Постановление Европейского суда по правам человека от 22.12.2009 "Дело "Безымянная (Bezymyannaya) против Российской Федерации" [рус., англ.]

erves that the decisive question in assessing the effectiveness of a remedy concerning a complaint of denial of access to court is whether the applicant could have raised that complaint before the Constitutional Court in order to obtain direct and timely redress, and not merely an indirect protection of the rights guaranteed in Article 6 § 1 of the Convention. The remedy can be either preventive or compensatory in nature (see, among other authorities, Koval v. Ukraine, No. 65550/01, § 94, 19 October 2006). The Court notes that the Government did not explain how a complaint to the Constitutional Court could have offered the aforementioned preventive or compensatory redress or both for allegations of denial of access to a court which had been contrary to Article 6 of the Convention. Furthermore, they did not indicate whether the applicant could have directly lodged a complaint with the Constitutional Court, without the formal institution of the proceedings being dependent on a preliminary examination of the complaint by the Secretariat of the Constitutional Court, whether the Constitutional Court had the jurisdiction to quash the decision of the court of general jurisdiction and to examine the merits of the applicant's action and whether the Constitutional Court's finding of a violation of the applicant's rights could have given rise to a retrial directly, without the applicant being obliged to lodge an application for a retrial with a competent judicial authority (see Feldek v. the Slovak Republic (dec.), No. 9032/95, 15 June 2000, in which the Court, on the basis of the Government's negative answers to all those questions, found that the Constitutional Court could not be considered an effective domestic remedy). Accordingly, the Court does not find that the Government have discharged the burden upon them of proving that a complaint to the Constitutional Court was accessible to the applicant and capable of providing redress in respect of her Convention complaint.
22. As to the Government's further argument pertaining to a supervisory review application, the Court reiterates that it has already found in a number of cases against Russia that supervisory-review proceedings are not an effective remedy for the purpose of Article 35 § 1 of the Convention (see Tumilovich v. Russia (dec.), No. 47033/99, 22 June 1999, and, more recently, Gusinskiy v. Russia (dec.), No. 70276/01, 22 May 2003). In particular, the Court held that under the RSFSR Code of Civil Procedure, in force at the material time, the power to institute supervisory-review proceedings was discretionary, that is to say it was solely for the State official concerned to decide whether or not a particular case warranted a supervisory review (see Ryabykh v. Russia, No. 52854/99, § 34, ECHR 2003-IX). It follows that supervisory-review proceedings could not have been set in motion by a party and that that "remedy" was not accessible to applicants (see, for similar reasoning, Russian Conservative Party of Entrepreneurs and Others v. Russia, Nos. 55066/00 and 55638/00, § 88, ECHR 2007-I). The Court sees no reason to depart from that finding in the present case and rejects this aspect of the Government's non-exhaustion objection.
23. As to the third avenue allegedly open to the applicant, the Government insisted that an appeal against the District Court's decision of 13 August 2002 before the Belgorod Regional Court could have been an effective remedy for the applicant's complaint about the District Court's refusal to examine the merits of her action. At the same time the applicant, without disputing the effectiveness of that "remedy" per se, argued that she had had no reason to make use of that avenue when she had still been able to employ it, that is within ten days after the decision of 13 August 2002 had been issued. In the applicant's opinion, the decision of 13 August 2002 had not yet barred her access to



> 1 2 3 ... 12 13 14 15 ... 16 17

	Поделиться:	Tweet