FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Applica tion no. 1641/02 by OAO PLODOVAYA KOMPANIYA against Russia

The European Court of Human Rights ( First Section), sitting on 23 May 2006 as a Chamber composed of:

Mr C.L. Rozakis , President , Mr L. Loucaides , Mrs F. Tulkens , Mrs N. Vajić , Mr A. Kovler , Mrs E. Steiner , Mr K. Hajiyev, judges , and Mr S. Nielsen , Registrar ,

Having regard to the above application lodged on 20 December 2001 ,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant company , OAO “ Plodovaya Kompaniya ” ( ОАО « Плодовая компания » ) , is a n open joint stock company incorporated in Russia , based in Moscow .

The applicant company is represented before the Court by M aître Michel de Guillenchmidt, a lawyer practising in France . The respondent Government are represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights.

A. The circumstances of the case

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

In 1966 the Ministry of Foreign Trade of the USSR created a State Export and Import Agency “Soyuzplodoimport” ( Всесоюзное экспортно - импортное объединение « Союзплодоимпорт » ). On 5 January 1990 it was reorganised into the State Foreign Trade Agency “Soyuzplodoimport” ( Всесоюзное внешнеэкономическое объединение « Союзплодоимпорт » ).

On 20 January 1992 the applicant company was set up in the form of a closed joint stock company. It was called the “Foreign Trade Stock Company ‘ Soyuzplodoimport ’ ” ( Внешнеэкономическое акционерное общество закрытого типа « Союзплодоимпорт » , VAO “Soyuzplodoimport”), and was registered with the state registration agency , the Moscow Registration Chamber. According to its charter, it was founded by several founders, including the State Foreign Trade Agency “Soyuzplodoimport”, which held 3,880 out of its 17,000 shares. The charter provided that the applicant company was a successor to the State Foreign Trade Agency “Soyuzplodoimport”.

In 1998 the applicant company transformed into an open joint stock company.

On 24 December 1999 the general shareholders ’ meeting of the applicant company adopted a new charter. The company name was changed to OAO “Plodovaya Companiya” ( ОАО « Плодовая компания » ). The new charter contained a declaration that the applicant company was the successor of the State Foreign Trade Agency “Soyuzplodoimport”.

On 31 October 2000 the Deputy Prosecutor General challenged before the Commercial Court of Moscow the applicant company ’ s new charter, in particular the declaration of succession.

On 21 December 2000 the Commercial Court of Moscow declared the provision for succession null and void. It held that the applicant company had no legal grounds to claim succession to the State Foreign Trade Agency “Soyuzplodoimport”. The applicant company was created as a new company, and not converted from an existing one. It held that a mere declaration by the applicant company in its founding charter was insufficient to become a successor of another company. Likewise, it found that even if the applicant company had de facto acted as a successor before the trademark registration authorities and courts of arbitration it was of no consequence for the establishment of corporate succession.

On 19 February 2001 the Appellate Board of the Commercial Court of Moscow examined the applicant company ’ s appeal. Without entering into the merits it terminated the proceedings on the ground that the prosecutor ’ s office did not have the standing to bring the proceedings. This decision entered into force on the same day. It was not appealed against either by way of a cassation appeal or by way of a separate appeal.

On 18 April 2001 the Moscow Registration Chamber registered a change of name of the State Foreign Trade Agency “Soyuzplodoimport”. Its new name was Federal State Unitary Enterprise “ Soyuzplodoimport ” ( Федеральное государственное унитарное предприятие « Внешнеэкономическое объединение Союзплодоимпорт » ).

On 13 June 2001 the Deputy Prosecutor General brought a request for supervisory review of the decision of 19 February 2001 . The applicant company submitted its written comments on the substance of the case.

The Government submitted that the applicant company was summoned to the hearing before the supervisory instance by a telegram, but apparently the company could not be found at their official address. The applicant company did not contest this.

On 16 October 2001 the Presidium of the Supreme Commercial Court of Russia examined the case in supervisory review proceedings. The applicant company took part in the hearing before the Presidium. According to the Government, the company ’ s president who attended the hearing had an opportunity to make oral submissions before the Presidium. According to the applicant, they did not have a sufficient opportunity to do so.

The Presidium quashed the decision of 19 February 2001 and reinstated the first instance judgment of 21 December 2000 . On the procedural point, it held that the prosecutor ’ s office was entitled by law to represent the State in the proceedings before commercial courts where public or State interests were involved. It found that the proceedings at issue concerned State property, and that this gave sufficient grounds for the prosecutor to intervene. As to the substance, the Presidium upheld the finding that the applicant company was not entitled to claim succession after the State Foreign Trade Agency “Soyuzplodoimport”, and that the provisions on succession made in its charters were null and void.

B. Relevant domestic law

The Code of Commercial Procedure (no. 70-FZ of 5 May 1995, in force at the material time) established that final judgments and decisions of all commercial courts of the Russian Federation were amenable to supervisory review initiated on an application by the President of the Supreme Commercial Court or his deputy or by the Prosecutor General of the Russian Federation or his deputy ( Sections 180 and 181). The Code did not list the grounds for lodging an application for supervisory review, it only specified that it could be lodged “also in connection with a request by a pa rty to the proceedings” (Section 185 § 1). Summoning of parties to the hearing before the Presidium of the Supreme Commercial Court was a discretionary right of the Presidi um (Section 186 § 2). There was no time-limit for lodging an application for supervisory review, and, in principle, such applications could be lodged at any time after a judgment had become final.

COMPLAINTS

The applicant company complained under Article 6 § 1 of the Convention that the final decision of the Appellate Board of the Commercial Court of Moscow of 19 February 2001 was quashed by way of supervisory review in violation of the principle of legal certainty.

It also complained under Article 6 § 1, 13 and Article 14 in conjunction with Article 6 § 1 that the proceedings before the Presidium of the Supreme Commercial Court of Russia n Federation were conducted in violation of the equality of arms principle. Firstly, it complained that the State being a party to proceedings exercised its extraordinary power to institute supervisory review, while the applicant company had no such possibility. Secondly, it complained that it was not entitled under domestic law to be summoned to take part in the proceedings before the Presidium, unlike the other party.

The applicant company complained under Article 1 of Protocol 1 to the Convention that it has been deprived of its possessions, notably of all assets of its alleged predecessor, the State Foreign Trade Agency “Soyuzplodoimport”.

THE LAW

The applicant complained that a judicial decision in their civil dispute was quashed by way of supervisory review. They also complained that the proceedings before the supervisory instance had been unfair. They invoke Articles 6 of the Convention which provides in so far as relevant as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”

The applicant company also complained that the quashing constituted a violation of its right to the peaceful enjoyment of its possessions, notably the assets of its predecessor corporation. It invoked Article 1 of Protocol No. 1 which provides as follows:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

The Government responded that there had been no violation of the applicant ’ s right to a fair trial, or of its right to the peaceful enjoyment of its possessions. They considered that the quashing of the decision of the appellate instance was necessary because it had been taken in breach of the domestic law. They also considered that the principle of legal certainty had not been violated because the supervisory review was brought shortly after the appeal decision, and thus constituted the next stage of the proceedings. They referred to Section 187 of the Code of Commercial Procedure which provided that a case may be reviewed on points of law in supervisory review proceedings. Moreover, the applicant had been aware that such a possibility existed under domestic law and therefore it could not rely on the appeal decision as a final judicial act. They further added that the relevant legislation had changed, in particular the 2002 Code of Commercial Procedure introduced time-limits for initiating supervisory review.

As to the proceedings before the supervisory instance, the Government submitted that the applicant company had been notified about the supervisory review proceedings and it had submitted written comments on the procedure and the substance of the case. They also alleged that the applicant company had been duly summoned to the hearing before the Presidium and that, moreover, the company ’ s president attended the hearing. The latter had an opportunity to make oral submissions before the Presidium during the hearing in addition to the written comments filed earlier.

The applicant company maintained its complaints. It considered that the decision of the appellate court had been quashed on supervisory review in violation of the principle of legal certainty. It moreover, maintained that the proceedings before the supervisory instance were unfair in that the parties were not equally entitled by law to lodge a petition for supervisory review and that it was a State official, notably the public prosecutor, who acted on behalf of the other party. The applicant company admitted having attended the hearing but claimed that it was not given sufficient opportunity to elaborate on its objections.

The Court considers, in the light of the parties ’ submissions, that this application raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. It cannot therefore be regarded as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

For these reasons, the Court unanimously

Declares the application admissible, without prejudging the merits of the case.

Søren Nielsen Christos Rozakis Registrar President