PARTLY DISSENTING OPINION OF JUDGE TULKENS

The majority of the Chamber found that the applicant failed to establish its right under domestic law and that, therefore, Article 6 did not apply . With all due respect, I do not share this view.

1. It is difficult to see how a dispute concerning the existence of a corporate succession, which was examined and determined on the merits by the commercial courts, did not constitute a “determination of ... civil rights and obligations”.

Firstly, at least one party to the proceedings – the State – had a claim that was genuine and serious. Secondly, proceedings concerning the succession of companies were regarded as “civil” by the domestic law and the domestic courts. Lastly, a final and binding judicial decision on the merits of the case was taken preventing the applicant from laying any future claims to the assets of a State-owned company, and this decision had very important financial implications for the parties involved. Neither the domestic courts nor the Court itself argued that the applicant did not have a right to litigate on the matter or to act as a defendant in the proceedings at issue.

In this respect, to say that the “ the applicant did not have a civil right recognisable under domestic law” (§ 35) is simply misleading. Such reasoning can be valid only to justify lack of access to a court to resolve claims that cannot be accepted for judicial examination. In cases such as the present one, if the domestic courts actually examined the claim on the merits and determined the rights and obligations of the parties, there would be no justification for excluding the proceedings from the protection of Article 6 on the grounds that the applicant ' s position did not stand up to judicial scrutiny. To decide otherwise would come close to finding that the applicability of Article 6 depends on whether the applicant has been successful in his or her litigation. In so far as the Zhigalev v. Russia judgment of 6 July 2006 was relied on, this criticism also extends to the summary reasoning of that case (§§ 160-61), which left room for random exclusions from the scope of Article 6.

Finally, I think the judgment of the majority goes against the spirit of the Vilho Eskelinen and Others v. Finland judgment of 19 April 2007. Where the domestic law grants access to court for a certain type of claim and regards the dispute as civil, why and on what grounds should our Court decide otherwise?

2. One line of argument that the Court could have explored more fruitfully, if it felt that there had been no violation of Article 6, would have been to examine the applicability of Article 6 to the part of the proceedings prior to the supervisory review. It could have been argued that the ruling of the Appellate Board of the Commercial Court of Moscow of 19 February 2001 was procedural and did not determine (at least definitely) civil rights and obligations. Indeed, without entering into the merits , it quashed the first-instance judgment and terminated the proceedings on the ground that the prosecutor ' s office did not have standing to bring proceedings. In such a situation the guarantees of Article 6 would begin to apply from the point when the case was accepted for supervisory review by the Presidium of the Supreme Commercial Court of Russia on 16 October 2001, as this was the instance which ruled finally on the merits of the case. Indeed, the Presidium quashed the decision of 19 February 2001 and reinstated the first-instance judgment of 21 December 2000.

In sum, the decision of 16 October 2001 by the Presidium of the Supreme Commercial Court did concern the “civil rights and obligations” of the applicant company. However, the decision it attacked, namely that of 19 Feb ruary 2001, did not create any “ le gal certainty” under the first paragraph of Article 6. Therefore, the quashing of that decision by way of supervisory review on 16 October 2001 did not interfere with the applicant company ' s “ right to a court” under Article 6 § 1, in contrast to many other Russian cases concerning the fu nctioning of the supervisory review system (see, as a classic authority, the case of Ryabykh v. Russia , no. 52854/99, §§ 51 et seq., ECHR 2003 - IX). Against this background, there would not have been any reason to conclude that the proceedings agai nst the applicant company were “unfair” within the meaning of Article 6 of the Convention .