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FIRST
SECTION
CASE OF KOLOVANGINA v. RUSSIA
(Application
no. 76593/01)
JUDGMENT
STRASBOURG
11
December 2008
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 Kolovangina v.
Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis, President,
Nina
Vajić,
Anatoly Kovler,
Khanlar
Hajiyev,
Sverre Erik Jebens,
Giorgio
Malinverni,
George Nicolaou, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 20 November 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 76593/01) 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 Irina Petrovna
Kolovangina (“the applicant”), on 14 September 2001.
- The
Russian Government (“the Government”) were represented by
Mr P. Laptev, the former Representative of the Russian Federation at
the European Court of Human Rights.
- On
9 September 2005 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).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1953 and lives in the city of Khabarovsk.
A. Compensation proceedings
- On
21 June 2000 the applicant issued her husband, Mr Kolovangin with a
power of attorney (registered by a notary public under no. 2226)
which provided as follows:
“I, Ms Irina Petrovna Kolovangina, ... hereby
authorise Mr Vladimir Aleksandrovich Kolovangin,... to act on my
behalf... in civil and criminal proceedings before all judicial
bodies, with all the rights which the law confers on a plaintiff,
defendant, third party or victim, including the rights to enter into
a friendly settlement, to accept or to withdraw the claim in full or
in part, to change the grounds of the claim, to lodge appeal against
a judgment, to receive a writ of execution with the right to receive
property and money, to sign documents on my behalf and to perform any
other actions related to the fulfilment of this authority.”
- On
an unspecified date the applicant left Kaluga, where both she and Mr
Kolovangin had lived, and moved to Khabarovsk.
- On
24 May 2001 Mr Kolovangin lodged an action on the applicant’s
behalf against a private company. He claimed that the company had
overcharged the applicant’s telephone communications and sought
compensation of pecuniary and non-pecuniary damage. He enclosed the
power of attorney mentioned above.
- On
28 May 2001 the Kaluzhskiy District Court disallowed the action with
reference to Article 129 § 9 of the 1964 Code and stating as
follows:
“Ms Kolovangina’s statement of claim is
signed by her proxy, Mr Kolovangin. However, the right to lodge an
action with a court (the right to sign the statement of claim) is not
listed in the submitted copy of the power of attorney; this suggests
that Mr Kolovangin does not have the right to lodge a claim on behalf
of Ms Kolovangina.”
- On
25 June 2001 the Kaluga Regional Court upheld that decision. It found
that the applicant had not authorised Mr Kolovangin to sign a
statement of claim and to lodge it on her behalf.
B. Proceedings for annulment of a contract
- On
6 February 2002 Mr Kolovangin lodged on behalf of the applicant an
action seeking to void a contract for the sale of shares between her
and a private company. He enclosed a copy of the power of attorney
no. 2226.
- On
11 February 2002 the District Court refused to entertain the action.
It reasoned as follows:
“On 6 February 2002 the Kaluzhskiy District Court
received the statement of claim on behalf of Ms Kolovangina... The
statement was lodged with the court and signed by Mr Kolovangin on
behalf of the plaintiff. However, the power of attorney no. 2226 of
21 June 2000 produced to the court does not entitle Mr
Kolovangin to lodge an action on behalf of Ms Kolovangina.
Thus, the judge disallows the action under Article 129 §
9 of the RSFSR Code of Civil Procedure, as the statement of claim on
behalf of the person concerned was lodged by a person who did not
have the right [to do so].”
- On
21 March 2002 the Regional Court upheld that decision and found as
follows:
“Under Article 129 § 9 of the RSFSR Code of
Civil Procedure a judge disallows an action if the action was lodged
on behalf of the person concerned by a person who did not have the
right to pursue the case.
As the power of attorney issued by Ms Kolovangina to Mr
Kolovangin did not list the right of the representative to lodge
statements of claim on behalf of the represented person, the judge
lawfully disallowed the action.”
II. RELEVANT DOMESTIC LAW
- The 1964 Code of Civil Procedure (“the 1964
Code”, as in force at the material time) provided:
Article 43. Pursuing cases through representatives
“Citizens may pursue their cases in court in
person or through representatives...”
Article 45. Laying down the powers of the
representative
“The powers of the representative should be set
down in the power of attorney issued and formalised in accordance
with the law...”
Article 46. Authority of the representative
“The authority to pursue a case in court entitles
the representative to perform on behalf of the client all procedural
acts, with the exception of seeking the transfer of the case to a
comrades’ or an arbitration court; withdrawing claims in full
or in part; admitting a claim; varying the grounds of a claim;
entering into a friendly settlement; transferring the power of
attorney; lodging an appeal against a judgment; submitting the
enforcement writ for execution; obtaining the awarded property or
money. The representative’s authority to perform any of the
acts listed in this Article should be explicitly stated in the power
of attorney issued by the client.”
Article 129. Accepting statements of claims for
examination
“The judge decides... whether to accept for
examination the statement of claim in a civil case.
The judge refuses to accept a statement of claim for
examination...
9) if it was submitted on behalf of the interested party
by a person not empowered to pursue the case...
The judge’s refusal to accept the statement of
claim for examination on the grounds provided by paragraphs...
and 9...does not prevent [the party] from reapplying to the court on
the same ground, provided that the indicated shortcoming is
rectified...”
- The
2002 Code of Civil Procedure (“the 2002 Code”) which
replaced the 1964 Code from 1 February 2003 provides:
Article 54. Authority of the representative
“The representative has the authority to perform
on behalf of his client all procedural actions. However, the
representative’s authority to sign the statement of claim; to
lodge it with a court; to seek transfer of the dispute to a court of
arbitration; to lodge a counter-claim; to withdraw the claims in full
or in part... to enter in a friendly settlement... should be
specifically listed in the power of attorney issued by the client.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained under Articles 6, 13 and 17 of the Convention
that the domestic courts had refused to examine the claims submitted
on her behalf by Mr Kolovangin. The Court considers that her
complaint raises an issue of the applicant’s access to a court
and will examine it under Article 6 § 1 of the Convention which,
in so far as relevant, reads as follows:
Article 6 § 1
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing ... by
[a] ... tribunal ...”
A. Admissibility
- The Court notes that this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
- The
Government submitted that Article 46 of the RSFSR Code of Civil
Procedure required that the delegation of the power to enter into a
friendly settlement, amend, withdraw or admit a claim be expressly
conferred upon a representative. The authority to sign a statement of
claim and to lodge it with a court had been akin, by its nature, to
the above-mentioned powers and thus had also required the plaintiff’s
explicit authorisation. Otherwise, a lawyer could bring proceedings
which ran counter to his client’s interests. The domestic
courts’ interpretation of Articles 129 and 46 had been
sufficiently clear and foreseeable. They also claimed that the
domestic courts’ interpretation had been supported by the text
of Article 54 of the 2002 Code which had explicitly listed that
requirement. Having issued a power of attorney for her husband, the
applicant must have believed that he would adequately protect her
interests, as if he were a professional lawyer. The courts had twice
advised him of the need to have explicit authorisation to bring an
action. Despite the refusal to process her claims, the applicant had
still had an opportunity to resubmit them to a court.
- The
applicant maintained her complaint.
- The
Court notes at the outset that the applicant’s complaint
relates to almost identical sets of facts and thus it will examine
both situations simultaneously.
- The
Court reiterates that the right to a court, of which the right of
access constitutes one aspect, is inherent in the right stated by
Article 6 § 1 of the Convention (see Golder v. the United
Kingdom, judgment of 21 February 1975, Series A no. 18, p.
18, § 36). This right of access is not absolute but may be
subject to limitations permitted by implication (see Ashingdane v.
the United Kingdom, judgment of 28 May 1985, Series A no. 93,
p. 24-25, § 57). Nevertheless, the limitations applied must
not restrict the access left to the individual in such a way or to
such an extent that the very essence of the right is impaired. They
must pursue a legitimate aim and there must be a reasonable
relationship of proportionality between the means employed and the
aim sought to be achieved (see, among other authorities, Khalfaoui
v. France, no. 34791/97, § 35, ECHR 1999 IX; Fayed
v. the United Kingdom, judgment of 21 September 1994, Series A
no. 294-B, pp. 49-50, § 65; and Bellet v. France,
judgment of 4 December 1995, Series A no. 333-B, p. 41, § 31).
- Turning
to the circumstances of the present case, the Court observes that the
domestic courts refused to examine the applicant’s claims
because the power of attorney did not expressly mention Mr
Kolovangin’s right to sign statements of claim and lodge them
on the applicant’s behalf. Thus, their decisions in respect of
both sets of proceedings may be regarded as imposing restrictions on
the applicant’s right of access to a court.
- The
Court has previously held that for the right of access to be
effective an individual must have a clear, practical opportunity to
challenge an act that is an interference with his or her rights, in
particular as regards the procedures for making use of the available
remedies (see Bellet, cited above, § 36, and F.E.
v. France, judgment of 30 October 1998, Reports of Judgments
and Decisions 1998 VIII, p. 3350, § 47). In
the present case the domestic courts, by way of preliminary
procedural decisions, disallowed the applicant’s applications
with reference to Article 129 § 9 of the 1964 Code. Under
this provision, a judge could refuse to accept for examination a
statement of claim submitted by a person who was not properly
authorised to do so (see paragraph 13 above). In each set of
proceedings, the applicant’s representative received a decision
putting him on notice that the court held the view that his written
authority to act did not include an authorisation to sign and lodge
on the applicant’s behalf the statement of claim in question
and affording the applicant and opportunity to rectify what it had
considered a shortcoming (compare Grof v. Austria, no.
25046/94, Commission decision of 14 April 1998). Instead of seeking
to do so, the representative opted to lodge an appeal, but on each
occasion the appellate court upheld the lower court’s decision.
- Whilst
Article 46 of the 1964 Code did not expressly mention signature and
lodging of a statement of claim among those procedural acts that
ought to be specifically authorised by the client, the impugned
preliminary dismissals of the applicant’s suits had been based
on Article 129 § 9. In this connection it is to be
reiterated that it is not the Court’s task to take the place of
the domestic courts and it is primarily for the national authorities,
notably the courts, to resolve problems of interpretation of domestic
legislation. This applies, in particular, to the interpretation by
courts of rules of a procedural nature. The Court’s role is
confined to ascertaining whether the effects of such an
interpretation are compatible with the Convention (see Pérez
de Rada Cavanilles v. Spain, judgment of 28 October 1998, Reports
of Judgments and Decisions 1998 VIII, p. 3235, § 43,
and Ivanova v. Finland, (dec.), no. 53504/99, 28 May
2002).
- The
Court sees no reason to disagree with the Government’s argument
that the authority to sign a statement of claim and to lodge it with
a court is, by its nature and possible implications, akin to such
procedural acts as withdrawing, amending or admitting a claim. It is
also to be noted that the applicant did not contest their argument or
otherwise submit that the courts’ interpretation of the
impugned provision had been unforeseeable and if so for what reason.
Neither did she argue that she was in any manner prevented from
seeking professional legal advice at the time when she wished to
issue the proceedings (see, mutatis mutandis, Cañete de
Goñi v. Spain, no. 55782/00, § 41, ECHR
2002 VIII). In sum, the Court considers that the condition
imposed by the national courts for the applicant to pursue her suits
before them was not such as to render the procedure unforeseeable
from the point of view of the applicant (see Levages Prestations
Services v. France, judgment of 23 October 1996, Reports
1996 V, p. 1453, § 42).
- As
regards the aim of the restriction, the Court is ready to accept that
the requirement to list the authority to sign and lodge a statement
of claim in the power of attorney was intended to protect the
plaintiffs against possible abuses by their representatives and
served the more general interest of proper administration of justice.
- Finally,
it is important to note that the refusal to entertain the applicant’s
claims in no way barred their examination and that the applicant
could re-submit them in accordance with Article 129 of the 1964 Code
(see, by contrast, Canea Catholic Church v. Greece, judgment
of 16 December 1997, Reports 1997 VIII, p. 2857,
§ 41, and De Geouffre de la Pradelle v. France,
judgment of 16 December 1992, Series A no. 253 B,
§§ 27-31). In the case at hand the domestic courts
advised the applicant and her representative of the need to rectify
what could reasonably be considered a simple formality. In
particular, the applicant had two options – either to sign her
statements of claims or to issue Mr Kolovangin with a proper power of
attorney. It has not been submitted that either option was
impracticable for the applicant, for example by reason of
difficulties to meet time-limits, or otherwise impossible to comply
with. Hence, in the Court’s opinion, it cannot be said that the
essence of the applicant’s right of access to a court was
impaired or that the proportionality principle was not respected in
the present case.
- The
foregoing considerations lead the Court to conclude that there has
been no violation of Article 6 § 1 of the Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant complained under Article 1 of Protocol No. 1 that she had
sustained pecuniary damage in the amount of 3,000 US dollars, without
providing any further details.
- The
Court observes that, apart from a general allegation that she had
sustained pecuniary damage, the applicant failed to specify what
exactly constituted the alleged interference with her rights under
Article 1 of Protocol No. 1. In any event, the Court finds that the
complaint does not disclose any appearance of a violation of the
provision complained of. 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 the complaint concerning the lack of
access to a court admissible and the remainder of the application
inadmissible;
- Holds that there has been no violation of
Article 6 § 1 of the Convention.
Done in English, and notified in writing on 11 December 2008,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
