(source) (…) May 31, 2012 the Court of Arbitration of the Vladimir region, it was agreed the decision to case number A11-1276/2012 (Judge Butina IN) at the suit of the Territorial Directorate of the Federal Agency for State Property Management for the Vladimir region, 600000, Vladimir, ul. Big Moscow, 68 (BIN 1033303414990), a centralized religious organization “Russian Orthodox Autonomous Church”, 601293, Vladimir Region., Suzdal, st. Attics, 2 (BIN 1033303609514), a centralized religious organization “Suzdal diocese of the Russian Orthodox Autonomous Church”, 601293, Vladimir Region., Suzdal, st. Attics, 2 (BIN 1033303606490), a local religious organization “ Tsarekonstantinovskogo cathedral and parish church Sorrow Suzdal diocese of the Russian Orthodox Autonomous Church “, 601293, Vladimir Region., Suzdal, Market Square (BIN 1033303605235), for the recovery of property from another illegal possession.
We believe the judgment held illegal and unreasonable to be canceled on the following grounds:
1) The court found incomplete circumstances relevant to the case:
Legally relevant circumstances of the case , derives from the application of substantive law to the disputed legal relations, the factual and legal grounds for claims and defenses of the parties contained in the statement of claim and statement of defense review. The Court has established as a legally relevant circumstances, on the basis of the claimed subject matter of the claim by the plaintiff (vindication), the following facts: the presence of the plaintiff’s title to the property, which has individual-specific attributes, unlawful possession of property and the presence of the claimed property (object vindication) for the defendant. The Court found legally relevant circumstances, taking into account only the plaintiff, thus violating the principle of equality of arms, and guaranteed by the Convention [European Convention on Human Rights and Fundamental Freedoms, ratified by the Russian Federation] the principle of a fair trial.
In accordance with Art. 128 of the Civil Code, to objects of civil rights include things including money and securities, and other property, including property rights, works and services; protected results of intellectual activity and means of individualizing (intellectual property), intangible benefits.
Objects of civil rights (civil law) is commonly understood as the objects about which the essence of the right (legal). Things in the civil law recognizes material objects of value to a person capable of meeting the needs of civil legal entities, are the subject of trade. Things are the most common type of objects of civil rights. These are objects of animate and inanimate nature. It being understood that such things are mastered and available to man and society, and therefore may be the subject of civil rights of natural and legal persons of the Russian Federation, the Russian regions and municipalities. In the doctrine of the civil law legal regime of things will be determined by the law of the: identity of the object to things, not only because of natural properties, for example – the material, but also by “equating” (such as cash and securities is equated to things) belonging the thing among certain types of things (eg, real estate or movables) Turnover of this thing, kind relations, which operates one or another thing, the legal mechanism to protect property rights.
The Court broadly interpreted the term “property” and refers to any property of the “private law, which represents the value of the estate and, therefore, the property within the meaning of the first sentence of the article” (ECHR judgment in the case against Van Marle, the Netherlands, on 26/06/1986.)For the qualification of an object relationship as a property, the Court has developed two criteria: 1) the sign of the economic value – is that the property has an economic value, which can be defined in the form of money, based on objective criteria (for example, the market price); 2) Thesign of the reality – which means that the property must be in cash and legally must certainly belong to the person concerned, while waiting for the economic benefit of property is, a claim becomes the property in the event that there are substantial and reasonable grounds to believe that it must be performed (Decree of 07/07/1984, the ECHR, the Decree of 06/26/1986, the ECHR, ECHR judgment of 03.07.2003, Order of 07/05/2002, the ECHR, Decision of 11.12.1986, the ECHR, ECHR Decision 24.06 .2003 g).
Clause 3 of the Constitutional Court of the Russian Federation of 16.05.2000 N 8-P “In the case on the constitutionality of certain provisions of paragraph 4 of Article 104 of the Federal Law” On Insolvency (Bankruptcy) “in connection with a complaint of” Timber Holdings International Limited “” set that, by virtue of Article 35 (part 3) of the Constitution, no one can be deprived of his property except by court order, expropriation of property for public use can be made only with the prior and fair compensation. Used in this article, the term “property” in its constitutional sense, covered, in particular, property rights and claims, including those belonging to the creditors.
This approach is contained in the judgment of the Constitutional Court of the Russian Federation of 17 December 1996 on the Constitutionality of paragraphs 2 and 3 of Article 11 of the Law of the Russian Federation of 24 June 1993 “On the Federal Tax Police Bodies” and corresponds interpretation of this concept by the European Court of Human Rights, which is the basis of his use of Article 1 of Protocol N 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms.
The Supreme Arbitration Court of the Russian Federation in the informationletter on December 20, 1999 indicated that the courts should take into account the principles applied by the European Court of Human Rights under the protection of property rights in the administration of justice in arbitration courts of the Russian Federation.
By § 1-2 tbsp. 212 of the Civil Code of the Russian Federation recognized private property, owned by individuals and legal entities, as well as the Russian Federation, subjects of the Russian Federation and municipal entities. Art. 218 of the Civil Code regulates the rights of property, this norm does not provide the bases for the ownership of human remains.
Neither the pre-revolutionary civil law (Code of Laws of the Russian Empire, and Tm. I-XVI), nor the Soviet civil law (Civil Code of the Russian Federation in 1922) also did not provide the bases for the ownership of human remains.
As indicated in the response to the statement of claim FGBUK “State Vladimir-Suzdal Historical and Architectural Museum Reserve”, July 29, 1923 the liquidation commission to eliminate the transfer of church property has made real and personal property Holy Savoir monastery Division representative museums Glavnauka Commissariat, head of Suzdal Museum Romanovsky, including cancer, with the relics of Euphemia the vestments. August 3, 1923 the liquidation commission to eliminate the transfer of church property made movable and immovable property of the former monastery Rizopolozhensky Division representative museums Glavnauka Commissariat, head of Suzdal Museum Romanovsky, including cancer of the relics and vestments (based on the content of the act of talking about cancer with Euphrosyne relics).
In Chapter 3, “Objects of rights (property)” GC 1922 RSFSR bones of human subjects of rights (property) are not listed. In the “Property Law” the bones of the people is also not listed as objects that can be in the public, private and cooperative ownership. In addition, Art. 21 Civil RSFSR in 1922 established that the abolition of private ownership of the land division of property in the real estate and abolished. Thus, the reference in the Acts of the time of the transfer of ” real and personal property Holy Savoir monastery / convent Rizopolozhensky “did not meet prevailing at the time the legislation.
Based on the analysis of property rights, nor the Russian empire, nor the Russian Federation or the USSR nor the Russian Federation on the bones of the people did not arise, because the legislation did not provide grounds for the right of ownership to the human remains.
Art. 128 of the Civil Code does not include human remains do not belong to things, to property, to the objects of civil rights.
Thus, the human remains are not subject to civil rights, things, property, other assets within the meaning of Art. 128 of the Civil Code, and, accordingly, can not be claimed by anyone through the election of a jurisdictional form of protection. About bstoyatelstvo of fact and point of property rights from the state (the Russian Federation, Russian Federation), compliance with the transfer of human remains in effect at the time the legislation The court did not set up for discussion of the persons participating in the case.
The human remains have not been customized by the court – the issue requires special knowledge. burden of proving the individual-specific symptoms remains lie with the claimant. Among the Court, “the assignment of an object to the cultural values depends on the value of the object in the historical and cultural heritage of the Russian Federation . in disputes court assumes that the relics of Orthodox saints have national significance not only for the Orthodox Church, but also for the history of Russian culture, archeology and anthropology, so they are to be made in the Museum fund of the Russian Federation and are federal property. ” The assignment of an object to culture requires special knowledge. By virtue of Art. 82 APC to clarify emerging issues in a case requiring special knowledge, the arbitral tribunal shall appoint the examination at the request of the person involved in the case, or with the consent of the persons involved in the case.question for examination of skeletal remains by the court for consideration of the persons participating in the , was not raised .
Thus, there is no subject of debt collection, methods of ownership of the skeletal remains of missing persons in the law, including civil rights objects skeletal remains were not named, skeletal remains can not be attributed to things, property, property rights.
2) lack of evidence relevant to the case of circumstances that the Court is satisfied:
Thus, based on the foregoing, the plaintiff did not prove the circumstances identified by the court as legally significant that the court found it established in the decision. The plaintiff did not prove as a matter of property cash vindication in the sense in which the term “property” refers to the civil doctrine of international and domestic law of the Russian Federation, the legal positions of the ECHR, the Constitutional Court of the Russian Federation. The plaintiff also failed to prove ownership of the bones of the dead, as the current legislation does not establish any rights for these items. Unproven illegal possession of property and the presence of the claimed property (object vindication), the defendant, as there is no property like the subject matter, and the very vindication.
3) Non-compliance of the findings in the decision, the circumstances of the case:
Conclusion of the court to classify a given object to the cultural values depends on the value of the object in the historical and cultural heritage of the Russian Federation. In a dispute court assumes that the relics of Orthodox saints have national significance, not only for the Orthodox Church, but also for the history of Russian culture, archeology and anthropology, so they are to be made in the Museum fund of the Russian Federation and are federal property, which is inconsistent circumstances of the case, since the resolution of the issue requires special knowledge, which the court at the time of the case did not have, in addition, the appointment of a complex theological-cultural expertise to the discussion of the persons participating in the case, was not raised.
Conclusion of the court of the existence of property rights in the Russian Federation claimed the property does not meet the circumstances of the case, as the skeletal remains are not property, not the valid proof of ownership, and the rule of law, establishing the basis of property rights.
The court found that, according to available in the certificate of state registration of religious organizations, regulations, defendants, extract from the Unified State Register of Legal Entities of 16.02.2012 from 20.02.2012 from 19.08.2009, EDC “ROAC” registered 19/10/1998; EDC “Suzdal diocese ROAC” – 16.12.1998; MRO “Tsarekonstantinovskogo cathedral and parish church Sorrow Suzdal diocese ROAC” – 26.01.1999. conclusion of the court that the acts of the transfer of bone remains from 09.06.1988 № 58 from 11/16/1988 № 62 shows data transmission bone remains of the defendants in the present dispute is not appropriate to the circumstances of the case. The question of the succession of legal entities or other persons how changes in liabilities on the discussion of the persons participating in the case, was not raised as a legally relevant circumstances, was not determined.
4) The court has violated and misapplied the substantive law or procedural law:
– Incorrect interpretation of the law.
Court misinterpreted Article. 128 of the Civil Code, Art. 301 of the Civil Code. Procedural consequences of the correct interpretation of the law of the material had to be making a decision on termination of proceedings on the basis of percentage points 1, No. 1, Art. 150 APC as not to be considered in arbitration in the absence of the subject of the claim, subject to debt collection by neotneseniya skeletal remains of man to the objects of civil rights, property or other assets, things, property rights.
– Violation or incorrect application of procedural rules is grounds for modification or cancellation of the decision of the arbitration court of the first instance, if the violation resulted in or could lead to a wrong decision .
Consequence of misinterpretation of the court of the substantive law – Art.128 of the Civil Code, Art. 301 of the Civil Code – and a breach of procedural rules. On the basis of Art. 4 APC interested person may apply to the arbitration court to protect their violated or disputed rights and interests, including the requirement of the award of compensation for the violation of the right to trial within a reasonable time, or right in the performance of a judicial act within a reasonable time, in the order established by the APC.
On the basis of paragraph 1, 2 tbsp. 27 APC Arbitration court has jurisdiction cases on economic disputes and other matters related to business and other economic activities. Arbitration courts settle economic disputes and other cases treated with organizations that are legal entities, individuals engaged in entrepreneurial activities without forming a legal entity and having the status of an individual entrepreneur, acquired the established legal order, and in the cases provided for agriculture and other federal laws, with participation of the Russian Federation, subjects of the Russian Federation, municipalities, state agencies, local governments and other agencies, officials, entities that do not have legal status, and citizens who do not have the status of a private entrepreneur.
Due to the fact that the Holy relics of St. Euphemia and Euphrosyne of Suzdal (skeletal remains of people) are not subject to civil rights, can not be in anyone’s property, are not things, accordingly, can not be claimed by anyone through the election of a form of jurisdictional protection, including public authorities exercising control over state property. The holy relics of St. Euphemia and Euphrosyne of Suzdal are, according to the norms of secular law, human remains. The holy relics of St. Euphemia and Euphrosyne of Suzdal not refer to objects of cultural heritage (monuments of history and culture) of the Russian Federation. The holy relics of St. Euphemia and Euphrosyne of Suzdal not apply to religious objects. The above items have a sacred value for the parishioners of parishes, disputes over these facilities should be subject to litigation in a court of law, as in this case, affect the rights of parishioners – individuals not in the business and other economic activities, and the right to freedom of conscience and the right to freedom of religion, the right to religious association and the right to equality of religious associations. Religious associations are recognized only liturgical forms of the activity of the legal position of the ECHR and the Russian Constitutional Court. In total installed APC (Article 27 of the APC) and specific criteria (Article 28-33 of the APC) referring cases to the jurisdiction of courts of arbitration. Part 1 of Art. APC 27 includes a main (determining) the criteria for determining the jurisdiction of cases the arbitral tribunal – the dispute (legal) should be economic, including the entrepreneurial character. In other words, a controversial financial relationship should arise in business and other economic activities, should be violated law in the sphere of business or other economic activities. In accordance with paragraph 1 of the Decree of the Plenum of the RF from 09.12.2002 N 11 “On some issues related to the introduction of the Code of Arbitration Procedure of the Russian Federation,” in making claims and other claims and cases must be assumed that the commercial courts jurisdiction over the case on economic disputes and other cases related to business and other economic activities arising from civil, administrative, and other public relations, as well as all the cases on economic disputes and other cases related to business and other economic activities, involving Foreign persons whose cases challenging the decisions of arbitration and international commercial arbitration disputes arising in the implementation of business and other economic activities, to issue writs for the enforcement of such decisions, the case for recognition and enforcement of foreign judgments and foreign arbitral awards on disputes arising in the implementation of business and other economic activities.Because of the legal position of the Constitutional Court of the Russian Federation, expressed in the Constitutional Court of the Russian Federation of 15.01.2009 N 144-O-P “On an appeal by the Commissioner for Human Rights in the Russian Federation in violation of the constitutional rights of the citizen Halimbekovoy Shamal Sharabutdinovny provisions of Part 4 of Article 39, Article 270 , 288 and 304 of the Arbitration Procedure Code of the Russian Federation, ” Article 46 (part 1) of the Constitution, everyone is guaranteed judicial protection of rights and freedoms. The right to judicial protection is a fundamental, inalienable human rights and freedoms in the Russian Federation, it is recognized and guaranteed under the generally recognized principles and norms of international law, which is part of the legal system of the Russian Federation, and in accordance with the Constitution (Article 15 (part 4 ) and17 (parts 1 and 2 ) of the Constitution). The Universal Declaration of Human Rights ( Article 7 , 8 and 10 ), the International Covenant on Civil and Political Rights (Article 14) and the European Convention for the Protection of Human Rights and Fundamental Freedoms (Article 6) provide that all are equal before the law and that every the determination of his civil rights and obligations shall be entitled to a fair and public hearing within a reasonable time by a competent, independent and impartial tribunal established by law. Within the meaning of these provisions, as pointed out by the Constitutional Court of the Russian Federation in the judgment of 16 March 1998, N 9-P, everyone’s right to judicial protection by an independent and impartial tribunal, the competence of which is established by law, means, in particular, that cases should be legally established, and not randomly chosen composition of the court, accordingly, Article 47 (part 1) of the Constitution guarantees that no one shall be deprived of his right to be heard by the court and that judge in whose jurisdiction it is according to law. Since the right of everyone to judicial protection, as follows from the above legal position, can be achieved only legitimate, independent and impartial tribunal, failure to observe the jurisdiction entails a violation not only of Article 47 (part 1) , and Article 46 (part 1) of the Constitution .According to paragraph 4 of Part 1 and Part 3 of Article 270 , as well asParts 1 and 3 of Article 288 of the Russian Federation AIC, the reason for cancellation or change of the act the tribunal of appeal and cassation instances a violation or incorrect application of procedural rules that the violation has resulted or could lead to a wrong decision, in accordance withparagraph 1 of Part 4 of Article 270 and paragraph 1 of Part 4 of Article 288of the Russian Federation APC trial in the illegal part is the absolute grounds for cancellation of the judicial act. Paragraph 2 of Article 304 of the Russian Federation in agriculture as the basis for cancellation or modification of a judicial act in a supervisory calls this act of violation of the rights and freedoms of man and citizen according to the universally recognized principles and norms of international law and international treaties of the Russian Federation (p. 2-3).
Due to the fact that there is no subject of the claim, not to the substance of the dispute, the proceedings on the basis of percentage points 1, No. 1, Art.150 APC should be discontinued.
Based on the above and following paragraphs 1, No. 1, Art. 270 APC,
The decision of the Arbitration Court of Vladimir Region May 31, 2012 in case number A11-1276/2012 the claim of the Territorial Directorate of the Federal Agency for State Property Management of the Vladimir region, 600000, Vladimir, ul. Big Moscow, 68 (BIN 1033303414990), a centralized religious organization “Russian Orthodox Autonomous Church”, 601293, Vladimir Region., Suzdal, st. Attics, 2 (BIN 1033303609514), a centralized religious organization “Suzdal diocese of the Russian Orthodox Autonomous Church”, 601293, Vladimir Region., Suzdal, st. Attics, 2 (BIN 1033303606490), a local religious organization “ Tsarekonstantinovskogo cathedral and parish church Sorrow Suzdal diocese of the Russian Orthodox Autonomous Church “, 601293, Vladimir Region., Suzdal, Market Square (BIN 1033303605235), for the recovery of property from another unlawful possession CANCEL, the proceedings will stop. (…)