N. 8 – 2009 – Contributi
THE
PRINCIPLE OF LEGAL CERTAINTY AND
THE
PROBLEM OF COURT SUPERVISION IN RUSSIA
Russian Academy of Sciences
St. Petersburg State University
SUMMARY: The article deals with the problem of
court supervision in Russia in the light of the principle of legal certainty as
interpreted in the case law of the European Court of Human Rights. The author
concludes that the European Court’s case law produced a substantial
influence upon norms of law regulating court supervision in Russia which norms
(at least with regard to state commercial courts) are now in line with the
European Court’s approach.
The Convention for the Protection of Human Rights and Fundamental
Freedoms proclaims in its preamble that the idea of the rule of law is a common
heritage of the Participating States.
This idea is further developed, inter alia, in Article 6 of the
Convention according to which “in the determination of his civil rights
and obligations or of any criminal charge against him, everyone is entitled to
a fair and public hearing within a reasonable time by an independent and
impartial tribunal established by law” (paragraph 1).
One of fundamental aspects of the rule of law concept is a principle of
legal certainty as interpreted in the case law of the European Court of Human
Rights, who addressed this issue several times. E.g. in its judgement of
24.07.2003 in the case “Ryabykh v. Russia” the European Court
indicated that the principle of legal certainty “requires, among other
things, that where the courts have finally determined an issue, their ruling
should not be called into question” (paragraph 51).
And further on: “Legal certainty presupposes for the principle of
res judicata…, that is the principle of the finality of judgements. This
principle underlines that no party is entitled to seek a review of final and
binding judgement merely for the purpose of obtaining a rehearing and a fresh
determination of the case” (paragraph 52).
“…The review should not be treated as an appeal to disguise,
and the mere possibility of there being two views on the subject is not a
ground for re-examination. A departure from that principle is justified only
when made necessary by circumstances of a substantial and compelling
character” (ibid.).
An effective judgement may only be reviewed in order to correct a
“fundamental defect” or a “miscarriage of justice”
(see: ibid,; see also: the judgement of 23 July 2009 in the case
“Sutyazhnick v. Russia”), paragraph 35.
With regard to Russian judicial system this problem is of specific
significance due to the concept of court supervision as existing in our country
from Soviet times, when it meant that an effective judgement might be reviewed
(and overruled or amended) by higher court upon so-called “supervisional
protest” to be lodged by some officials of higher court or state
attorney’s office upon their discretion and without any time limit.
Currently Russian judicial system consists of three branches:
1) The
Constitutional Court of the Russian Federation and Constitutional (Charter)
Courts of subjects of the Russian Federation. These courts are to check whether
federal (or regional) law is consistent with the Constitution of the Russian
Federation (or respectively, with the Constitution or Charter of relevant subject
of the Russian Federation).[1]
2) Courts of general
jurisdiction headed by the Supreme Court of the Russian Federation whose
competence embraces criminal cases and civil law and public law disputes with
involvement of natural persons.
3) State arbitration
Courts with the Supreme State Arbitration Court of the Russian Federation on
the top. These courts are in charge for resolution of disputes both of civil
law and public law nature arising out of business (and other economic)
activities. Effectively, therefore, state commercial courts are no other than
state commercial courts.
Decisions of
Constitutional (Charter) courts become effective and binding once they are
announced and they are not subject to any review.
As for effective
judgements of courts of general jurisdiction and state arbitration (state
commercial) courts, they may be reviewed in the course of court supervision
albeit this problem has a history of its own.
Originally, even
after transition of Russian economy into market model, a concept of court supervision
was similar to a previous model. According to the RF Arbitration Procedure Code
1995 (which regulated proceeding in state arbitration courts) a trial court
judgement became effective after it was upheld by an appealing instance or, if
there was no appeal, after lapse of one month period from the date when the
judgement had been issued (see: Article 135).
An effective
judgement might be challenged by a losing party to a cassation court within one
month period after it became effective (see: Article 164).
After lapse of
this period or in case the judgement was upheld by a cassation court, the
judgement might be reviewed in the course of court supervision by the Presidium
of the Supreme State Arbitration Court of the Russian Federation upon a protest
of the Chief Justice of this Court (or his Deputy), Attorney General of the
Russian Federation (or his Deputy). Such a protest might be lodged by
abovementioned officials upon their own initiative or upon a request of a
losing litigant, which request was not, however, binding for the officials, so
it was up to his discretion either to lodge a protest or to refrain from it
(see: Articles 180-185). There was no time limit for such a protest, nor was it
prohibited to lodge a new protest if the previous one was rejected by the
Presidium.
In courts of
general jurisdiction there were 3 levels of court supervision: the Presidium of
a court of a subject of the Russian Federation (e.g. in Moscow and in St.
Petersburg – the Presidium of the City Court), the Collegium of the
Supreme Court of the Russian Federation and the Presidium of the Supreme Court
of the Russian Federation. Supervisional proceeding could be triggered by a
protest of relevant judicial officials or state attorneys upon their discretion
without any time limitation (see: Articles 319-321 of the Civil Procedure Code
of the RSFSR[2]
1964 which Code was effective till 1 February 2203).
The concept of
court supervision as described above was assessed by the European Court of
Human Rights in a negative way. It was noted in the judgement in the case
“Ryabykh v. Russia” that “the right of a litigant to a court
would be… illusory if a Contracting State’s legal system allowed a
judicial decision which had become final and binding to be quashed by a higher
court on an application made by a state official” (paragraph 56). In the
judgement of 6 May 2004 in the case “Denisov v. Russia” the
European Court drew attention to the fact that supervisional proceedings, once
triggered, may become uncertain since repeated review of effective court
judgement is admitted.
This approach of
the European Court of Human Rights did produce a substantial influence upon
further development of Russian civil procedural law. The Arbitration Procedure
Code of the Russian Federation 2002 provides, like the previous Code 1995, that
the only venue for supervisional review of an effective court judgement is the
Presidium of the Supreme State Arbitration Court of the Russian Federation.[3]
However, unlike
the previous Code, currently:
1) Relevant application
may be lodged by a losing litigant; judicial or state attorney’s office
dignitaries are prohibited to come up with supervisional pretests (see: Article
293);
2) There is a time
limit for such an application, i.e. 3 months from the date when the judgement
became effective (see: Article 292);
3) Effective court
judgement may be amended or quashed in the course of court supervision if the
judgement:
(a)
violates the uniformity of the interpretation of norms
of law by state arbitration courts;
(b)
violates the human and citizens rights and freedoms as
guaranteed by universally recognized principles and norms of international law
and the international treaties of the Russian Federation;
(c)
violates the rights and legitimate interests of an
undetermined number of people or other public interests (see: Article 304)[4];
1) repeated
application of the same person on the same grounds is prohibited (see: Article
299).
These innovations have been noted and appreciated by the European Court
of Human Rights. In its judgement of 24 December 2008 in the case
“Kovaleva and Others v. Russia” the European Court, inter alia,
stated as follows.
“…The binding and enforceable decisions delivered by the
commercial courts in the company’s case were not liable to challenge
indefinitely, but only once, before a supreme judicial instance, upon the
party’s request, on the basis of restricted grounds and within a clearly
defined and limited time-frame. As a result the procedure followed in the
present case was not incompatible with the principle of legal certainly
enshrined in the Convention… In the court’s view, the supervisory
review so construed appears as an ultimate element in the chain of domestic
remedies at the disposal of the parties…”
“That the lower courts judgements became binding and enforceable
before the application for supervisory review does not in itself make the
latter extraordinary or otherwise unsuitable for exhaustion under Article
35§ 1[5].
Indeed, a judgement that has become enforceable is not necessarily final for
Convention purposes. For example, the Court found that the cassation instance
in the Russian commercial procedure (third level of jurisdiction) was effective
and subject to exhaustion under Article 35§ 1, notwithstanding that the
judgement delivered on appeal (second level of jurisdiction) had become binding
and enforceable… Likewise, supreme judicial instances in numerous
Contracting States decide on a case after lower court’s judgements have
become binding and enforceable. This does not obviate the requirement for the
applicants under Article 35§ 1 to submit their grievances to such supreme
instances, provided they are considered effective for remedying alleged
violations of the Convention…”
“In view of the foregoing, the Court concludes that the
application for supervisory – review before the Supreme Commercial Court
has to be considered as an effective remedy capable of preventing and putting
right possible violations of the Convention at the domestic level”.
Similar approach was expressed by the European Court of Human Fights in
its judgement of 17 November 2005 in the case “OOO Lind Oil SPB v.
Russia”.
These ideas of the European Court of Human Rights are of substantial
importance. They clearly demonstrate that, from the European Court’s
standpoint, the principle of legal certainty does not preclude review of
binding and enforceable court judgement by a higher court, and such a review
may take place even more than once, provided, however, that certain
preconditions are complied with, i.e.:
1) review
proceedings may only be initiated by a losing party or, at least, by a person
whose rights were affected by the judgement in question even this person had
not been involved in the case[6],
but, anyhow, not by any state official;
2) relevant
application should be lodged within a comparatively short time period;
3) number of legal
grounds for such a review should be limited.
As it appears
from the abstracts quoted above, the European Court acknowledged that the
system of cassational and supervisional review currently existing in Russian
state arbitration courts meets these requirements and is therefore consistent
with the principle of legal certainty.
In practical
terms it means, inter alia, that domestic remedies within the meaning of
Article 35§ 1 of the Convention for the Protection of Human Rights and
Fundamental Freedoms, with regard to the Russian Federation, embrace
supervisory review of binding and enforceable court judgements. This
circumstance should be taken into consideration when determining the starting
point for calculation of 6 month term “from the date on which the final
decision was taken” within which term an application may be lodged with
the European Court of Human Rights according to Article 35 § 1 of the
Convention.
Having addressed
this issue in the case “Kovaleva and Others v. Russia”, the
European Court established that “the applicants lodged their application
with the Court more than six months after the decision in cassation instance
(28 April 2008) and less than six months after the dismissal of their supervisory-review
application by the Supreme Commercial Court (23 July 2008).
The European
Court then deduced that “the decision of the Supreme Commercial Court of
23 July 2008 dismissing the company’s application for supervisory
review… constitutes the “final decision within the meaning of Article 35§ 1 of
the Convention and the starting point for calculation of the six-month
time-limit laid down by that provision. The application to the Court must therefore
be considered as lodged in time”.
Ergo: the
European Court of Human Rights recognizes that the principle of legal certainty
is compatible with a possibility to have a binding and enforceable court
judgement reviewed by higher court (including that of supervisory instance). It
is on the one hand. On the other hand, the European Court advances very strict
criteria for a situation when overruling of such judgement does not contradict
this principle.
Generally
speaking, the departure from the principle of legal certainty is justified if
it became necessary due to circumstance of substantial and unavoidable
character (see: the judgement of 31July 2008 in the case “Protsenko v.
Russia”, §26).
This thesis was
further developed in the judgement of
23 July 2009 in the case “Sutyazhnik v. Russia”. The essence
of the case is, in a nutshell, as
follows.
Non-governmental
organization “Sutyazhnik” (hereinafter referred to as “the
NGO”) was registered in 1994 by the Sverdlovsk Regional Department of
Justice (hereinafter referred to as “the Department”). In 1995 a
new Law on non-governmental organizations was enacted according to which all
NGOs established before 1995 should be re-registered before 1 July 1999. The
NGO applied twice to the Department seeking re-registration, however, its
applications were refused.
Then the NGO sued
the Department in the State Arbitration Court of the Sverdlovsk Region seeking
re-registration. On 17 June 1999 the trial Court allowed the NGO’s claim
and ordered the Department to register the NGO. This judgement was upheld by
the Federal State Arbitration Court of the Ural Circuit (the cassation court)
on 18 October 1999.
On 26 September
2000 the Presidium of the Supreme State Arbitration Court of the Russian
Federation quashed the lower courts’ decisions by way of a supervisory
review on the reason that state commercial courts are in charge for resolution
of economic disputes arising from
civil, administrative and other
legal relationships. Meanwhile the NGO is a non-profit organization. Disputes
concerning state registration of
non-profit organizations are not economical by their nature and hence do
not fall within the competence of the state arbitration courts. The copy of the
Presidium’s ruling was received by the NGO on 28 November 2001.
Shortly
thereafter the NGO challenged the refusal of the Department before the courts
of general jurisdiction. By a final decision of 1 August 2002 the Sverdlovsk
Regional Court allowed the NGO’s claim and ordered the Department to
register the NGO.
In the meantime
on 21 January 2002 the NGO lodged an application against the Russian Federation
with the European Court of Human Rights in which application the NGO complained
that its “right to a court”, enshrined in Article 6 of the
Convention for the Protection of
Human Rights and Fundamental Freedoms had been violated by the quashing
in the course of supervisory review of the trial court judgement of 17 June
1999, as upheld by the court of cassation on 18 October 1999.
When analyzing
the situation in the light of the principle of legal certainty, the European
Court of Human Rights indicated as follows.
“35.
… the Court accepts that in certain circumstance legal certainty can be
disturbed in order to correct a “fundamental defect” or a
“miscarriage of justice”. However, these notions do not lend
themselves to precise definition. The Court has to decide, in each case, to
what extent the departure from the principle of legal certainty is
justified…
36. Turning to
the present case, the Court noted that the reason for quashing the decisions of
the lower courts was the fact that the dispute between the applicant
association and the Department was outside the commercial courts’
jurisdiction. The Court has already held that jurisdictional errors, in
principle, may be regarded as a “fundamental defect” susceptible to
correction by way of supervisory review (see Luchkina v. Russia, №
3548/04, § 21, 10 April 2008). The question arises whether in the
particular circumstances of the case the breach of the rules of jurisdiction
may be considered as a “fundamental defect” calling for the review
of the decision which the applicant considered to be res judicata.
37. The Court
observes that, in Russia, disputes concerning the official registration of
legal entities are, as a rule, examined by the commercial courts. Registration
disputes involving public associations are, however, exempted from the
jurisdiction of the commercial courts, seemingly because of the
“non-economic” character of those disputes. That reading of the old
[Arbitration Procedure] Code was proposed by the Supreme Commercial Court, and
the [European] Court does not see any reason to disagree with it. However, it
is noteworthy that both the applicant association and the defendant (the
Department of Justice) considered that the commercial courts did have the power
to decide on the case. Moreover, the commercial courts, at two levels of
jurisdiction, accepted the case and examined it on the merits. That shows that
the relevant provisions of the old Code, taken in conjunction with the Law on
Public Associations, were ambiguous at best. The rules of jurisdiction were
only clarified in 2002, in connection with the enactment of the new Code, when
the Supreme Commercial Court specified that disputes concerning registration of
non-profit organizations fall outside the competence of the commercial courts.
38. Thus the
Court is satisfied that the decision of 17 June 1999, as upheld on 18 October
1999 appeared to be lawful. The effects of the judgement of 17 June 1999 were
very limited: it concerned only the parties involved in the proceedings, and
did not conflict with any other judicial decision. The Court agrees, that, as a
matter of principle, the rules of jurisdiction should be respected. However, in
the specific circumstances of the resent case the Court does not detect any
pressing social need which would justify the departure from the principle of
legal certainty. The judgement was quashed primarily for the sake of legal
purism, rather than in order to rectify an error of fundamental importance to
the judicial system.
39. In sum, in
the circumstances of the case the quashing of the judgement of 17 June 2009, as
upheld on 18 October 1999, was a disproportionate measure and respect for legal
certainty should have prevailed. There has therefore been a violation of
Article 6 § 1 of the Convention”.
The quoted
reasoning of the European Court of Human Rights leads to the following
conclusions.
Overruling of a
binding and enforceable court judgement by way of supervisory review in order
to correct a “fundamental defect” may be deemed consistent with the
principle of legal certainty and therefore justified provided a
“fundamental defect” is accompanied with two additional
prerequisites:
1) the fundamental defect was the cause of
violation of rights, freedoms and legitimate interests as guaranteed by norms
of international or domestic law. If a fundamental defect as contained in the
court judgement did not result in such a violation, there is no reason to quash
the judgement.
2) Overruling of the
judgement is the only way to restore violated rights, freedoms and legitimate
interest.
If restoration thereof is possible (or has already been achieved) by
other means, the judgement may be left unamended.
An issue whether the abovementioned preconditions are in place should be
resolved in each case with due consideration of foregoing.
It should be noted that supervisory proceedings may be triggered by
application either by a participant of the case or by a person who was not
involved in the case, if his rights, freedoms or legitimate interests were
violated by the court’s judgement. Here is a very illustrative example
from the case law of the European Court of Human Rights. It is the case
“Protsenko v. Russia” (the European Court’s judgement of 31
July 2008). The merits of the case are (briefly) as follows.
Ms Protsenko (hereinafter
referred to as “the Buyer”) bought a recreation base from a company
(hereinafter referred to as “the Seller”). The base consisted of
several cottages located at the plot of land owned by a collective farm
(hereinafter referred to as “the Landlord”). Since transfer of
title in a real estate is subject to state registration (see: Article 131 of
the Civil Code of the Russian Federation), the Buyer applied to the relevant
authority seeking for registration of transfer of title in the cottages but the
application was refused since it was established that the Seller had failed to
register its title to the property in question and therefore could not transfer
it to the Buyer. The latter sued the Registration Service in the district court
of general jurisdiction who allowed the claim. The judgement had not been
challenged and become binding and enforceable. Shortly thereafter the transfer
of title to the Buyer was registered.
As soon as the Landlord became aware of this, it lodged a supervisory
complaint with the Regional Court whose Presidium quashed the trial court
judgement on the reason that it substantially affected the interests of the
Landlord who had not been involved in the proceedings. The case was returned
back to the trial court. Having reconsidered the case, the court declared the
sale contract null and void and ordered restitution in integrum. This judgement
was upheld by the Regional Court.
The Buyer applied to the European Court of Human Rights and complained
that overruling of the effective court judgement which had been issued in her
favour violated the principle of legal certainty and her “right to
court” enshrined by Article 6
§ 1 of the Convention for the Protection of Human Rights and Fundamental
Freedoms.
When addressing this problem, the European Court indicated in its
judgement that it is necessary to assess whether quashing of the effective
judgement issued in favour of the Buyer was justified in the circumstances of
the case and whether a fair balance was created between her interests and the
necessity to ensure proper carriage of justice with due consideration of the
third person’s interests (see: § 29).
The European Court noted that the trial court judgement in favour of the
Buyer was quashed by way of supervisory review since the court failed to take
into consideration all the circumstances of the case, did not involve the
landlord whose interests were substantially affected by the judgement (see:
§30).
The European Court also pointed out that the Landlord became aware of
the judgement only after it became effective and therefore he had no
possibility to appeal it in the court of cassation instance (see: § 31).
The European Court concluded that in the circumstance of the case
quashing of the effective judgement was justified and did not contradict the
principle of legal certainty.
This case relates to courts of general jurisdiction. There is, however,
no doubt that the same approach is quite applicable to state arbitration courts
as well.
To summarise, there are all the reasons to recognize that the system of
supervisory review of binding and enforceable courts judgements as provided for
by the Arbitration Procedure Code of the Russian Federation 2002 for state
arbitration courts meets all the requirements of the European Court of Human
Rights and is consistent with the principle of legal certainty within its interpretation by the
European Court’s case law.
With regard to courts of general jurisdiction the situation is more
complicated.
The Civil Procedure Code of the Russian Federation (effective as of 1
February 2003) abolished supervisory protests of state officials and allowed
only supervisory complaints to be lodged by persons who participated in the
proceeding or by those who had not been involved in the proceeding if their
rights and legitimate interests were affected by the judgement (see: Article
376).
However, the Code retained the three-level scheme of supervisory review
(unlike the Arbitration Procedure Code 2002 according to which the only
supervisory venue is the Presidium of the Supreme State Arbitration Court of
the Russian Federation).
Besides, albeit the Civil Procedure Code introduced a time limit for
lodging a supervisory complaint (one year from the date when the judgement
became binding and enforceable), this period was much longer than that
established in the Arbitration Procedure Code 2002 (3 months).
Still under this scheme supervisory proceedings could have been lasting
for a long time since, e.g. a supervisory ruling of a Presidium of a court of a
subject of the Russian Federation could be challenged to the Collegium of the
Supreme Court, and a Collegiums’ ruling – to the Presidium of the
Supreme Court, and in either situation the one year term for lodging a
supervisory complaint would start anew.
It is noteworthy in this connection that the Committee of Ministers of
the Council of Europe in its Interim Resolution of 8 February 2006 invited
Russian authorities, inter alia, to limit, to the extent possible, a number of
subsequent supervisional complaints concerning the same case.
The supervisory system in the courts of general jurisdiction was
specifically addressed by the Constitutional Court of the Russian Federation in
whose ruling of 5 March 2007 the attention of the federal lawmaker was drawn to
the fact that procedures admitting unlimited or substantially long term
challenges of court judgements, including uncertainty of periods of proceedings
in the supervisory instance, lead to uncertainty and instability of final
judgements and are inconsistent with the principle of legal certainty.
Further to this observation of the Constitutional Court of the Russian
Federation the Civil Procedure Code was amended by the Federal Law of 4
December 2007 whereby the time limit for lodging a supervisory complaint was
twice shortened (6 month instead of 1 year).
In addition to that, as it is explained in the Ordinance of the Plenum
of the Supreme Court of the Russian Federation of 12 February 2008 № 2,
this 6 month period shall be ultimate for application to all three levels of
supervision, so lodging a complaint with a higher supervisory instance after
refusal of a lower one shall not extend the abovementioned time limit.
These amendments certainly contributed in improvement of the supervisory
scheme in the courts of general jurisdiction. Meanwhile the three level system
of supervision remains existing, albeit it would apparently be more consistent
to concentrate supervisory review functions in the Presidium of the Supreme
Court of the Russian Federation (similarly to the system as contained in the
Arbitration Procedure Code).
Further developments of the Russian civil procedure law will hopefully
progress in that direction.