THIRD SECTION

DECISION

Application no. 41441/16 Larisa Dmitiryevna BALANINA against Russia

The European Court of Human Rights (Third Section), sitting on 10 April 2018 as a Chamber composed of:

Helena Jäderblom, President, Branko Lubarda, Helen Keller, Dmitry Dedov, Georgios A. Serghides, Jolien Schukking, María Elósegui, judges, and Fatoş Aracı , Deputy Section Registrar ,

Having regard to the above application lodged on 6 July 2016,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Ms Larisa Dmitiryevna Balanina, is a Russian national, who was born in 1963 and lives in the village of Rassvet in the Krasnodar Region. She was represented before the Court by Mr A. Ivanov, a lawyer practising in Krasnodar.

A. The circumstances of the case

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

3. The applicant is the mother of Ms Sofia Zubkova.

4. Ms Zubkova was detained in remand prison no. IZ-1 in the Krasnodar Region from 6 December 2013. On 24 December 2014 she was transferred to the Krasnodar City Clinical Emergency Hospital (hereinafter “the Krasnodar Hospital”) on account of a suspected acute drug poisoning. On the next day she died. The death certificate of 29 December 2014 listed double pneumonia as the cause of death.

5. Investigating authorities examined ex officio the circumstances of the death and on 24 January 2015 refused to open a criminal investigation.

6. On 15 October 2015 the applicant asked the Krasnodar Hospital to provide her with her daughter ’ s medical files and to answer the following questions:

“Did Ms Svetlana Zubkova contract any illness during her stay in [the remand prison] or did her existing diseases exacerbate?

What medical institutions ... was Ms Zubkova transferred to for the examination and treatment?

Was Ms Zubkova diagnosed with HIV, tuberculosis or any other contagious disease? If so, which institution and when?”

7. On 30 October 2015 the applicant ’ s request was dismissed. The Krasnodar Hospital replied that her daughter ’ s medical information remained confidential even after her death. In the absence of her daughter ’ s prior authorisation the applicant only had a right to receive the death certificate. According to relevant domestic law provisions access to information requested by the applicant could be provided under limited conditions to investigators, courts or public prosecutors.

8. The applicant challenged that decision in court under the Code of Administrative Procedure.

9. On 25 January 2016 the Pervomayskiy District Court of Krasnodar upheld the decision of the Krasnodar Hospital and endorsed its reasoning.

10. On 12 May 2016 the Krasnodar Regional Court dismissed the applicant appeal. On 6 July 2016 the applicant lodged her application with the Court. Only subsequent to that, on 21 July 2016, she filed a first tier cassation appeal, which was dismissed by the Krasnodar Regional Court on 28 July 2016.

11 . On 11 April 2017 the applicant ’ s lawyer, at the request of the Registry, informed the Court that he had decided not to submit a cassation appeal to the Supreme Court for “it was not an effective remedy”.

B. Relevant domestic law

12. Relevant domestic law provisions have been summarised by the Court in the case of Chigirinova v. Russia (dec.), no. 28448/16, §§ 8-26, 13 December 2016.

COMPLAINTS

13. The applicant complained under Articles 8 and 13 of the Convention about the refusal to disclose her daughter ’ s medical information and about the lack of an effective domestic remedy in this respect.

THE LAW

14. The applicant complained about restricted access to her daughter ’ s medical information. She invoked Articles 8 and 13 of the Convention. In so far as relevant, those provisions read as follows:

Article 8 § 1

“1. Everyone has the right to respect for his private and family life, his home and his correspondence ...”

Article 13

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

15. The Court recalls that it has recently recognised that an application for cassation review before the Supreme Court of Russia constitutes an effective remedy capable of providing redress in cases examined under the Code of Administrative Procedure (see Chigirinova v. Russia (dec.), no. 28448/16, § 29, 13 December 2016).

16. The Court further observes that the applicant chose not to avail herself of that remedy. In fact, she clearly denounced the possibility of lodging a cassation appeal because she thought that is was ineffective (see paragraph 11 above). Instead, she lodged her complaint with the Court on 6 July 2016, that is before the Court delivered its decision in Chigirinova (cited above ).

17. Accordingly, the question is whether the applicant was required to pursue the cassation procedure prior to lodging her application with the Court under the requirements of Article 35 § 1 of the Convention.

18. The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges those seeking to bring a case against a State to use first the remedies provided by the national legal system, thus allowing States the opportunity to put matters right through their own legal systems before being required to answer for their acts before an international body. In order to comply with the rule, applicants should normally use remedies which are available and sufficient to afford redress in respect of the breaches alleged (see, among other authorities, Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999 ‑ V).

19. The assessment of whether domestic remedies have been exhausted is normally carried out with reference to the date on which the application was lodged with the Court. However, as the Court has held on many occasions, this rule is subject to exceptions, which may be justified by the particular circumstances of each case (see with further references İçyer v. Turkey (dec.), no. 18888/02, § 72, ECHR 2006 ‑ I ). For instance, such exception may be applied where sufficient information existed at the time of lodging of a complaint to the Court that would enable an applicant to anticipate the new exhaustion requirement (see, mutatis mutandis , Kocherov and Sergeyeva v. Russia , no. 16899/13, § 68, 29 March 2016). In such a case a mere doubt as to the prospect of success would not be sufficient to exempt an applicant from submitting a complaint to the competent authority (see Samoylov v. Russia , no. 64398/01, § 25, 2 October 2008, with further references).

20. The Court recalls that following the legislative amendments reforming the Code of Civil Procedure with effect from 1 January 2012, it was held for the first time that the new two-tier cassation review procedure was no longer fraught with the previously existing uncertainty, and that any individual who intended to lodge an application with the Court should first use remedies offered by the new cassation procedure, including a second cassation appeal to the Supreme Court of Russia (see Abramyan and Others v. Russia (dec.), nos. 38951/13 and 59611/13, §§ 76-96, 12 May 2015). Prior to that the Court had consistently held that the ultimate judicial remedy to be exhausted prior to lodging an application with the Court was an appeal to a regional court (see Kocherov and Sergeyeva , cited above, § 66).

21. On 6 August 2014 amendments to the Code of Commercial Procedure came into effect, introducing analogous two-tier cassation review for proceedings before the commercial courts. The Court expressly recognised similarity of the newly introduced review proceedings for commercial court to the cassation and supervisory review proceedings under the Code of Civil Procedure and applied mutatis mutandis its conclusions made in Abramyan and Others (see Sakhanov v. Russia (dec.), no. 16559/16, §§ 32-36, 28 October 2016).

22. The amendments to the Code of Administrative Procedure entered into force on 15 September 2015, essentially reproducing review mechanisms in place for courts of general jurisdiction and the commercial ones. The Court, in line with its previous case law, recognised both tiers of cassation review as an effective remedy to be exhausted (see Chigirinova , cited above, § 29).

23. The Court reiterates that in Sakhanov and Chigirinova cases (cited above) it has recognised the effectiveness of both commercial and administrative review procedures as corresponding to the civil one (see Abramyan, cited above).

24. Accordingly, as of 2015 the Court has consistently declared the two ‑ tier system of cassation review in different national procedures to be an effective remedy.

25. In these circumstances applicants introducing their complaints after Abramyan and Others (cited above) were clearly in a position to anticipate the exhaustion requirement with respect to subsequent cassation review amendments. The Court stresses that it has already taken this approach in both Sakhanov and Chigirinova (cited above). In these cases the Court examined the effectiveness of a cassation review procedure before the Russian Supreme Court in commercial and administrative proceedings for the first time, found them effective and, having noted the applicants ’ failure to lodge cassation appeals, dismissed their applications for non-exhaustion of domestic remedies.

26. By contrast, the Court found in Kocherov and Sergeyeva ( cited above , § 68) that it would be excessively burdensome to oblige applicants who had lodged their complaints before Abramyan and Others (cited above) to anticipate the new approach towards domestic remedies and resort to the two-tier cassation review proceedings.

27. Turning to the facts of the present case, the Court observes that the applicant lodged her application more than a year after the two-tier cassation review had been recognised as an effective remedy for the first time (see paragraph 20 above). Therefore, she was in a different situation from the applicants in Kocherov and Sergeyeva (cited above), and, being represented by a professional lawyer both in the national proceedings and before the Court, should have realised that a cassation review by the Supreme Court was an effective remedy. However, the applicant had lodged her application with the Court before filing a cassation appeal to the Krasnodar Regional Court and subsequently clearly denounced the possibility of complaining to the Supreme Court because she thought that it was ineffective.

28. In these circumstances, the Court finds that the applicant had an effective remedy in the form of the cassation review by the Supreme Court but decided, for no evident and valid reason, not to make use of it. The complaint under Article 8 of the Convention must therefore be rejected under Article 35 §§ 1 and 4 of the Convention for the non-exhaustion of domestic remedies.

29. In view of its conclusion concerning the applicant ’ s complaint under Article 8 of the Convention, the Court considers that the complaint under Article 13 of the Convention must be rejected as being manifestly ill ‑ founded, pursuant to Article 3 5 §§ 3 and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 17 May 2018 .

Fatoş Aracı Helena Jäderblom Deputy Registrar President