COUR EUROPÉENNE DES DROITS DE L HOMME EUROPEAN COURT OF HUMAN RIGHTS

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1 CONSEIL DE L EUROPE COUNCIL OF EUROPE COUR EUROPÉENNE DES DROITS DE L HOMME EUROPEAN COURT OF HUMAN RIGHTS FIRST SECTION DECISION AS TO THE ADMISSIBILITY OF Application no /00 by ROSELTRANS, FINLEASE and Boris Vladimirovich MYSHKIN against Russia The European Court of Human Rights (First Section), sitting on 27 May 2004 as a Chamber composed of: Mr C.L. ROZAKIS, President, Mr P. LORENZEN, Mr G. BONELLO, Mr A. KOVLER, Mr V. ZAGREBELSKY, Mrs E. STEINER, Mr K. HAJIYEV, judges, and Mr S. NIELSEN, Section Registrar, Having regard to the above application lodged on 14 August 2000, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants, Having deliberated, decides as follows: THE FACTS The first applicant, Rossiyskiy electrotransport or Roseltrans, is an open joint-stock company authorised to make the present application by its director general Mr Myshkin (the third applicant). The second applicant, Finlease, is a closed joint-stock company which holds a number of shares of Roseltrans. The third applicant, Mr Boris Vladimirovich Myshkin, is a Russian national, who was born in 1947 and lives in Moscow. The

2 2 ROSELTRANS, FINLEASE AND MYSHKIN v. RUSSIA DECISION applicants were represented before the Court by Mr A. A. Pavlov, a lawyer practising in Moscow. The respondent Government were represented by Mr P. A. Laptev, the 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 1994 the Government founded Roseltrans, a company intended to consolidate shares of Russian enterprises producing electrical equipment for railways. The Government appointed Mr Myshkin as Director General. The initial capital of the company was formed by shares the State held in the enterprises. Later certain individuals and private companies also became shareholders of the company. On 14 November 1995 the Ministry of State Property (Госкомимущество) the majority shareholder of the company issued an order, in pursuance of a directive of the President of Russia, to liquidate Roseltrans and appoint a liquidation committee. The applicants brought a number of proceedings against the Ministry challenging its decision to liquidate Roseltrans. 1. Proceedings before the Lyublinskiy District Court of Moscow. Supervisory review Roseltrans and Mr Myshkin joined the proceedings before the Lyublinskiy District Court of Moscow brought by one of the minority shareholders of Roseltrans to invalidate the Ministry's decision. They also asked the court to strip the liquidation committee of its powers. To forestall the liquidation, the two applicants also made a request that the court issue an interim injunction prohibiting the liquidation pending trial. On 29 October 1998 the court issued the injunction. It also prohibited the liquidation committee from acting on behalf of Roseltrans in legal proceedings. On 17 May 2000 the court held in favour of the applicants and decided to invalidate the Ministry's decision on the liquidation of Roseltrans and the appointment of the liquidation committee. The court found, inter alia, that the decision to liquidate Roseltrans should have been passed by a general assembly of its shareholders and not by the Ministry alone which was but one of the shareholders. The Ministry did not appeal and the decision entered into force on 28 May On an unspecified date the public prosecutor of Moscow lodged an application for supervisory review (протест в порядке надзора) of the judgment of 17 May The prosecutor claimed that the judgment was erroneous because the Ministry had been the only shareholder of Roseltrans and therefore could take the decision to liquidate Roseltrans.

3 ROSELTRANS, FINLEASE AND MYSHKIN v. RUSSIA DECISION 3 On 10 May 2001 the Moscow City Court granted the prosecutor's application. The judgment of 17 May 2000 was quashed and a new examination of the case was ordered. When reasoning its decision the court stated that the Government as the only founder and shareholder of Roseltrans had had the right to take a decision about its liquidation and it had done so in accordance with the civil law. In support of this view the court referred to the material of the case file and decisions taken on supervisory review in other proceedings concerning the liquidation of Roseltrans brought by its private shareholders. The court also noted that the liquidation committee should have taken part in the proceedings and that Mr Myshkin's authority to represent Roseltrans before courts had ceased by the Government's order before he had lodged the action. The applicants were neither informed about the hearing before the Moscow City Court and given a chance to submit their arguments, nor served with copies of the prosecutor's application and the subsequent court decision. The applicants learned about these developments in October The new examination of the case is pending. On 10 April 2002 the Chairman of the Moscow City Court filed an application for supervisory review of the interim injunction of 29 October On 25 April 2002 the Moscow City Court granted this application and lifted the ban on the functioning of the liquidation committee. 2. Proceedings before the Commercial Court of Moscow Roseltrans, which was authorised by Mr Myshkin as its Director General, and Finlease, which was a shareholder of Roseltrans, also brought proceedings before the Commercial Court of Moscow, challenging the lawfulness of the Ministry's decision to liquidate Roseltrans. (a) Complaint by Roseltrans On 2 November 1999 the court held a hearing. The court maintained on the merits of the case that the Ministry's decision to liquidate Roseltrans and appoint a liquidation committee had been found lawful by earlier decisions of 25 March 1997 and 2 March 1999 of the Presidium of the Supreme Commercial Court in other proceedings, and therefore it was only for the liquidation committee and not for the director general to authorise Roseltrans to bring proceedings before courts. The court concluded that the action of Roseltrans was not to be considered. Roseltrans lodged two successive appeals against this decision. The final appeal, on points of law, was disallowed on 21 February 2000 by the Federal Commercial Court of the Moscow Circuit.

4 4 ROSELTRANS, FINLEASE AND MYSHKIN v. RUSSIA DECISION (b) Complaint by Finlease On 2 November 1999 the court held a hearing in proceedings brought by Finlease. The court rejected the latter's action on the ground that Finlease's interests as a shareholder of Roseltrans had not been affected by the Ministry's decision to liquidate Roseltrans because Finlease had bought the company's shares when the liquidation had already been in progress. On 22 December 1999 the appeal court upheld the decision. It held furthermore that Finlease could no longer be considered a shareholder of Roseltrans because as a result of another litigation Finlease had been obliged to deliver up its shares to the Ministry. On 21 February 2000 the Federal Commercial Court of the Moscow Circuit upheld the judgments of 2 November 1999 and 22 December 1999 in the last instance. 3. Correspondence between State authorities On 28 February 1997 the General Prosecutor reported to the President about the progress of his supervision of the enforcement of the President's directive to liquidate Roseltrans. The report said, in particular, that the enforcement was only possible if the Supreme Commercial Court quashed on supervisory review judgments of the Commercial Court of Moscow in cases involving third persons, which invalidated the decision of the Ministry to liquidate Roseltrans. From November 1997 until August 1998 the Government sent a number of letters to their various departments, the Supreme Commercial Court and the Commercial Court of Moscow in which it requested them, without a reference to the applicants' court cases, to speed up the process of liquidation of Roseltrans pursuant to the President's directive. B. Relevant domestic law For the summary of the relevant domestic provisions concerning supervisory review, see Ryabykh v. Russia, no /99, ECHR 2003-X.

5 ROSELTRANS, FINLEASE AND MYSHKIN v. RUSSIA DECISION 5 COMPLAINTS 1. The applicants Roseltrans and Mr Myshkin complained under Article 6 1 of the Convention that the Moscow City Court had quashed, by way of supervisory review, the judgment of the Lyublinskiy District Court of 17 May They also complained that this decision had been taken in their absence and that they had not been afforded the possibility to submit their observations in respect of the prosecutor's application for supervisory review. 2. Under the same Convention provision the same applicants also complained about the quashing on supervisory review of the interim injunction of the Lyublinskiy District Court of 29 October All three applicants further complained about the courts' bias in favour of the Ministry. 4. Invoking Article 6 of the Convention, Roseltrans and Finlease complained about the decisions of the commercial courts. 5. Under Article 1 of Protocol No. 1 to the Convention Roseltrans alleged that the quashing on supervisory review of the judgment of the Lyublinskiy District Court of 17 May 2000 had interfered with the peaceful course of its business, prevented it from disposing of its assets, and put the management of the company in the hands of the liquidation committee. Under the same Convention provision Mr Myshkin complained of the courts' doubts into his authority as Director General of Roseltrans. He maintained that these doubts had disrupted the business of the company, which, in its turn, had affected his personal interests. Invoking the same Convention provision, Finlease complained that the Ministry had prejudiced its interests as a shareholder. THE LAW 1. The applicant Roseltrans complained under Article 6 1 of the Convention about the decision of the Moscow City Court taken in its absence, which had set aside the final judgment of the Lyublinskiy District Court of 17 May Article 6 1, in so far as relevant, provides as follows: 1. In the determination of his civil rights and obligations... everyone is entitled to a fair and public hearing... by [a] tribunal.... The Government stated that the Moscow City Court had quashed the judgment in question and ordered a fresh examination of the case because of a wrong application of substantive law and fundamental breaches of procedural law. This decision fully complied with Article 330 of the Code of Civil Procedure. The Government submitted further that the complaint of

6 6 ROSELTRANS, FINLEASE AND MYSHKIN v. RUSSIA DECISION Roseltrans had been lodged with the Court by an unauthorised person and that in any event it was manifestly ill-founded and should be rejected in accordance with Article 35 3 of the Convention. The applicant disagreed. It contended that the supervisory review court's decision had been based on the court's assessment of the circumstances relevant for the outcome of the case made as a result of proceedings which had not been adversarial. It asserted that the decision in question had been taken in breach of the domestic law. It was also noted, with a reference to the charter of the Roseltrans, that the latter was represented before the Court by a properly authorised person. The Court notes the Government's observation concerning the authority of Mr. Myshkin to represent Roseltrans. The Court notes further that the application of Roseltrans was signed by Mr Myshkin as a director general of Roseltrans. Similarly, Roseltrans was represented by the same person in the domestic proceedings which ended with the decision of the Lyublinskiy District Court of 17 May 2000, the quashing of which is the subject of the present complaint. The representation of Roseltrans by its director general does not seem unreasonable, the more so where the subject of examination is the order about the liquidation of the company which provides for handing over the management of the company to the liquidation committee (see, mutatis mutandis, the Credit and Industrial Bank and Antonín MORAVEC v. the Czech Republic, no /95, Commission decision of 20 May 1998). Therefore, the Court rejects the Government's objection on this point. In the light of the parties' submissions, the Court finds that this part of the application raises complex questions of fact and law, the determination of which should depend on an examination of the merits. Therefore, this complaint cannot be rejected as manifestly ill-founded within the meaning of Article 35 3 of the Convention. No other ground for declaring it inadmissible has been established. 2. The applicant Mr Myshkin also complained under the same Convention provision about the quashing of the final judgment of the Lyublinskiy District Court of 17 May 2000 by the Moscow City Court which had not summoned him to the hearing. The Court recalls that under Article 34 of the Convention it may receive applications from individuals and others claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the protocols thereto. In order to claim to be a victim of a violation, a person must be directly affected by the impugned measure (see, for example, Buckley v. the United Kingdom, judgment of 25 September 1996, Reports of Judgments and Decisions 1996-IV, p. 128, 56-59). The concept of victim as used in Article 34 of the Convention must be interpreted autonomously and independently of domestic law concepts, such as a capacity to bring or take part in legal proceedings (Greek Federation of

7 ROSELTRANS, FINLEASE AND MYSHKIN v. RUSSIA DECISION 7 Customs Officers, Gialouris and others v. Greece, no /94, Commission decision of 6 April 1995, DR 81-B, p. 127). The Court recalls further that shareholders of a company, including majority shareholders, can not claim to be a victim of an alleged violation of the company's rights under the Convention (see Agrotexim and Others v. Greece, judgment of 24 October 1995, Series A no. 330-A, pp , 59-72). Turning to the facts of the present case the Court notes that Mr Myshkin was one of the plaintiffs in the proceedings in question concerning the decision to liquidate Roseltrans which, perhaps, one could view as encroaching on Mr Myshkin's power to manage the company and his interests as an employee. However, the Court finds that such link between the decision to liquidate the company and Mr Myshkin's interests is not direct enough to conclude that the proceedings in question affected him personally. The mere fact that the domestic courts considered Mr Myshkin as a legitimate plaintiff does not endow him with the victim status under the Convention. It follows that this complaint is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 3 and must be rejected in accordance with Article The Court has examined the remainder of the applicants' complaints as submitted by them. However, having regard to all material in its possession, the Court finds that these complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 3 and 4 of the Convention. For these reasons, the Court unanimously Declares admissible, without prejudging the merits, the complaint of the applicant Roseltrans concerning the quashing of the final judgment of the Lyublinskiy District Court of 17 May 2000 and the fairness of the supervisory review proceedings before the Moscow City Court; Declares the remainder of the application inadmissible. Søren NIELSEN Registrar Christos ROZAKIS President