CEDH · CASELAW;CLIN;ENG — 25 juin 2009

.s3ABFC313 { font-size:10pt } .sEB86A30B { margin-top:0pt; margin-bottom:14pt; page-break-after:avoid } .sBB9EE52A { font-family:Arial } .sA241FE93 { margin-top:0pt; margin-bottom:18pt; text-align:justify; page-break-after:avoid; border-bottom:0.75pt solid #000000; padding-bottom:1pt } .s2EF62ED2 { margin-top:0pt; margin-bottom:0pt; font-size:12pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s29100277 { font-family:Arial; font-weight:bold } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s8F2B0B1B { margin-top:12pt; margin-bottom:12pt; page-break-after:avoid; font-size:12pt } .s9FF10068 { margin-top:0pt; margin-bottom:12pt } .sA36B60A1 { font-family:Arial; font-style:italic } .s5F48796F { margin-top:12pt; margin-bottom:0pt; text-align:justify } .s5CB9E8AB { margin-top:12pt; margin-bottom:0pt; text-align:justify; border-bottom:1pt solid #000000; padding-bottom:1pt } .sDF790F1E { margin-top:12pt; margin-bottom:0pt; text-align:center } .s7ED160F0 { text-decoration:none } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 } Information Note on the Court’s case-law No. 120 June 2009 Kovaleva and Others v. Russia (dec.) - 6025/09 Decision 25.6.2009 [Section I] Article 35 Article 35-1 Exhaustion of domestic remedies Effective domestic remedy Six month period Supervisory-review by Supreme Commercial Court under new Code of Commercial Procedure: effective remedy   The applicants lodged an application with the European Court more than six months after a decision at cassation level, but less than six months after the dismissal of a subsequent application for supervisory-review by the Supreme Commercial Court. The question arose as to whether or not the supervisory-review procedure that had been introduced in 2003 by the new Code of Commercial Procedure (see OOO Link Oil SPB v. Russia under Article 6 § 1 above) constituted an effective remedy requiring exhaustion for the purposes of Article 35 § 1. If so, the application had been lodged within the six-month time-limit; if not, it was out of time. Admissibility : The Court had held in a series of previous cases that an application for supervisory-review under the former Code of Commercial Procedure or under the transitional provisions before the entry into force of the new Code on 1 January 2003 did not constitute an effective remedy. The same was true of supervisory-review in civil and criminal proceedings in the Russian Federation owing to the legal uncertainty to which they gave rise. However, the supervisory-review procedure provided for by the new Code of Commercial Procedure presented important differences. In particular, the proceedings were conducted before a single instance, the Supreme Commercial Court, and were subject to clear and strict time-limits. In the applicants’ case, the binding and enforceable decisions of the commercial courts had not been liable to challenge indefinitely, but only once, before a supreme judicial instance, at a party’s request, on the basis of restricted grounds and within a clearly defined and limited time-frame. Supervisory review so construed was not incompatible with the principle of legal certainty and appeared as an ultimate element in the chain of domestic remedies at the disposal of the parties rather than an extraordinary means of reopening judicial proceedings. The fact that the lower courts’ judgments had become binding and enforceable before the application for supervisory review did not in itself make supervisory review an extraordinary remedy or otherwise unsuitable for exhaustion, as an enforceable judgment was not necessarily final for Convention purposes. Moreover, since 5 April 2005 one of the grounds for supervisory review in the Supreme Commercial Court was a violation of human rights and freedoms provided for by international treaties. That provision clearly opened a way for the Supreme Commercial Court to remedy any alleged violation of the Convention in supervisory-review proceedings. Accordingly, the new procedure had to be considered an effective remedy capable of preventing and putting right possible violations of the Convention at the domestic level. The Supreme Commercial Court’s decision dismissing the application for supervisory review thus constituted the “final decision” within the meaning of Article 35 § 1 and was the starting point of the six-month time-limit: application lodged in time . The application was, however, ruled inadmissible on other grounds.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes