Interim Resolution ResDH(2006)1
concerning the violations of the principle of legal certainty through the supervisory review procedure (“nadzor”) in civil proceedings in the Russian Federation - general measures adopted and outstanding issues
Judgments of the European Court in the cases of Ryabykh (24 July 2003) and Volkova (5 April 2005)
(Adopted by the Committee of Ministers on 8 February 2006,
at the 955th meeting of the Ministers’ Deputies)
The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred to as “the Convention”);
Having regard to the judgments of the European Court of Human Rights of 24 July 2003 in the Ryabykh case (application No. 52854/99) and of 5 April 2005 in the Volkova case (application No. 48758/99), both concerning the quashing by the Presidia of two Regional Courts of final judicial decisions in the applicants’ favour, following applications for supervisory review (nadzor) lodged by the Presidents of the same Courts under Articles 319 and 320 of the Code of Civil Procedure then in force;
Whereas, in its judgments of 24 July 2003 and of 5 April 2005, the Court unanimously found that there had been violation of Article 6, paragraph 1, of the Convention in that the use of supervisory review of final and binding judgments infringed the principle of legal certainty and thus the applicants’ right of access to a court;
Recalling the obligation of every state under Article 46, paragraph 1, of the Convention to abide by the judgments of the Court, which includes the adoption of general measures preventing new violations of the Convention similar to those found by the Court;
Stressing the need to adopt such measures rapidly in cases such as these, as they reveal a structural problem which may give rise to many more similar violations of the Convention;
Having regard to the Rules adopted by the Committee of Ministers concerning the application of Article 46, paragraph 2, of the Convention;
Having invited the Russian Federation to inform it of the measures adopted or being taken in consequence of the present judgment;
Information provided by the Russian authorities:
Having examined the information provided by the Russian authorities concerning the measures adopted to prevent new, similar violations; this information appears in the appendix to this resolution;
Assessment by the Committee of Ministers:
Welcoming the reforms of the supervisory review (“nadzor”) procedure introduced by the new Code of Civil Procedure entered into force on 1 February 2003;
Noting with satisfaction, in particular, that some of the problems at the basis of the violations found in these cases have thus been remedied, in particular through:
- conferring the right to initiate the supervisory review only upon parties to the proceedings and persons whose legal interests are affected by the judgments concerned (Article 376§1);
- limiting to one year the time-limit for lodging an application for supervisory review (Article 376§2);
Considering however that doubts still remain as to whether the present “nadzor” procedure effectively prevents new violations of the requirement of legal certainty enshrined in the Convention;
Stressing in this connection that despite the positive developments mentioned above, the current procedure still allows parties’ legitimate reliance on judicial decisions that have become binding and enforceable to be frustrated and that the ensuing uncertainty may continue for an indefinite period after the application for supervisory review has been lodged;
Noting with a certain understanding that the Russian authorities and a significant part of the Russian legal community consider it necessary for the time being to maintain this procedure inasmuch as it is meant to be the only realistically available tool to remedy numerous significant errors and shortcomings in judicial decisions given at the local and regional levels;
Expressing, however, particular concern at the fact that at the regional level it is often the same court which acts consecutively as a cassation and “nadzor” instance in the same case and stressing that the court should be enabled to rectify all shortcomings of lower courts’ judgments in a single set of proceedings so that subsequent recourse to “nadzor” becomes truly exceptional, if necessary at all;
Stressing that a binding and enforceable judgment should be only altered in exceptional circumstances, while under the current “nadzor” procedure such a judgment may be quashed for any material or procedural violation;
Emphasising that in an efficient judicial system, errors and shortcomings in court decisions should primarily be addressed through ordinary appeal and/or cassation proceedings before the judgment becomes binding and enforceable, thus avoiding the subsequent risk of frustrating parties’ right to rely on binding judicial decisions;
Considering therefore that restricting the supervisory review of binding and enforceable judgments to exceptional circumstances must go hand-in-hand with improvement of the court structure and of the quality of justice, so as to limit the need for correcting judicial errors currently achieved through the “nadzor” procedure;
Welcoming the growing understanding of these two aspects of the problem in Russian legal circles and noting with interest the ongoing reflection in the Russian Federation on further judicial reforms including the “nadzor” procedure which may be conducted in cooperation with the relevant Council of Europe bodies,
CALLS UPON the Russian authorities to give priority to the reform of civil procedure with a view to ensuring full respect for the principle of legal certainty established in the Convention, as interpreted by the Court’s judgments;
ENCOURAGES the authorities to ensure through this reform that judicial errors are corrected in the course of the ordinary appeal and/or cassation proceedings before judgments become final and to give the relevant courts sufficient means and powers better to perform their duties;
ENCOURAGES the authorities, pending the adoption of this comprehensive reform, to consider adoption of interim measures limiting as far as possible the risk of new violations of the Convention of the same kind, and in particular:
- continue to restrict progressively the use of the “nadzor” procedure, in particular through stricter time-limits for nadzor applications and limitation of permissible grounds for this procedure so as to encompass only the most serious violations of the law;
- to ensure that the “nadzor” procedure respects the requirements of a fair trial, including the adversarial principle, the equality of arms, etc;
- to simplify the current “nadzor” procedure, thus making it more expeditious;
- to limit as much as possible the number of successive applications for supervisory review that may be lodged in the same case;
- to discourage frivolous and abusive applications for supervisory review which amount to a further disguised appeal motivated by a disagreement with the assessment made by the lower courts within their competences and in accordance with the law;
- to adopt measures inducing the parties adequately to use, as much as possible, the presently available cassation appeal to ensure rectification of judicial errors before judgments become final and enforceable;
INVITES the competent Russian authorities:
- to ensure a wide dissemination of this Interim Resolution to government, parliament and judiciary;
- to present, within one year, a plan of action for the adoption and implementation of the general measures required to prevent new violations of the requirement of legal certainty;
DECIDES to resume consideration of the present issue in the context of the Court’s judgments concerned during the first six months of 2007.
Appendix to Resolution ResDH(2006)1
Information provided by the Government of the Russian Federation
during the examination of the Ryabykh case
by the Committee of Ministers
Measures already taken
The government has been fully aware of the structural problem highlighted by the Ryabykh judgment since the first applications of the same kind were communicated by the Court to the Russian authorities. Hence, the procedure for supervisory review (nadzor) was radically changed by the new Code of Civil Procedure adopted on 14 November 2002, six months before the Ryabykh judgment.
The new Code (which entered into force on 1 February 2003) brought two major modifications:
- the number of persons entitled to lodge an application for supervisory review has been limited to the parties to the proceedings and to the persons whose legal interests are affected by the judgments concerned (Article 376§1);
- the time period for lodging an application for supervisory review has been limited to one year (Article 376§2);
The authorities have furthermore ensured the publication of the Ryabykh judgment (in Russian translation) in the Russian Law Review (No. 5(89), 2004), which is regularly sent out to the Russian courts and all other relevant authorities. The judgment has also been published in a number of Russian legal journals and internet databases, and is thus easily available to the authorities and to the public.
The Russian Constitutional Court took the Ryabykh judgment into account in its decision criticising the inequality of arms in nadzor proceedings conducted under the Code of Administrative Offences inasmuch as the prosecutors’ application for supervisory review was not communicated to the other party for comments (decision of 12/04/2005, N 113-O, §§3.3-3.4). Although this decision does not concern the civil proceedings at issue in the Ryabykh case, it is indicative of the Constitutional Court’s continued willingness to prevent new, similar violations of the Convention in other areas.
Further reforms to be envisaged
The Russian authorities consider that the new Code brings the supervisory review (nadzor) procedure much closer to the Convention’s requirement of legal certainty. They acknowledge however that the Code may not have resolved all problems and that doubts still exist as to whether the measures taken are sufficient to prevent new, similar violations of this requirement. The Russian authorities have thus seriously examined the Committee’s invitation to continue the reform of the supervisory review procedure and have engaged in reflection on further reforms that may be necessary.
In the context of this reflection, the Council of Europe and the Russian authorities jointly organised on 21‑22 February 2005, in Strasbourg, a high-level seminar involving representatives of the Russian supreme courts, executive, Prokuratura and advocates. The seminar allowed a unique and constructive exchange between the main representatives of the Russian legal community and of the Council of Europe, and the assessment of the existing nadzor practice in criminal, civil and commercial (arbitration) proceedings in the light of the Convention’s requirements. The progress achieved so far in reforming the nadzor procedure was acknowledged and the outstanding questions calling for further measures identified, most importantly in the domain of civil procedure. The conclusions of the seminar together with other selected materials are published on the web site of the Committee of Ministers (CM/Inf/DH(2005)20).
The Russian authorities emphasise that the success of the reform of the nadzor procedure in civil matters is contingent on parallel measures improving the quality of judicial decisions taken by first- and second‑instance courts. They agree that in an efficient judicial system, errors and shortcomings should primarily be addressed through ordinary appeal and/or cassation proceedings before a judgment becomes binding and enforceable. One of the main objectives of the reform would therefore be to give courts sufficient powers and means better to perform their duties so as to limit the need for correcting judicial errors through supervisory review after decisions have become binding and enforceable.
Plan of action to be prepared
The Russian authorities undertake to keep the Committee of Ministers informed of the results of the ongoing reflection and to provide, within one year, a plan of action for further reform of the supervisory review procedure in the Russian Federation with a view to fully meeting the requirements of the Convention and the Court’s judgments.
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