In Russian
COUNCIL OF
EUROPE
COMMITTEE OF MINISTERS
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.
