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CASSATION ASSESSMENT
The Civil Cases Chamber of the Khabarovsk Territorial Court, namely
Chairperson Fedorova, G.I.
Judges Verkhoturova, I. V. Lozinskaya, L.V.
Have tried the appeal of Mr. Oleynikov, Vladimir Borisovich from the decision of the
Industrialnyi district court, Khabarovsk of February 12, 2004, in open session, on March
16, 2004.
After hearing of a report by Judge Fedorova, G.I. and explanations of Oleynikov, V.B., The Chamber
HAS DECIDED
the following:
Oleynikov, V.B. filed a lawsuit against the Government of the Korean People’s Democratic Republic and the Government of the Russian Federation claiming the debt of $US 12307390,643.60.
Mr. Oleynikov wrote in the statement of action that on May 19, 1997, the trade mission of the Korean People’s Democratic Republic Embassy in the Russian Federation (the Khabarovsk Department) on behalf of the state of the KPDR asked him to lend them money, in the sum of 1,500 US dollars on certain terms. On receiving the money, a representative of the state of the KPDR gave a borrower’s receipt to Mr. Oleynikov. The borrower’s receipt says that in case the money is not repaid within the time limits, the KPDR is to pay interest rate of 1 percent per each day of delay.
The statement of action was returned to Oleinikov V.B. by the decision of the Judge of the Industrialnyi district court of the city of Khabarovsk, on February 12, 2004.
Oleynikov, V.B. files a personal complaint demanding to reverse the decision of the Judge as wrongful and inconsistent.
Having examined the case papers and arguments of the complaint, the Chamber does not see any grounds to reverse the decision of the judge.
The Khabarovsk mission of a department of the commercial counselor at the KPDR Embassy in the Russian Federation is a branch of the trade mission of the KPDR in the Russian Federation which legal status is adjusted in the Appendix to the Contract
«On Trade and Navigation between the USSR and the KPDR» of June 22, of the year I960.
Under Article 2 of the Appendix, «The Trade mission is a part of the Embassy of the state KPDR». The trade mission represents the body of the state (the KPDR) and it acts on its behalf. Therefore, in accordance with the international legal principle of equality of rights of the states, the jurisdictional immunity applies to the trade mission, as a body of public authority of the sovereign state. The immunity applies also to the advance ensuring of the claim and compulsory execution of the decision. The basis of the aforesaid immunities is the sovereignty thus no forced measures concerning a foreign state shall be applied.
The principle of immunity of a foreign state is guaranteed by Article 401 of the Civil Code of the Russian Federation which says that to file a suit against a foreign state in a Russian court, to enlist a foreign state as defendant or a third party, to attach the property of a foreign state which is located in the territory of the Russian Federation and vindicate this property by decision of the court is allowed only with the consent of the competent bodies of the given state if nor specified otherwise by international treaty of the Russian Federation or the Federal Law.
The aforesaid means that a person may file a lawsuit against a foreign state only with the consent of the given state. In case no letter of proof of the consent of a foreign state to consider the case in court is produced together with the suit filed, the action cannot be brought.
Oleynikov, V.B., filing a lawsuit, did not maintain a letter of proof of the consent of a the Korean People’s Democratic Republic to solve the dispute in court. Consequently, because of this impediment, the judge did not have the right to handle the case.
This impediment is recoverable, and the decision of the judge to return the statement of action to Oleynikov, V.B. is valid. The judge explained the ways of disposing of impediment to Oleynikov, V. B. Oleynikov, V.B. argued that it was the court or the judge who was to apply for a consent of the competent bodies of the KPDR. He justified his demands saying that he could not do it himself, because the embassy of the KPDR was not eager to answer his applications and the applications of his attorney. He added that the embassy did not want to repay the debt.
The arguments are not valid as they contradict the terms of the International Treaty between the USSR and the KPDR of June 22, 1960 and paragraph 1 Article 401 of the Civil Code of the Russian Federation. The decision of the judge shall not be reversed.
On the ground of Article 374, part 1 of the Civil Code of the Russian Feder
The Chamber
HAS DECIDED
The following:
The decision of the Judge of the Industrial’nyi district Court of the city of Khabarovsk of February 12, 2004 to return the statement of action of Oleynikov, Vladimir B. to the Government of the Korean People’s Democratic Republic and the Government of the Russian Federation claiming the repayment of the debt of $US 12307390,643.60 shall not be reversed. The personal complaint shall not be allowed.
Chairperson
Fedorova, G.I.
Judges
Verkhoturova, I.V.
Lozinskaya, L.V.
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