Information Note on the Court’s case-law No. 124
November 2009
Martynets v. Russia (dec.) - 29612/09
Decision 5.11.2009 [Section I]
Article 35
Article 35-1
Exhaustion of domestic remedies
Effective domestic remedy
Six month period
Supervisory review under the Code of Civil Procedure as amended by Law no. 330‑ФЗ of 4 December 2007: not effective remedy; inadmissible
Facts – The applicant 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 her subsequent applications for supervisory review by the Civil Chamber of the Supreme Court and the Deputy President of the Supreme Court. The question arose as to whether or not the supervisory-review procedure that had been introduced by the Law of 4 December 2007 (no. 330‑ФЗ) of the Code of Civil Procedure constituted an effective remedy requiring exhaustion for the purposes of Article 35 § 1 of the Convention. If so, the application had been lodged within the six-month time-limit; if not, it was out of time.
Law – Article 35 § 1: The Court had consistently held in the past that supervisory review by a court of general jurisdiction in Russia was an uncertain remedy dependent on discretionary powers and not, therefore, one requiring exhaustion under Article 35 or of relevance to the calculation of the six-month time-limit. However, the supervisory-review procedure had been amended by Law no. 330‑ФЗ. The new provisions had applied in the applicant’s case and the Court therefore had to assess the effectiveness of the supervisory-review remedy as amended. It noted that several tangible changes had been made: the time-limit for making supervisory-review applications had been shortened to six months, the regional-court presidents’ unlimited power to overrule dismissals of such applications had been abolished and an obligation to exhaust all appeals before applying for supervisory review had been imposed. However, notwithstanding these changes, a large degree of uncertainty remained, as binding judicial decisions were still liable to challenge in several consecutive supervisory-review instances and the time-limits applicable in such cases were unclear, so creating a risk of cases going back and forth from one instance to another indefinitely. In the Court’s view, the recognition of such supervisory review as an effective remedy would create unacceptable uncertainty as to the final point in the domestic litigation, thus rendering the six-month rule nugatory. In this regard, supervisory review under Law no. 330‑ФЗ differed substantially from supervisory review under the Code of Commercial Procedure (which the Court had recently ruled did constitute an effective remedy – see Kovaleva and Others v. Russia, no. 6025/09, 25 June 2009, Information Note no. 120). Accordingly, the final domestic decision in the applicant’s case was the decision delivered at cassation level more than six months before the date the application was lodged, not the decisions in the supervisory-review proceedings.
Conclusion: inadmissible (out of time).
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This summary by the Registry does not bind the Court.
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