Principle res judicata in practice of the European court on human rights and of the constitutional court of the Russian Federation

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Principle res judicata in practice of the European court on human rights and of the constitutional court of the Russian Federation

european legitimate legislation

On coordination of the order of procedure in court of the supervising instance, established by the Civil Procedural Code of the Russian Federation, with the principle of legal definiteness was considered by the Constitutional Court of the Russian Federation. In the Resolution from February 5, 2007 No. 2-П on the case about the verification of constitutionality of regulations of Articles 16, 20, 112, 336, 376, 377, 380, 381, 382, 383, 387, 388 and 389 of the Civil Procedural Code of the Russian Federation in connection with the request of the Cabinet of Ministers of the Republic of Tatarstan, on complaints of open joint-stock companies «Nizhnekamskneftekhim» and «Khakasenergo», and on complaints of the citizens the Constitutional Court on the whole has agreed with the positions of the European court on human rights.

The Constitutional Court, first of all, has emphasized, that revision in the order of supervision of judicial acts entered validity, is possible solely as an additional guarantee of legality of such acts and assumes establishment of special grounds and procedures of proceedings on the given stage of the process, corresponding to its legal nature and applicability. The act of the court already entered validity, can be changed or cancelled in the order of supervision solely in unusual cases when as a result of the mistake allowed during the previous trial and predetermined issue of the suit, there have been essentially infringed rights and legitimate interests protected in the judicial order which cannot be restored without elimination or change of the erroneous judicial act. Establishing the order of proceedings in court of supervising instance, the federal legislator should provide realization of rights of the persons participating in the case on the basis of balance between the right to fair judicial trial, supposing an opportunity of correction by means of supervising proceeding of the essential infringements influenced issue of the suit, on the one hand, and of the principle of legal definiteness - on the another (item 3.1. of motivating part).

The guaranteed by the Constitution of the Russian Federation right to judicial protection means creation by the state of necessary conditions for effective and fair trial of the case in court of the first instance where there are subjected to the sanction all essential questions for definition of rights and duties of the sides. Allowed by court of the first instance mistakes should be corrected by court of the second instance in proceedings mostly approached to proceedings in court of the first instance. Thus, the right to fair trial of the case in reasonable term by the independent and impartial court assumes also finality and stability of judicial acts entered validity, and their execution; it causes carry of the basic burden of revision of decisions of court of the first instance on usual (ordinary) judicial instances - appeal and cassation. Proceedings on revision of judicial decisions entered validity as an additional way of their maintenance of their justice assumes an opportunity of its application solely in case the interested person has exhausted all usual (ordinary) ways of appeal of the judicial decision up to its coming into validity (item 3.2. of the motivating part).

The Constitutional Court has recognized Article 376 of the Civil Procedural Code of the Russian Federation not contradicting the Constitution of the Russian Federation as the right to appeal the judicial decisions entered validity stipulated by it in court of supervising instance, given to the persons participating in the case, and other persons, whose rights and legitimate interests have been infringed by the given judicial decisions, in the system of working legal regulation of civil legal proceeding represents itself as an additional guarantee of maintenance of justice of judicial decisions if all available opportunities of their verification in usual (ordinary) legal proceedings are exhausted (item 1 of resolution part).

Further the Constitutional Court has specified that Article 387 of the Civil Procedural Code of the Russian Federation establishes that the grounds for cancellation or change of judicial decisions of subordinate courts in the order of supervision are essential infringements of norms of material or procedural law. Application by the federal legislator of such estimated characteristic as importance of infringement, is caused by the fact that variety of the circumstances confirming presence of the corresponding grounds, makes impossible establishment of the list in the law, and in itself cannot be regarded as inadmissible: granting to court of supervising instance of certain freedom of discretion at decision of the question on presence or absence of the grounds for cancellation or change of judicial decisions in the order of supervision - on condition of uniform interpretation of the specified norm in the process of law applicability - does not contradict the principle of availability of justice and corresponds to the role, place and powers of court as independent body of justice. Thus, importance of infringements should be estimated in view of nature, applicability and purposes of supervising proceeding.

The grounds for cancellation or changes of judicial decisions entered validity should correspond constitutionally to the significant purposes and according to the principle of harmony not to break balance of validity of the judgment and its stability. The grounds for revision of judicial decisions in the order of supervision should not open an opportunity of supervising proceeding only for the purpose of correction of miscarriages of justice subjected to elimination in usual (ordinary) legal proceedings of verification of judicial decisions, not entered validity.

Cancellation or change of the judicial decision in the order of supervision are allowable solely in case if as a result of the miscarriage of justice made during the previous trial and influenced issue of the suit, there have been essentially infringed rights and freedoms of a person and a citizen, rights and legitimate interests of unlimited number of persons, other public interests protected by the law. The ground for cancellation or change of the judicial decision cannot be the other point of view of the court of supervising instance on how the case has been settled (item 4 motivating part).

Article 387 of the Civil Procedural Code of the Russian Federation has been recognized not contradicting the Constitution of the Russian Federation as in system of working legal regulation of civil legal proceedings there is supposed, that as essential infringements of norms of material or procedural law as stipulated by the given article grounds for cancellation or change of judicial decisions of the subordinate courts in the order of supervision can act solely such mistakes in interpretation and application of the law, influenced on issue of the suit without whose correction effective restoration and protection of the infringed rights and freedoms are impossible, and also protection of public interests protected by the law (item 5 of resolution part).

The Constitutional Court has recognized, that Part Six Article 381 and Part Two Article 382 of the Civil Procedural Code of the Russian Federation giving the chairman of the Supreme Court of Republic, of territorial, regional or court equal to it, to the Chairman of the Supreme Court of the Russian Federation, Deputy - Chairman of the Supreme Court of the Russian Federation the right not to agree with definition of the judge about refusal in demand of the case or about refusal in transfer for consideration in essence in the court of supervising instance and to make the definition - both about demand of the case, and about its transfer for consideration in essence in court of supervising instance, does not contradict the Constitution of the Russian Federation as it is supposed, that Chairmen of the specified courts realize the given powers solely at presence of the application of the persons who have submitted the supervising complaint (representation), in the same procedure, in the same terms and proceeding from the same grounds, established for the decision of the corresponding questions by the judge by consideration of the supervising complaint or representation (item 6 of motivation part, item 4 resolution part).

Besides the Constitutional Court has recognized Article 389 of the Civil Procedural Code of the Russian Federation giving the Chairman of the Supreme Court of the Russian Federation and his Deputy the right to bring to the Presidium of the Supreme Court of the Russian Federation the motivated representation about revision of judicial decisions in the order of supervision for the purpose of maintenance of unity of judiciary practice and legality, not contradicting the Constitution of the Russian Federation in the measure, in which the given power can be realized solely at presence of the application of interested persons and according to general rules of Chapter 41 of the Civil Procedural Code of the Russian Federation regulating proceeding in court of supervising instance, including within the limits of target dates of fulfillment of the remedial actions stipulated in it, and also provided on condition that that Chairman of the Supreme Court of the Russian Federation or its deputy, brought in representation, cannot participate in consideration of the case by Presidium of the Supreme Court of the Russian Federation (item. 8 of the motivating part, item 6 of the resolutive part).

At last, the Constitutional Court has noted, that the appellate procedure in the order of supervision of judicial decisions entered validity supposes an opportunity of submission of the supervising complaint (representation) and verification of the judicial decision is consecutive in three supervising judicial instances within one year in no event from the date of its coming into validity, and according to developed law applying practice this term includes neither time of consideration of the supervising complaint (representation), nor the time of consideration of the case obtained on demand in the court of supervising instance. There is not determined the period during which the missed term of the appeal can be restored. Hence, according to the working civil remedial legislation revision on the supervising complaints (representations) of judicial decisions entered validity can take place not only repeatedly, but also during vaguely long term. The Constitutional Court has agreed with the European Court that the judicial systems based on such regulation are incompatible with the principle of legal definiteness (item 9.1 of the motivating part).

The Constitutional Court has emphasized that supervising proceeding according to the Civil Procedural Code of the Russian Federation can take place consistently in three instances and as a whole the process of the supervising appeal - in view of cumulative effect of such regulation - can last within several years that does not coordinate with the principle of legal definiteness proceeding from the Constitution of the Russian Federation and the principle of stability of judicial acts based on it.

At the same time, in the opinion of the Constitutional Court, recognition of the corresponding norms of the Civil Procedural Code of the Russian Federation contradicting the Constitution of the Russian Federation and become invalid would create such blank in legal regulation which in the given case cannot be eliminated by direct application of the Constitution of the Russian Federation and requires entering of system changes in the current legislation about court structure and civil legal proceedings. As at present courts of supervising instance cancel and change significant number of judicial decisions of subordinate courts, providing thus correction of the allowed essential miscarriages of justice and protection of the infringed rights, exception of working supervising procedures without simultaneous creation of the system of the duly prevention and correction of miscarriages of justice would lead to procedural-legal vacuum, disorganization not only of activity of courts of supervising instance, but also on the whole of the civil legal proceedings, and would threaten realization of the basic function of justice - maintenance and effective restoration of the infringed rights and freedoms of a person and a citizen.

Therefore the Constitutional Court has refrained from recognition not corresponding to the Constitution of the Russian Federation of Part One Article 376, item 3 Part Two Article 377, Parts Two, Three and Six Article 381, Part Two Article 382, Part Two Article 383, Articles 387 and 389 of the Civil Procedural Code of the Russian Federation regarding the part they predetermine plurality of supervising instances, the opportunity of numerous revision of the judicial decisions adopted in the order of supervision, uncertainty of terms of the supervising appeal and proceedings, and has specified, that it is necessary for the federal legislator, taking into consideration legal positions of the European Court on human rights, the resolution of the Committee of Ministers of the Council of Europe from February 8, 2006. ResDH (2006) 1, in reasonable terms to establish procedures really providing duly revealing and revision of erroneous judicial decisions up to their coming into validity, and to result legal regulation of supervising proceedings - on the basis of the Constitution and on the account of the given Resolution - according to the international legal standards recognized by the Russian Federation (item 9.2 of the motivating part, item 8 of the resolutive part).

Estimation of compatibility with requirements of the Convention of supervising proceedings in the Russian criminal trial has been given by the European Court in the decision on the case Nikitin against Russia [32]. The European Court has recognized, that revision in the order of supervision of the verdict of the court, including the verdict of «not guilty», does not infringe the principle non bis in idem (not twice for the same), expressed in Article 4 of the Report No. 7 to the Convention. The given article establishes that nobody should be repeatedly judged or punished in the criminal order within the framework of jurisdiction of one and the same state for the crime for which has already been justified or condemned according to the law and criminal - remedial norms of the states (item 1). Regulations of item 1, however, do not interfere with repeated consideration of the case according to the law and criminal - remedial norms of the corresponding state if there are data on the new or again opened circumstances or if during the previous trial the essential infringements influenced issue of the suit have been allowed (item 2).

In the opinion of the European Court, consideration of supervising representation of the public prosecutor for the purpose of decision of the question on refusal in its satisfaction or excitation of supervising proceeding does not form «repeated proceeding» in sense of item 1 Article 4 of the Report No. 7, and the opportunity of renewal of proceeding in the given case is too remote or indirect to represent «susceptibility to repeated condemnation» in sense of the given position [33].

Moreover, the European Court believes, that supervising proceeding cannot lead to repeated condemnation in sense of item 1 Article 4 of the Report No. 7. Article 4 of the Report No. 7 makes precise distinction between repeated criminal charge or proceeding forbidden by item 1, and renewal of proceeding in unusual cases stipulated in item 2. The Russian criminal - remedial legislation supposes revision of final judgments in connection with the new or again opened circumstances, and also in the order of supervision in case of miscarriages of justice connected with infringement of norms of the material or procedural law. The subject for consideration within the framework of supervising proceedings remains the same criminal charge and validity of the born before verdict. If the application in the order of supervision is satisfied and proceeding is renewed for the purpose of the further consideration of the case, the final result of supervising proceeding can be cancellation of all decisions born before by the courts and admittance of the new decision on the given accusation. In the given sense supervising proceeding leads to the same results, as renewal of proceeding for both procedures assume renewal of the case taken place before. Therefore the European Court has come to the conclusion, that in the context of the principle ne bis in idem supervising proceeding can be considered as the special kind of renewal of the proceeding stipulated by item 2 Article 4 of the Report No. 7 [34].

The European Court has made distinction between supervising proceeding in the civil and criminal trial. Earlier it recognized that supervising proceeding generates problems concerning legal definiteness as judgments on civil cases can be reconsidered during unlimited time on rather insignificant grounds. Referring to criminal cases the situation is a little different; at least in case of removal of the verdict of «not guilty» its revision in the order of supervision is supposed only within one year in no event after coming of the verdict into validity [35].

Besides the European Court believes, that requirements of legal definiteness are not absolute. In criminal trial they should be taken into account alongside with item 2 Article 4 of the Report No. 7, admitting renewal of proceedings on the case in connection with revealing of new facts or essential infringements during the previous trial which could affect issue of the suit. The Committee of Ministers of the Council of Europe also considers the opportunity of revision of the case or renewal of proceedings on the case as the guarantee of restoration of the infringed law, in particular in the context of execution of decisions of the European Court. In the Recommendation No. R 2000 (2 «About revision certain cases or renewal proceedings on certain cases at the national level in connection with decisions of the European Court on human rights» it has called the states - members to provide within the framework of internal legal systems the procedures providing the opportunity of revision of cases or renewal of proceedings on the case [36].

Thus, the very opportunity of renewal of proceedings on criminal case prima facie is compatible with the Convention, including the guarantees given by Article 6. However, under special circumstances of the concrete case the applied way of renewal of proceedings can break the essence of fair proceedings. In particular, the European Court should check up whether there has been observed, as far as it is possible, at realization by authorities of the powers on excitation and conducting supervising proceedings the fair balance between interests of a person and necessity of maintenance of effectiveness of the system of criminal justice [37].

Referring to the circumstances of the case of Nikitin, the European Court has emphasized, that in the given case the Presidium of the Supreme Court solved only the question on renewal of trial on case. If it has cancelled the verdict of «not guilty», it would cause the necessity of separate trial on the case by the competent court based of the principle of competitiveness. Thus, the decision of the Presidium of the Supreme Court represented only remedial measure which was not more than the precondition for the new consideration of the criminal charge. The presidium of the Supreme Court has rejected the request of the General public prosecutor, having recognized, that he referred to infringements which should be fully eliminated by means of the General public prosecutor's supervision before the judgment becomes final, instead of after that. The request of the General public prosecutor can be considered as free and forming abusing of procedural rights. However it did not render deciding influence on validity of procedure of renewal of proceedings on the case as a whole, and the very question on the subject of consideration of the Presidium of the Supreme Court. Accordingly free character of the request of the General public prosecutor about renewal of proceedings on the case could not be reflected negatively in consideration of the criminal charge in the given case. The European Court has come to the conclusion, that in the given case at realization of supervising proceedings the fair balance between interests of the applicant and the necessity to provide appropriate judicial proceedings of justice [38] has been observed.

Besides the European Court has noted that according to developed practice Article 6 of the Convention is not applicable to the procedure connected with rejection of the request about renewal of proceedings on the case. Only new proceeding after renewal of proceedings on the case can be considered as connected with the decision of the question concerning criminal charge [39].

Simultaneously the European Court repeatedly specified, that the application in the order of supervision with the request of cancellation of the final judgment is exclusive means of the appeal which is directly inaccessible to the defendant in the criminal case, and its application depends on the discretion of the authorized officials. The European Court does not recognize revision of the decision in the order of supervision by effective internal means of legal protection [40] concerning neither civil nor criminal cases [41].

As infringement of the principle of legal definiteness the European Court considers admission by court of another decision after the repeated consideration of the dispute on which the final decision has been earlier born. It has come to such conclusion in the case of Makovey and others against Moldova. The European Court has emphasized, that in th4e given case the initial final decision for the benefit of applicants was not cancelled. However the subsequent judgment satisfied the request of the contractor of applicants and the adopted as a result the repeated consideration by courts of the same reasons which have been rejected within the framework of the previous proceedings, has deprived the initial decision of any action. In the opinion of the European Court, it is equivalent to cancellation of the judgment in the order of supervision and forms infringement of the principle of legal definiteness and the right on access to justice [42].

In conterminous opinion on the given case of judge L. Garlitskiy to whom judge S. Pavlovchi has joined, it was explained, that the opportunity of the repeated application in court has opened for the company, earlier lost the case to applicants, in connection with decision of the Supreme Court of Moldova, who recognized the admissibility of the unilateral termination of the contracts providing annual lifelong payments. The Judges believe that the given decision of the Supreme Court cannot be considered as precedent and to have the same value as the legislative regulation. Thus the principle of legal definiteness requires that return force should not be given to such decisions, and they did not mention earlier born judgments on the concrete cases. But, as well as the new law, such precedent can make changes in the legal system and all courts can be obliged to follow it in the further decisions. In the given case the decision of the Supreme Court has not cancelled the judgments taken place earlier for the benefit of the applicants; they were valid and were subjected to execution concerning the duty of the company to pay debts and to continue execution of contracts. However the company has had an opportunity to initiate the new proceeding for the purpose of cancellation of contracts for the future time. In the opinion of the judges, the reference of the European Court in substantiation of the conclusion about infringement of the principle of legal definiteness of the case concerning the cancellation of the final decision in the order of application of exclusive means of the appeal is not quite justified. In the given case the decision of the Supreme Court also has influenced final judgments on concrete cases, but only that has given the opportunity of termination of working contracts. Problems which such decision of the Supreme Court is capable to generate concerning observance of requirements of Article 6 of the Convention, are not quite obvious. The final judgment can protect contracts from any changes having return force. However it cannot give the contracts term less immunity from changes by means of the legal regulation carried out by the state with observance of fair balance of interests of the sides. In the given case, in the opinion of judges, such fair balance has not been provided. The authorities have chosen «the simplest decision» which has assigned all burdens on the applicants and has exempted the company from any responsibility. However the European Court could not make distinction between the circumstances of the given case and the precedent created in the decision on the case of Brumaresku though this case gave it a good opportunity to go further the precedent of Brumaresku and to clear other prominent aspects of the principle of legal definiteness.

The principle of legal definiteness does not exclude revision of judgments on newly opened circumstances. The given procedure does not contradict the principle of legal definiteness as it is applied for correction of miscarriages of justice [43]. Moreover, Article 4 of the Report No. 7 specially allows the states to correct miscarriages of justice in the criminal trial. However such revision of judgments should correspond to regulations of the legislation and abusing of the given procedure can entirely contradict the Convention in connection that conducts to the result - loss of the decision - as the request about cancellation of the decision. Principles of legal definiteness and supremacy of law require from the European Court to be vigilant in the given sphere [44]. The European Court should establish, whether proceedings on newly opened circumstances in such a way which is compatible with Article 6 of the Convention was carried out and provides respect of the principle of legal definiteness [45].

Excitation of proceedings for the purpose of cancellation of the final judgment assumes detection of proofs not accessible earlier to court though all necessary for these efforts have been undertaken earlier, and are capable to lead to another result of the legal proceeding. The person petitioning for cancellation of judgment should prove, that there was no opportunity to present each of these proofs before removal of the decision on the case, and that the given proofs are of crucial importance [46].

In the decision on the case Pravednaya against Russia the European Court has recognized revision of the final judgment admitted in favor of the applicant, in connection with newly opened circumstances on request of regional the department of pension fund with infringement of the principle of legal definiteness. The newly opened circumstances have been recognized by the regional court the Instruction of Ministry of Labour and Social Development about the order of application of the Law on pensions issued and accordingly known to the department of pension fund before consideration of the case of the applicant by the court of second instance. The European Court has noted, that actually the department of pension fund tried to not renew proceeding in connection with newly opened circumstances, and to try to present once again to the court the same reasons to which it referred, but unsuccessfully, in the court of second instance. The European Court considered cancellation and revision of the final judgment «the latent appeal», instead of diligent attempt to correct the miscarriage of justice [47].

Thus the European Court has repeatedly emphasized, that it is always necessary to remember about the danger connected with application of the legislation, having return force, capable to influence the sanction by the court of the dispute, one of which sides is the state. The respect of the principle of supremacy of law and of the concept of fair proceeding requires that any reasons brought in justification of such measures should be concerned with the greatest possible care [48].

In the decision on the case Popov against Moldova the European Court also has recognized revision of the case on newly opened circumstances incompatible with requirements of the Convention. According to the corresponding regulations of the Civil Remedial Code of Moldova, proceeding on the case can be renewed, «when there are found out new and essential facts or circumstances unknown earlier». The request about revision of the decision can be declared «within three months from the date when the corresponding person has learned about essential circumstances or facts of the case unknown to him earlier». The appeal court in the decision from May 26, 2004 considered the ground for renewal of proceedings the four documents given by the State archive and Service of registration of land property, dated April and May, 2004, and issue of the Municipal official newspaper from the year1940..The European Court has noted, that in the decision of Appeal court it was not specified, whether it contains documents and information from the State archive and Service of registration of land property which could be received by respondents earlier. In applications of respondents there are no references that they earlier unsuccessfully tried to receive the given documents. Neither in applications of respondents, nor in the decision of the Appeal Court from May 26, 2004 there was not proved, that the Municipal official newspaper - the secret document not accessible, and its issue could not be received from the State archive or Public library before April - May, 2004 the Appeal court has simply prolonged the term of submission of the application for revision of the decision, having given no substantiation.

In opinion of the European Court, the issue of the Official newspaper in public access within the period of more than 60 years cannot be qualified as «the new facts or circumstances which were not and could not be known earlier to the participants of the process». By the definition the Official newspaper is issued to make the information public and easily accessible. And actually the copy of the given issue of the Official newspaper, directed to the European Court by the state - respondent, had the seal of the library.

Accordingly the European Court has come to the conclusion, that in case of renewal of proceedings was, in fact, an attempt to reconsider the case concerning those aspects whose discussion was accessible to respondents within the framework of proceeding, but the question on it has obviously raised by them during the process which ended in the final judgment from November 5, 1997. Renewal of proceedings actually was «the disguised appeal» which pursued the purpose to achieve repeated consideration of the question, instead of original revision of the case on newly opened circumstances. Having satisfied the request of respondents about revision of judgment, the Appeal court has infringed the principle of legal definiteness and the right of the applicant to access to justice. Moreover, having given no substantiation of prolongation of the term for petitioning of respondents with application for revision of judgment, the Appeal court has infringed the right of the applicant to fair proceeding. The European Court ascertained infringement of item 1 Article 6 of the Convention [49].

On the whole, solving the question on compatibilities of revision of judgments entered validity, with the principle of legal definiteness, the European Court verifies, whether authorities have carried out their powers on conducting proceedings observing, as far as it is possible, fair balance between interests of a person and necessity of maintenance of appropriate justice [50].

The literature

1. Macovei and Others v. Moldova, Judgment of 25 April 2006. Paras. 44 - 46.

2. Eur. Court H.R. Pravednaya v. Russia, Judgment of 18 November 2014. Para. 28; Popov v. Moldova (No. 2), Judgment of 6 Desember 2005. Para. 46.

3. Eur. Court H.R. Popov v. Moldova (No. 2), Judgment of 6 Desember 2005. Para. 46.

4. Eur. Court H.R. Pravednaya v. Russia, Judgment of 18 November 2014. Para. 28; Popov v. Moldova (No. 2), Judgment of 6 Desember 2005. Para. 47.

5. Eur. Court H.R. Pravednaya v. Russia, Judgment of 18 November 2014. Para. 27.

6. Eur. Court H.R. Pravednaya v. Russia, Judgment of 18 November 2014. Paras. 29 - 33.

7. Eur. Court H.R. Pravednaya v. Russia, Judgment of 18 November 2014. Para. 26. См. также: Eur. Court H.R. Stran Greek Refineries and Stratis Andreadis v. Greece, Judgment of 9 December 2004. Series A. No. 301-B. Para. 49; The National & Provincial Building Society, the Leeds Permanent Building Society and the Yorkshire Building Society v. the United Kingdom, Judgment of 23 October 2007. Reports. 2007-VII. Para. 112; Zielinski and Pradal andGonzalez and Others v. France, Judgment of 28 October 2009. Para. 57.

8. Eur. Court H.R. Popov v. Moldova (No. 2), Judgment of 6 Desember 2005. Paras. 48 - 54.

9. Eur. Court H.R. Nikitin v. Russia, Judgment of 20 July 2004. Paras. 57, 59; Borshchevskiy v. Russia, Judgment of 21 September 2006. Para. 45; Prisyazhnikova and Dolgopolov v. Russia, Judgment of 28 September 2006. Para. 24; Nelyubin v. Russia, Judgment of 2 November 2006. Para. 26.

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