THIRD SECTION
DECISION
Application no. 28448/16
Nina Anatolyevna CHIGIRINOVA
against Russia
The European Court of Human Rights (Third Section), sitting on 13 December 2016 as a Chamber composed of:
Luis López Guerra, President,
Helena Jäderblom,
Helen Keller,
Dmitry Dedov,
Pere Pastor Vilanova,
Alena Poláčková,
Georgios A. Serghides, judges,
and Stephen Phillips, Section Registrar,
Having regard to the above application lodged on 11 May 2016,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Ms Nina Anatolyevna Chigirinova, is a Russian national, who was born in 1935 and lives in Dolgoprudnyy. She was represented before the Court by Mr A. Seredin, a lawyer practising in Moscow.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
2. The applicant sought to purchase the plot of land that she rented from the Leninskiy District municipality and on which her house was situated. The municipality refused to sell this plot of land to the applicant.
3. In December 2014 the applicant challenged this refusal before the Vidnoye Town Court of the Moscow Region. By a judgment of 8 September 2015 it rejected her claims.
4. On 15 September 2015 the Code of Administrative Procedure (CAP) entered into force.
5. The applicant appealed. On 11 November 2015 the Moscow Regional Court upheld the judgment, with reference to the provisions of the CAP.
6. In February 2016 the applicant lodged under Chapter 35 of the CAP an appeal on points of law. On 10 March 2016 a judge of the Regional Court rejected it.
7. The applicant did not seek further review before the Supreme Court of Russia.
B. Relevant domestic law and practice
1. Transitional rules
8. Pursuant to the transitional rules, any cases that were pending on 15 September 2015 before the Supreme Court of Russia and courts of general jurisdictions were to be examined under the CAP (Federal Law no. 22-FZ of 8 March 2015, section 3). Statements of appeal or further appeals on points of law that had not been determined by 15 September 2015 were to be examined in accordance with the procedure applicable on the date on which they were actually determined (ibid.).
2. Cassation procedure for review of court decisions
(a) Availability of the cassation procedure
9. Under Chapter 35 of the CAP, in situations prescribed by the CAP, court decisions may be challenged in cassation appeal proceedings.
10. 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 those decisions, but only if other available avenues of appeal were exhausted before the decision became legally binding (Article 318).
11. Article 208 § 9 of the CAP read in conjunction with its Article 55 requires mandatory representation by an advocate (адвокат) or by a person in possession of a university law degree, where a party is not an advocate or has no such qualification, in cases relating to challenges against acts of general application (нормативный правовой акт) before regional courts or the Supreme Court of Russia.
12. A statement of cassation appeal must be signed by the cassation appellant or his or her representative; a statement lodged by a representative must be supported with a document certifying the representative’s authority to act and other documents required under Article 55 § 3 of the CAP (Article 320 § 4 of the CAP).
(b) Courts competent to review final judgments in cassation
13. As a rule, a cassation appeal may first be brought before the presidia of the regional courts (Article 319 § 2(1)) and subsequently before the Administrative Chamber of the Supreme Court of the Russian Federation (Article 319 § 2(3)). No cassation appeal may be lodged with the Chamber of the Supreme Court if it has not been previously submitted to the presidium of the regional court (Article 319 § 2(3)).
14. It appears that there may be exceptions to the two-layer cassation procedure and the above rule of sequence, for instance, where a first‑instance judgment is taken by a regional court or the Supreme Court of Russia (Articles 20, 21, 296 and 319 of the CAP).
15. At regional level, a cassation appeal is examined by the president or deputy president of the regional court or by a judge of that court (Article 323 § 1). At Supreme Court level, a cassation appeal is examined by a judge of that court (Article 323 § 1).
16. A single judge’s decision to dismiss a cassation appeal may be overruled by the President or Deputy President of the Supreme Court (Article 323 § 4). The Code does not provide for an explicit time-limit as regards the exercise by the President of the Supreme Court or his or her Deputy of the power to overrule the decision taken by a single judge to dismiss the cassation appeal.
17. 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 322 § 1).
18. At the Supreme Court level, these time-limits are two and three months respectively (Article 322 § 2). They may be extended by two months by the President of the Supreme Court or his or her Deputy (Article 322 § 3).
19. Following the examination of a cassation appeal, the single judge issues a decision either dismissing it (Article 324) or transferring it for examination on the merits by a cassation court (Article 325).
20. The grounds for the quashing or varying of binding judgments by the cassation-instance court 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 328).
21. Following its examination, the cassation-instance 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 329).
(c) Time-limit for using the cassation procedure
22. A cassation appeal may be lodged within six months of the date on which a court decision becomes legally binding (Article 318). Where the above time-limit has been missed for a valid reason, a court may only grant a request for a belated cassation appeal if the circumstances justifying the delay arose no later than twelve months after the court decision to be reviewed became final, or where such request is lodged by a person who did not participate in the proceedings but whose rights or obligations were determined in such proceedings, no later than twelve months after the date on which that person becomes aware or should have become aware of the violation of his or her rights or interests by the impugned court decision.
23. It appears that a single period of six months is applicable for using both layers of the cassation procedure (see Decision no. 208-KG16-15 of 7 April 2016 by the Supreme Court of Russia).
3. Supervisory review
24. Chapter 36 of the CAP provides that the Presidium of the Supreme Court of Russia considers applications from the parties for supervisory review of binding judgments issued by lower judicial instances. It follows from Article 332 § 2(6) that in an ordinary case, that is 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 Chamber of the Supreme Court of Russia. Such applications may be brought within three months of the date on which the impugned decision became binding (Article 333).
25. The supervisory review application is examined by a single judge of the Supreme Court, who may dismiss the application or transfer it for examination by the Presidium of that court (Article 337). 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 336). The decision by a single judge not to submit the case to the Presidium may be overruled by the President or Deputy President of the Supreme Court (Article 337). The Code contains no explicit time-limit for the exercise of this power by the President or his or her Deputy.
26. 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 341).
COMPLAINT
The applicant complained under Article 1 of Protocol No. 1 to the Convention about the municipality’s refusal to sell the plot of land.
THE LAW
27. The Court notes the applicant’s dissatisfaction with the outcome of the proceedings before the domestic courts. However, it does not consider it necessary to go into an examination of her complaint under Article 1 of Protocol No. 1 to the Convention in view of its finding below that the application is inadmissible on the grounds of non-exhaustion of domestic remedies.
28. The Court observes that the cassation and supervisory review procedures under the Code of Administrative Procedure concerning disputes involving public authorities (see paragraphs 9-26 above) are very similar to the cassation and supervisory review procedures in place under the Code of Civil Procedure (for a detailed description, see Abramyan and Others v. Russia ((dec.), nos. 38951/13 and 59611/13, §§ 31-45, 12 May 2015). In particular, the second cassation appeal before the Supreme Court allows potential applicants first to 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 and remedy any such violation at the domestic level prior to examination of the case by the Court (ibid., § 96; see also, in the same vein, Roberts v. the United Kingdom (dec.), no. 59703/13, § 43, 5 January 2016).
29. The Court therefore considers it appropriate to apply its conclusions in Abramyan and Others (cited above, mutatis mutandis, §§ 87-103) regarding the effectiveness of cassation and supervisory review procedures before the Supreme Court to the present case. It thus finds that an application for cassation review before the Supreme Court of Russia constitutes an effective remedy capable of also providing redress in cases examined under the CAP.
30. With respect to supervisory review under the CAP in the present case, the Court notes that it cannot be seen as an effective remedy within the meaning of Article 35 of the Convention. By contrast, it is apparent that any person who intends to lodge an application in respect of a violation of the rights under the Convention has to first use the remedies offered by the two-layer cassation procedure mentioned above.
31. Turning to the facts of the present case, the Court observes that the applicant did not lodge an application for cassation review with the Supreme Court of Russia. It therefore follows that this application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
For these reasons, the Court unanimously
Declares the application inadmissible.
Done in English and notified in writing on 19 January 2017.
Stephen PhillipsLuis López Guerra
RegistrarPresident
Full & Egal Universal Law Academy