Information Note on the Court’s case-law 201

November 2016

Sakhanov v. Russia (dec.) - 16559/16

Decision 18.10.2016 [Section III]

Article 35

Article 35-1

Exhaustion of domestic remedies

Effective domestic remedy

Failure to use new cassation appeal procedure in commercial proceedings introduced by Constitutional Amendment Act No. 2-FKZ: inadmissible

Facts – Amendments to the Constitution introduced by the Co nstitutional Amendment Act No. 2-FKZ on 6 February 2014 provided that the Supreme Commercial Court was to be abolished following a provisional period of six months and all its functions were to be gradually transferred to the Supreme Court. Amendments to t he Code of Commercial Procedure which came into effect on 6 August 2014 empowered the Supreme Court to consider cassation and supervisory-review appeals against the final decisions of commercial courts.

Before the European Court the applicant complained un der Articles 6 and 13 of the Convention and Article 1 of Protocol No. 1 about the outcome of proceedings before the Russian commercial courts. He had not lodged an application for cassation review with the Chamber of the Supreme Court in the domestic proce edings. The question therefore arose as to whether he had exhausted domestic remedies.

Law – Article 35 § 1: The cassation and supervisory-review proceedings introduced for Russian commercial courts by the new legislation were very similar to the cassatio n and supervisory-review proceedings in place for courts of general jurisdiction. In particular, the second cassation appeal before the Supreme Court allowed potential applicants to submit their grievances to the highest judicial body of the Russian Federa tion, which was able to consider any complaint about an alleged violation of the Convention in commercial cases and remedy any such violation at the domestic level prior to examination of the case by the Court.

The Court therefore considered it appropriate to apply its conclusions in Abramyan and Others v. Russia ((dec.), 38951/13 and 59611/13, 12 May 2015, Information Note 186 ), which concerned the effectiveness of cassation appeals and supervisory- review in civil proceedings before the Supreme Court to the present case. Accordingly, an application for cassation review before the Chamber of the Supreme Court, based as it was on strict time-limits, constituted an effective remedy capable of also provi ding redress and requiring exhaustion in commercial disputes.*

Since the applicant had not lodged an application for cassation review with the Chamber of the Supreme Court he had not exhausted domestic remedies.

Conclusion : inadmissible (failure to exhaust domestic remedies).

* The Court noted, however, that supervisory review in commercial proceedings could not be seen as an effective remedy within the meaning of Article 35 of the Convention.

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

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