Постановление Европейского суда по правам человека от 29.01.2009 «Дело Ленская (Lenskaya) против России» [англ.]

for the purpose of a rehearing and a fresh decision on the case. The mere possibility of there being two views on the subject is not a ground for re-examination.
32. Departures from that principle are justified only when made necessary by circumstances of a substantial and compelling character (see, mutatis mutandis, Ryabykh v. Russia, No. 52854/99, § 52, ECHR 2003-X, and Pravednaya v. Russia, No. 69529/01, § 25, 18 November 2004). Higher courts' powers to quash or alter binding and enforceable judicial decisions should be exercised for correction of fundamental defects. That power must be exercised so as to strike, to the maximum extent possible, a fair balance between the interests of an individual and the need to ensure the effectiveness of the system of justice (see, mutatis mutandis, Nikitin v. Russia, No. 50178/99, §§ 54 - 61, ECHR 2004-VIII).
33. The relevant considerations to be taken into account in this connection include, in particular, the effect of the reopening and any subsequent proceedings on the applicant's individual situation and whether the reopening resulted from the applicant's own request; the grounds on which the domestic authorities revoked the finality of the judgment in the applicant's case; the compliance of the procedure at issue with the requirements of domestic law; the existence and operation of procedural safeguards in the domestic legal system capable of preventing abuses of this procedure by the domestic authorities; and other pertinent circumstances of the case (see Nikitin, cited above, § 60; Bratyakin v. Russia (dec.), No. 72776/01, 9 March 2006; Fadin v. Russia, No. 58079/00, § 34, 27 July 2006; and Savinskiy v. Ukraine, No. 6965/02, §§ 24 - 26, 28 February 2006). In addition, the review must afford all the procedural safeguards of Article 6 § 1 and must ensure the overall fairness of the proceedings (see Vanyan v. Russia, No. 53203/99, §§ 63 - 68, 15 December 2005).
34. In a number of cases the Court, while addressing the notion of "a fundamental defect", stressed that the mere consideration that the investigation in the applicant's case was "incomplete and one-sided" or led to an "erroneous" acquittal cannot in itself, in the absence of jurisdictional errors or serious breaches of court procedure, abuses of power, manifest errors in the application of substantive law or any other weighty reasons stemming from the interests of justice, indicate the presence of a fundamental defect in the previous proceedings (see Radchikov v. Russia, No. 65582/01, § 48, 24 May 2007).
35. The Court further reiterates its findings in the case of Protsenko v. Russia (No. 13151/04, 31 July 2008). In that case the final judgment in the applicant's favour was quashed by way of a supervisory review, on the ground that the first-instance court "had failed to establish all the circumstances of the case, to identify all the parties to the proceedings and to invite the owner of the land to participate in the proceedings, with the result that the rights of the latter [had been] adversely affected". While concluding that there had been no breach of Article 6 § 1 of the Convention in that case, the Court held (§§ 31 et seq.) as follows:
"The Court observes that the third person knew about the judgment of 7 April 2003 only after it had become final and that, in any event, being no party to the proceedings the owner of the land could not lodge an ordinary appeal against it. Therefore, through no fault of the third person who was not a party to the proceedings the domestic court rendered a judgment which directly affected his rights. The Court considers that the circumstances referred to were in their nature and significance such as to justify the quashing of the final judgment and that this was not inconsistent with the principle of legal certainty. The Court finds, therefore, that in the circumstances of this particular case the quashing o



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