region.

6. On 29 December 1992 the applicant's husband bought municipal property, including the premises of a former restaurant. According to the applicant, several years later her husband, fearing for his life and for the safety of his family, signed a contract with a number of individuals, transferring title to the restaurant building to them.

7. On 5 May 2002 the applicant, in the interests of her minor child, lodged an action against her husband, seeking invalidation of the contract. She claimed that her husband had acted ultra vires while signing the contract, as he had not been the sole owner of the building. A part of the building had belonged to their minor child.

8. The Sverdlovskiy District Court of Belgorod accepted the claim for examination and listed a hearing. However, on 13 August 2002 it transferred the case to the Commercial Court of the Belgorod Region for further adjudication. The relevant part of the decision read as follows:

"By virtue of paragraph 1 of Section 4 of the Code of Commercial Procedure of the Russian Federation, which entered into force on 6 August 2002, the present case falls into the jurisdiction of a commercial court.

Under Article 7 of the Federal Law "On Putting into Operation the Code of Commercial Procedure of the Russian Federation" cases which are in the process of adjudication by courts of general jurisdiction and which, according to the Code of Commercial Procedure..., have been placed under the jurisdiction of commercial courts, should be transferred by courts of general jurisdiction, with the plaintiff's consent, to commercial courts within two weeks after paragraph 1 of Section 4 of the Code of Commercial Procedure has entered into force... If the plaintiff does not consent to the transfer of the case from the court of general jurisdiction to the commercial court, the court of general jurisdiction discontinues the proceedings in the case at issue because the case is not within the jurisdiction of the court of general jurisdiction.

At the hearing the plaintiff, [the applicant], consented, which she had confirmed in writing, to the transfer of the case to the commercial court.

The court finds it necessary to transfer the case pertaining to the [applicant's] action against [her husband]... to the Commercial Court of the Belgorod Region."
An appeal against the District Court's decision could have been lodged before the Belgorod Regional Court within ten days.

9. On 17 October 2002 the Commercial Court of the Belgorod Region discontinued the proceedings because it found that it had no jurisdiction over the claim.

10. On 10 December 2002 the Appeal Division of the Commercial Court of the Belgorod Region upheld the decision of 17 October 2002, endorsing the reasons given by the Commercial Court. On 24 March 2003 the Federal Commercial Court of the Central Circuit, in the final instance, upheld the decisions of 17 October and 10 December 2002.

II. Relevant domestic law
11. The RSFSR Code of Civil Procedure of 11 June 1964 (in force at the material time) provided that a case accepted for consideration by a court in compliance with the jurisdictional rules was to be examined on its merits, even if it subsequently fell under another court's jurisdiction. A case could only be transferred to another court if: (a) it was considered that another court could examine the case faster and more correctly, particularly if another court sat in the place where the majority of items of evidence was situated; (b) if a respondent whose place of residence had previously been unknown asked the court to transfer his or her case to the court at the place of his or her residence; (c) if, after one or several judges had stepped down from the case, a further change of judge in that court was no longer possible; and (d) if, during the examination of the case, it became apparent that the case had been accepted for examination in violation of jurisdictional rules (Article 122).

12. The Russian Code of Commercial Procedure of 24 July 2002 provides that a commercial court should return a statement of claims to a plaintiff, if, when deciding whether to accept the action for adjudication, it establishes that the case does not fall within its jurisdiction (Article 129). If, however, a commercial court accepts the case for adjudication and subsequently discovers that it has no jurisdiction over the claim, it should discontinue the proceedings and issue a decision, explaining the reasons for discontinuation (Article 150). If the proceedings were discontinued, an individual is barred from bringing before a commercial court an action between the same parties on the same subject matter and based on the same grounds (Article 151 § 3).

I. Alleged violation of Article 6 § 1 of the Convention
13. The applicant complained under Article 6 § 1 of the Convention that the domestic courts had refused to examine the merits of her action against her husband, thus denying her access to court. Article 6 § 1 of the Convention, in so far as relevant, reads as follows:

"In the determination of his civil rights and obligations... everyone is entitled to a fair... hearing... by an independent and impartial tribunal established by law."
A. Submissions by the parties
14. In their sole line of argument, the Government submitted that the applicant had failed to exhaust domestic remedies. In particular, the Government stressed that the applicant could have lodged an appeal with the Belgorod Regional Court against the District Court decision of 13 August 2002 or could have challenged that District Court ruling by way of lodging a supervisory-review application. They further cited the Constitutional Court of the Russian Federation as an alternative remedy which the applicant had failed to employ. The Government did not comment on the merits of the applicant's complaint.

15. The applicant maintained her complaints, arguing that the domestic courts were better placed to interpret the rules on the limitations to their judicial powers, including the jurisdiction clauses. She stressed that it had been open to the domestic courts, in case of a doubt or legal lacuna, to ask a higher-instance court or the Constitutional Court of the Russian Federation to clarify the jurisdictional matter. While consenting to the transfer of her case to the Commercial Court, she had no reason to doubt the correctness of the District Court decision and she could not foresee the subsequent commercial courts' refusal to examine her action. Therefore, she did not appeal against the District Court decision of 13 August 2002 within the ten-day time-limit established by the RSFSR Code of Civil Procedure.

B. The Court's assessment
1. Admissibility
16. The Court notes that the Government listed three possible avenues of exhaustion which could have been employed by the applicant, in particular an appeal to the Belgorod Regional Court, a supervisory review application and a complaint to the Constitutional Court of the Russian Federation. In this connection the Court will first reiterate the principles which govern the application of the rule on exhaustion of the domestic remedies.

(a) General principles
17. The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 of the Convention obliges those seeking to bring their case against the State before the Court to use first the remedies provided by the national legal system. Consequently, States are dispensed from answering before the Court for their acts before they have had an opportunity to put matters right through their own legal system. The rule is based on the assumption, reflected in Article 13 of the Convention - with which it has close affinity -, that there is an effective remedy available in respect of the alleged breach in the domestic system whether or not the provisions of the Convention are incorporated in national law. In this way, it is an important aspect of the principle that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights (see Handyside v. the United Kingdom, 7 December 1976, § 48, Series A No. 24).

18. Under Article 35 of the Convention, normally recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged. The existence of the remedies in question must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness (see, inter alia, Vernillo v. France, 20 February 1991, § 27, Series A No. 198, and Johnston and Others v. Ireland, 18 December 1986, § 22, Series A No. 112). Article 35 also requires that the complaints made before the Court should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law and, further, that any procedural means that might prevent a breach of the Convention should have been used (see Cardot v. France, 19 March 1991, § 34, Series A No. 200).

19. Furthermore, in the area of the exhaustion of domestic remedies, there is a distribution of the burden of proof. It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one available in theory and in practice at the relevant time, that is to say, that it was accessible and was capable of providing redress in respect of the applicant's complaints and offered reasonable prospects of success. However, once this burden of proof has been satisfied it falls to the applicant to establish that the remedy advanced by the Government had in fact been used or was for some reason inadequate and ineffective in the particular circumstances of the case, or that there existed special circumstances absolving him or her from the requirement.

20. The Court would emphasise that the application of the rule must make due allowance for the fact that it is being applied in the context of machinery for the protection of human rights that the Contracting Parties have agreed to set up. Accordingly, it has recognised that the rule of domestic remedies must be applied with some degree of flexibility and without excessive formalism (see Cardot, cited above, § 34). It has further recognised that the rule of exhaustion is neither absolute nor capable of being applied automatically; in reviewing whether it has been observed it is essential to have regard to the particular circumstances of each individual case (see Van Oosterwijck v. Belgium, 6 November 1980, § 35, Series A No. 40). This means amongst other things that it must take realistic account not only of the existence of formal remedies in the legal system of the Contracting Party concerned but also of the general legal and political context in which they operate as well as the personal circumstances of the applicants (see Akdivar and Others v. Turkey, 16 September 1996, §§ 65 - 68, Reports of Judgments and Decisions 1996-IV).

(b) Application of the general principles to the present case
21. Turning to the present case, the Court first reiterates the Government's argument that a complaint to the Constitutional Court could have provided the applicant with redress for the alleged violation of her rights. In this connection, the Court observes that the decisive question in assessing the effectiveness of a remedy concerning a complaint of denial of access to court is whether the applicant could have raised that complaint before the Constitutional Court in order to obtain direct and timely redress, and not merely an indirect protection of the rights guaranteed in Article 6 § 1 of the Convention. The remedy can be either preventive or compensatory in nature (see, among other authorities, Koval v. Ukraine, No. 65550/01, § 94, 19 October 2006). The Court notes that the Government did not explain how a complaint to the Constitutional Court could have offered the aforementioned preventive or compensatory redress or both for allegations of denial of access to a court which had been contrary to Article 6 of the Convention. Furthermore, they did not indicate whether the applicant could have directly lodged a complaint with the Constitutional Court, without the formal institution of the proceedings being dependent on a preliminary examination of the complaint by the Secretariat of the Constitutional Court, whether the Constitutional Court had the jurisdiction to quash the decision of the court of general jurisdiction and to examine the merits of the applicant's action and whether the Constitutional Court's