ABRAMYAN AND OTHERS v. RUSSIA

FIRST SECTION

DECISION

Applications nos. 38951/13 and 59611/13
Robert Mikhaylovich ABRAMYAN against Russia and
Sergey Vladimirovich YAKUBOVSKIY and
Aleksey Vladimirovich YAKUBOVSKIY against Russia

The European Court of Human Rights (First Section), sitting on 12 May 2015 as a Chamber composed of:

Isabelle Berro, President,
Julia Laffranque,
Paulo Pinto de Albuquerque,
Linos-Alexandre Sicilianos,
Erik Møse,
Ksenija Turković,
Dmitry Dedov, judges,
and Søren Nielsen, Section Registrar,

Having regard to the above applications lodged on 5 June 2013 and 21 April 2013 respectively,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1. The applicants are Russian citizens living in Sochi, Krasnodar Region. Mr Robert Mikhaylovich Abramyan (“the first applicant”) was born on 6 February 1958. He lodged his application no. 38951/13 with the Court on 5 June 2013. Mr Sergey Vladimirovich Yakubovskiy (“the second applicant”) and Mr Alexey Vladimirovich Yakubovskiy (“the third applicant”) were born on 20 June 1988 and 18 June 1979 respectively. Their application no. 59611/13 was lodged with the Court on 21 April 2013.

2. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.

I. THE CIRCUMSTANCES OF THE CASE

3. The facts of the case, as submitted by the parties, may be summarised as follows.

4. The applicants are members of the cooperative “Maliy Akhun”, a non‑commercial partnership of boat users located in Sochi (Потребительский лодочный кооператив «Малый Ахун», hereinafter referred to as “the Cooperative”).

A. The applicants’ title to the boathouses

5. The Cooperative was established as a legal person under Russian law on 9 October 1991 by a decision of the Executive Committee of the Khostinskiy District Council of People’s Deputies (“the Executive Committee”). The above decision registered the Cooperative’s constituent documents and the list of its members, allowing it to build thirty boathouses on a plot of land of 0.2 hectares which was adjacent to the beach at Maliy Akhun Black Sea Resort.

6. On 16 July 1993 the Municipality of Sochi (“the Municipality”) allowed the Cooperative to build further boathouses along a sixty-metre stretch of coastline which was free of any construction at the relevant time.

7. From 1992 to 1998 a number of boathouses were built on that land by members of the Cooperative.

8. On 29 September 1998 a State commission composed of the competent authorities inspected the Cooperative’s constructions and considered them suitable for use.

9. On 10 December 1998 the Municipality upheld the above decision by the State commission and ordered the Sochi Technical Inventory Bureau to register the Cooperative as the owner of a boat station for forty-two boats located on a plot of land of 0.34 hectares next to Maliy Akhun beach. Consequently, the authorities issued the technical and cadastral licences (технический и кадастровый паспорт) for each boathouse.

10. On 11 December 1998 the Municipality granted the Cooperative a non-transferable right to use the plot of land under the aforementioned boat station. The decision specified that the right was granted for a period of forty-nine years and allowed the Cooperative to build forty-two boathouses on the land concerned. According to the decision the Cooperative was supposed to conclude, within one month, a contract regulating the use of that land. On the same date the Cooperative’s right was registered in the land register and remains there to date.

11. Subsequently the Cooperative requested the Municipality on several occasions to issue the appropriate documents testifying to the applicants’ right to use the land, but those requests remained without response.

12. In 1999 the prosecutor’s office contested the lawfulness of the Cooperative’s buildings and sought their demolition.

13. On 12 January 2000 the Commercial Court of the Krasnodar Region dismissed the prosecutor’s request and upheld the lawfulness of the Cooperative’s title to the property concerned. The Commercial Court of Appeal and the Federal Commercial Court of the North-Caucasian Circuit upheld that decision on 23 February 2000 and 4 July 2000 respectively, relying, inter alia, on the Municipality’s decision of 10 December 1998 (see paragraph 9 above).

14. From 1998 to 2013 the applicants used the above plot of land and the boathouses built on it without any interruption or hindrance, considering themselves as lawful owners of the property. They paid their charges to the Cooperative periodically. From 2005 onwards the Cooperative systematically honoured its tax payments for the use of the land and property in response to the tax demands made by the Russian authorities.

B. Judicial review of the applicants’ title to the boathouses, and their demolition

15. On 30 August 2010 the President of the Russian Federation instructed the Prosecutor General, the Krasnodar regional authorities and the Sochi municipal authorities to identify and demolish unlawful constructions on the coast in Sochi.

1.  Lawsuit in the commercial court

16. On an unspecified date the Municipality sued the Cooperative and its members in the Commercial Court of the Krasnodar Region, demanding that they demolish the boathouses and clear the area. The Municipality argued that the constructions were unlawful and that the area was being arbitrarily occupied by the applicants.

17. On 11 August 2011 the court decided that it lacked jurisdiction to consider the case since the Cooperative was a non-profit partnership and did not exercise a commercial activity as its main purpose.

2. Lawsuit in the courts of general jurisdiction

(a) Examination of the applicants’ case by the first-instance court

18. On an unspecified date the Municipality lodged a civil action against the applicants with the Khostinskiy District Court of Sochi. Referring to its own decisions of 10 and 11 December 1998, the Municipality argued that the Cooperative’s title to the property had never been properly registered and that no contract regulating the use of that land had been entered into as required by law.

19. On 16 March 2012 the District Court granted the Municipality’s claim, ordering the applicants to demolish their boathouses and to clear the area. The court notably considered that the Cooperative’s alleged right to use the land along the coast in Sochi had been granted in breach of Russian law because before 27 April 2010, when the property right over that land was granted to the Municipality, the right to administer it was conferred on the federal authorities. It also found that the Cooperative failed to conclude a contract regulating the use of the land. In this respect, the court refused to take into account the attempts made by the Cooperative to do so on account of its failure to challenge in court the local authorities’ inactivity. Lastly, it referred to the Russian President’s instruction of 30 August 2010 and noted that the Cooperative’s constructions were damaging the town’s external image as host city of the 2014 Winter Olympics. It concluded that the applicants’ boathouses were unauthorised constructions that had to be demolished at the applicants’ own expense.

(b) Appellate review at the regional level

20. On 3 July 2012 the Krasnodar Regional Court quashed the above judgment on appeal and upheld the applicants’ property rights over the boathouses. Referring to the Municipality’s decisions of 1991 and 1993 (see paragraphs 5-6 above), it found that the District Court had ignored the evidence that the use of land and the construction of the boathouses had been duly authorised by the local authorities which were competent in accordance with the legislation applicable at that time. In the Regional Court’s view, the District Court based its judgment on the legislation adopted only after the aforementioned Municipality’s decisions and which could not thus be retroactively applied to the applicants’ case. Lastly, the Regional Court considered that the Municipality’s failure to enter into a contract with the Cooperative regulating the use of that land, despite the Cooperative’s repeated requests to that effect, had not rendered the boathouses unauthorised constructions. The judgment of the Krasnodar Regional Court became binding (“acquired binding force” – вступило в законную силу) on the same date in accordance with the new Article 329 § 5 of the Code of Civil Procedure, in force since 1 January 2012.

(c) Cassation review at the regional level

21. On 8 August 2012 the Municipality lodged a cassation appeal with the Presidium of the Krasnodar Regional Court, asking it to quash the judgment issued on appeal and uphold the first-instance judgment.

22. On 20 August 2012 a judge of the Regional Court decided to refer the case for consideration by the Presidium of that court.

23. On 29 August 2012 the Presidium granted the cassation appeal and upheld the first-instance judgment in the Municipality’s favour on all points.

(d) Cassation review at the Supreme Court

24. The applicants lodged a fresh cassation appeal against those judgments with the Supreme Court of the Russian Federation.

25. On 5 October 2012 a judge of the Supreme Court refused to refer the case for consideration by the Civil Chamber of the Supreme Court. The judge found that the applicants’ cassation appeal did not constitute grounds for quashing the impugned judgments in cassation proceedings because it was based only on a different interpretation of the legislation and did not disclose significant violations by the lower courts of substantive or procedural law. The judge further observed that the principle of legal certainty, which constituted one of the fundamental aspects of the rule of law, stated that no party was entitled to seek the reopening of proceedings merely for the purpose of obtaining a rehearing and a fresh determination of the case.

26. On 27 December 2012 the Deputy President of the Supreme Court of the Russian Federation replied to a fresh complaint made by the applicants against the impugned judgments. Referring to Articles 381 § 3 and 387 of the Code of Civil Procedure, the Deputy President found that there were no grounds to disagree with the decision of 5 October 2012 taken by the single judge.

3. Enforcement of the judgment of 16 March 2012

27. From 10 to 20 March 2013 bailiffs ensured the enforcement of the judgments against the applicants and the boathouses were demolished at the State’s expense.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. Federal Constitutional Law on courts of general jurisdiction in the Russian Federation

28. Section 9 of the Federal Constitutional Law no. 1-FRZ of 7 February 2011 provides that the Supreme Court of the Russian Federation is the highest judicial body in civil, criminal, administrative and other matters falling under the jurisdiction of the courts of general jurisdiction. Within the legally established procedural forms, it exercises judicial supervision of the courts’ activities and provides clarifications on issues of judicial practice. The Supreme Court also analyses judicial practice and provides the lower courts with clarifications as to the application of Russian legislation with a view to ensuring the unity of the case-law.

B. New provisions of the Code of Civil Procedure

29. On 9 December 2010 the relevant parts of the Code of Civil Procedure concerning the review of judgments delivered by the courts of first instance were amended by Federal Law no. 353-FZ, with effect from 1 January 2012.

1. New provisions on review of judicial decisions before they become final – appeal procedure

30. In Part III of the Code (“Procedure for review at second instance”) a new Chapter 39 was inserted, introducing a new appeal procedure in respect of judgments by the courts of first instance that had not become binding (“had not acquired binding force” ‑ не вступившие в законную силу). The newly enacted appeal procedure (процедура апелляционного обжалования) in respect of such judgments replaced the former cassation appeal procedure (процедура кассационного обжалования) which was governed by Chapter 40 of the Code until 1 January 2012. While modifying various features of the review at second instance, including its scope and consequences, the new appeal procedure maintained the principle whereby decisions taken by the second-instance courts on appeal acquired binding force immediately (new Article 329 § 5), as did formerly the decisions taken by the same courts on cassation appeals (former Article 367).

2. Provisions on review of judicial decisions after they become final – cassation and supervisory-review procedures

31. Part IV of the Code governs the procedure for the review of judgments that have become binding. The former Chapter 41 (“Supervisory‑review procedure”) has been split into two new chapters, Chapter 41 (“Cassation procedure”) and Chapter 41.1 (“Supervisory-review procedure”).

(a) Cassation procedure

32. Under Chapter 41 of the Code of Civil Procedure, judgments delivered by the courts of general jurisdiction may be challenged in cassation appeal proceedings within six months of the date on which they become legally binding. Cassation-review proceedings may be taken by the parties to a case and by other persons whose rights or legal interests have been adversely affected by these decisions, but only if other available avenues of appeal were exhausted before the decision became legally binding (Article 376).

(i) Courts competent to review final judgments in cassation

33. A cassation appeal may first be brought before the presidia of the regional courts (Article 377 § 2(1)) and subsequently before the Civil Chamber of the Supreme Court of the Russian Federation (Article 377 § 2(3)). No cassation appeal may be lodged with the Civil Chamber of the Supreme Court if it has not been previously submitted to the presidium of the regional court (Article 377 § 2 (3)).

(ii) Admissibility stage

34. At regional level, the admissibility of a cassation appeal is examined by the president or deputy president of the regional court or by a judge delegated for this purpose (Article 380.1 § 1). At Supreme Court level, the admissibility is decided by a judge of that court (Article 380.1 § 2), whose decision to dismiss a cassation appeal may be overruled by the President or Deputy President of the Supreme Court (Article 381 § 3).

35. The admissibility of a cassation appeal is considered by a single judge of the regional court within one month if the case file has not been requested, and within two months if the case file has been requested from the lower court, excluding the time elapsing between the request for the case file and its receipt (Article 382 § 1).

36. At the Supreme Court level, these time-limits are two and three months respectively (Article 382 § 2). They may be extended by two months by the President of the Supreme Court or his or her Deputy (Article 382 § 3).

37. No explicit time-limit is provided for by the Code as regards the exercise by the President of the Supreme Court or his or her Deputy of the power to overrule the decision by a single judge to dismiss the cassation appeal.

38. Following the examination of a cassation appeal, the single judge issues a decision dismissing it (Article 383) or transferring it for examination on the merits by a cassation court (Article 384).

(iii) Examination of the cassation appeal on the merits

39. A cassation appeal is examined on the merits by the presidium of the regional court within one month and by the Supreme Court within two months from the date on which the decision on admissibility was issued (Article 386 § 1).

40. The grounds for the quashing or varying of binding judgments by the presidia of the regional courts and the Civil Chamber of the Supreme Court, acting as cassation courts, are “significant violations of substantive or procedural law which influenced the outcome of the proceedings and must be corrected in order to restore and protect rights, freedoms and lawful interests and to safeguard public interests protected by law” (Article 387).

41. Following its examination, the presidium and/or the Civil Chamber of the Supreme Court may, inter alia, quash wholly or in part one or all of the judgments previously delivered in the case by the first-instance, appeal or cassation courts and remit the case for reconsideration by any of those courts (Article 390 § 1(2)).

(b) Supervisory-review procedure

42. The new Chapter 41.1 (new Articles 391.1-391.13) provides that the Presidium of the Supreme Court of the Russian Federation considers applications from the parties for supervisory review (пересмотр в порядке надзора) of binding judgments issued by lower judicial instances. In an ordinary civil case where the proceedings have started at the district court level, parties may lodge an application for supervisory review only if their case has previously been examined in cassation proceedings by the Civil Chamber of the Supreme Court of the Russian Federation (Article 391.1 § 2(6)). Such applications may be brought within three months of the date on which the impugned decision became binding (Article 391.2).

43. The admissibility of an application is decided by a single judge of the Supreme Court of the Russian Federation, who may dismiss the application or transfer it for examination by the Presidium of that court. This decision is taken within two months if the case file has not been requested and within three months if it has been requested, excluding the time elapsing between the request for the case file and its receipt (Article 391.6 § 1). These time-limits may be extended by the President of the Supreme Court or his or her Deputy for another two months (Article 391.6 § 2). The decision by a single judge to dismiss the application may be overruled by the President or Deputy President of the Supreme Court of the Russian Federation (Article 391.5). The Code contains no explicit time-limit for the exercise of this power by the President or his or her Deputy.

44. Following its examination the Presidium of the Supreme Court may uphold, vary or quash any of the judgments previously delivered in a case, be it by the first-instance, appeal or cassation courts. In the latter situation, the case may be sent back for reconsideration by any of those courts. Binding decisions may be quashed on supervisory review if they breach: (1) human rights and freedoms enshrined in the Constitution or principles of international law and international treaties to which the Russian Federation is a party; (2) the rights and legitimate interests of an undefined group of people or other public interests; (3) the uniformity of the case-law (Article 391.9).

45. Finally, following a request by the parties or the prosecutor, the President or Deputy President of the Supreme Court of the Russian Federation may initiate supervisory-review proceedings in respect of binding judgments in order to remedy, inter alia, fundamental defects in the application of the substantive or procedural legal provisions affecting the exercise of fundamental rights enshrined in the Code (Article 391.11). Applications for supervisory review may be lodged with the President or his or her deputy within six months of the date on which the impugned judicial decisions become binding.

C. Resolutions of the Plenum of the Supreme Court of the Russian Federation

1. Resolution of 12 February 2008

46. Having noted a number of questions arising in the courts’ application of the supervisory-review procedure as amended by the Law of 4 December 2007, the Supreme Court of the Russian Federation clarified various points in its ruling of 12 February 2008 (No. 2).

47. The Supreme Court stated that the six-month time-limit covered all supervisory-review courts; it did not restart after each rejection of a supervisory-review complaint and application to a higher supervisory‑review court. On the other hand, the time spent by the courts in considering supervisory-review complaints was not to be taken into account in the calculation of this time-limit. The court reiterated the exceptional nature of the circumstances in which this time-limit could be waived (restored) on application by a physical or legal person. The courts should not take account of any such circumstances occurring later than one year after the judgment became binding. Any decision waiving the time-limit had to be accompanied by sufficient reasons.

48. Lastly, the Supreme Court drew the courts’ attention to the new limits to the grounds for supervisory review enshrined in Article 387, which was to be read in the light of the Convention provisions. Referring to the principle of legal certainty, it stated that the courts were not entitled to review a legally binding judgment merely for the purpose of obtaining a rehearing and a new judgment; a different opinion on the part of the supervisory-review court the way the case should have been decided was not sufficient reason for altering the lower court’s decision.

2. Resolution of 11 December 2012

49. Having noted the questions arising in the courts’ application of the cassation procedure as amended by the Federal Law no. 353-FZ of 9 December 2010, the Plenum of the Supreme Court of the Russian Federation clarified various points in its ruling of 11 December 2012 (No. 29).

50. The Supreme Court reiterated that the cassation procedure was aimed at correcting significant violations of substantive and procedural law committed by the courts during the previous examination of the case and which influenced the outcome of the proceedings, and which had to be corrected in order to restore and protect rights, freedoms and lawful interests and to safeguard public interests protected by law. The Supreme Court also confirmed that the examination of a case in cassation was limited to points of law, that is to say, the correct application and interpretation of substantive and procedural law (Article 390 § 2).

51. Furthermore, the Supreme Court stated that the six-month time-limit covered both cassation levels; it did not restart after each rejection of a cassation appeal and application to a higher cassation court.

52. On the other hand, the time spent by the courts in considering cassation appeals was not to be taken into account in the calculation of this time-limit.

53. The Supreme Court reiterated the exceptional nature of the circumstances in which this time-limit could be waived (restored) on application by a physical or legal person. The courts should not take account of any such circumstances occurring later than one year after the judgment became binding. Any decision waiving the time-limit had to be accompanied by sufficient reasons.

D. Relevant recent case-law of the Civil Chamber of the Supreme Court

54. Mr P. sued the Savings Bank of the Russian Federation for its refusal to reimburse him a sum of money he had deposited with the bank, and sought compensation for different heads of damage sustained as a result of this refusal. On 19 September 2012 the Leninskiy District Court of Vladivostok partly allowed his claims. On 20 December 2012 the Primorsk Regional Court partly quashed this decision on appeal and rejected a part of the claim concerning the reimbursement of the deposit. On 8 April 2013 the Presidium of the Primorsk Regional Court on the first cassation appeal partly quashed the previous decisions and rejected a part of the claim concerning penalties. On 3 December 2013 the Civil Chamber of the Supreme Court on the second cassation appeal quashed all the previous judgments and sent the case for reconsideration by the appeal court. The Supreme Court found that the lower courts should have applied the Consumer Protection Act instead of the general provisions of the Civil Code (decision no. 56-КГ13-11, Bulletin of the Supreme Court no. 8, 2014).

55. Mr G. and the Municipality of Sochi sued OOO Varyusha, demanding that it demolish its unauthorised constructions and clear the area. On 13 June 2012 the Lazarevskiy District Court granted their claims and ordered Mr T., the Director General of the defendant entity, to demolish the building and to clear the area. On 4 October 2012 this decision was upheld on appeal by the Krasnodar Regional Court. On 13 June 2012 both decisions were upheld on the first cassation appeal by the Presidium of the Krasnodar Regional Court. However, on 28 May 2013 the Civil Chamber of the Supreme Court on the second cassation appeal quashed all the judgments and sent the case back for reconsideration by the first-instance court. The Supreme Court found that the lower courts had failed to identify a proper defendant and give reasons for their conclusions (decision no. 18‑КГ13-12, Bulletin of the Supreme Court no. 11, 2013).

56. On 19 May 2011 the Ramenskiy City Court of the Moscow Region refused to order the demolition of a shop and its outbuildings belonging to Ms M. as sought by the prosecutor. On 20 October 2011 the Moscow Regional Court upheld this decision on appeal. On 4 July 2012 the Presidium of the Moscow Regional Court on the first cassation appeal partly quashed these judgments and adopted a new decision granting the prosecutor’s request. On 5 February 2013 the Civil Chamber of the Supreme Court on the second cassation appeal quashed this decision and sent the case back for reconsideration by the Presidium of the Moscow Regional Court. The Supreme Court found that, in concluding that the shop and its outbuildings had been built in violation of the building regulations, the Presidium had based its findings on regulations adopted after the disputed construction had been approved by the competent authorities (decision no. 4-КГ12-30, Bulletin of the Supreme Court no. 9, 2013).

THE LAW

I. JOINDER OF THE APPLICATIONS AND ISSUE BEFORE THE COURT

57. In accordance with the Rule 42 § 1 of the Rules of the Court, the Court decides to join the applications, given their similar factual and legal background.

II. ALLEGED VIOLATION OF ARTICLE 6 ON ACCOUNT OF THE QUASHING OF THE JUDGMENT IN THE APPLICANTS’ FAVOUR

58. The applicants complained that the Presidium of the Krasnodar Regional Court, by quashing a binding judgment delivered on appeal in their favour, had acted in breach of the legal certainty requirement. They relied on Article 6 of the Convention, which reads as follows:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

A. The parties’ submissions

59. The Government argued that the applications should be declared inadmissible since they had been lodged outside the six-month time-limit, and that the applicants had failed to exhaust all the effective domestic remedies available to them. In support of their first argument, the Government indicated that the final judgment adopted in the applicants’ case was the decision of the judge of the Supreme Court of 5 October 2012 refusing to refer their cassation appeal for consideration to the Civil Chamber of the same court. They considered that the decision of 27 December 2012 taken by the Deputy President of the Supreme Court following the applicants’ request for reconsideration of the inadmissibility decision given by the single judge should not be taken into account. In support of their second argument, the Government indicated that the applicants had failed to lodge a supervisory-review application with the Presidium of the Supreme Court, without giving other details.

60. The Government further referred to the changes made to the Code of Civil Procedure by Federal Law no. 353-FZ of 9 December 2010, which had introduced a new appeal procedure and modified the cassation and supervisory-review procedures. In the Government’s view, the last two procedures were henceforth comparable, if not identical, to those which existed in the commercial courts and had previously been recognised by the Court as remedies to be exhausted (as regards the cassation procedure, see Glukhikh v. Russia (dec.), no. 1867/04, 25 September 2008; as regards the supervisory-review procedure, see Kovaleva and Others v. Russia (dec.), no. 6025/09, 25 June 2009).

61. For instance, the Government indicated that the grounds for an appeal in cassation under the Code of Civil Procedure (Article 387 as clarified by paragraph 1 of the ruling adopted by the Plenum of the Supreme Court on 11 December 2012) were henceforth comparable to those provided for by the Code of Commercial Procedure (compare to Glukhikh, cited above). They specifically stressed that the examination of a case by the cassation court was confined to points of law (see also paragraph 50 above).

62. The Government further described the cassation procedure as now provided for by the Code of Civil Procedure, giving special emphasis to the existence of specific time-limits for each stage of examination of a cassation appeal.

63. In order to demonstrate the effectiveness of the cassation procedure, the Government provided eleven examples of domestic case-law in which the Civil Chamber of the Supreme Court had reversed the judgments delivered by the first-instance and appeal courts. All these examples concerned disputes between private individuals and different public authorities with regard to various social rights. While the first‑instance and/or appeal courts had found against the private claimants, these judgments had been reversed by the Civil Chamber of the Supreme Court on the ground that the lower courts had committed significant errors in the application of the substantive legislation. None of the examples mentioned cassation appeals at regional level.

64. In the different examples, the quashing by the Supreme Court had taken place between six months and one year after the judgments subject to a cassation appeal had become final, except in one particular case in which the second-instance judgment had been delivered before the entry into force of Law no. 353-FZ. In all the examples, the proceedings had ended in the Supreme Court because the latter had either delivered a new decision or restored the first-instance court’s judgment.

65. As regards the multiplicity of supervisory-review instances previously criticised by the Court (see, in particular, Martynets v. Russia (dec.), no. 29612/09, ECHR 2009), the Government indicated that Law no. 353-FZ had remedied this deficiency by limiting the supervisory-review procedure to the Presidium of the Supreme Court. Consequently, the risk that the case would go back and forth from one court to another for an indefinite period no longer existed. In this context, the Government also emphasised that the time-limit for lodging a supervisory-review application had been shortened to three months.

66. The Government further argued that Law no. 353-FZ also addressed the Court’s criticism regarding the discretionary powers of the President or Deputy President of the Supreme Court to reverse any decision by a judge of the same court dismissing a supervisory-review application under the former Article 381 § 3 of the Code of Civil Procedure (see Martynets, cited above – currently Article 391.5 § 3). They referred in this regard to the new Article 391.11 §§ 1 and 2 of the Code of Civil Procedure establishing the six month time‑limit and providing for specific grounds for the exercise of those powers (see paragraph 45 above).

67. Finally, the Government pointed out that the grounds for supervisory review were now explicitly limited by the Code and included violations of human rights provided for by the international treaties to which the Russian Federation was a party (see paragraph 44 above). They were thus identical to those provided for by the Code of Commercial Procedure (compare with Kovaleva and Others, cited above).

68. The applicants did not comment on the new changes to the civil procedure.

B.  The Court’s assessment

69. The applicants lodged their applications with the Court on 21 April and 5 June 2013, respectively, that is more than six months after the dismissal of their cassation appeal by a single judge at Supreme Court level on 5 October 2012, and less than six months after that decision was upheld by the Deputy President of that court on 27 December 2012 (see paragraphs 25 and 26 above). The Court must thus examine whether the applications were lodged in time.

70. The Court observes at the outset that it has consistently held that a decision taken by a second-instance court at regional level under the former cassation procedure in Russia is a final national decision for the purposes of Article 35 of the Convention. Accordingly, this decision has so far been considered as the starting-point for calculation of the six-month time-limit laid down by that Article. Supervisory-review applications to higher courts of general jurisdiction, that is, 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 have not been considered relevant for the purposes of calculation of that time-limit (see Martynets, cited above).

71. The Court notes, however, that the system of review of domestic judgments in Russia was modified by Law no. 353-FZ, which entered into force on 1 January 2012 (see paragraph 29 above). This Law introduced an appeal instance at regional level and converted the first two levels of supervisory review under the former system, namely the presidia of the regional courts and the Civil Chamber of the Supreme Court, into cassation while limiting the supervisory-review procedure to one instance, namely the Presidium of the Supreme Court.

72. The cassation appeal in the applicants’ case was exercised under the new provisions of the Code of Civil Procedure resulting from the aforementioned law. The Court thus has to assess whether the cassation procedure so amended is henceforth a remedy to be exhausted under Article 35 § 1 and is therefore relevant for the calculation of the six-month time-limit.

73. The Court further notes that the examination of a cassation appeal by the Civil Chamber of the Supreme Court constitutes a necessary precondition for a supervisory-review application (see paragraph 42 above). Consequently, depending on its conclusion with regard to the cassation procedure, the Court will decide whether it is necessary in addition to examine the Government’s non-exhaustion plea concerning the applicants’ failure to lodge a supervisory-review application with the Presidium of the Supreme Court.

1. General principles

74. The Court reiterates that the purpose of Article 35 § 1 is to afford the Contracting States the opportunity of preventing or putting right – usually through the courts – the violations alleged against them before those allegations are submitted to the Court (see Fressoz and Roire v. France [GC], no. 29183/95, § 37, ECHR 1999‑I). Effective and available remedies are those which are accessible, capable of providing redress in respect of the applicant’s complaints and offer reasonable prospects of success (see Akdivar and Others v. Turkey, 16 September 1996, § 68, Reports of Judgments and Decisions 1996‑IV). The requirement of exhaustion of domestic remedies is closely interrelated with the six-month rule, which constitutes an element of legal stability (see De Wilde, Ooms and Versyp v. Belgium, 18 June 1971, § 50, Series A no. 12).

75. According to the Court’s established case-law, an application for supervisory review in civil proceedings, which has hitherto constituted the only possibility for submitting the case for review to the presidia of the regional courts and the Civil Chamber of the Supreme Court in the Russian Federation, has not been considered as a remedy to be exhausted 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 Martynets, cited above, where the Court examined the system of supervisory review as in force between 7 January 2008 and 1 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 made to this procedure such as the shortening 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 discretionary power of the presidents of the regional courts to overrule decisions by judges of those courts dismissing such applications. In particular, the Court criticised the fact that it was still possible to make several consecutive applications for 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 discretionary powers of the President or Deputy President of the Supreme Court to reverse any decision by a judge of the same court dismissing a supervisory‑review application (see Martynets, cited above).

2. Whether the cassation procedure as provided for by Law no. 353-FZ constitutes a remedy to be exhausted

(a) Whether the reform enacted by Law no. 353-FZ remedied the defects of the former supervisory-review procedure

76. As regards the uncertainty of the time-limits, the Court notes at the outset that the new cassation procedure is confined to two courts, namely the presidia of the regional courts and the Civil Chamber of the Supreme Court (see, by contrast, Martynets, cited above, where supervisory-review applications could be lodged at three supervisory-review courts). Consequently, the six-month time-limit previously applicable to several consecutive applications for supervisory review now applies only to two cassation appeals and the Plenum of the Supreme Court reiterated that this time-limit covers them both (see paragraph 51 above).

77. Further, the admissibility of a cassation appeal is first to be decided by a single judge at regional level whose decision is subject to the time‑limits established by the Code of Civil Procedure (see paragraph 35 above). The judge may either dismiss the cassation appeal for lack of admissible grounds or decide to transfer it to the presidium of the regional court for examination on the merits. The examination of a cassation appeal by the presidium of the regional court is also subject to specific time-limits established by the Code (see paragraph 39 above). According to the Plenum of the Supreme Court, the time spent by the cassation court in considering a cassation appeal should not be taken into account in the calculation of the overall six-month time-limit for lodging a cassation appeal (see paragraph 52 above).

78. A cassation appeal may further be lodged with the Civil Chamber of the Supreme Court, where its admissibility is also examined by a single judge of that court, who can either dismiss the appeal or decide to transfer it for examination to the Civil Chamber. Similarly, the Code has established specific time-limits for both the examination of the admissibility by a single judge and the examination of the appeal by the Civil Chamber of the Supreme Court, if the cassation appeal is granted (see paragraphs 36 and 39 above).

79. Although the law still does not specify how the six month time-limit is to be calculated if the party avails itself of the right to lodge both cassation appeals, the Court observes that at present it has no reasons to doubt that the time-limit so construed could not be properly enforced in practice (see, by contrast, Martynets, cited above, where not only the single six month time-limit applied to three different supervisory-review levels but also was interrupted in particular at the second supervisory-review level by a possibility to apply to the President of the Supreme Court, this application not being subject to any time-limit). In this context, the Court observes that in ten of the eleven examples provided by the Government where the proceedings started after the entry into force of Law no. 353-FZ, this time‑limit was effectively complied with and the examination of the cases by both cassation courts was concluded at the latest within one year from the delivery of the appeal judgment (see paragraph 64 above). Although the Government did not mention whether a cassation appeal had previously been lodged at regional level, it is understood that under the Code of Civil Procedure lodging a cassation appeal at regional level constitutes a necessary precondition for any such appeal before the Supreme Court (see paragraph 33 above).

80. The Court thus observes that in addition to the overall six-month time-limit for lodging both cassation appeals, the Code of Civil Procedure provides specific time-limits for each stage of their examination within both cassation courts. Thus, whatever path the cassation appeal follows there is always a possibility to determine the final point in the litigation.

81. It is true that the Code of Civil Procedure as in force since 1 January 2012 has maintained the possibility at Supreme Court level for the parties to complain to its President or his Deputy about the dismissal of a cassation appeal by a single judge of that court, and that neither this complaint nor the power exercised by these officials is subject to any time‑limit (see paragraph 37 above). In this regard, the Court cannot but reiterate its long-standing position that remedies which depend on State officials’ discretionary powers and are not subject to any time-limits are not remedies to be exhausted (see Babayev v. Azerbaijan (dec.), no. 36454/03, 27 May 2004 with further references). The existence of such discretionary powers on the part of the President of the Supreme Court or his Deputy contributed to the uncertainty of the time-limits previously criticised by the Court and constituted in itself another defect in the former supervisory‑review procedure which prevented the Court from recognising it as a remedy to be exhausted for the purposes of Article 35 of the Convention (see Tumilovich, Denisov, and Martynets, all cited above).

82. The Court observes, however, that unlike under the former supervisory-review procedure as described in the above-cited Martynets case of which a complaint to the President of the Supreme Court was seen as an inherent stage, such a complaint now constitutes one of the extraordinary remedies the unsuccessful party may use after the cassation proceedings have ended with the dismissal of a cassation appeal by a single judge of the Supreme Court. Such a party can either complain to the President of the Supreme Court about the dismissal of his or her cassation appeal by a single judge of that court or request the same President to bring a supervisory-review application on his or her behalf (see paragraph 45 above). In these circumstances, the Court considers that this particular complaint may now be seen as a separate remedy distinct from the cassation procedure as such and could no longer be taken into account in the assessment of the latter. Neither can it be taken into account for the purposes of Article 35 of the Convention.

83. In view of the above the Court concludes that the uncertainty generated by the supervisory-review procedure in its previous form (see Martynets, cited above) no longer exists under the new cassation procedure.

(b) Other considerations relating to the new cassation procedure

84. The Court further notes that following their examination the cassation courts may quash the decisions of the lower courts and remit the case for reconsideration or terminate the proceedings in the case. Their jurisdiction extends to points of law only (see paragraphs 40-41 and 50 above).

85. As regards the grounds for quashing, altering or varying lower courts’ judgments, they apply in cases of significant violations of substantive or procedural law (see paragraph 40 above). The Court notes their terminological similarity with the grounds for the former supervisory review. However, under the latter procedure they were limited to fundamental violations within the meaning of the Court’s case-law, as indicated in the ruling of the Plenum of the Supreme Court of 12 February 2008 (see paragraph 48 above). This interpretation was not reiterated by the Plenum in its ruling of 11 December 2012 on the application of the new cassation procedure (see paragraphs 49-53 above). Furthermore, an express reference to fundamental violations has now been inserted in the Code of Civil Procedure as grounds for another remedy, namely an application to the President of the Supreme Court or his or her Deputy (see paragraph 45 above). In these circumstances, the Court accepts the Government’s assertion that the grounds for a cassation appeal are henceforth comparable to those for a cassation appeal under the Code of Commercial Procedure (see paragraph 61 above).

86. The Court is thus satisfied that the new cassation procedure allows the parties to submit to the domestic authorities, including the Supreme Court, the substance of the Convention complaint and to seek relief (compare with X. and Church of Scientology v. Sweden, Commission decision of 5 May 1979, Decisions and Reports 16, p. 71; Öztürk v. Turkey [GC], no. 22479/93, § 45, ECHR 1999‑VI; MPP Golub v. Ukraine (dec.), no. 6778/05, 18 October 2005; and Yanakiev v. Bulgaria, no. 40476/98, § 65, 10 August 2006).

(c) Special considerations concerning a second cassation appeal

87. On 5 October 2012 the applicants’ cassation appeal lodged with the Supreme Court was dismissed by a single judge of that court on the ground that it was merely based on a different interpretation of the legislation and did not disclose any significant violation of substantive or procedural law by the lower courts. The judge further referred to the principle of legal certainty, which states that no party is entitled to seek the reopening of proceedings merely for the purpose of obtaining a rehearing and a fresh determination of the case (see paragraph 25 above). The Court must thus examine whether the applicants’ cassation appeal was still accessible to them or still had any reasonable prospects of success in a situation where the presidium of the regional court had already examined the first cassation appeal on the merits, and bearing in mind the fact that under the Russian Code of Civil Procedure both cassation appeals are lodged on identical grounds (see, by contrast, MPP Golub and Kovaleva and Others, both cited above).

88. The Court first observes that a second cassation appeal is brought before another court, in this case the highest judicial body in the country, whose primary role is to ensure the uniform application and correct interpretation of the law and to promote its development throughout the judicial system at whose pinnacle it stands (see paragraph 28 above).

89. It follows from the Court’s case-law that the right of access to an appeal court is not absolute and that the State, which is permitted to place limitations on the right to appeal, enjoys a certain margin of appreciation in relation to such limitations (see Wells v. the United Kingdom (dec.), no. 37794/05, 16 January 2007 with further references). The conditions of admissibility of an appeal on points of law or an appeal to a superior appeal court may also be stricter than for an ordinary appeal (see Valchev and Others v. Bulgaria (dec.), nos. 47450/11, 26659/12 and 53966/12, § 84, 21 January 2014 with further references).

90. The Court thus considers that, taking into account the margin of appreciation to be afforded to the respondent State and the characteristics of the national system, in which the Supreme Court’s core task consists in unifying the application of the law by the regional courts of numerous federal entities, the mere fact that a second cassation appeal before it is lodged on the same grounds should not be seen on its face as an unreasonable limitation of the right of access to that court. In this context, the Court takes note of the recent examples of the practice of the Civil Chamber of the Supreme Court, which demonstrate that the examination of the first cassation appeal by the presidium of a regional court does not prevent the Civil Chamber of the Supreme Court from examining the second cassation appeal on the merits (see paragraphs 54-56 above).

91. However, the final decision as to the observance of the Convention requirements rests with the Court. Moreover, the right of access to a court is impaired when the rules cease to serve the aims of legal certainty and the proper administration of justice and form a sort of barrier preventing the litigant from having his or her case determined on the merits by a competent court (see Wells, cited above).

92. The Court observes that in their cassation appeal the applicants limited themselves to reiterating the arguments which had already been subjected to examination over three levels of jurisdiction, that is, by the first-instance, appeal and cassation courts, in adversarial proceedings. It does not appear that they complained about the proceedings before the presidium of the regional court or raised new arguments which would have called for examination by the Supreme Court. In these circumstances, the Court considers that the dismissal of their cassation appeal by a single judge of the Supreme Court cannot be considered as an unreasonable limitation of their right to have access to court (see Kart v. Turkey [GC], no. 8917/05, § 79, ECHR 2009 (extracts), and Tchaghishvili v. Georgia (dec.), no. 19312/07, § 34, 2 September 2014, with numerous further references).

(d) Conclusion

93. After having examined different aspects of the new cassation procedure provided for by the Code of Civil Procedure as amended by Law no. 353-FZ, the Court finds that it no longer has reason to consider that this procedure constitutes an extraordinary means of reopening the judicial proceedings in a case rather than an ordinary appeal on points of law similar to that existing in the jurisdictions of other States Parties to the Convention (contrast Tumilovich, Denisov and Martynets, all cited above). Therefore, the Court considers it appropriate and justified to require any individual who intends to lodge an application in respect of a violation of his or her Convention rights to first use the remedies offered by the new cassation procedure.

94. The Court does not disregard that the recognition of both cassation appeals as remedies to be exhausted would bring the total number of domestic instances to be exhausted by Russian applicants to four. It notes in this respect that a similar situation exists in other countries (see MPP Golub, cited above), in particular those in which an application before the Constitutional Court is considered as a remedy to be exhausted in addition to the courts of general jurisdiction (see, as an illustration, Žáková v. the Czech Republic, no. 2000/09, §§ 26-31, 3 October 2013), and already existed in Russia as regards commercial courts (see Kovaleva and Others, cited above).

95. The Court stresses, however, that the effective functioning of the cassation system for the review of binding and enforceable judgments is closely contingent on strict compliance with the time-limits laid down in the Code of Civil Procedure and effective access to the Supreme Court, which must be available not only in theory but also in practice. Consequently, the burden of proof as to the effectiveness of the domestic courts’ within the new cassation procedure, and in particular as to the accessibility of the second cassation appeal, will lie in practice with the respondent Government (see, mutatis mutandis, Hasan Uzun v. Turkey, no. 10755/13, § 71, 30 April 2013).

96. The Court reiterates that it is intended to be subsidiary to the national systems safeguarding human rights. It is, therefore, appropriate that the national courts should initially have the opportunity to determine questions of the compatibility of domestic law with the Convention and that, if an application is nonetheless subsequently brought before the Court, it should have the benefit of the views of the national courts, as being in direct and continuous contact with the vital forces of their countries (see Burden v. the United Kingdom [GC], no. 13378/05, § 42, ECHR 2008). The recognition of the cassation procedure, and in particular of the second cassation appeal before the Supreme Court, as a remedy to be exhausted will thus allow potential applicants to first submit their grievances to the highest judicial body of the Russian Federation, which will have an adequate opportunity to consider any complaint about an alleged violation of the Convention in civil cases and remedy any such violation at the domestic level prior to examination of the case by the Court. The Court thus considers that the new approach will strengthen the dialogue between the Russian judicial system and the Convention institutions, thus giving full effect to the subsidiarity principle.

3. Whether the supervisory-review procedure constitutes a remedy to be exhausted

97. The Government further argued that the present applications should be declared inadmissible since the applicants had failed to exhaust all domestic remedies available to them, namely to lodge a supervisory-review application with the Presidium of the Supreme Court (see paragraph 59 above). According to the Government, Law no. 353-FZ cured all the defects in the supervisory-review procedure previously identified by the Court, thus making it a remedy to be exhausted under Article 35 of the Convention (see paragraphs 65-67 above).

98. The Court observes at the outset that a supervisory-review application can only be lodged on a number of restricted grounds which include an alleged violation of the Convention (see paragraph 44 and compare with Kovaleva and Others, cited above). However, unlike in the above-cited Kovaleva and Others case, where a supervisory-review application constituted the only means of bringing a case for consideration by the Supreme Commercial Court, such an application under the current Code of Civil Procedure constitutes yet another possibility to challenge a binding and enforceable judgment before the Supreme Court, whose Civil Chamber has already had an opportunity to address, at least in substance, the same issues in the context of the cassation procedure. Nothing in the relevant legislation suggests that the remedy in question could be exercised as an alternative to a cassation appeal before the Civil Chamber of the Supreme Court or may be similar to a leapfrog procedure existing in other countries.

99. Moreover, under the relevant provisions of the Code of Civil Procedure a supervisory-review application can be lodged by a party only if his or her cassation appeal has been previously examined by the Civil Chamber on the merits (see paragraph 42 above). Neither a decision by a single judge of the Supreme Court to dismiss the cassation appeal, even if it is upheld by the President of that court, nor a decision delivered in cassation proceedings by the presidium of the regional court is listed among the decisions amenable to an application for supervisory review in accordance with Article 391.1 § 2 of the Code of Civil Procedure.

100. In the present case, the applicants were thus prevented from applying for supervisory review after the single judge of the Supreme Court ruled out the possibility of their cassation appeal being examined by the Civil Chamber of that court (see paragraph 25 above). The Court consequently finds that, in the circumstances of the present case, a supervisory-review application was not a remedy accessible to the applicants.

101. The Government, however, claimed that the applicants should have applied for supervisory review, without giving further details (see paragraph 59 above). The Court observes in this regard that the Code of Civil Procedure provides for another possibility for a party wishing to lodge a supervisory-review application, namely to request the President of the Supreme Court or his Deputy, within six months from the date on which the impugned judgment became final, to bring such an application on his or her behalf (see paragraph 45 above).

102. The Court reiterates its extensive case-law to the effect that remedies the use of which depends on the discretionary powers of public officials and which are, as a consequence, not directly accessible to the applicants cannot be considered as effective remedies for the purposes of Article 35 § 1 of the Convention (see Kucherenko v. Ukraine (dec.), no. 41974/98, 4 May 1999). The Court does not see any reason to reach a different conclusion in the present case, as the decision to initiate a supervisory-review application remains within the complete discretion of the President of the Supreme Court or his Deputy (see Babayev, cited above). In this context, the fact that the President of the Supreme Court or his Deputy acts on an application from one of the parties or within the prescribed time‑limits does not change the Court’s conclusion that such an application constitutes in its essence an indirect, extraordinary remedy which remains outside the normal frame of domestic remedies in accordance with the generally recognised rules of international law.

103. In view of the above, the Court considers that in the present case, a supervisory-review application did not constitute a remedy to be exhausted for the purposes of Article 35 of the Convention, and accordingly dismisses this non-exhaustion plea presented by the Government.

4. Determination of the “final decision” in the present case

104. The Court notes that only the decision of the Deputy President of the Supreme Court of 27 December 2012 falls within the six-month time‑limit provided for by the Convention. Having regard to its findings that this particular complaint constitutes an extraordinary remedy falling outside of the normal chain of domestic remedies subject to exhaustion in accordance with generally recognised principles of international law (see paragraphs 81-82 above), the Court finds that, when the single judge at Supreme Court level dismissed their cassation appeal on 5 October 2012, the applicants exhausted all effective and sufficient remedies available to them. The complaint they lodged with the Deputy President of the Supreme Court constituted an extraordinary remedy which they were not required to exhaust for the purposes of Article 35 of the Convention. Since the applicants’ attempt to avail themselves of this extraordinary remedy was unsuccessful, the rejection letter of the Deputy President of the Supreme Court of 27 December 2012 did not restart the running of the six-month period, and the decision adopted by a single judge of that court on 5 October 2012 remained the final decision in the proceedings.

105. Accordingly, the Court finds that the final domestic decision in this case was the decision of the single judge at Supreme Court level of 5 October 2012, which is more than six months prior to the lodging of the present application with the Court. It follows that the application was lodged out of time and must be rejected under Article 35 §§ 1 and 4 of the Convention.

III. OTHER COMPLAINTS

106. The applicants further complained under Article 6 of the Convention that the Presidium of the Regional Court had heard their case within an extremely short time without informing them of the hearing and giving them an adequate opportunity to respond to the Municipality’s cassation appeal in adversarial proceedings. Lastly, they complained under Article 1 of Protocol No. 1 that their property rights had been violated by the de facto expropriation of their boathouses in breach of the domestic law and without any compensation.

107. The Court has already found that the final decision which triggered the calculation of the six-month time-limit in the applicants’ cases was the decision of 5 October 2012 by which the single judge at Supreme Court level dismissed their cassation appeal. It follows that these complaints were introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court, unanimously,

Decides to join the applications;

Declares the applications inadmissible.

Done in English and notified in writing on 4 June 2015.

Søren NielsenIsabelle Berro
RegistrarPresident

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