Information Note on the Court’s case-law 251

May 2021

Anikeyev and Yermakova v. Russia (dec.) - 1311/21 and 10219/21

Decision 13.4.2021 [Section III]

Article 35

Article 35-1

Exhaustion of domestic remedies

Effective domestic remedy

Newly reformed criminal cassation review procedure introduced by Federal Law no. 15-FZ an effective remedy requiring exhaustion: inadmissible

Facts – The applicants complained mainly about the unfairness of the criminal proceedings against them. They did not submit cassation appeals against the final judgments in their cases which were given in 2020.

Law – Article 35 § 1: The Court had to assess whether the applicants had complied with the requirement of exhaustion of domestic remedies in the light of the newly reformed cassation review procedure, more specifically, the new amendments to the Code of Criminal Procedure introduced by Federal Law 15-FZ on 24 February 2021.

In this connection, it first noted that the amendments re-introduced a shorter six-month time-limit for lodging cassation appeals against final and binding judgments as well as other judicial acts completing criminal proceedings. Second, the transitional provisions of the new law extended by six months the possibility of cassation review to all such judgments and acts which had become legally binding after 1 October 2019 and against which no cassation appeals had been lodged; a cassation appeal could now be lodged within six months from the date of entry into force of the new law, namely until 24 August 2021. These provisions therefore provided retroactively and unreservedly a remedy to individuals who, as the applicants, had not previously benefited from an effective remedy, expanding the scope of the protection afforded to them.

The above amendments rectified the defects in the criminal procedure reform that had been identified by the Court in its decision in Kashlan v. Russia . They also effectively aligned the criminal cassation review with the civil one which had been recognised as an effective remedy in the decision in Abramyan and Others v. Russia. It was thus appropriate and justified to require any individual to first use the reformed remedy before submitting an application before the Court.

Even though the present applications had been lodged with the Court before the entry into force of the relevant amendments, the situation justified a departure from the general rule on exhaustion as the new remedy took into account the defects previously identified by the Court, provided reasonable prospects of success to the applicants and remained accessible to them – due to its retroactivity – until 24 August 2021. Indeed, under the transitional provisions the applicants retained the possibly to lodge their cassation appeals until that date.

Accordingly, the Court found that the applicants had to exhaust this new procedure which afforded them, as any other person in a similar situation, an opportunity to obtain judicial review and, where appropriate, acknowledgment of a violation of their rights and redress domestically.

Conclusion : inadmissible (non-exhaustion of domestic remedies).

(See also Abramyan and Others v. Russia (dec.) 38951/13 and 59611/13, 12 May 2015, Legal Summary ; Kashlan v. Russia (dec.) 60189/15, 19 April 2016, Legal Summary ; Shmelev and Others v. Russia (dec.), 41743/17 et al, 17 March 2020, Legal Summary )

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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