Information Note on the Court’s case-law 196

May 2016

Kashlan v. Russia (dec.) - 60189/15

Decision 19.4.2016 [Section III]

Article 35

Article 35-1

Exhaustion of domestic remedies

Effective domestic remedy

Six-month period

New cassation appeal procedure in criminal proceedings  introduced by Federal Law no. 433-FZ did not constitute an effective remedy requiring exhaustion: inadmissible

Facts – Federal Law no. 433 -FZ, which entered into force on 1 January 2013, amended the Code of Criminal Procedure by introducing a new cassation procedure. It prescribed a list of persons entitled to lodge cassation appeals against final judicial acts. An initial one-year time-limi t for lodging cassation appeals was subsequently removed.

The applicant’s conviction for hooliganism was upheld by a regional court more than six months before he lodged his application (complaining of a breach of his right to a fair trial) in the Convent ion proceedings. Following the regional court’s judgment the applicant lodged successive cassation appeals, both of which were ruled inadmissible less than six months before his application to the Court.

Law – Article 35 § 1: The Court considered whether the applicant had complied with the six-month time-limit established by Article 35 § 1. Under its previous case-law a decision taken by a second-instance criminal court at the regional level under the former cassation procedure in Russia was considered a f inal decision for the purposes of Article 35 § 1 and thus the starting-point for calculation of the six-month time-limit (see Berdzenishvili v. Russia (dec.), 31697/03, 29 January 2004, Information N ote 60 ).

The applicant’s cassation appeals had been lodged under the new legislation (Federal Law no. 433-FZ), which had converted the first two levels of supervisory review under the former system into two levels of cassation proceedings. The Court thus had to ass ess whether the new cassation procedure constituted a remedy under Article 35 § 1 and was therefore relevant for the calculation of the six-month time-limit.

In contrast with the 2012 amendments to civil proceedings, which, in the Court’s view, now constit uted an ordinary remedy to be exhausted (see Abramyan and Others v. Russia (dec.), 38951/13 and 59611/13, 12 May 2015, Information Note 186 ), the amendments introduced in 2014 made it impossible to reconcile the length of the new time-limits in the criminal cassation system with the Convention requirements for an effective remedy. By abolishing the time-limit for lodging cassation appeals, fi nal and binding judicial acts would in practice be amenable to appeal indefinitely, thus putting the new system in the same situation as the previous supervisory-review system, which was found to generate unacceptable uncertainty regarding the application of the six-month rule. Accordingly, the new cassation-review procedure did not constitute an ordinary remedy requiring exhaustion within the meaning of Article 35 § 1. The final domestic decision for the purposes of the six-month rule had therefore been th e regional court’s appeal judgment upholding his conviction and the application had been lodged out of time.

Conclusion : inadmissible (out of time).

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

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