Resolution CM/ ResDH (2011)151 [1]

Execution of the judgment of the European Court of Human Rights

Arshinchikova against the Russian Federation

(Application No. 73043/01, judgment of 29/03/2007, final on 29/06/2007)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgment transmitted by the Court to the Committee once it had become final;

Recalling that the violation of the Convention found by the Court in this case concerns infringement of the principle of legal certainty through quashing of a binding and enforceable judgment by the Supreme Commercial Court in supervisory-review proceedings (violation of Article 6, paragraph 1) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the mea s ures taken to comply with its obligation under Article 46, paragraph 1, of the Conve n tion to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee ’ s Rules for the application of Article 46, paragraph 2, of the Convention;

Noting with satisfaction that the supervisory review as it presently stands was found by the European Court to be in compliance with the principle of legal certainty and in addition to constitute an effective domestic remedy to be exhausted prior to lodging an application with the European Court;

Having satisfied itself that, within the time-limit set, the respondent state paid the a p plicant the just satisfaction provided in the judgment (see details in Appendix);

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent state, where appropriate:

- of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- of general measures preventing similar violations;

DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examination of this case.

Appendix to Resolution CM/ ResDH (2011)151

Information about the measures to comply with the judgment in the case of

Arshinchikova against the Russian Federation

Introductory case summary

This case concerns a violation of the principle of legal certainty and the applicant ’ s right to a court in that in 2000 the Presidium of the Supreme Commercial Court of the Russian Federation quashed a final and enforceable judgment in the applicants ’ favour, by way of supervisory-review proceedings ( nadzor ) instituted on the initiative of the Deputy President of the same court, who was not a party to the case. The Code of Commercial Procedure, then in force, gave different state officials discretionary powers to challenge final court decisions at any moment; the nadzor proceedings could last indefinitely through various levels and time-limits were too long or liable to be rendered nugatory (violation of Article 6§1).

I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

---

2 000 EUR

---

2 000 EUR

Paid on 20/09/2007

b) Individual measures

The European Court awarded the applicant just satisfaction in respect of non-pecuniary damage she sustained as a result of the violation found. Consequently, no further individual measure appears necessary.

II. General measures

A legislative reform was introduced on 1 January 2003 by Chapter 36 of the new Code of Commercial Procedure. According to the Court ’ s decision in the case of OOO Link Oil SPB against the Russian Federation (of 25/06/2009, No. 42600/05), the reformed supervisory-review proceedings met the requirements of the Convention.

In that decision the Court noted, inter alia , that t he supervisory review procedure in the Supreme Commercial Court is structurally different from that exercised by courts of general jurisdiction under the Code of Civil Procedure, which entered into force on 1 February 2003. T he Court underlined that binding and enforceable decisions delivered by the commercial courts are not liable to challenge indefinitely, but only once, before a supreme judicial instance, upon request by the parties or certain other persons affected, on restricted grounds and within a clearly defined and limited time-frame. The supervisory review so construed appears as an ultimate element in the chain of domestic remedies at the disposal of the parties rather than an extraordinary means for reopening judicial proceedings.

The judgment was published in Russian in the Bulletin of the Supreme Commercial (Arbitration) Court , No. 2, 2008.

III. Conclusions of the respondent state

The government considers that no individual measure is required apart from the payment of the just satisfaction, that the general measures adopted will prevent similar violations and that the Russian Federation has thus complied with its obligations under Article 46, paragraph 1, of the Convention.

[1] Adopted by the Committee of Ministers on 14 September 2011 at the 1120th Meeting of the Ministers’ Deputies