Information Note on the Court’s case-law 186
Abramyan and Yakubovskiye v. Russia (dec.) - 38951/13 and 59611/13
Decision 12.5.2015 [Section I]
Exhaustion of domestic remedies
Effective domestic remedy
New Cassation appeal procedure introduced by Law no. 353-FZ constituted an effective remedy requiring exhaustion: inadmissible
Facts - The applicants, who were members of a cooperative of boat users, were sued by a municipality in 2012 for having allegedly illegally purchased land on which they built their boathouses. The first-instance court found against the applicants, but that judgment was quashed on appeal. However, although the judgment in the applicants’ favour had become legally binding, under the domestic law the Municipality could lodge a cassation appeal with the Presidium of the Regional Court. In 2013 the applicants lost their case in first cassation at regional level and their boathouses were demolished shortly thereafter. In their applications to the European Court, the applicants complained that the quashing of a final court judgment in their favour had breached the principle of legal certainty and their rights under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1.
Law - Article 35 § 1: The Government had argued that the applications should be declared inadmissible since they had been lodged outside the six-month time-limit and since the applicants had failed to exhaust all effective domestic remedies available to them. By assessing the admissibility of the applicants’ complaints, the Court had the possibility to examine for the first time a new cassation procedure which had been introduced in the domestic law in 2012.
(i) Whether the new procedure introduced by Law no. 353-FZ had been a remedy that required exhaustion and was relevant for the calculation of the six-month time-limit
The applicants had lodged their applications more than six months after the dismissal of their cassation appeal by a single judge of the Supreme Court and less than six months after the dismissal decision was upheld by the Deputy President of the Supreme Court. The Court thus had to determine on which date the final decision had been taken in the case for the purpose of the six-month time-limit.
In its case-law concerning Russia, the Court had consistently held that a decision taken by a second-instance court at regional level under the former domestic law was a final national decision for the purposes of Article 35 of the Convention and the starting-point for calculation of the six-month time-limit. Supervisory-review applications to higher courts of general jurisdiction - namely, the presidia of the regional courts, the Civil Chamber of the Supreme Court and the Presidium of that court, and decisions taken by them on supervisory review - had not been considered relevant for the purposes of calculating that time-limit. However, the cassation appeal in the applicants’ case had been exercised under a new procedure introduced in 2012. In order to establish whether the applicants’ complaints had been lodged in time, the Court had to assess whether the new procedure had been a remedy requiring exhaustion by the applicants under Article 35 § 1 and thus relevant for the calculation of the six-month time-limit.
The Court examined several aspects of the new cassation procedure and found that it could no longer be considered as an extraordinary remedy. In particular, the reform limited the cassation procedure to only two levels of jurisdiction and provided for specific time-limits for each stage of the examination of the case, thus removing uncertainty caused by the previous supervisory-review system. Moreover, the new cassation procedure allowed the parties to submit to the domestic authorities, including the Supreme Court, the substance of their Convention complaint and seek relief. The new procedure was thus to be considered as an ordinary appeal on points of law. Therefore, it was justified to require a person intending to lodge a complaint about an alleged violation of his or her Convention rights to first use both cassation appeals under the new procedure. In line with the principle of subsidiarity, the recognition of the cassation procedure as a remedy to be exhausted would from now on allow potential applicants to first submit their grievances to the highest domestic judicial body which would have an adequate opportunity to consider a complaint about an alleged violation of the Convention in civil cases and remedy any such violation before examination by the Court. However, the effective functioning of the cassation system for the review of binding and enforceable judgments would depend on strict compliance with the time-limits laid down in the domestic law and on effective access to the Supreme Court, which had to be available not only in theory but also in practice.
As to the applicants’ complaint to the Deputy President of the Supreme Court, since it was a remedy which depended on an official’s discretionary power and was not subject to any time-limit, it had to be considered an extraordinary remedy which the applicants were not required to exhaust for the purposes of Article 35.
Accordingly, the final decision at national level in the applicants’ case had been the decision of the judge of the Supreme Court, which had been delivered more than six months before they had lodged their applications with the Court. The applications had thus been lodged out of time and had to be rejected under Article 35.
(ii) Whether the supervisory-review procedure with the Presidium of the Supreme Court constituted a remedy to be exhausted
As to the alleged failure by the applicants to lodge a supervisory review application with the Presidium of the Supreme Court, the Court noted that such a review application could only be lodged by a party if his or her cassation appeal had previously been examined on the merits by the Civil Chamber of the Supreme Court. However, in the circumstances of the applicants’ case, in which such examination had not taken place, the supervisory review application could not be considered a remedy accessible to them. The Government’s argument that the applicants had failed to exhaust the domestic remedies was therefore dismissed.
Conclusion: inadmissible (out of time).
(See also Tumilovich v. Russia (dec.), 47033/99, 22 June 1999, Information Note 7; Denisov v. Russia (dec.), 33408/03, 6 May 2004, Information Note 64; Martynets v. Russia (dec.), 29612/09, 5 November 2009, Information Note 124)
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