Resolution CM/ResDH(2019)100
Execution of the judgment of the European Court of Human Rights
Oleynikov against Russian Federation
(Adopted by the Committee of Ministers on 24 April 2019
at the 1344th meeting of the Ministers’ Deputies)
Application No.
Case
Judgment of
Final on
36703/04
OLEYNIKOV
14/03/2013
09/09/2013
The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”),
Having regard to the final judgment transmitted by the Court to the Committee in this case and to the violation established;
Recalling the respondent State’s obligation, under Article 46, paragraph 1, of the Convention, to abide by all final judgments in cases to which it has been a party and that this obligation entails, over and above the payment of any sums awarded by the Court, the adoption by the authorities of the respondent State, where required:
- of individual measures to put an end to violations established and erase their consequences so as to achieve as far as possible restitutio in integrum; and
- of general measures preventing similar violations;
Having invited the government of the respondent State to inform the Committee of the measures taken to comply with the above-mentioned obligation;
Having examined the information provided by the government indicating the measures adopted to give effect to the judgment, and noting that no award of just satisfaction was made by the Court in the present case (see Appendix);
Having satisfied itself that all the measures required by Article 46, paragraph 1, have been adopted,
DECLARES that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and
DECIDES to close the examination thereof.
Appendix to Resolution CM/ResDH(2019)100
Information about the measures to comply with the judgment adopted in the case of Oleynikov v. Russian Federation
Case summary
This case concerns the violation of the applicant’s right of access to court (Article 6, paragraph 1) on account of the domestic courts’ refusal in 2004 to consider the applicant’s civil claim concerning the non-repayment of a debt against a trade representation of the embassy of a foreign State, located in Khabarovsk. The refusal was based on the Code of Civil Procedure (Article 401) which provides for absolute immunity of a foreign State before the Russian courts. The domestic courts merely referred to that provision without any analysis of the underlying transaction, the applicable legal provisions of the international treaty between the two countries or the applicable principles of customary international law, even though under the Russian Constitution they form an integral part of the Russian legal system.
I. Payment of just satisfaction and individual measures
a) Details of just satisfaction
The applicant claimed pecuniary damage, but the Court rejected it on the basis that “a retrial or the reopening of the case, if he [..] so requests, represents in principle an appropriate way of redressing the violation” (§ 81).
As the applicant did not claim for non-pecuniary damage or for costs and expenses, the Court made no such awards.
b) Other individual measures
The applicant had the opportunity to request the reopening of this case at domestic level following the European Court’s judgment. He did not avail himself of this opportunity. Consequently, no individual measures are necessary in this case.
II. General measures
The Law On Jurisdictional Immunity of Foreign State and of Property of a Foreign State in the Russian Federation (No. 297-FZ, of 3 November 2015, in force since 1 January 2016) addressed the core of the violation at issue here: it provides that a foreign State shall have no immunity in the Russian Federation with regard to claims resulting from the activities of its entities which are of a private law nature (Articles 7-13).
Accordingly, in Russian law the principle of absolute immunity of a foreign State, the application of which was the reason for the violation in the present case, no longer exists. It has been replaced by the principle of restrictive immunity: the new Law has introduced a clear distinction between the foreign State entities’ acts of sovereign authority (acte jure imperii) and their acts of a private law nature (acte jure gestionis). Domestic legislation now fully complies with the international law principles to which the European Court referred (in particular with the relevant United Nations Convention; for details, see paragraphs 41, 42 and 61 of the judgment).
Further, Article 401 of the Code of Civil Procedure, which was at the origin of the violation in the present case, has been changed accordingly (by Federal Law No. 393-FZ of 29 December 2015). In view of the lex specialis mentioned above (No. 297-FZ), it has become a lex generalis and only provides in general terms that the jurisdiction of the Russian courts over the foreign State entities is determined in accordance with the principles and provisions of international law, or international treaties to which the Russian Federation is a party.
Lastly, the judgment of the European Court has been published and widely disseminated among the relevant authorities, in particular the domestic courts.
Against this background, no further general measures are necessary.
III.Conclusions of the respondent State
The government considers that no individual measure is required and that the general measures adopted will prevent similar violations and that the Russian Federation has, therefore, complied with its obligations under Article 46, paragraph 1, of the Convention.
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