FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 29612/09 by Valentina Kirillovna MARTYNETS against Russia

The European Court of Human Rights (First Section), sitting on 5 November 2009 as a Chamber composed of:

Christos Rozakis , President, Nina Vajić , Anatoly Kovler , Elisabeth Steiner , Khanlar Hajiyev , Dean Spielmann , Sverre Erik Jebens , judges, and Søren Nielsen, Section Registrar ,

Having regard to the above application lodged on 12 December 2008,

Having deliberated, decides as follows:

THE FACTS

The applicant, Valentina Kirillovna Martynets, is a Ukrainian national . She was born in 1937 and lives in Sebastopol .

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant sued Ms M. and Ms G. in the Oktyabrskiy District Court of the Kursk Region, contesting their property rights to a house in the village of Repino located in that district. Ms M. brought a counter action, claiming her property rights on certain buildings and a plot of land in the same village.

On 4 February 2008 the court dismissed the applicant ' s claim and partially granted that of Ms M.

On 10 April 2008 the Kursk Regional Court upheld the judgment on appeal. The judgment thus became binding and enforceable on that date.

Subsequently, the applicant lodged consecutive applications for supervisory review with the Kursk Regional Court , the Civil Chamber of the Supreme Court and the President of the Supreme Court of the Russian Federation . These applications were dismissed on 28 May, 30 July and 7 October 2008 respectively.

B. Relevant domestic law

Under the Code of Civil Procedure, binding and enforceable judgments are amenable to supervisory review by higher judicial instances at various levels. The supervisory review procedure was repeatedly amended over the past years.

The supervisory review procedure in force up to 1 February 2003 is presented in the Court ' s judgment in the case of Ryabykh (see Ryabykh v. Russia , no. 52854/99 , ECHR 2003 ‑ IX ).

2. Supervisory review procedure in force in 2003-07

On 1 February 2003 the new Code of Civil Procedure entered into force. The provisions governing the supervisory review procedure between 1 February 2003 and 7 January 2008 are presented in the Court ' s previous judgments and decisions (see Denisov v. Russia , no. 21823/03, 25 January 2007 , and Sobelin and Others v. Russia , nos. 30672/03, 30673/03, 30678/03, 30682/03, 30692/03, 30707/03, 30713/03, 30734/03, 30736/03, 30779/03, 32080/03 and 34952/03, § 34 , 3 May 2007 ). In particular, the new Code provided that supervisory review applications against binding and enforceable judgments could only be lodged by the parties to the proceedings and other persons whose rights and legal interests we re affected by the judgments concerned. The Code also set a one-year time-limit for lodging such applications.

3. Judgment of the Constitutional Court of 5 February 2007

In the judgment of 5 February 2007 ( No. 2-П ) t he Constitutional Court of the Russian Federation found that the supervisory review procedure governed by the Code of Civil Procedure gave rise to a number of issues with regard to the principle of legal certainty enshrined in the Convention, as interpreted by the European Court of Human Rights. The Constitutional Court found in particular that binding and enforceable judgments delivered by courts of general jurisdiction could be altered in supervisory review proceedings not only consecutively but also indefinitely . The court explicitly refrained from declaring these and other shortcomings of the supervisory review procedure unconstitutional, in order to avoid a procedural vacuum that would undermine the effective administration of justice. It upheld nonetheless the obligation of the legislator to reform the supervisory review procedure so as to make it compatible with the principle of legal certainty, taking account of the case-law of the European Court of Human Rights and of Resolution ResDH (2006)1 of 8 February 2006 of the Committee of Ministers of the Council of Europe.

The Constitutional Court also stated that the domestic remedies should not be considered exhausted within the meaning of Article 46 § 3 of the Constitution prior to the judgment delivered on supervisory review, as the latter may find a violation of any right and repeal the domestic decision at issue . The Constitutional Court concluded that individuals should be able to complain to the European Court of Human Rights upon completion of the supervisory review procedure , provided the latter is reformed so as to constitute an effective judicial remedy compatible with the constitutional requirements and the present judgment of the Constitutional Court .

4. Supervisory review procedure in force since 7 January 2008

On 7 January 2008 the Law of 4 December 2007 (n o. 330 - ФЗ ) entered into force, introducing a number of further amendments to the supervisory review procedure.

Under the new provisions, judicial decisions may be challenged in supervisory review proceedings within six months of the date they bec o me legally binding. S upervisory review proceedings may be entered into by parties to a case and by other persons whose rights or legal interests have been adversely affected by these decisions , and only if other available ways of appeal have been exhausted before the decision bec o me s legally binding (Article 376). This time-limit may be waived (restored) only in exceptional circumstances which exclude any possibility of lodging a complaint in time (severe illness or incapacity of the plaintiff and so on ), if such circumstances occurred within one year after the contested judgment became binding (Article 112 § 4).

There are several levels of supervisory review of legally binding judgments and decisions. First, presidia of regional courts exercise supervisory review of judgments and decisions delivered by lower courts and by regional courts themselves acting as cassation instances (Article 377 § 2(1)). Second, judgments and decisions are amenable to supervisory review by the Civil Chamber of the Supreme Court of the Russian Federation (Article 377 § 2(3)). Third, decisions taken by the Civil Chamber on supervisory review may be challenged before the Presidium of the Supreme Court of the Russian Federation if they disrupt the uniformity of the case-law (Article 377 § 3).

Moreover, the President or Deputy President of the Supreme Court of the Russian Federation may initiate supervisory review of binding judgments by the Supreme Court ' s Presidium on a limited number of grounds and upon an application by the persons concerned, lodged within six months of the date the judgment became binding (Article 389).

A supervisory review application to a regional court is considered by the president or deputy president of this court or by a judge delegated for this purpose (Article 380.1 § 1). Applications for supervisory review which are lodged with the Supreme Court of the Russian Federation are considered by a judge of this court (Article 380.1 § 2).

An application for supervisory review is considered by any court, except the Supreme Court of the Russian Federation , 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 instance, excluding the time elapsing between the request of the case file and its receipt. For supervisory review in the Supreme Court of the Russian Federation these time-limits are two and three months respectively; the latter may be extended by two months by the President or Deputy President of the Supreme Court (Article 382). Once it has been decided to transmit a case to the relevant instance for supervisory review, it must be examined within one month by the court and within two months by the Supreme Court (Article 386 § 1).

The judge considers a supervisory review complaint on the basis of the material appended thereto and, where appropriate, on the basis of the case file requested from the lower instance (Article 381 § 1). The judge makes a decision to transmit the application for supervisory review by the relevant instance or to refuse to do so (Article 381 § 2). The President or Deputy President of the Supreme Court of the Russian Federation may overrule a decision of the judge of this court to refuse to transmit the application for supervisory review (Article 381 § 3). A similar power of the regional courts ' presidents in respect of supervisory review applications lodged with presidia of those courts was abolished (former Article 383 § 2).

The grounds for quashing or varying of binding judgments on supervisory review were limited to 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 387).

If the supervisory review instance decides to quash the judgment or decision in full or in part, it may take any of the following actions: send the case back to a lower court for a new consideration, discontinue the proceedings, restore one of the lower court decisions, modify the decision or make its own decision without sending the case for new consideration (Article 390 § 1).

The supervisory review is carried out on the basis of the arguments contained in the application. While the court may also invoke its own arguments, the supervisory review must not extend to those parts of the judgment that were not contested in the application (Article 390 § 1.1).

5. Ruling of the Plenum of the Supreme Court of 12 February 2008

Having noted questions arising in the courts ' application of the supervisory review procedure as amended by the Law of 4 December 2007, the Supreme Court of the Russian Federation clarified various points in its ruling of 12 February 2008 ( No. 2 ).

The Supreme Court stated that the six-month time-limit applies to all supervisory review instances; it is not to be renewed after every rejection of a supervisory review complaint and application to a higher instance. On the other hand, the time spent by courts in considering supervisory review complaints should not be taken into account in the calculation of this time-limit. The court reiterated the exceptional nature of circumstances allowing this time-limit to be waived (restored) upon application by a physical or legal person. Courts should not take account of any such circumstance occurring later than one year after the judgment became binding. A decision waiving the time-limit should be duly motivated.

The Supreme Court reiterated the obligation of exhaustion of ordinary ways of appeal prior to application for supervisory review. It also stated that the court examining an application for supervisory review should not take account of any document which has not been examined by the court of first instance and, in certain cases, by the court of second instance.

The Supreme Court finally drew the courts ' attention to new limits on the grounds for supervisory review enshrined in Article 387, which should be read in the light of the Convention provisions. Referring to the principle of legal certainty, it stated that courts are not entitled to review a legally binding judgment merely for the purpose of obtaining a rehearing and a new judgment; a different opinion of the supervisory review instance on the way the case should have been decided is not a sufficient reason for altering the lower court ' s decision.

COMPLAINTS

The applicant complained under Article 1 of Protocol No. 1 that she had been unlawfully deprived of her property . She also complained under Articles 6 § 1 and 13 of the Convention of violations of her right to a fair trial by an independent and impartial court and of the right to an effective remedy.

THE LAW

The Court considers it appropriate first to determine whether the applicant ' s complaints comply with the admissibility requirements set forth in Article 35 of the Convention, which provides, in so far as relevant:

“1. The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken.

(...)

3. The Court shall declare inadmissible any individual application submitted under Article 34 which it considers (...) manifestly ill-founded (...).”

A. Six months

The applicant lodged her application with the Court more than six months after the decisions taken by the Kursk Regional Court on cassation (10 April 2008), but less than six months after the decisions dismissing her applications for supervisory review by the Civil Chamber of the Supreme Court (30 July 2008) and the Deputy President of the Supreme Court (7 October 2008). The Court may only deal with the application if supervisory review is considered a n effective remedy to be exhausted under Article 35 § 1 of the Convention.

The Court reiterates its established case-law pertaining to the requirements of exhaustion of domestic remedies and the six-month period, which are closely inter twined . The requirement of exhaustion provides the State with an opportunity to put matters right through their own legal system before answering to an international tribunal (see Akdivar and Others v. Turkey , judgment of 16 September 1996, Reports of Judgments and Decisions 1996-IV, § 65). The six-month rule seeks to promote legal stability, protecting the authorities and other persons concerned against prolonged uncertainty (see De Wilde, Ooms and Versyp v. Belgium , 18 June 1971, § 50, Series A no. 12 ). The term “final decision”, which is a starting point of the six-month period, refers to the final decision resulting from the normal frame of exhaustion of domestic remedies in accordance with the generally recognised rules of international law (see De Becker v. Belgium , no. 214/56 , Commission decision of 9 June 1958, Yearbook 2 , p. 214 at p. 242 , and Nikolova and Velichkova v. Bulgaria (dec.) , no. 7888/03, 13 March 2007 ). Article 35 does not normally require resort to extraordinary remedies , such as an application for retrial or other means of reopening judicial proceedings in a case (see R. v. Denmark , no. 10326/83, Commission decision of 6 Oc tober 1983, Decisions and Reports 35, p. 218, and Kiiskinen v. Finland (dec.), no. 26323/95, ECHR 1999-V). Being outside the normal chain of domestic remedies, such extraordinary procedures are not, as a general rule, taken into account for the calculation of the six-month time-limit ( see AO “ Uralmash” v. Russia (dec.), no. 13338/03, 10 April 2003 , and compare with Kovaleva and O thers v. Russia (dec.), no. 6025/09, 25 June 2009).

The Court further observes that it has consistently held that a decision taken at a cassation instance by a court of general jurisdiction in Russia is a final national decision within the meaning of Article 35 of the Convention. Accordingly, this decision has so far been considered a starting point for calculation of the six-month time-limit set by that Article. Supervisory review applications to Russian courts of general jurisdiction and decisions taken by them on supervisory review have not been considered relevant to calculation of that time-limit.

Before the entry into force of the new Code of Civil Procedure (1 February 2003), supervisory review was held to be an extraordinary remedy, as its exercise depended on State officials ' discretionary powers. It could not therefore be considered an effective remedy within the meaning of Article 35 § 1 of the Convention (see Tumilovich v. Russia (dec.), no. 47033/99, 22 June 1999). Nor did the Court consider a supervisory review exercised under the new Code of Civil Procedure in force since 1 February 2003 effective for this purpose. While this remedy was made available to the parties within a one-year time-limit , the proceedings, once launched, could last indefinitely through a number of instances . In the Court ' s view, this situation creat ed the uncertainty that would have render ed the six-month rule nugatory ( see Denisov v. Russia , (dec.), no. 33408/03, 6 May 2004) .

The supervisory review in the applicant ' s case was exercised under the new provisions of the Code of Civil Procedure, which amended the supervisory review procedure on various points with effect from 7 January 2008. The Court has thus to assess whether the supervisory review so amended has become an effective remedy suitable for exhaustion under Article 35 § 1 and is therefore relevant for a calculation of the six-month time-limit.

The Court notes on the one hand that pursuant to new Article 376 § 2 of the Code of Civil Procedure the time-limit for lodging supervisory review applications was shortened to six months.

On the other hand, the law does not specify how this time is to be calculated if the party avails itself of the right to lodge consecutive applications for supervisory review at all possible levels. Even assuming that this time-limit is understood and properly enforced in practice in accordance with the guidelines issued by the Supreme Court on 12 February 2008 (see above), it does not in itself erase the uncertainty generated by the supervisory review procedure in its previous form (see Denisov , cited above). To the contrary, the Court notes that this uncertainty remains to a large extent, as binding judicial decisions are still liable to challenge in several consecutive supervisory review instances.

This situation is demonstrated by the facts of the present case. Indeed, the applicant first challenged the judgment delivered at the cassation instance by the Kursk Regional Court, applying for supervisory review by the Presidium of the same court pursuant to Article 377 § 2(1) of the Code. Once her first application was dismissed she lodged another supervisory review complaint with the Civil Chamber of Supreme Court of the Russian Federation pursuant to Article 377 § 2(3). Then she availed herself of yet another opportunity to challenge the judgment at issue before the President of the Supreme Court under Article 389 of the Code.

In addition to these three levels of supervisory review used by the applicant, Article 377 § 3 maintains the possibility of challenging a supervisory review decision taken by the Civil Chamber of the Supreme Court before the Presidium of the Supreme Court, if the decision disrupts the uniformity of the case-law. Moreover, pursuant to Article 381 § 3, the President or Deputy President of the Supreme Court may still overrule a decision by a judge of the Supreme Court dismissing a supervisory review application and send the case for supervisory review by this court. The Code contains no explicit time-limit for the exercise of this power by the President or his Deputy.

In view of the foregoing, the Court finds that the supervisory review procedure in the courts of general jurisdiction retains the essential features that earlier compelled the Court to consider it as being outside the chain of domestic remedies subject to exhaustion under Article 35 § 1 of the Convention. The Court does not disregard several tangible changes to the procedure made in 2007 , notably in order to restrict the time-limit for supervisory review applications, to abolish the regional court s ' presidents ' unlimited power to overrule dismissal s of such applications, and to impose the obligation to exhaust all available means of appeal before applying for supervisory review. Notwithstanding these developments, the supervisory review proceedings in respect of legally binding judgments may still be conducted through multiple instances, with an ensuing risk that the case will go back and forth from one instance to another for an indefinite period.

The Court therefore maintains its view that the recognition of such a supervisory review as an effective remedy within the meaning of Article 35 would create unacceptable uncertainties as to the final point in the domestic litigation, and that this would render the six-month rule nugatory. This situation substantially differs from the supervisory review governed by the Code of Commercial Procedure, which was considered in a recent case an effective remedy suitable for exhaustion and relevant for the calculation of the six-month time-limit (see Kovaleva and Others , cited above).

The Court accordingly concludes that the final domestic decision in the present case was the decision delivered in cassation instance by the Kursk Regional Court on 10 April 2008. As the application was lodged with the Court more than six months after that date, it should be considered as having been introduced out of time. The applicant ' s subsequent attempts to obtain a supervisory review of the final decision cannot bring the application within the six-month time-limit laid down in Article 35 § 1 of the Convention.

It follows that th e application must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.

B. Alleged violations in the supervisory review proceedings

In so far as the applicant ' s complaint under Article 6 and 13 may be understood as referring to possible violations of her rights to a court and to an effective remedy in the supervisory review proceedings themselves, the Court finds no appearance of such violations: the applicant invoked no flaw in the court proceedings conducted in her case, complaining solely of improper application of domestic substantive provisions.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Søren Nielsen Christos Rozakis Registrar President