Rule 77 §§ 2 and 3 of the Rules of Court.
Christos ROZAKIS
President
{Soren} NIELSEN
Registrar
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the joint dissenting opinion of Judges Kovler and Steiner is annexed to this judgment.
C.L.R.
S.N
JOINT DISSENTING OPINION OF JUDGES KOVLER AND STEINER
To our regret, we do not share the opinion of the majority that there has been a violation of Article 6 of the Convention.
In this particular case, the supervisory review - even under the old system of the arbitration (commercial) procedure - was intended to remedy a fundamental error in the proceedings before the lower courts. As the Court reiterates in the present judgment (see paragraphs § 33 - 34 of the judgment), a departure from the principle of legal certainty is justified only when this is made necessary by circumstances of a substantial and compelling character (see, inter alia, Ryabykh v. Russia, No. 52854/99, § 52, ECHR 2003-IX, and Kot v. Russia, No. 20887/03, § 29, 18 January 2007). In other words, the requirement of legal certainty is not absolute. The Court is consistent in accepting that legal certainty may be disturbed in order to correct a "fundamental defect" or a "miscarriage of justice" (see paragraph 35, with relevant references).
The reason for quashing the lower courts' decisions was the fact that the dispute between the applicant association and the Regional Department of Justice lay outside the commercial courts' jurisdiction: we agree with the Court's conclusion that the relevant provisions of the old Code of Commercial Procedure, taken in conjunction with the Law on Public Associations, were ambiguous at best. Thus, the task of the Supreme Commercial Court was, precisely, to remedy the situation and to give instructions concerning the registration of non-profit organisations, which was clearly outside the jurisdiction of the commercial courts.
That lack of jurisdiction was at its most fundamental and strict, as it meant a complete absence of authority to determine the case. Consequently, the judicial decisions adopted by the lower courts in the applicant association's favour were not only objectionable from the perspective of procedural or substantive legislation: they were simply void. The lower courts' decisions affected the whole organisation of the judicial system and the separation of powers within it. Our Court recognises that the rules of jurisdiction were clarified in 2002: disputes concerning the registration of non-profit organisations fall outside the competence of the commercial courts. To a certain extent the initiative by the Vice President of the Supreme Commercial Court anticipated this clarification. With all due respect to the opinion of our colleagues, we do not agree that "the judgment was quashed primarily for the sake of legal purism, rather than in order to rectify an error of fundamental importance to the judicial system" (see paragraph 38). On this occasion we regret that the respondent State opposed the relinquishment of the case to the Grand Chamber, where the concept of "fundamental error" could have been clarified further.
As to the applicant association, it appears that the discontinuation of proceedings ordered by the Presidium of the Supreme Commercial Court had little effect on its functioning. Furthermore, the applicant association had a possibility to submit its request to a court that did have proper jurisdiction, and ultimately obtained a favourable judgment from such a court (see paragraph 13). We would also point out that the Constitutional Court of the Russian Federation found that, although the provisions challenged did not establish any time-limits for bri
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