Prospects for reform
in line with the ECHR requirements
Materials of the high-level seminar organised by the
Directorate General of Human Rights (DG-II) in the context
of the implementation of the European Court's judgment in
Ryabykh v. Russia case, Strasbourg, 21-22 February 2005
———————————————
Directorate
General of Human Rights – DG II
Human Rights
Co-operation and Awareness Division
Department for
the Execution of the Judgments
of the
European Court of Human Rights
Supervisory review (nadzor) procedure in the Russian
Federation:
Prospects for reform
in line with the ECHR requirements
Seminar in
Strasbourg, 21-22 February 2005
BACKGROUND
The idea to hold this
seminar was submitted in the context of the Committee of
Ministers' ongoing supervision of the execution by the
Russian Federation of the European Court's judgment of 24
July 2003 in Ryabykh case. In this case, the
Committee is presently examining the question of general
measures necessary to prevent new violations similar to the
one found by the Court.
The violation of the
Convention in Ryabykh was due to the quashing by the
Presidium of the Belgorod Regional Court in March 1999 of a
final judicial decision in the applicant's favour, following
an application for supervisory review (nadzor) lodged
by the President of the same Court under then in force
Articles 319 and 320 of the Code of Civil Procedure. The
latter gave the President discretionary powers to challenge
at any moment final court decisions. The European Court
found that the using of the supervisory review by the
Presidium infringed the principle of legal certainty and
thus the applicant's right to a court (violation of Article
6§1 of the Convention).
Subsequent to these facts,
the Russian Federation adopted some general measures with a
view to remedying the systemic problem at the basis of the
violation. According to the new Code of Civil Procedure (in
force since 01/02/2003), the time period for lodging an
application for supervisory review has been limited to one
year (Article 376) and the list of state officials empowered
to lodge such an application has been significantly narrowed
(Article 377).
While these measures were
welcomed by the Committee of Ministers, doubts were
expressed as to whether the measures taken are sufficient to
prevent new similar violations of the principle of legal
certainty. The Russian authorities were thus invited to
continue the reform of the supervisory review procedure,
thus bringing it in line with the Convention's requirements,
as highlighted, inter alia, by Riabykh
judgment.
Given the complexity of this
issue and the ongoing reflection on this matter in Russian
legal circles, it was suggested, at the Committee's 906th DH
meeting (8-9 December 2004), to hold a high-level seminar
involving representatives of the Russian supreme courts,
executive, Prokuratura and advocacy with a view to
taking stock of the current nadzor practice and to
discussing prospects for further reform of this procedure in
conformity with the Convention's requirements. As a result,
the Directorate General of Human Rights (DG-II) has
organized the present seminar in Strasbourg, in close
cooperation with the Russian authorities.
The seminar folder contains
the following documents, which have been selected to feed
the discussions on the subject:
- The European Court's
judgment in Ryabykh v. Russia (24 July 2003)1,
as well as the judgments dealing with similar issues in
cases concerning Russia or other countries:
Brumarescu v. Romania (28 October 1999),
Sovtransavto Holding v. Ukraine (25 July 2002) and
Nikitin v. Russia (20 July 2004);
- The European Court's admissibility decisions in 4
cases dealing with questions relating to the using of
the supervisory review procedure under its former and
current form in civil, criminal and commercial matters:
Tumilovich v. Russia (22 June 1999), Uralmash
v. Russia (4 September 2003), Berdzenishvili v.
Russia (29 January 2004) and Denisov v. Russia
(6 May 2004)2;
- The article “La place de la notion de sécurité
juridique dans la jurisprudence de la Cour européenne
des Droits de l'homme” by Michele DE SALVIA,
Jurisconsult of the European Court of Human Rights (Les
Cahiers du Conseil constitutionnel, n° 11, 2001) ;
- A general introduction on the Committee of Ministers'
supervision of the execution of the judgments of the
European Court of Human Rights (Article 46 of the
Convention).
Directorate
General of Human Rights – DG II
Human Rights
Co-operation and Awareness Division
Department for
the Execution of the Judgments
of the
European Court of Human Rights
SEMINAR
on
Supervisory review (nadzor) procedure in the Russian
Federation:
Prospects for reform
in line with the ECHR requirements
Strasbourg,
21-22 February 2005
Room 20 RC
ILL (ground floor, river side)
Human Rights Building
PROGRAMME
Organised by
the
Directorate General of Human Rights – DG II
Monday 21 February 2005
Morning session
Chair: Günter NAGEL, Head of
the Department for the execution of the European Court's
judgments (DG-II)
10.00 Opening of the seminar
10.05 – 10.25 Welcome and
Introductory Speeches by
Pierre-Henri IMBERT,
Director General of Human
Rights (DG-II)
and Mr Pavel LAPTEV,
Representative of the Russian
Federation
at the European Court of Human
Rights
10.25 – 10.50 Supervisory
review in ordinary courts
10.50 – 11.20 The legal
certainty requirement under the ECHR: An overview of the
European Court's case-law
11.20 – 11.40 Questions
11.40 – 12.00 Coffee break
12.00 – 12.25 Supervisory
review in commercial courts
12.25 – 13.00 Questions
13.00 – 14.45 Lunch
Afternoon session
Chair: Jeroen SCHOKKENBROEK,
Head of Human Rights Intergovernmental Programmes Department
(DG-II)
14.45 – 15.10 Supervisory
review: Current role of Prokuratura,
15.10 – 15.35 Supervisory
review in Russia: views of the Russian advocacy
15.35 – 16.00 Questions
16.00 – 17.00 Discussion:
Issues which the current procedure of supervisory review
raises under the ECHR requirements
17.00 Closure of the first
day
Tuesday 22 February 2005
Morning session
Chair: Fredrik SUNDBERG,
Principal Administrator, Department for the execution of the
European Court's judgments (DG-II)
10.00 Opening of the second
day
10.00 – 11.15 Discussion:
Bringing the supervisory review procedure in line with the
ECHR requirements
11.15 – 11.45 Coffee break
11.45 – 12.30 Discussion (continued):
Bringing the supervisory review procedure in line with the
ECHR requirements
12.30 – 13.00 Concluding
remarks. Adoption of the conclusions of the seminar
13.00 Closure of the seminar
Simultaneous
interpretation will be ensured as follows:
21 February (morning)
– English, French and Russian;
21 February (afternoon)
and 22 February (morning) – English and Russian
LIST OF
PARTICIPANTS
Delegation from the
Russian Federation:
Pavel LAPTEV, Representative
of the Russian Federation at the European Court of Human
Rights
Anton IVANOV, President of
the Supreme Arbitration Court of the Russian Federation
Veniamin YAKOVLEV, Adviser
to the President of the Russian Federation
Yury BERESTNEV, Director of
the Department, State Legal Directorate of the President of
the Russian Federation
Vladimir RADCHENKO, First
Deputy President of the Supreme Court of the Russian
Federation
Alexander FEDIN, President
of the Cassational Chamber of the Supreme Court of the
Russian Federation
Sabir KEKHLEROV, Deputy
Prosecutor General of the Russian Federation
Tatiana ANDREEVA, Judge of
the Supreme Arbitration Court of the Russian Federation
Mikhail VINOGRADOV, Lawyer,
State Legal Directorate of the President of the Russian
Federation
Vitaly PORTNOV, Presidential
Council for the Efficiency of Justice of the Russian
Federation
Evgeny SEMENYAKO, President
of the Federal Bar Chamber of the Russian Federation
Yury PILIPENKO, Head of the
Administration of the Federal Bar Chamber of the Russian
Federation
Galina NILUS, Lawyer, Moscow
Regional Bar Association
Permanent
Representation of the Russian Federation to the Council of
Europe
Alexandre ORLOV, Permanent
Representative of the Russian Federation to the Council of
Europe
Maria MOLODSOVA, Deputy to
the Permanent Representative of the Russian Federation to
the Council of Europe
Directorate General of
Legal Affairs (DG-I)
Alexey KOJEMIAKOV, Head of
Private Law Department
Arkadi SYTINE, Adviser for
Legal Cooperation Programmes for the Russian Federation
Directorate General of
Human Rights - DG-II
Pierre-Henri IMBERT,
Director General of Human Rights
Günter NAGEL, Head of
Department for the Execution of the European Court's
Judgments
Jeroen SCHOKKENBROEK, Head
of Human Rights Intergovernmental Programmes Department
Fredrik SUNDBERG, Principal
Administrator, Department for the Execution of the European
Court's Judgments
Mikhail LOBOV, Administrator,
Department for the Execution of the European Court's
Judgments
Kristina PENCHEVA, Programme
Adviser, Human Rights Co-operation and Awareness Division
Viktor BAIESU, Lawyer,
Department for the Execution of the European Court's
Judgments
European Court of
Human Rights:
Anatoly KOVLER, Judge of the
European Court of Human Rights
Michele DE SALVIA,
Jurisconsult of the European Court of Human Rights
Lawrence EARLY, Deputy Grand
Chamber Registrar
Stan NAISMITH, Deputy
Section Registrar
Supervisory review (nadzor)
procedure in the Russian Federation:
Prospects for reform in
line with ECHR requirements
Seminar in Strasbourg, 21
and 22 February 2005
Draft introductory speech by
Pierre-Henri IMBERT,
Director General of Human Rights (DG-II)
“Mr Chairman,
Ladies and Gentlemen,
First of all, on behalf of
the Directorate General of Human Rights, I would like to
welcome all the participants in this seminar, in particular
the delegation of senior Russian judges and lawyers, who
have come to Strasbourg to discuss one of the key aspects of
judicial reform in Russia. I am pleased to see the judge
elected to the European Court of Human Rights in respect of
the Russian Federation and the Russian representatives to
the Ministers' Deputies who have special responsibility for
monitoring the execution of the Court's judgments.
I would like to assure you
that I am here to welcome you today not only because
protocol requires me to do so but because of my personal
interest in this meeting. However, I do not intend to take
up too much of your time and I will do no more than share
some thoughts with you in the hope that they might make a
useful contribution to your discussions.
To begin with, I would like
to point out that this seminar was proposed in the context
of the Committee of Ministers' ongoing supervision of the
execution of a judgment handed down by the European Court of
Human Rights (Ryabykh v. Russia). In this judgment
the Court held that there had been a violation of the right
to a fair trial owing to the fact that the Russian judicial
authorities had reviewed a number of final decisions in
civil proceedings (the well-known nadzor procedure).
As you know, when executing
a judgment handed down by the Court, the respondent state
must, among other things, take general measures to prevent
new violations similar to that found by the Court. That is
why the Committee of Ministers has examined the reforms so
far introduced in Russia to limit the risk of such
violations. It concluded that further reforms were advisable
and even necessary, something which the Russian delegation
did not contest. Given the complexity of this issue and the
extent to which the nadzor procedure is being used in
Russia, it was suggested that a seminar should be held to
exchange views on how Russia might meet its obligations, in
other words prevent further violations caused by arbitrary
and dubious challenges to the binding nature of a final
judgment.
I wish to point out that
this is the first time a seminar has been held in the
context of the execution by Russia of a judgment handed down
by the Court. The setting and the audience seem to me to
have been particularly well chosen and I trust that our
discussions will be fruitful.
As you know the European
Convention on Human Rights is a unique collective
undertaking. All those concerned by this particular case are
gathered here today in this room: members of the Russian
government, public prosecutors and national judges, the
judges at the European Court of Human Rights and government
representatives on the Committee of Ministers; all the links
in the chain that should ensure the efficiency of justice.
However, to achieve this undertaking, there must be dialogue
between the different parts of the chain because dialogue
provides the opportunity to consider sensitive and complex
issues like the subject of our seminar, in a spirit of
mutual understanding and co-operation. More generally, this
dialogue helps to foster a more constructive attitude to the
Strasbourg judgments, by showing that they do not constitute
an unacceptable interference in national legal practice but
an element for consideration and, finally, a step towards a
more efficient modern state that upholds fundamental human
rights.
We cannot overstress the
fact that, quite apart from our common values, states have a
mutual interest in the application of the Convention.
National judges, in particular, find it relevant since the
Convention reinforces their power and authority vis-à-vis
other branches of the state. Several cases decided in
Strasbourg, including Russian cases, have shown that any
disregard for the judicial authorities – whether
infringements of its independence or failure to execute its
decisions – is systematically condemned by the European
Court.
Nevertheless, this power and
authority obviously also entail a heavy responsibility for
judges: that of ensuring that justice is effectively and
consistently applied. This is not an easy task, particularly
given the size of a state like Russia. This argument is
often used to justify the nadzor procedure, which
allegedly helps prevent disparities in the national judicial
system and redress the errors made by some courts. One
question must, however, be raised: is it really impossible
to find a procedure which meets this – obviously essential –
requirement, while continuing to comply with the
Convention's requirement of legal security? I am convinced
that there are various possible solutions and I believe that
such possibilities are already being discussed in Russia.
Our Russian colleagues also know that the experience
acquired by the Council of Europe can make a major
contribution to these discussions.
For the time being, however,
this seminar has three aims: to take stock of the nadzor
procedures currently being used in various spheres of
Russian law; to try to identify the problems that these
procedures and practices raise under the Convention, in
particular in respect of the requirement of legal security,
and, last but not least, to consider different ways and
means of reforming these procedures.
I would like to thank you
for your attention and to wish you much success”
Supervisory review (nadzor)
procedure in the Russian Federation:
Prospects for reform
in line with the ECHR requirements
Seminar in Strasbourg,
21-22 February 2005
CONCLUSIONS
1. All participants express
satisfaction at the organising of a high level seminar with
participation of the Russian highest judiciary,
prokuratura, executive authorities and advocacy to
discuss the prospects for further reforms of the supervisory
review procedure, one of the topics at the heart of the
Russian judicial reform. This dialogue between the main
actors of the Russian legal system and their interlocutors
from the Council of Europe has proved to be a fruitful
exercise conducted in an appropriate format.
2. The participants welcome
the reforms of the supervisory review procedure adopted by
the Russian Federation through the adoption of the new Codes
of Criminal, Commercial (Arbitration) and Civil Procedure (in
force respectively since 1 July 2002, 1 January 2003 and 1
February 2003). It was notably suggested by many
participants that the supervisory review in its present form
is closer to respect the legal certainty principle enshrined
in the Convention, especially in criminal and commercial
matters. The importance of some new safeguards introduced
has in particular been emphasised: in criminal proceedings,
the supervisory review could only be requested in the
accused person's favour (Article 405 of the CCrimP); in
commercial (arbitration) proceedings, the nadzor
proceedings may be taken on some rather limited grounds and
within three month' time-limit (Article 304 of the CComP).
In addition, systematic consideration of all nadzor
applications by three-judge committees of the Higher
Commercial (Arbitration) Court better reflects the
proceedings' judicial nature and better prevents
arbitrariness. Legal clarification of the provisional nature
of the enforcement of judicial decisions pending the
nadzor procedure may be useful to avoid parties'
unreserved reliance on binding and enforceable decisions,
which could subsequently be quashed in nadzor
procedure.
3. More reservations have,
however, been expressed, from the Convention viewpoint, as
to the existing supervisory review procedure in civil
matters. Indeed, the time-limit for supervisory review is
longer (1 year for application plus uncertain length of the
proceedings themselves) and the grounds for such review are
much wider (any substantial violation of material or
procedural law – Article 387 of the new CCivP). Unlike the
commercial proceedings, the supervisory review function is
entrusted not only to the Supreme Court but also to regional
courts. Progressively limiting the time-limit and grounds
for nadzor application may thus be an avenue for
preventing new violations of the legal certainty requirement
enshrined in the Convention. Other avenues also need to be
explored.
4. The success of the reform
of the nadzor procedure in civil matters is, however,
contingent on parallel measures improving the quality of
judicial decisions taken by first instance and cassation
courts: the main objective would therefore be to give these
courts sufficient means to better perform their duties so as
to limit the need for subsequent supervisory review
correcting judicial errors. This may include better material
support, more realistic procedural time-limits and other
requirements and better professional training of lower
judges. The Council of Europe has consistently expressed
readiness in assisting the Russian authorities in this last
mentioned respect. It may indeed be noted that, in all
efficient legal systems, judicial errors can and should
primarily be addressed through ordinary appeal and cassation
proceedings. In civil proceedings, parties also have a
certain responsibility to detect such errors and challenge
them before a higher judicial instance as appropriate.
5. In assessing the reforms
necessary it was clear that close attention had to be paid
to the developing jurisprudence of the ECHR.
6. The conclusions of the
seminar will be reported to competent Russian authorities
with a view to contributing to their reflection on possible
further reforms of the nadzor procedure. The
Committee of Ministers will be also informed of the seminar
in the context of its supervision of the execution of the
European Court's judgment in Riabykh case.
Note
1
The
Russian translation of this judgment was kindly provided by
the Information and Documentation Office of the Council of
Europe in Moscow.
Note
2
The
Russian translation of these decisions was kindly provided
by the Office of the Representative of the Russian
Federation to the European Court of Human Rights.
