CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 31 janvier 2017

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s2EF17D91 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .sA20670C4 { margin-top:12pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s59DEA84 { margin-top:12pt; margin-left:59.5pt; margin-bottom:6pt; text-indent:-17.85pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s54D8FDB7 { width:26.32pt; display:inline-block } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .s8FA62C20 { margin-top:0pt; margin-bottom:0pt; text-indent:21.3pt } .s4B243ECC { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .s5F897A7E { margin-top:12pt; margin-left:14.2pt; margin-bottom:0pt } .s7E985A65 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; font-size:1pt } .sF7A4323 { margin-top:36pt; margin-bottom:0pt; text-align:left } .s96B22F9F { width:184.93pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block }     THIRD SECTION DECISION Application no. 10810/15 Grigoriy Vladimirovich SMADIKOV against Russia The European Court of Human Rights (Third Section), sitting on 31   January 2017 as a Chamber composed of:   Luis López Guerra, President,   Helena Jäderblom,   Helen Keller,   Dmitry Dedov,   Branko Lubarda,   Pere Pastor Vilanova,   Alena Poláčková, judges, and Stephen Phillips, Section Registrar, Having regard to the above application lodged on 18 February 2015, Having deliberated, decides as follows: THE FACTS 1.     The applicant, Mr Grigoriy Vladimirovich Smadikov, is a Russian national who was born in 1964 and lives in Khabarovsk. A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. 2.     In 2012 the applicant was accused of an administrative offence under Article 12.28 of the Federal Code of Administrative Offences (CAO). According to the applicant, he was unaware of the charge. 3.     A hearing was listed for 18 June 2012. Since the hearing notification was returned to the court as “after expiry of the storage term”, the judge rescheduled to 16 July 2012 and issued a new notification. This notification was also returned to the court with the same note. 4.     According to the applicant, he remained unaware of the charge and did not receive the above notifications. 5.     By a judgment of 16 July 2012 a justice of the peace convicted the applicant; his driving licence was suspended for one year and six months. The applicant allegedly first learned about this judgment on 19 May 2014, when he was involved in a traffic accident. 6.     The applicant appealed against the judgment. On 21 July 2014 the Khabarovskiy District Court of Khabarovsk held a hearing; heard the applicant’s representative (the applicant waiving his right to be present); examined evidence; and upheld the judgment. 7.     On 27 August and 3 December 2014 the Khabarovsk Regional Court and the Supreme Court of Russia respectively rejected the applicant’s applications for review under Article 30.12 of the CAO (see paragraphs 17 ‑ 21 below as regards the applicable procedure). B.     Relevant domestic law and practice 1.     Federal Code of Administrative Offences (a)     General provisions 8.     Under Article 25.11 and 28.4 of the CAO a prosecutor institutes administrative-offence proceedings for a number of offences, but also has the right to institute administrative-offence proceedings in any other case. He can participate in the examination of the case, lodge various applications, and issue a report on issues arising in the case. He can also appeal against the decision in the case, irrespective of whether he previously participated in the proceedings. 9.     Under the CAO, depending on the subject matter decisions concerning administrative offences can be issued either by a non-judicial authority or by a court (Chapter 23 of the CAO). (b)     Ordinary appeal procedure 10.     At the relevant time, Chapter 30 of the CAO contained provisions concerning review of such decisions. 11.     Review could be sought by the person or legal entity accused of the administrative offence, the victim of the offence, or their representative (Article 30.1). If the decision on the administrative offence concerned a legal entity or a person engaged in entrepreneurial activities it was reviewed by a commercial court in accordance with the rules of commercial procedure (Article 30.1). 12.     An ordinary appeal against a ruling on an administrative offence could be lodged within ten days (or fifteen days for some offences) following receipt of the copy of the decision (Article 30.3). The appeal should be examined within ten days (or less for some offences) following receipt of the case file by the reviewing court or authority (Article 30.5). The reviewing authority or court is not bound by the scope of arguments, and reviews the case in its entirety (Article 30.6). 13.     Article 30.10 gave prosecutors the right to seek review of decisions on administrative offences within the procedure and time-limits set out in Articles 30.1-30.3 of the CAO. (c)     (Supervisory) review procedure (i)     Before December 2008 14.     Article 30.11 provided for further review of final court decisions on administrative offences. A regional prosecutor or deputy or the Prosecutor General of the Russian Federation or deputy had the right to apply for such a further review. According to the ruling no.   5 of 24   March 2005 by the Plenary Supreme Court of Russia, individuals prosecuted in an administrative-offences case also had a right to lodge an application for supervisory review (paragraph 34). 15.     If the judge in the supervisory review had doubts about the lawfulness of the impugned court decisions he or she could request the case file and then examine the case in its entirety, going beyond the grounds for review raised by the author of the supervisory-review application (paragraph 34 of the ruling of 24 March 2005). 16 .     Supervisory review was to be carried out by the presidents of the regional courts or their deputies, or by the President of the Supreme Court of Russia or her deputies. Reviewing this provision, the Constitutional Court of Russia (decision no. 113-O of 4 April 2006 concerning the constitutional interpretation of Article 30.11 of the CAO; this decision was officially published in July 2006) stated that the reviewing court was to inform the person affected by the administrative offence proceedings about the application for review lodged by the victim. The Constitutional Court also stated that until legislative amendment of the CAO concerning the scope of review, grounds for review, the reviewing courts’ powers, time ‑ limits for seeking review, and the procedure for such a review, the reviewing courts were to be guided by the relevant provisions of Chapter   36 of the Code of Commercial Procedure (see paragraphs 24-29 below). (ii)     After legislative amendments in force after 20 December 2008 17 .     Article 30.11 of the CAO was deleted. Article 30.12 provides that the first-instance and appeal judgments, which became final, can be challenged by way of review by the defendant or his counsel, the victim, legal representative of a minor or another vulnerable person, or legal representatives of a legal entity. Review can be sought by a regional prosecutor or deputy or the Prosecutor General or deputy. Since October 2014 the public official who submitted the administrative offence case for judicial examination is also entitled to seek review. 18.     Requests for review should be lodged before regional courts or the Supreme Court of Russia. Such requests are to be examined by the presidents of such courts or their deputies. The Supreme Court is empowered to deal with appeals against decisions taken on review at the regional level. In other cases, the Supreme Commercial Court should have similar competence (Article 30.13). 19.     Requests for review should indicate the grounds for the review (Article   30.14). The scope of the review should be limited to the grounds indicated in the request and observations in reply. If the interests of legality so require, the review judge can review the case in its entirety. Renewed requests for review on the same grounds before the same court are not allowed (Article 30.16). 20.     The reviewing court should issue a decision within two months of receipt of the application or within one month of receipt of the case file, if so requested by the reviewing court (Article 30.16). 21 .     The Constitutional Court held that the review procedure in respect of final court decisions under the CAO is aimed at the correction of fundamental errors in such decisions, in line with the requirements of Article 4 § 2 of Protocol No. 7 to the Convention (decision no. 1788-O of 16 July 2015). 22.     Apparently, the decision of 113-O of 4 April 2006 was not applied by some regional courts (see decision no.   4a10-790 of 31 August 2010 by the Chelyabinsk Regional Court, and, a contrario , decision no. 4-a-854 of 24 November 2010 by the Rostov Regional Court); some regional courts stated that this decision was no longer applicable following the deletion of Article 30.11 of the CAO during the legislative reform in December   2008 (see decision no. 4a10-1227 of 28   December 2010 by the Chelyabinsk Regional Court). It appears that a number of regional courts have recently maintained the position that there is no time-limit for seeking review proceedings under the CAO: -     Moscow City Court: decisions no. 4a-1328/15 of 1 June 2015, no.   4a ‑ 3046/2015 of 8 September 2015, no. 4a-2641/2015 of 2   October 2015, no.   4a-3465/2015 of 5 October 2015, no. 4a-4770/2015, no.   4a ‑ 123/16 of 15 March 2016; -     Novosibirsk Regional Court: decisions no. 4a-214/2016 of 2   March 2016, no. 4a-252/2016 of 14 March 2016, no. 4a-260-2016 of 6 April 2016, no. 4a-376-2016 of 12 May 2016; - Krasnoyarsk Regional Court: decisions no. 4a-606/2015 of 6   August 2015, no. 4a-624/2015 of 7 August 2015; -   Primoskiy Regional Court: decisions no. 7-21-958 of 19 August 2015, no.   7-21-1034 of 14 September 2015; -     Ivanovo Regional Court: decision no. 4a-284/2015 of 8 October 2015; -     Pskov Regional Court: decision no. 7-78/2015 of 9 June 2015; -     Chelyabinsk Regional Court: decision no. 4a16-157 of 1 March 2016; -     Supreme Court of the Tatarstan Republic: decision no. 4a-299 of 14   April 2016. 2.     Code of Commercial Procedure 23.     Cases concerning the charges under the CAO in respect of legal entities and entrepreneurs are examined according to the procedures prescribed by the Code of Commercial Procedure (CCOmP). 24 .     Prior to the changes which entered into force on 6 August 2014 (Federal Law no. 186-FZ of 28 June 2014), supervisory review of final judgments issued by commercial courts was regulated under Chapter 36 of the CComP. 25.     Article 292 of the CComP provided that supervisory review of final judgments was carried out by the Supreme Commercial Court of Russia. This review could be sought by the parties to the proceedings and, in some cases, by a prosecutor (see also Articles 42 and 52 of the CComP). 26.     The grounds for review included “substantial violations of rights and legitimate interests relating to entrepreneurial or another economic activity as a result of a violation or wrong application of material or procedural law” (Article 292 of the CComP). The application for review was to be lodged within three months of the date the last impugned judgment entered into force, provided that the other review remedies had been exhausted (ibid.). 27.     Article 293 provided that the application was to be examined by a panel of judges, who had to decide whether the case was to be transferred for examination by the Presidium of the Supreme Commercial Court (see also Article 299 of the CComP). 28.     Article 304 of the Code contained the grounds for varying or overturning lower courts’ decisions: violation of consistency in interpretation and application of the law by commercial courts; violation of human rights and freedoms, as protected by the well-recognised principles and rules of international law or by an international treaty of the Russian Federation; and violation of the public interest. 29 .     On this Court’s position concerning the supervisory review procedure under the CComP prior to the amendments in 2014, see Kovaleva and Others v. Russia (dec.), no. 6025/09, 25 June 2009. 30.     For a summary of the amended provisions of the CComP in force since August 2014, see Sakhanov v. Russia (dec.), no. 16559/16, §§ 13-30, 28 October 2016. COMPLAINT   31.     The applicant complained under Article 6 of the Convention in relation to his absence from the trial proceedings in 2012. THE LAW 32.     Before dealing with the substance of the complaint the Court has to determine whether the applicant has complied with the admissibility criteria. 33.     Article 35 § 1 of the Convention provides as follows: “1.     The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken ...” 34.     The Court observes that the applicant lodged this application more than six months after the date of the appeal decision dated 21 July 2014. There is no reason to doubt that this decision was made available and was received by the applicant or his lawyer soon thereafter, which does not bring the matter within the six-month period either. At the same time, it is noted that the applicant unsuccessfully challenged the trial judgment and the above appeal decision by way of the “review procedure” (see paragraphs 17-21 above). Each of the two decisions (dated 27 August and 3 December 2014) issued by the reviewing courts was taken and, a fortiori , received by the applicant within the six-month time-limit. 35.     The question before the Court is whether the decisions by which the applicant’s review applications were examined and rejected should be taken into account for the purpose of applying the six-month rule contained in Article   35 § 1 of the Convention. A.     General principles 36.     The Court reiterates that the primary purpose of the six-month time-limit provided for by Article 35 § 1 of the Convention is to maintain legal certainty by ensuring that cases raising issues under the Convention are examined within a reasonable time, and to prevent the authorities and other persons concerned from being kept in a state of uncertainty for a long period of time (see Sabri Güneş v. Turkey [GC], no. 27396/06, § 39, 29   June 2012). This time-limit also affords a prospective applicant time to consider whether to lodge an application and, if so, to decide on the specific complaints and arguments to be raised, and facilitates the establishment of the facts in a case, since with the passage of time any fair examination of the issues raised is rendered problematic (ibid.). 37.     Article 35 § 1 contains an autonomous rule which has to be interpreted and applied in such a manner as to ensure to any applicant claiming to be the victim of a violation by one of the Contracting Parties of one of the rights set forth in the Convention and its Protocols the effective exercise of the right of individual petition pursuant to Article 35 § 1 of the Convention (ibid., § 41). The Court may only deal with the matter within a period of six months following the “final decision” at domestic level. This “final decision” is taken following exhaustion of the effective and available domestic remedies, namely those which were accessible, capable of providing redress in respect of the applicant’s complaints, and offered reasonable prospects of success (see Akdivar and Others   v. Turkey , judgment of 16   September 1996, §   68, Reports of Judgments and Decisions 1996 ‑ IV). 38.     The rule of exhaustion of domestic remedies referred to in Article   35 § 1 of the Convention obliges those seeking to bring a case against a State to use first the remedies provided by the national legal system, thus allowing States the opportunity to put matters right through their own legal systems before being required to answer for their acts before an international body. In order to comply with the rule, applicants should normally use remedies which are available and sufficient to afford redress in respect of the breaches alleged (see, for instance, Ananyev and Others v. Russia , nos.   42525/07 and 60800/08, §§ 96-119, 10 January 2012, and Shishkov v.   Russia , no.   26746/05, §§ 84-86, 20 February 2014 on remedies in respect of conditions of detention; Muminov v. Russia , no. 42502/06, §§ 99-105, 11   December 2008, and Gayratbek Saliyev v. Russia , no. 39093/13, § 49, 17   April 2014, on suspensive remedies relating to a risk-of-torture allegations in expulsion or extradition cases; Dirdizov v. Russia , no.   41461/10, §§ 69-91, 27 November 2012 concerning remedies relating to absent or inadequate medical care in detention; and Alekseyev v. Russia , nos.   4916/07, 25924/08 and 14599/09, §§ 98-100, 21 October   2010 concerning speedy remedies for halted public assemblies). 39.     Various defects in the domestic procedure may indicate that decisions taken under such a procedure would not be taken into consideration for the purpose of applying the six-month rule. For instance, remedies which have no time-limits, thus creating uncertainty and rendering nugatory the six-month rule contained in Article 35 § 1 of the Convention, are not effective remedies within the meaning of Article 35 § 1 (see Galstyan v. Armenia , no. 26986/03, § 39, 15 November 2007, and Berdzenishvili v. Russia (dec.), no. 31697/03, ECHR 2004 ‑ II (extracts)). 40.     The Court has previously considered that the six-month time-limit could be counted from a decision resulting from the use of an extraordinary remedy (because it was not directly accessible) where, as a matter of fact, the relevant court did accept the case for examination and had the opportunity to set aside the impugned judgment, if necessary, and remit the case to the lower court, and therefore to remedy the situation complained of by the applicant (see Öztürk v. Turkey [GC], no. 22479/93, §§ 45-46, ECHR 1999 ‑ VI; see also Raichinov v. Bulgaria (dec.), no.   47579/99, 1   February 2005). B.     Application of the principles in the present case 41.     According to the Court’s established case-law, an application for supervisory review in civil proceedings was not a remedy under Article   35 §   1 of the Convention (see Tumilovich v. Russia (dec.), no.   47033/99, 22   June   1999, and Denisov   v. Russia , (dec.), no.   33408/03, 6   May 2004). In the Martynets case ((dec.), no. 29612/09, 12   December 2008), where the Court examined the supervisory-review procedure in force between January 2008 and January 2012, it found that this procedure continued to leave binding judicial decisions open to indefinite challenge, thus generating unacceptable uncertainties as to the final point in the domestic litigation. The Court reached this conclusion notwithstanding the tangible changes brought to this procedure, such as the limitation of the time-limit for lodging a supervisory-review application from one year to six months, the introduction of an obligation of prior exhaustion of ordinary avenues of appeal, and the abolition of the essentially unfettered discretionary power of the presidents of the regional courts to overrule decisions by their judges dismissing such applications. In particular, the Court criticised the maintaining of several consecutive judicial instances of supervisory review at both regional and federal level, the existence of an overall six-month time-limit open to differing interpretations, and not least the powers of the President or Deputy President of the Supreme Court to reverse any decision by a judge of the same court dismissing an application for supervisory review (see Martynets , cited above). 42.     The Court has recently taken a different view concerning the cassation appeal procedure in force since January 2012 under the Code of Civil Procedure (see Abramyan and Others (dec.), nos. 38951/13 and 59611/13, 12 May 2015). 43.     As to criminal proceedings, in Berdzenishvili (cited above), the Court considered that an application for supervisory review under the Russian Code of Criminal Procedure was not a remedy under Article 35 §   1 of the Convention. The Court noted the absence of any time-limit for seeking and carrying out such a review. Furthermore, if the Presidium of a Regional Court dismissed a supervisory-review complaint, it could be re ‑ submitted to the Supreme Court. Where a judge refused to transfer a supervisory-review complaint to a supervisory-review court, the President of the court could intervene and overrule the judge’s decision. Exercise of these rights was also not subject to a time-limit. The Court subsequently confirmed this approach (see, among others, Krasulya v. Russia , no.   12365/03, § 29, 22   February 2007). 44.     Turning to the present case, the Court notes that the applicant lodged review applications, first before the Regional Court and then before the Supreme Court of Russia. The proceedings at issue concerned an administrative offence and were governed, as regards both substance and procedure, by the provisions of the Code of Administrative Offences of 2001, as in force after legislative amendments in 2008 in respect of the review procedure (see paragraphs 17-21 above). 45.     It is also noted that both applications were examined on the merits and rejected in their entirety. Thus, the trial and appeal judgments remained intact and final. 46.     As regards the specific elements of the review procedure, the Court notes that as with the criminal procedure examined in Berdzenishvili, the CAO contained no specific rules concerning the time-limits for seeking review of the final judgments in the CAO cases examined by the courts of general jurisdiction, as in the present case. The Court reiterates in this connection that the absence of time-limits for using a remedy creates uncertainty, and in principle renders nugatory the six-month rule contained in Article 35 § 1 of the Convention (see Galstyan, § 39, and Berdzenishvili, both cited above). 47.     The Court is aware that in 2006 the Constitutional Court stated that pending a legislative amendment of the CAO the courts were to refer to the similar provisions contained in the Code of Commercial Procedure (CComP), that is in relation to the supervisory-review procedure for commercial cases (see paragraph 16 above). In particular, under the CComP the application for review before the Supreme Commercial Court was to be lodged within three months of the date when the last impugned judgment entered into force. It is noted in this connection that the Court accepted in 2009 that the supervisory-review procedure under the CComP as it then existed until August 2014 constituted a remedy to be exhausted in commercial cases (see Kovaleva and Others (dec.), cited above). 48.     It is noted, however, that on 6 August 2014 amendments entered into force in relation to the supervisory-review procedure under the CComP (see Sakhanov (dec.), cited above) that was mentioned in the 2006 constitutional ruling. Namely, the supervisory-review procedure became the fifth level of jurisdiction under the CComP due the introduction of the second-tier cassation procedure before the Supreme Court of Russia. Thereafter, the findings in the 2006 constitutional decision could no longer be used to establish that a remedy existed until that date. 49.     Therefore, the applicant should have realised no later than 6   August 2014 that recourse to the review procedure under the CAO was not subject to any ascertainable time-limit and thus could not be considered as a remedy for the purpose of Article   35   § 1 of the Convention. 50.     The Court concludes that neither of the two review decisions in the present case should be taken into consideration for the purpose of applying the six-month rule (compare Kashlan v. Russia (dec.), no.   60189/15, 19   April 2016). 51.     It follows that this application was introduced on 18 February 2015 out of time and must be rejected in accordance with Article   35 §§   1 and   4 of the Convention. For these reasons, the Court, unanimously, Declares the application inadmissible.   Done in English and notified in writing on 23 February 2017. Stephen Phillips   Luis López Guerra   Registrar   President