03.12.2013
File number______________
Application
ENIKEEV, BURKOV AND Sverdlovsk regional non-governmental organization
"SUTYAJNIK"
V.
RUSSIA
(Secret Justice Case)
under Article 34 of the European Convention on Human Rights
and Rules 45 and 47 of the Rules of Court
Contents
I. The Parties
* A. The Applicants
A.1. FIRST APPLICANT ["Principal Applicant" or "Applicant"]
1. Surname: Enikeev
2. First Name(s): Evgeny
Sex: male
3. Nationality: Russian
4. Occupation: software engineer
5. Date and place of birth:
6. Permanent address:
7. Tel no.:
8. Present address (if different from 6.):
A.2. SECOND APPLICANT: ["Applicant Lawyer" or "Legal Representative"]
1*. Surname: Burkov
2*. First Name(s): Anton
Sex: male
3*. Nationality: Russian
4*. Occupation: lawyer
5*. Date and place of birth:
6*. Permanent address:
7*. Tel no.:
8*. Present address (if different from 6.)
A.3. THIRD APPLICANT: ["Applicant - NGO/News Agency"]
1**. Name of organization: Sverdlovsk regional non-governmental
organization "Sutyajnik" (Свердловская региональная общественная
организация "Сутяжник"), its department News-Agency "Sutyajnik-Press"
(информационное агентство "Сутяжник-пресс").
2**. First Name(s): n/a
3**. Nationality: n/a
4**. Occupation: n/a
5**. Date and place of registration: 29 August 1994, Ekaterinburg,
Russia.
6**. Permanent address: 620075, Russia, Ekaterinburg, Turgeneva, 11-1
7**. Tel no.: +7-343-3553651
8**. Present address (if different from 6.): n/a
A.4. FIRST REPRESENTATIVE
9. Name of representative of Enikeev and of Sverdlovsk regional
non-governmental organization "Sutyajnik" (Свердловская региональная
общественная организация "Сутяжник"), its department News-Agency
"Sutyajnik-Press" (информационное агентство "Сутяжник-пресс"): Anton
BURKOV
10. Occupation of representative: lawyer.
11. Address of representative:
12. Tel no. Fax no.
A.5. SECOND REPRESENTATIVE
9*. Name of representative of Burkov:
10*. Occupation of representative:
11*. Address of representative:
12*. Tel no.
* B. The High Contracting Party
13. The Russian Federation
I.* Summary
SUMMARY OF APPLICATION PROVIDED PURSUANT TO
PARAGRAPH 11 OF THE PRACTICE DIRECTION
ON THE INSTITUTION OF PROCEEDINGS
This summary is provided entirely without prejudice to the full
Application lodged herewith. Nothing in this document should be taken
to alter, modify, restrict or diminish any allegation of fact or law
made in the full Application.
Evgeny Enikeev [hereinafter "Principal Applicant"] has been living and
working in Moscow which is his de facto place of residence, while his
official residence (as inscribed in his passport) remains in
Dimitrovgrad, Ulianovsk oblast, which is located some 1000 kilometres
away.
The Principal Applicant's driver's license went missing in September
2012 and he needed a duplicate copy in order to drive legally.
On 16 March 2013, the Head of a police station in Moscow Stadnuk I.I.
officially rejected a request by the Principal Applicant for the
duplicate licence (Annex 1) citing the rule that a Russian citizen is
only eligible to apply for the duplicate licence at his official
residence documented in his passport, as per Article 12 of the Rules
of passing the qualifying examination and the issuance of driver's
licenses incorporated by the Regulation of the Government of the
Russian Federation No.1396 of 15 December 1999 [hereinafter "the 1999
Regulation"], (Annex 2). A similar provision to this is contained in
Article 3 of the Regulation No.782 issued by the Minister of Internal
Affairs of the Russian Federation on 20 July 2000 [hereinafter "the
2000 Regulation"], (Annex 3).
The Principal Applicant believes that both the 1999 Regulation and the
2000 Regulation violate his right to freedom of movement because he is
forced to travel in order to exercise his other civil right, and
discriminate against him in relation to other citizens of Russia on
the basis of the possession of a registration at a particular place
(or absence thereof). Therefore the Applicant decided to defend his
rights before national courts.
On 5 April 2013, the applicant filed an application (Annex 4) to the
Russian Supreme Court in order to challenge provision of Article 12 of
the 1999 Regulation and the similar provision of Article 3 of the 2000
Regulation [hereinafter "the 2013 case"]. On 10 April 2013, a Judge of
the Russian Supreme Court Emysheva V.A. (Емышева В.А.), sitting ex
parte in chambers by a decision [hereinafter "Decision of 10 April
2013"] (Annex 5), rejected the application as inadmissible, and ruled
that the same provision was already challenged before the Supreme
Court on 9 August 2007 (Judgment No. ГКПИ07-527), [hereinafter "the
2007 case" or "the secret evidence"] by another applicant on the same
grounds as in the application by the Principal Applicant.
On 15 April 2013 the Principal Applicant appealed the Decision of 10
April 2013 rendered by the Supreme Court. In the appeal (Annex 6), in
addition to the demand to quash the Decision of 10 April 2013, the
Principal Applicant firstly requested to be allowed "to study
materials of the case No. ГКПИ07-527" [i.e. the 2007 case] in order to
establish if the grounds of the application in the 2007 case were
indeed similar to the grounds in his application that resulted in the
Decision of 10 April 2013. Despite the fact that the Principal
Applicant and his representative, Anton Burkov [hereinafter "the
Applicant-Lawyer"] were not notified of the date, time, and the place
of the appeal hearing, they arrived to the Supreme Court of Appeal in
time, and were allowed into the Court's building, and to the
courtroom. The Supreme Court of Appeal considered the appeal without
allowing the Principal Applicant and the Applicant-Lawyer to
participate in the hearing despite the fact that they were present at
the hearing, and were seated in front of the Judges. The Judges
justified their behaviour based on Part 2 of Article 333 of the
Russian Civil Procedure Code which states that persons are not
notified of the appeal hearing when considering an appeal against a
ruling of a Court of the first instance.
On 24 June 2013, the Principal Applicant and the Applicant-Lawyer
challenged before the Constitutional Court of the Russian Federation
Part 2 of Article 333 of the Civil Procedure Code as it was
interpreted by the Supreme Court of Appeal, and claimed that their
rights to fair trial and their rights to an effective remedy were
violated (Annex 17). The application by the Principal Applicant was
rejected on 24 September 2013, whereas that by the Applicant-Lawyer
was simply ignored.
On 22 May 2013, the Principal Applicant also challenged before the
Constitutional Court of the Russian Federation Article 12 of the 1999
Regulation and Article 3 of the 2000 Regulation in connection with
Part 3 of Article 27 of the Federal Law "On Security of Road Traffic"
as it is understood and interpreted by the Supreme Court, as
prohibiting a request for a duplicate driver's license to be filed at
the place of his de facto place of residence therefore violating his
right to freedom of movement and freedom from discrimination (Annex
13). The application was rejected on 24 September 2013.
On 7 November 2013, the head of the Sverdlovsk regional
non-governmental organization "Sutyajnik"^ and the head of its news
agency "Sutyajnik-Press"^ Sergey Beliaev [hereinafter "the
Applicant-NGO/News-agency"] requested to receive from the Supreme
Court decisions concerning the Principal Applicant delivered by the
Supreme Court sitting ex parte in chambers on 10 April 2013, and by
the Supreme Court of Appeal on 4 June 2013 (Annex 11). The Supreme
Court never replied to this request.
Thus, the Principal Applicant, the Applicant-Lawyer, and the
Applicant-NGO/News-Agency faced a situation where:
1. The Principal Applicant is forced to travel 2000 km (roundtrip)
from Moscow to Dimitrovgrad and is forced to spend his property
(money) on the mentioned travel in order to be able to exercise
his civil right;
2. When the Principal Applicant decided to turn to national courts
for legal remedy, he realised that no fair trial guarantees were
in place, and no effective remedy was available:
1. the Supreme Court sitting ex parte in chambers delivered the
Decision of 10 April 2013 on inadmissibility of the application
without a hearing based on secret evidence [the 2007 case]
advanced by the Supreme Court judge, the Principal Applicant or
the Applicant-Lawyer have no access to "secret evidence";
2. the Supreme Court of Appeal did not allow access to this secret
evidence by simply ignoring the request by the Principal Applicant
made in his appeal;
3. the Supreme Court of Appeal did not allow the Applicant-Lawyer to
make a request to get access to this secret evidence during the
appeal hearing;
4. the Supreme Court of Appeal did not allow for the participation of
the Principal Applicant and the Applicant-Lawyer in the appeal
hearing;
5. the Supreme Courts' Decisions of 10 April 2013 and of 4 June 2013
are not available to the public, because they were not published
online or provided at the request of journalists or
representatives of civil society;
The Principal Applicant and the Applicant-Lawyer were not allowed to
seek for information (i.e. the secret evidence) and express their
ideas before the Supreme Court of Appeal;
The representative of civil society (NGO Sutyajnik) and of journalist
society (news agency Sutyajnik-Press) (the Applicant-NGO/News-Agency)
was not allowed to access decisions which were delivered without the
participation of the Principal Applicant and the Applicant-Lawyer, and
were based on a secret evidence.
These facts described above demonstrate unjustified restrictions to
the freedom of movement, discrimination, complete secrecy of justice,
as well as limitations to the freedom of expression, and the lack of
effective remedies to deal with the violations. As a result, the
Principal Applicant, the Applicant-Lawyer, and the
Applicant-NGO/News-Agency have applied to the European Court of Human
Rights asking it to rule on violations of Articles 6(1), 10, 13, 14 of
the European Convention for the Protection of Human Rights and
Fundamental Freedoms [hereinafter "European Convention"].
I.** List of Abbreviations
The Applicant or the Principal Applicant - Evgeny Enikeev;
The Applicant-Lawyer or the Legal Representative - Anton Burkov;
The Applicant-NGO/News-Agency - Sverdlovsk regional non-governmental
organization "Sutyajnik" (Свердловская региональная общественная
организация "Сутяжник"), its department News-Agency "Sutyajnik-Press"
(информационное агентство "Сутяжник-пресс");
The police station - 2 отделение по экзаменационной работе МОГТОРЭР
No.1 ГИБДД ГУ МВД РОССИИ по г. Москве.
The Supreme Court sitting ex parte in chambers - The Judge of the
Russian Supreme Court, Judge Emysheva V.A. (Емышева В.А.), sitting ex
parte in chambers who delivered the Decision of 10 April 2013;
The Supreme Court of Appeal - The Appeal Collegium of the Russian
Supreme Court which delivered the Decision of 4 June 2013;
The 1999 Regulation - Article 12 of the Rules of passing the
qualifying examination and the issuance of driver's licenses
(incorporated by the Regulation of the Government of the Russian
Federation No.1396 of 15 December 1999;
The 2000 Regulation - Article 3 of the Regulation No.782 by the
Minister of Internal Affairs of the Russian Federation issued on 20
July 2000;
The 2013 case - Application of Enikeev of 5 April 2013 to the Russian
Supreme Court challenging provision of Article 12 of the 1999
Regulation and the provision of Article 3 of the 2000 Regulation;
The 2007 case - Judgment No. ГКПИ07-527 of 9 August 2007 by the
Supreme Court;
CPC - The Civil Procedure Code of the Russian Federation.
The European Convention - the Convention for the Protection of Human
Rights and Fundamental Freedoms - hereinafter "European Convention".
II. Statement of facts
14. Evgeny Enikeev (the Principal Applicant) has been living and
working in Moscow since September 2009. Therefore, Moscow is his
de facto place of residence, while his official residence (as
indicated in his passport) remains in Dimitrovgrad, Ulianovsk
oblast, which is located some 1000 kilometres away.
15. The Principal Applicant does not own real estate in Moscow, nor
does he have the financial means to buy real estate there; he
therefore rents an apartment. However, in order to be validly
registered in Moscow, a registrant must either own real estate
(which the Principal Applicant does not), or must be able to
produce documentation from a landlord from whom he rents (which
the Applicant could not obtain due to the owner/landlord's
unwillingness to provide such documentation).^ Apparently, this
unwillingness stems from the owner/landlord's refusal to declare
the rental income to the Russian tax authorities. There is no
effective legal remedy to force the owner/landlord to give the
necessary documentation in order to allow the Applicant to be
registered at the dwelling he rents. Any lawsuit in this respect
against the owner/landlord will result in the termination of the
Applicant's lease agreement with the owner and his eviction before
the first hearing of the case by a Court. For this reason the
Applicant cannot be registered in Moscow.
16. The Applicant's driver's license went missing in September 2012
and he needed a duplicate copy in order to drive legally.
17. The Applicant planned to travel to Dimitrovgrad, Ulianovsk oblast
in December 2012 in order to apply for a duplicate, as this is the
only place in Russia he can legally apply for such a duplicate
according to the rules which will be explained below. However, the
Applicant did not find an opportunity to do so due to long
distance between Moscow and Dimitrovgrad (i.e. 2000 km round
trip), the cost of roundtrip travel, and the lack of an
opportunity to ask his employer for a minimum three days off from
work needed to undertake such travel.
18. On 12 March 2013 the Applicant filed an application for a
duplicate of the driver's license at a local police station in
Moscow (2 отделение по экзаменационной работе МОГТОРЭР No.1 ГИБДД
ГУ МВД РОССИИ по г. Москве) [hereinafter "the police station"] at
the place of his de facto residence in Moscow. On 16 March 2013,
the Head of the police station Stadnuk I.I. rejected his
application for the duplicate (Annex 1) on the basis that the
Applicant is deemed to be only eligible to apply for such a
duplicate licence at his official residence as documented in his
passport. This decision was based on Article 12 of the 1999
Regulation, (Annex 2).
19. According to Article 12 of the 1999 Regulation: "[...] issuance
and exchange of driver's licenses are carried out by the State
Inspection of Traffic Police on the territory of the subject of
the Russian Federation where the citizen is registered in the
place of his permanent residence or temporary residence."^
20. However, according to Article 13 of the 1999 Regulation, Russian
citizens who have lost their driver's licence have a different
legal status. The issuance of duplicates of driver's licences to
these citizens of the Russian Federation who are not registered at
the place of permanent residence or temporary residence is carried
out by the State traffic police inspection at the place of their
de facto residence. This provision reads as following: "13.
Examination, issuance and exchange of driver's licences to the
citizens of the Russian Federation who are not registered in the
place of their permanent residence or temporary residence is
carried out by the state [traffic police] inspection in the place
of their factual residence."^ Those registered in Moscow can
request a duplicate in Moscow as well.
21. A similar provision is found in of Article 3 of the 2000
Regulation, (Annex 3): "3. Examination of citizens, issuance and
exchange of driver's licenses are carried out by the State
Inspection [of traffic police] on the territory of the subject of
the Russian Federation where the citizen is registered in the
place of his permanent residence or temporary residence."^
22. The next provision of the 2000 Regulation, Article 4, repeats
Article 13 of the 1999 Regulation: "4. Examination of citizens of
the Russian Federation, issuance and exchange of driver's licences
to them when they are not registered in the place of their
permanent residence or temporary residence is carried out by the
state [traffic police] inspection in the place of their factual
residence on the basis of decision of persons mentioned in Article
5 of this Instruction [officers of the State Inspection of Traffic
Police]."^
23. It is not possible for the Applicant to request a duplicate of his
driver's licence at the place of his de facto residence in Moscow,
or to apply for a duplicate through the post. The Applicant cannot
be represented in the application process. The Applicant must
apply personally for the duplicate.
24. Since, according to the Applicant's passport, his official place
of residence is in Dimitrovgrad, Ulianovsk oblast, under the 1999
Regulation the Applicant has to travel to Ulianovsk oblast and
back to Moscow (about 2000 km round trip) to request a duplicate
of his lost driving license. Under the 1999 Regulation and the
2000 Regulation the Applicant's right to drive a car depends of
the existence of a registration, which impacts the realization of
his right to move freely in the territory of the state as well as
his right to the peaceful possession of his property, seeing as
the Applicant is required to have three days off and to pay for
the travel in order to have an opportunity to request a duplicate
at the place of his residence in Dimitrovgrad. The Applicant,
unlike all other citizens duly registered in Moscow, is unable to
register through no fault of his own. The Applicant is essentially
"forced" to make absurd travel plans for a 2000 km roundtrip
voyage, incurring expenses and time and having to take time off of
work, simply to get a duplicate copy of a driver's license which
could otherwise be dome in Moscow by the same Ministry, be it for
the state's "registration requirement".
25. The Applicant believes that the mentioned government Regulations
of 1999 and 2000 violate his right to freedom of movement as he is
forced to travel in order to exercise his other civil right,
discriminates against him in regards to other citizens of Russia
on the basis of possession (or the absence) of a registration at a
particular place. Therefore the Applicant decided to defend his
rights before national courts.
26. On 5 April 2013, the Applicant filed an application (Annex 4) to
the Russian Supreme Court (the 2013 case) in order to challenge
provision of Article 12 of the 1999 Regulation and the similar
provision of Article 3 of the 2000 Regulation. The Applicant
claimed a violation of his right to freedom of movement under
Article 3 of the Russian Federal Law "On the Right of Russian
Citizens to Freedom of Movement, Choice of Temporary and Permanent
Residence within the Borders of the Russian Federation" ("О праве
граждан Российской Федерации на свободу передвижения, выбор места
пребывания и жительства в пределах Российской Федерации") and
Article 2 of Protocol 4 to the European Convention.
27. On 10 April 2013, a Judge of the Supreme Court, Judge Emysheva
V.A. (Емышева В.А.), sitting ex parte in chambers, by the Decision
of 10 April 2013 rejected the application as being inadmissible
(Annex 5), and ruled that the same provision was already
challenged before the Supreme Court on 09 August 2007 (i.e. the
2007 case) by another applicant on the same grounds as in the
application by Enikeev, who is the Principal Applicant in the
present case before the European Court. The Supreme Court based
its Decision of 10 April 2013 on Part 8 of Article 251 of the
Civil Procedure Code of the Russian Federation, which is entitled
"Filing Applications for Disputing Legal Normative Acts", and
which states: "The judge shall summarily dismiss an application if
a previous judgment has come into legal effect which verified the
legality of the disputed legal normative act of the state
government body, of the local self-government body or of the
official on the grounds mentioned in the application."^
28. The Applicant did not have access to the judgment rendered in the
2007 case [secret evidence] nor to the application that initiated
that case, nor to any minutes or any other materials of that case,
which could demonstrate that the grounds of the application in
that case before the Supreme Court in 2007 were indeed similar to
the grounds in the application of Enikeev. The applicant of the
2007 case was not even named in the Supreme Court's Decision of 10
April 2013, nor is locatable. This did not allow the Principal
Applicant to check the only factual basis (which is in all
respects a "secret evidence") in the ruling against the
admissibility of his application to the Supreme Court that was put
forwards by the Supreme Court Judge Emysheva V.A. (Емышева В.А.)
sitting ex parte in chambers on her own initiative as a ground for
inadmissibility of the application. The Supreme Court acted as a
defendant and as a Judge in the same case.
29. The Decision of 10 April 2013 by the Supreme Court sitting ex
parte in chambers regarding inadmissibility of the Enikeev's
application, who is the Principal Applicant to this case before
the European Court, was delivered by a single Judge without a
hearing (by the Supreme Court sitting ex parte in chambers).
30. On 15 April 2013 the Principal Applicant appealed the Decision of
10 April 2013. In the appeal application (Annex 6), in addition to
the request to quash the Decision of 10 April 2013, the Applicant
requested "to allow him to study materials of the case No.
ГКПИ07-527" (the 2007 case or secret evidence) in order to
establish if the grounds of the application in the 2007 case were
similar to the grounds in his application to the 2013 case. The
representative of the Principal Applicant before the Supreme
Court, Anton Burkov (the Applicant-Lawyer), having obtained the
power of attorney to represent the Applicant before national
courts as per (Annex 7), also prepared a memorandum dated 4 June
2013 to be submitted at the appeal hearing of the same date (Annex
8). This memorandum stated that: "the Applicant in the present
case points at the grounds of contradiction of challenged
normative acts, which [grounds] have never been subject to the
judicial consideration before."^ It was mentioned in particular
that the challenged Regulations of 1999 and 2000 were in
contradiction with Article 2 of Protocol no. 4 to the European
Convention. However, this memorandum was not allowed by the
Supreme Court of Appeal to be submitted for consideration by this
Court. This fact will be described below in further detail
(subsection D.2.).
31. The Principal Applicant and his legal representative, the
Applicant-Lawyer, had not been directly informed of the date and
time (4 June 2013, at 11:50 a.m.) as well as the place (121260,
Moscow, Povarskaya Street, 15, courtroom No. 4038) of the appeal
hearing. They only learnt about the relevant information of the
appeal hearing from the website of the Russian Supreme Court
[1]http://www.supcourt.ru (Annex 9).
32. On 4 June 2013, the Applicant and his legal representative, the
Applicant-Lawyer, arrived to the Supreme Court of Appeal where
they were allowed into the building no 15 on Povarskaya Street at
approximately 11:40 a.m. At the time of the hearing of the
Applicant's appeal (which had begun with a delay at approximately
13:00 p.m.) the bailiff invited both the Applicant and his legal
representative, the Applicant-Lawyer, to the courtroom No. 4038.
They were the only persons present in the courtroom apart from
three Judges of the Appeal collegium of the Russian Supreme Court
(i.e. the Supreme Court of Appeal) namely Judges Fedin A.I,
Manokhina G.V., Lavrov N.G. (Федин А.И., Манохина Г.В., Лавров
Н.Г.) and the secretary of the hearing Kulik U.V. (Кулик Ю.В.).
The bench of three Judges of the Appeal collegium of the Russian
Supreme Court did not allow the Applicant and his legal
representative, the Applicant-Lawyer, to take part in the hearing,
totally ignoring them as if they had not been present in the
courtroom, without even making an attempt to verify the identity
of the two people who were present in the courtroom, as it is
required by Part 2 of Article 161 of Civil Procedure Code:
Article 161. Checking the Presence of Participants in the Case.
1. The secretary of the court session shall report to the court, who
of the persons summoned on the civil case is present, whether those
who have failed to appear were duly notified and what information is
obtained about the reasons behind their absence.
2. The presiding justice shall identify the persons of the attending
participants in the court procedure and shall verify the powers of the
official persons and of their representatives.^
33. The Supreme Court of Appeal considered the appeal without the
participation of the Applicant and his legal representative
despite the fact that they were present at the hearing, and were
sitting directly in front of the Judges. A moment after the
Supreme Court of Appeal announced the end of consideration of the
appeal and before Judges of the Supreme Court of Appeal left the
courtroom for the deliberation room (совещательная комната), the
legal representative of the Applicant asked the Judges why they
ignored the Applicant and his legal representative. The question
was ignored. After the Judges reappeared from the deliberation
room, the Presiding Judge announced the decision rejecting the
appeal (i.e. Decision of 4 June 2013, Annex 10). Right after the
announcement of this decision, the legal representative of the
Applicant asked the Judges for the second time why they did not
allow the Applicant and his legal representative to participate in
the hearing. This second time, the Judges reacted to the question
saying that they were not been obliged to allow the Applicant and
his legal representative to participate in the hearing because
according to Article 333 of the Civil Procedure Code the Judges
had not invited the Applicant to the hearing in the first place
("мы вас не приглашали")^.
34. Under Part 2 of Article 333 of the CPC, appeals of decisions on
procedural matters, particularly on inadmissibility, are
considered without notification of the Applicant:
Article 333 - Procedure for Filing and Considering a Separate Appeal
or Prosecutor's Presentation.
1. A separate appeal or prosecutor's presentation shall be filed and
they shall be considered by a court in the procedure provided for by
this article, with the waivers stipulated by Part Two of this article.
2. A separate appeal or prosecutor's presentation against a ruling of
a court of the first instance, except for rulings to suspend
proceedings in respect of a case, to terminate proceedings in respect
of a case or to shelve an application shall be considered without
notifying the persons participating in the case.^
35. On 7 November 2013, the head of the Sverdlovsk regional
non-governmental organization "Sutyajnik"^ and the head of its
news agency "Sutyajnik-Press",^ Sergey Beliaev requested (Annex
11) from the Supreme Court the decisions on Enikeev's case that
were delivered by the Supreme Court sitting ex parte in chambers
on 10 April 2013 and by the Supreme Court of Appeal on 4 June
2013. The Supreme Court has never replied to this request.
36. Article 5.5 of the Order of 18 June 2010, by the Chief Justice of
the Supreme Court states that the Supreme Court publishes online
only its decisions on the merits (Annex 12). This provision is
implemented in practice by the Supreme Court. This is evident from
the fact that none of the decisions by the Supreme Court relates
to the 2013 case of the Principal Applicant were published. Also,
a statement by the Supreme Court issued on 8 September 2011 to the
request made by Lada Bugrova (Annex 22) states that the Supreme
Court only publishes judgments issued on the merits of a case. The
same follows from the reply of 27 December 2012 by the Supreme
Court (particularly by Карюк Владимир Ильич karyuk_vi@vsrf.ru) on
the request made by Simmons Deborah-Jane (Annex 26).
37. On 22 May 2013, the Principal Applicant challenged before the
Constitutional Court of the Russian Federation Article 12 of the
1999 Regulation and Article 3 of the 2000 Regulation in connection
with Part 3 of Article 27 of the Federal Law "On Security of Road
Traffic" as it is understood and interpreted by the Supreme Court
as to prohibit granting the request for a duplicate of the
driver's license filed at the place of de facto residence (Annex
13). The Principal Applicant argued that the challenged legal
provisions violated his right to freedom of movement and were
contrary to Part 1 of Article 27 of the Russian Constitution, as
well as Article 2 of Protocol no. 4 to the European Convention. On
21 June 2013, the Secretariat of the Russian Constitutional Court
rejected the application (Annex 14). On 18 July 2013, the
Principal Applicant submitted follow-up application demanding the
Constitutional Court to issue decision on the matter (Annex 15).
On 24 September 2013, the Constitutional Court rejected the
application without considering the application on the merits
(Annex 16).
38. On 24 June 2013, the Principal Applicant and the Applicant-Lawyer
challenged before the Constitutional Court of the Russian
Federation, Part 2 of Article 333 of the Civil Procedure Code as
it is interpreted by the Russian Supreme Court (Annex 17). The
Principal Applicant claimed that Part 2 of Article 333 of the
Civil Procedure Code violated his right to a fair trial guaranteed
by Article 2, 17, 19 (Part 1 и 2), 45 (Part 2), 46, 47 (Part 1),
48 (Part 1), 52, 55 и 123 of the Russian Constitution and Article
6 of the European Convention. The Applicant-Lawyer joined the
application as a co-applicant to the Constitutional Court, not
just as the legal representative of the Principal Applicant. On 2
August 2013, the Secretariat of the Constitutional Court rejected
the application by the Principal Applicant (Annex 18). On 24
September 2013, the Constitutional Court rejected the application
by the Principal Applicant without considering it on the merits
(Annex 19). The argumentation for the rejection is that "if the
Court allows the participation of the Applicant, the right of the
defendant, who did not come to the Court, is violated". The
application by the Applicant-Lawyer was ignored by the
Constitutional Court; he has never received any reply or decision
from the Constitutional Court on the matter.
39. Thus, the Principal Applicant, the Applicant-Lawyer, and the
Applicant-NGO/News-Agency have faced a situation where:
1. The Principal Applicant is forced to travel 2000 km (round trip)
from Moscow to Dimitrovgrad and is forced to spend his property
(money) on the mentioned travel in order to be able to exercise
his civil right
2. When the Principal Applicant decided to turn to national courts
for legal remedy, he realised that no fair trial guarantees were
in place, and no effective remedy was available:
1. the Supreme Court sitting ex parte in chambers delivered the
Decision of 10 April 2013 on inadmissibility of the application
without a hearing. This might be appropriate if not in conjunction
with the rest of the facts;
2. in this Decision of 10 April 2013, the Supreme Court sitting ex
parte in chambers based itself on evidence which the Principal
Applicant or his legal representative, the Applicant-Lawyer (in
the present case before the ECHR), did not have access to (i.e.
"secret evidence");
3. the Supreme Court of Appeal did not allow access to this secret
evidence by simply ignoring the request by the Principal Applicant
made in his appeal;
4. the Supreme Court of Appeal did not allow the Applicant-Lawyer to
make a request to get access to this secret evidence during the
appeal hearing;
5. the Supreme Court of Appeal did not allow participation of the
Principal Applicant and his legal representative, the
Applicant-Lawyer, in the appeal hearing;
6. the Supreme Court sitting ex parte in chambers' Decision of 10
April 2013 and the Supreme Court of Appeal's Decision of 4 June
2013 are not available to the public because they were not
published online or provided at the request of journalists or
representatives of civil society;
The Principal Applicant and his legal representative, the
Applicant-Lawyer in the present case before the European Court, were
not allowed to have access to the necessary information for the case
(i.e. the secret evidence) and were prevented from expressing their
views before the Supreme Court of Appeal;
The representative of civil society (the NGO Sutyajnik) and of
journalist society (news agency Sutyajnik-Press) (the
Applicant-NGO/News-Agency) was not allowed to access the Decisions
which were delivered without the participation of the Principal
Applicant and his legal representative, the Applicant-Lawyer, which
were based on secret evidence.
The facts, as described above, made the Principal Applicant, his legal
representative (the Applicant-Lawyer), and the
Applicant-NGO/News-Agency to apply to the European Court of Human
Rights for a legal remedy.
III. Statement of alleged violations of the Convention and/or
Protocols, and of relevant arguments
* A. VIOLATION OF THE RIGHT TO FREEDOM OF MOVEMENT (VIOLATION OF
ARTICLE 2 OF PROTOCOL 4).
The Regulations of the Russian federal government which essentially
force the Applicant to travel from Moscow to Dimitrovgrad in order to
request the duplicate of his driver's license, violate his right of
freedom of movement guaranteed by Article 2 of Protocol No.4 to the
European Convention by discriminating the Applicant with regard to
other Russian citizens, who are register in Moscow or do not have
registration at all.
THE LAW
42. Article 2 of Protocol No.4 to the European Convention states:
1. Everyone lawfully within the territory of a State shall, within
that territory, have the right to liberty of movement and freedom to
choose his residence.
2. Everyone shall be free to leave any country, including his own.
3. No restrictions shall be placed on the exercise of these rights
other than such as are in accordance with law and are necessary in a
democratic society in the interests of national security or public
safety, for the maintenance of "ordre public", for the prevention of
crime, for the protection of health or morals, or for the protection
of the rights and freedoms of others.
4. The rights set forth in paragraph 1 may also be subject, in
particular areas, to restrictions imposed in accordance with law and
justified by the public interests in a democratic society.
43. The right to freedom of movement is a fundamental human right^. In
addition to in Article 2 of Protocol 4 to the European Convention,
this right is found in several other human rights instruments,
such as Article 12 of the International Covenant on Civil and
Political Rights (ICCPR), Article 22 of the American Convention on
Human Rights, Article 12 of the African Charter on Human and
Peoples' Rights, and Article 13 of the United Declaration of Human
Rights^.
44. Article 2 of Protocol 4 protects inter alia the right to freely
move within a country. The purpose of this provision is close to
the notion of personal self-development. The individual right to
stay and the right to leave are included in the right to freedom
of movement .
45. Thus, the right to freedom of movement covers the Applicant's
right not to be forced to stay in one place as well as his right
not to be forced to move from one place to another within a
country. Under Article 2 of Protocol 4, the Applicant has a right
to freely travel wherever and whenever he wants within Russia.
46. According to Article 2 (3) and (4) of Protocol 4, Article 12 of
the ICCPR, the human right of freedom of movement can be
restricted only for a few reasons.
47. Article 12 of the ICCPR, to which the Russian Federation is also a
party, defines the right to freedom of movement in the following
terms:
1. Everyone lawfully within the territory of a State shall, within
that territory, have the right to liberty of movement and freedom to
choose his residence.
2. Everyone shall be free to leave any country including his own.
3. The above-mentioned rights shall not be subject to any restrictions
except those which are provided by law, are necessary to protect
national security, public order (ordre public), public health or
morals or the rights and freedoms of others, and are consistent with
the other rights recognized in the present Covenant.
48. The Human Rights Committee has stated in the General Comments no.
27 (67) to Article 12 of the ICCPR that restrictions of the right
of freedom of movement must be clear, proportional and that they
must not impair the essence of the right:
13. In adopting laws providing for restrictions permitted by article
12, paragraph 3, States should always be guided by the principle that
the restrictions must not impair the essence of the right (cf. art. 5,
para. 1); the relation between right and restriction, between norm and
exception, must not be reversed. The laws authorizing the application
of restrictions should use precise criteria and may not confer
unfettered discretion on those charged with their execution.
14. [...] Restrictive measures must conform to the principle of
proportionality; they must be appropriate to achieve their protective
function; they must be the least intrusive instrument amongst those
which might achieve the desired result; and they must be proportionate
to the interest to be protected.
15. The principle of proportionality has to be respected not only in
the law that frames the restrictions, but also by the administrative
and judicial authorities in applying the law. States should ensure
that any proceedings relating to the exercise or restriction of these
rights are expeditious and that reasons for the application of
restrictive measures are provided.
16. [...] The application of restrictions in any individual case must
be based on clear legal grounds and meet the test of necessity and the
requirements of proportionality.
17. A major source of concern is the manifold legal and bureaucratic
barriers unnecessarily affecting the full enjoyment of the rights of
the individuals to move freely, to leave a country, including their
own, and to take up residence.^
49. The compulsion for the Applicant to undertake a 2000 km roundtrip
voyage to Dimitrovgrad in order to request the authorities to
issue a duplicate of his driver's license subjects his civil
rights to the obligation of registering his place of residence at
a particular place of registration.
50. This registration system known as "propiska" was established in
1932 in the Soviet Union. The propiska system was instituted in
order to plan the Soviet union's "economic development of the
country [and to shape] migration flows". The realization of civil
rights and obligations depended on the existence of propiska,
because rights could be exercised only at the place of
registration.
51. Propiska was officially abolished in 1993 with the Federal Law "On
the right of citizens of the Russian Federation to freedom of
movement and choice of domicile on the Territory of the Russian
Federation". Under Part 2 of Article 3 of this Law "Registration
or non-registration may not serve as a ground or condition for the
implementation of the rights and freedoms of citizens, provided
for by the Constitution of the Russian Federation, the laws of the
Russian Federation, the Constitutions and laws of the Republics
within the Russian Federation."^ Despite this provision and in
violation of its international human rights obligations, the
Russian Federation has adopted laws, as in the present case, which
provide for restrictions to the freedom of movement that are in
violation of the principle that "the restrictions must not impair
the essence of the right" (Article 12, paragraph 3, of the ICCPR).
52. Today, making the exercise of civil rights and obligations
dependant on a registration is a bureaucratic obstacle to the
freedom of movement, and such a limitation of rights is neither
appropriate to the interest to be protected nor is it based on
clear legal grounds as required by Part 4 of Article 2 of Protocol
4 to the Convention as well as Article 12 of the ICCPR.
53. Propiska is still part of the system, now called "registration",
in question in this case, which has notable effects in terms of
enjoyment of human rights and basic freedoms like the Applicant's
right to freedom of movement.
54. At present, the advances in technology must make it possible for a
country's authorities to be able to network, coordinate and to
share documents and knowledge about the status of its citizens.
This is especially urgent in a large country like the Russian
Federation where the distances can be up to 9000 km. At the very
least, it should be possible to apply for a duplicate of one's
driver's license by application letter or an authorized
representative/agency, rather than having to travel large
distances in person.
55. The European Court has previously expressed serious concerns about
the Russian registration system. In the Case of Tatishvili v.
Russia the Court stated that "[t]he Court must further determine
whether the interference complained of was justified. In this
connection it observes that the Parliamentary Assembly of the
Council of Europe expressed concern over the existing restrictive
system of residence registration in Russia."^
56. Moreover, the Parliamentary Assembly of the Council of Europe
(hereinafter ``PACE'') in its Report Doc. 9262 of 12 October 2001
urged Russia:
"a. to undertake a thorough review of national laws and policies with
a view to eliminating any provisions which might impede the right to
freedom of movement and choice of place of residence within internal
borders;
b. to refrain from applying and legitimising regulations and practices
which might hinder fair implementation of the above mentioned
right..."^
57. Further PACE in Resolution 1277 (2002) on the honouring of
obligations and commitments by the Russian Federation, which was
adopted on 23 April 2002, noted as follows:
"8. However, the Assembly is concerned about a number of obligations
and major commitments with which progress remains insufficient, and
the honouring of which requires further action by the Russian
authorities:
[...]
xii. whilst noting that the Russian federal authorities have achieved
notable progress in abolishing the remains of the
old propiska (internal registration) system, the Assembly regrets that
restrictive registration requirements continue to be enforced, often
in a discriminatory manner, against ethnic minorities. Therefore, the
Assembly reiterates its call made in Recommendation 1544 (2001), in
which it urged member States concerned `to undertake a thorough review
of national laws and policies with a view to eliminating any
provisions which might impede the right to freedom of movement and
choice of place of residence within internal borders';"^
57. Such restrictive and discriminatory registration requirements are
still enforced in 2013 as is evident from the present case before
the European Court.
APPLICATION OF FACTS OF THE CASE TO THE LAW
* The Applicant is forced to travel from Moscow to Dimitrovgrad;
* The obligation of the Applicant to travel from Moscow to
Dimitrovgrad has a chilling effect on his right to freedom of
movement within the country.
The Applicant is forced to travel from Moscow to Dimitrovgrad (undue
restriction of freedom of movement).
58. Federal authorities violated the Principal Applicant's right to
freedom of movement by denying the possibility to receive a
duplicate of his lost driver's license in the place of his de
facto residence in Moscow, rather than in the place of his
registered residence in Dimitrovgrad, because he lacks a
registration in Moscow (which he has no opportunity to obtain).
59. The right of the Principal Applicant to receive the duplicate of
his driver's license depends on the existence of the residence
registration in Moscow, not on his ability to drive a car. This
impacts his right to freedom of movement. His right to move freely
is discriminately dependant on the existence of the registration
in Moscow. The Russian Regulations in question of 1999 and 2000
force the Principal Applicant to travel to the place of his
official registration in Dimitrovgrad in order to exercise his
right to request from the authorities a duplicate of his license
which certifies his right to drive a car.
60. Travel to Dimitrovgrad and back to Moscow is approximately 2000
km. It requires at least three days to travel there, then to apply
for the duplicate licence and to return back to Moscow. The single
trip one-way travel time is 18 hours by train.^ This means the
Principal Applicant has to travel for 36 hours by train at his own
expense, not to mention expenses he would have to incur while in
Dimitrovgrad.
The obligation of the Applicant to travel from Moscow to Dimitrovgrad
has a chilling effect on his right to freedom of movement within the
country
61. Federal government Regulations of 1999 and 2000 in this case
oblige the Applicant to travel from Moscow to Dimitrovgrad in
order to exercise his civil right to use a basic civil service
(that is, make a request of documents from governmental
authorities). For the Applicant, this means that each time he has
a request regarding the issuance of a document, he has to go
through this difficult process. This is despite the fact that
Article 3 of the Federal Law "On the right of citizens of the
Russian Federation to freedom of movement and choice of domicile
on the territory of the Russian Federation" states that the
realisation of rights must not depend on registration. This, apart
from being in direct violation of the Applicant's right to move
freely, has a chilling effect on the Applicant's right to freedom
of movement within the country, particularly to choose his place
of residence.
62. The dependency of the enjoyment of rights on the existence of the
registration has a chilling effect on the right to freely move
within the country as well. In the current situation, it is much
more difficult for the Applicant to live and work in Moscow rather
than in his home town of Dimitrovgrad as he is only able to
exercise his civil rights, including the right to requests
documents from the state authorities, in Dimitrovgrad.
63. As previously mentioned, subjecting the exercise of civil rights
on registration is a core element of the Soviet propiska system,
the goal of which was to restrict unauthorised movement of
citizens within the USSR. It still exists in the Russian legal
system as is demonstrated by the present case.
64. The Federal government Regulations of 1999 and 2000 in this case
demonstrate that no actions were undertaken in order to abolish
such practices, despite the call made by PACE "to undertake a
thorough review of national laws and policies with a view to
eliminating any provisions which might impede the right to freedom
of movement and choice of place of residence within internal
borders."^
65. Another, element which causes a chilling effect on the Applicant's
right to freedom of movement is the monetary cost of travel from
Moscow to and from Dimitrovgrad. (Further details at paragraphs 66
and 67).
66. The compulsion to travel to Dimitrovgrad in order to request the
duplicate of the driver's license due to the 1999 and 2000
regulations also affects the Applicant's right to the peaceful
enjoyment of his possessions. The compulsion to travel constrains
the Applicant's property right because he has to pay a minimum of
2600 Rubbles (RUR) which is the minimal cost of a third class
return ticket (plazkart) by train from Moscow to Dimitrovgrad and
back again.^
67. Also during the required minimal travel time of 3 days, the
Principal Applicant will not be able to perform his work because
the application for a duplicate driver's license can only be made
on weekdays. Thus, the Principal Applicant will experience
additional losses of income totalling 6426 RUR of his salary
(which is the equivalent of three days taken out of a 28 day
vacation period).
* B. VIOLATION OF THE RIGHT TO FREEDOM FROM DISCRIMINATION
(VIOLATION OF ARTICLE 14 READ IN CONJUNCTION WITH ARTICLE 2 OF
PROTOCOL No.4).
68. Article 14 - Prohibition of discrimination:
The enjoyment of the rights and freedoms set forth in this Convention
shall be secured without discrimination on any ground such as sex,
race, colour, language, religion, political or other opinion, national
or social origin, association with a national minority, property,
birth or other status.
69. Article 14 is applicable, if the subject of treatment is a form of
exercise of the right guaranteed by the European Convention or the
challenged measure is closely connected with the exercise of a
right guaranteed by the European Convention^. However, a violation
is not necessary^.
70. A prerequisite for the application of Article 14 is that people
have been treated differently in a comparable or substantially
similar legal situation^.
71. The Principal Applicant faced a comparable situation like many
other Russian citizens required to apply for a duplicate of a
driver's license.
72. However, the Principal Applicant was treated differently from
those other citizens who are registered in Moscow or those who do
not have a registration at all: the Principal Applicant as an
individual who lives in Moscow but is not registered there has to
travel to the place of his legally registered residence. The
person who lives in Moscow and is registered in Moscow or is not
registered at all (also called BOMZH, БОМЖ) can apply for the
duplicate driver's in Moscow.
73. The compulsion of the Applicant to travel about 2000 km roundtrip
to Dimitrovgrad is neither appropriate to the interest to be
protected, nor is it based on clear legal grounds. The compulsion
to travel is based on the discriminatory ground of a person being
in possession of a registration in Moscow, or not having any
registration in Russia at all.
74. This different treatment of Russian citizens on the basis of
possession of registration or lack of it is in violation of
Article 14 of the European Convention taken in conjunction with
Article 2 of Protocol No.4.
75. The Applicant's right to move freely is violated because of the
discriminatory effect of the provisions of Regulations on 1999 and
2000. The requirements of these Regulations are impossible to meet
as described in the facts of this case: it is impossible to
register in Moscow, and the State makes no compromise or
reasonable exemption on this point, despite PACE's recommendations
to this effect. Therefore, the Russian government discriminately
restricts the right to freedom of movement of the Applicant who
does not possess a registration in Moscow but de facto resides
there.
76. The registration system therefore violates the Applicant's right
to freely choose his place of residence, and infringes his access
to other human rights (such as healthcare, education, etc.). In
such a context, no state law should make the enjoyment of a human
right or the access to governmental services dependant on such a
registration system.^
77. Article 14 requires an objective and reasonable justification for
unequal treatment. In the present case before this Court, there is
no justified basis for the application for the duplicate of a
driver's license to be allowed only at the place of legal
residency. The only justification for subjecting such a right to
the system of registration is that it is more convenient for the
authorities of the Ministry of Internal Affairs to perform their
duties.
* C. VIOLATION OF THE RIGHT TO FREEDOM OF EXPRESSION (VIOLATION OF
ARTICLE 10)
78. Article 10 of the Convention provides:
"Everyone has the right to freedom of expression. This right shall
include freedom to hold opinions and to receive and impart information
and ideas without interference by public authority and regardless of
frontiers. [...]
The exercise of these freedoms, since it carries with it duties and
responsibilities, may be subject to such formalities, conditions,
restrictions or penalties as are prescribed by law and are necessary
in a democratic society [...]."
79. The present case clearly shows a violation of the Principal
Applicant and the Applicant-Lawyer's right to freedom of
expression, as understood by the European Court of Human Rights,
on two grounds, namely the denial of access to information and the
denial of a possibility to be heard.
NO ACCESS TO INFORMATION
80. First, the Supreme Court sitting ex parte in chambers (in the
Decision of 10 April 2013) and the Supreme Court of Appeal (in the
Decision of 4 June 2013) prevented access to the argumentation and
the 2007 case' materials regarding judgment ГКПИ07-527 of 29
August 2007, which hindered the right of access to information,
which is an essential component of the right to freedom of
expression. By failing to allow access to case materials and legal
argumentation, the Russian Supreme Court restricted the right of
information that Principal Applicant and Applicant-Lawyer needed
for their legal defence in these cases. It also violated the right
of the Applicant-NGO/News-Agency for denying it access to the
Decisions of 10 April 2013 and 4 June 2013, which is contrary to
the public's rights and needs within a democratic society. Access
to these Decisions (on both the merits and on admissibility) would
have allowed the Applicant and his legal representative (the
Applicant-Lawyer) to litigate their case, as well as allowed the
public to be informed of the actions of the judiciary. In this
case, a member of the public should be able, as the Court pointed
out in Kobenter and Standard Verlags Gmbh v. Austria, to "verify
that judges are discharging their heavy responsibilities in a
manner that is in conformity with the aim which is the basis of
the task entrusted to them" (Kobenter and Standard Verlags Gmbh v.
Austria, at paragraph 29).
81. Moreover, Article 10 of the European Convention should be
understood as including the right to access to information and
official documents in a timely fashion, as mentioned in the
Committee of Minister's Recommendations of 2002^ and 2003^. These
Recommendations formulate, articulate, and extend the right to
freedom of information in member States, including Russia, and
require them to "guarantee the right of everyone to have access,
on request, to official documents held by public authorities."^
The Recommendations acknowledge that special regard should be
given toward the access to information held by legislative bodies
and judicial authorities, thereby allowing the member States to
apply and implement measures to respect these principles.^
82. Access to case materials, as well as legal arguments and
information, is particularly crucial for any potential
applicants/litigants and their lawyers involved in a case, as well
as for the public at large. Indeed, the European Court has
previously mentioned the importance for the public to be informed
of judicial matters. For instance, in Ressiot and others v.
France, the Court recognized that the public at large had to be
informed of judicial activities in order to supervise its own
legal system (Ressiot and others v. France, at paragraph 102). The
lack of timely access to the both the argumentation and case
materials of the judgment No. ГКПИ07-527 (the 2007 case),
demonstrates the Russian Federation's breach of Article 10 of the
European Convention.
NO ACCESS TO THE HEARING
83. Second, the European Court has stated that the public has a right
to receive information on "questions concerning the functioning of
the system of justice, an institution that is essential for any
democratic society." (Kobenter and Standard Verlags Gmbh v.
Austria, at paragraph 29^). Thus, judicial activities are
specifically included given the very definition of a democratic
society and institutions, which contribute to the flow of
information in any such society. Therefore freedom of information
also entails reasonable and timely access by legal professionals,
such as lawyers, to jurisprudence, which is a part of law. In the
present case, the Supreme Court has prevented the Principal
Applicant's legal representative, the Applicant-Lawyer, from
accomplishing a professional undertaking since he could not have
access to the argumentation, evidence, and case material, and was
not even allowed to participate in the hearing, all of which form
passive and active components of the right to freedom of
expression.
84. This essentially obstructive measure clearly constituted a
violation of the right to freedom of expression, especially
considering the special status of lawyers in any democratic
society. Indeed, the European Court has characterized them as
playing a "central position in the administration of justice, as
intermediaries between the public and the courts" (Schoepfer v
Switzerland, at paragraphs 17 and 29-30; Casado Coca v. Spain, at
paragraph 54; Nikula v. Finland, at paragraph 45).
85. In addition, the Supreme Court of Appeal prevented the Applicant's
legal representative, the Applicant-Lawyer, from accomplishing a
professional undertaking because the latter was not allowed to
submit any argumentation whatsoever to the court on behalf of his
client, according to the Supreme Court of Appeal's interpretation
of Part 2 of Article 333 of the Civil Procedure Code in the
Decision of 4 June 2013. This undeniably violated the right to
freedom of expression of the Principal Applicant as well as that
of his legal representative, the Applicant-Lawyer in the present
case before the European Court.
86. This violation is even more severe considering the role of a
"public watchdog" played by the legal representative in question,
who is also human rights defender. Indeed, human rights defenders
have been recognized as being a "public watchdog" and have been
granted the right to impart information of public interest in a
similar manner to members of the Press (Tarsasag a
Szabadsagjogokert v. Hungary).^ Since the Applicant-Lawyer was
engaged in a "legitimate gathering of information on a matter of
public importance" (Tarsasag a Szabadsagjogokert v. Hungary, at
paragraph 28)^, the Court must conclude a violation of Article 10
of the Convention in the following regards:
1. lack of access to argumentation, evidence and the materials of the
case ГКПИ07-527 of 2007 as regards the Principal Applicant and the
Applicant-Lawyer;
2. lack of access to the appeal hearing on 4 June 2013 as regards the
Principal Applicant and the Applicant-Lawyer;
3. lack of access to the Decisions of 10 April 2013 and 4 June 2013
as regard the Applicant-NGO\News-Agency.
* D. VIOLATION OF THE RIGHT TO A FAIR TRIAL (VIOLATION OF ARTICLE 6
S: 1)
Article 6 S: 1 of the European Convention provides:
"In the determination of his civil rights and obligations [...]
everyone is entitled to a fair and public hearing within a reasonable
time by an independent and impartial tribunal established by law.
[...]. Judgment shall be pronounced publicly [...] in a democratic
society [...]."
* D.1. Applicability of Article 6 S: 1 to the Present Case.
THE LAW
88. The wording of Article 6 S: 1 requires the existence of a dispute
over a civil right rooted in national law. The notion of a dispute
over a civil right should be understood widely as including any
procedure where the outcome could infringe a civil right. As has
been held by the European Court in Benthem v. Netherlands (1985):
"in order to constitute a `determination' of civil rights and
obligations, the outcome of a dispute must be directly decisive
for those rights or obligations. The rights at issue must be
central to the proceedings, and may not be merely incidental or
have a remote or tenuous connection to the outcome of the domestic
proceedings in question."^ It is not sufficient to simply consider
the national label attached to the procedure, but rather the real
nature of a dispute behind that national label must be addressed.
89. Traditionally, the European Court has considered the civil rights
as a part of the private law sphere. However, it was decided that
not only can procedures between private individuals meet that
definition, but also disputes occurring between a government and
individuals. In Ringeisen v. Austria (1971), the Court says that
``it is not important for the dispute to occur between two private
persons to be considered as a civil procedure. The wording of
Article 6 S: 1 is far wider; covering all proceedings the result
of which is decisive for private rights and obligations".^ In that
case, the administrative authorities decided not to approve the
sale of a piece of land belonging to the applicant Ringeisen. The
Court held that the outcome of the proceedings at issue would
affect that applicant's private rights because a pecuniary damage
was involved. That same logic was applied also in Benthem v.
Netherlands (1985) where the applicant Benthem was refused a
business license.
90. The European Court has indicated that Article 6 S: 1 does not give
a particular definition of the notion of civil rights. Indeed, in
H v. Belgium (1987), the Court said that Article 6 S: 1 does not
in itself guarantee any particular content for (civil) "rights and
obligations." It should apply to disputes over (civil) "rights and
obligations" which can be said, at least on arguable grounds, to
be recognised under domestic law.^ In that case, the applicant was
trying to restore his license to practice law after a period of
suspension by authorities. The issue was to determine if the
administrative dismissal of his application was effectively a
civil procedure. Because the right to apply for a license to
practice law was a civil right recognised under domestic law, and
because the role of the lawyer featured a civil aspect, the case
fulfilled the requirements of Article 6 S: 1. The Court also noted
that the outcome of the proceedings has caused a pecuniary damage
to the applicant by preventing him from exercising his chosen
profession altogether.
91. Even if the notion of pecuniary damage has often been used by the
European Court to establish the existence of a civil proceeding,
it is not a conditio sine qua non. Indeed, the expression "civil
rights" can refer to proceedings involving private law aspects,
but it can also refer to proceedings related to civil rights in a
wider sense. In Kenedi v. Hungary (2009), the Court recognised the
applicability of Article 6 S: 1 to a case relating to freedom of
expression. This case concerned a historian to whom the access to
governmental documentation was denied. In its judgment, the Court
recalled "that the right to freedom of expression constitutes a
"civil right" for the purposes of Article 6 S: 1. The Court was
therefore satisfied that the subject matter of the case [fell]
under the civil limb of Article 6 S: 1".^
APPLICATION TO THE PRESENT CASE
92. The provisions that were first contested by the Principal
Applicant before the Russian Supreme Court and the Constitutional
Court were part of the 1999 Regulation and 2000 Regulation: "[...]
issuance and exchange of driving licences is carried out by the
State Inspection of Traffic Police on the territory of the subject
of the Russian Federation where the citizen is registered in the
place of his permanent residence or temporary residence". As
mentioned in the statement of facts, the Principal Applicant was
in practice refused an opportunity to obtain a duplicate of his
lost driver's license in the city of Moscow, and was told to go to
Dimitrovgrad, Ulianovsk region, a three-day 2000 km round trip
voyage to obtain such a document in person.
93. The problem lies in the requirement of being registered. Simply
"modifying" the official place of registration is sometimes
impossible for citizens, such as the Principal Applicant who
merely rented an apartment in Moscow. Consequently, any rule which
requires a local registration to have access to a State service
effectively discriminates based on the citizen's place of
residence, a prohibited ground of discrimination protected
explicitly by Article 14 of the European Convention and the
Russian Constitution. In the instant case, because the 1999
Regulation and the 2000 Regulation requires such a local
registration for realization of the Applicant's right to apply for
duplicate of his lost driver's license, and because no other
options were offered to the Principal Applicant, the normative
Regulations are discriminatory on this prohibited ground.
94. Therefore, the discriminatory effects of the 1999 Regulation and
the 2000 Regulation infringe the Applicant's freedom of movement
to choose his place of residence. This civil right is rooted in
Russian national law in Article 27 S: 1 of the Constitution of the
Russian Federation, under the second chapter entitled "Rights and
Freedoms of Man and Citizen":
"Everyone who is legally present on the territory of the Russian
Federation shall have the right to travel freely and freely to choose
the place of temporary or permanent residence."
95. According to the requirements set out in Benthem v. Netherlands,
the civil right (freedom of movement) must be directly affected by
the outcome of the proceeding. The discriminatory effect of the
1999 Regulation and the 2000 Regulation unduly forces the
Principal Applicant to travel for many days to simply to obtain a
duplicate of his lost driver's licence. This form of forced,
unreasonable displacement should be considered by the European
Court as a major violation of the Applicant's civil right to
freedom of movement recognised both by the Constitution of the
Russian Federation and by the European Convention at Article 2 of
Protocol No.4.
96. In the same way, but more insidiously, the effects of the 1999
Regulation and the 2000 Regulation constitute a barrier to the
right to freely choose one's place of residence because these
Regulations require citizens to be registered, and because this
requirement is impossible to meet or comply with in certain
populous cities such as Moscow. These regulations truly have the
tangible effect of diminishing the real capacity to freely choose
a place of residence, where all rights may be freely exercised. In
the present case, this undue restriction as applied to a citizen
who effectively lives in Moscow and infringes the Principal
Applicant's right to freely choose his place of residence, and
exercise his rights accordingly. This should thus be considered as
a deprivation of a "civil right" as defined by Article 6 S: 1.
97. Also, the outcome of the proceeding had a pecuniary effect on the
Principal Applicant, consistent with the European Court's
requirement of demonstrating a consequence on the livelihood of an
Applicant, affecting wages or property.^ In the present case, in
order to get a duplicate of the driver's licence, the Principal
Applicant would have to take time off from work for at least three
days, foregoing his salary and his professional reputation as a
reliable employee. Taking off three days of work for personal
reasons, is not well seen by employers, and could have negative
repercussions on the Applicant professionally. He is also forced
to pay for the public transportation to obtain his duplicate
driver's license for a 2000 km roundtrip voyage. Then, beyond the
denial of the civil right to freedom of movement, the present case
concerns a denial of civil rights, under its private law meaning
(which includes professional and pecuniary aspects).
98. Before the Constitutional Court, the Principal Applicant and the
Applicant-Lawyer also challenged the perverse interpretation of
Part 2 of Article 333 of the Civil Procedure Code^ made by the
Supreme Court of Appeal. The Supreme Court of Appeal employed Part
2 of Article 333 as a pretext to deny that it had any jurisdiction
to hear the arguments from any of the parties present in the
Courtroom. The Constitutional Court rejected the application by
the Principal Applicant, whereas the application by the
Applicant-Lawyer was simply ignored, the latter having never
received any reply or decision from the Constitutional Court. By
this interpretation, the Russian courts clearly violated the right
of the Principal Applicant and the Applicant-Lawyer to freedom of
expression as incorporated in the Constitution of the Russian
Federation (Art 29) and the European Convention (Art 10)^.
Therefore, it is reasonable to consider the proceeding as of a
civil nature, because its outcome, negatively affected the civil
rights of the Principal Applicant in a direct manner.
99. In the same way, the Supreme Court of Appeal as well as the
Constitutional Court, prevented the Principal Applicant's legal
representative, the Applicant-Lawyer, from accomplishing his
professional undertakings since he himself, as an officer of the
court, was altogether prohibited from submitting anything to these
Courts on behalf of his client.^ For these reasons, the European
Court should characterize the procedure and its outcome as being
of a "civil nature", and as being in violation of Article 6 S: 1.
* D.2. The "Right to a Court" under Article 6(1) of the Convention.
THE LAW.
100. According to the European Court's case-law, Article 6 S: 1
embodies the "right to a court", of which the right of access to a
court, that is, the right to institute proceedings before courts
in civil matters, constitutes one aspect only.^ For the right of
access to a court to be effective, an individual must have a
clear, practical opportunity to challenge an act that is an
interference with his or her rights.^
101. Even though the "right to a court" is not absolute and lends
itself to limitations, these however, must not restrict the
exercise of the right in such a way or to such an extent that the
very essence of the right is impaired. They must pursue a
legitimate aim and there must be a reasonable degree of
proportionality between the means employed and the aim sought to
be achieved.^ Rules governing the procedure and time-limits
applicable to legal remedies are intended to ensure a proper
administration of justice and compliance with, in particular, the
principle of legal certainty^. The European Court's task, in this
sphere, is not to review the relevant law and practice in
abstracto, but to determine whether the manner in which they
affected the Principal Applicant gave rise to a violation of the
Convention.^
VIOLATION OF ARTICLE 6 S: 1
102. In the present case, even though the Principal Applicant had
"access" to the four courts, none of them ruled on the merits of
the case as put before them, due to the cumulative effects of
violations of the right to a fair trial and ensuing guarantees.
According to the European Court, this may be sufficient for the
Court to consider that^ such a "situation amounts to a denial of
justice which impaired the very essence of the [Applicant's] right
of access to a court as secured by Article 6 S: 1 of the
Convention."^ Indeed, the present case is one where it clearly
appears that the Applicant faced an opaque, secretive system of
justice.
LACK OF ACCESS TO CASE MATERIALS WHICH CONTAIN MAIN EVIDENCE
103. First, on 5 April 2013, the Applicant applied to the Russian
Supreme Court to challenge the 1999 Regulation and the 2000
Regulation which infringed his right to move freely within the
country. On 10 April 2013, the Supreme Court sitting ex parte in
chambers rejected his application on the basis of a 2007
unpublished case (Judgment No. ГКПИ07-527) which no one but the
Supreme Court itself had access to (Decision of 10 April 2013;
decision of 4 June 2013). Moreover, as decisions relating to
inadmissibility of a case in Russia are not published, there is
neither transparency nor a reasonable means to address or redress
the consequences of an incorrect inadmissibility decision. As a
result, all similar cases therefore remain effectively secret
cases. The Principal Applicant had to file the submission for
appealing the decision by the Supreme Court sitting ex parte in
chambers (within the prescribed time limits) without ever having
access to either the 2007 judgment or the 2007 case material (on
which the Supreme Court had based its' Decision of 10 April 2013).
The Principal Applicant finally got a copy of the summary
information contained in the 2007 judgment through his own private
contacts, albeit too late to modify his initial appeal submission.
Anyway, the 2007 judgment No. ГКПИ07-527 summary obtained was not
sufficient as it did not contain either the grounds on which the
Applicant in 2007 case challenged the 1999 Regulation (the fact
which serves as the only evidence in the inadmissibility argument
in the Principal Applicant's case, and the fact which is only
available from the materials of the 2007 case No. ГКПИ07-527) nor
the identity of the former Applicant, in the 2007 case, as this
information could only be accessed in the 2007 case materials.
104. On 4 July 2013 before the Supreme Court of Appeal, the Principal
Applicant's request (contained in the appeal dated 15 April 2013
of the Decision of 10 April 2013) to access the 2007 case material
was altogether ignored. There is no way of knowing whether the
grounds of the 2007 precedent were the same as in the Principal
Applicant's case. Nevertheless, the Supreme Court of Appeal would
have had the positive obligation to verify any interpretation of
the 2007 grounds, and the conformity of such grounds with the
European Court's jurisprudence, which it did not do. Bearing in
mind that there was no hearing at first instance, the Supreme
Court of Appeal did not let the Principal Applicant or his legal
representative, the Applicant-Lawyer, to speak, make submissions
or present any arguments, or even request for the suspension of
the proceedings, as if the decision was already taken in advance.
In fact, there is no way to know if the appeal submission was at
all thoroughly examined since the European Convention's grounds
were neither mentioned in the appeal nor in the lower court's
decisions. Moreover, the legal representative of the Applicant was
refused by the Supreme Court of Appeal to submit a written
memorandum at the appeal hearing of 4 June 2013 (Annex 8). In
addition, the Principal Applicant's European Convention claims
were also completely absent from both inadmissibility decisions in
Constitutional Court. The European Court has affirmed^ that the
refusal to accept the submissions for examination may constitute a
restriction on the Principal Applicant's right of access to a
court.^
LACK OF ACCESS TO THE SUPREME COURT OF APPEAL HEARING
105. The Russian courts gave no explanations as to the reasons why
they used jurisprudence apparently unrelated to the Principal
Applicant's Convention claims when refusing to consider the merits
of the present case. The domestic authorities' explanations as to
the reasons for the refusal to let the Principal Applicant and his
legal representative, the Applicant-Lawyer, communicate with the
court in the instant case were based on the newly introduced Part
2 of Article 333 of the Civil Procedure Code: they interpreted
that if there is no need to notify the Principal Applicant for
considering a separate appeal, then the Principal Applicant shall
not participate in any way in the proceedings before the Court.
The appeal Decision of 4 June 2013 does not contain this
interpretation expressly. The Supreme Court of Appeal only
unofficially mentioned this interpretation after the hearing and
the audio record of this is available on the web-site.^ However,
the Constitutional Court expressly stated so in its decision of 24
September 2013 (Annex 20) delivered in regards to the application
by the Principal Applicant (Annex 17). The application by the
Applicant-Lawyer was ignored, and the latter never received any
reply or a decision from the Constitutional Court although he was
a co-applicant in the case of 25 June 2013 to the Constitutional
Court together with the Principal Applicant (Annex 17). However,
there is no apparent legitimacy of such limitation in a free and
democratic society, since it amounts to a denial of the very
essence of the principle of access to justice, as demonstrated in
the following discussion.
106. The effect of such application of the rules of procedures is
extreme: the Russian judicial body is implementing a complex,
closed system of what may be called "secret" justice. 1) The Court
refuses to consider the substance of a case on the basis of
"secret" jurisprudence and pleadings which may not even be
consistent with the relevant European Convention case law. 2) The
inadmissibility decisions of both the Supreme Court sitting ex
parte in chambers and the Supreme Court of Appeal were never
published, denying any legal certainty to Applicants seeking legal
remedies for an alleged violation of their civil rights, and
denying any opportunity of oversight by the public to the
administration of justice, notably against the Federal State and
on the grounds provided by the European Convention. 3) Both in the
Supreme Court sitting ex parte in chambers and in the Supreme
Court of Appeal, the Principal Applicant and the Applicant-Lawyer
could not participate, nor argue the validity of the application
of the 2007 case with regard to the present case, nor add
arguments, jurisprudence or make other submissions to the Supreme
Court sitting ex parte in chambers and to the Supreme Court of
Appeal. 4) The Constitutional Court rejected the application by
the Principal Applicant refusing to apply its jurisdiction to fix
this situation by declaring Part 2 of Article 333 of CPC to be
unconstitutional and ordering new proceedings. The application by
the Applicant-Lawyer was ignored. Consequently, the Principal
Applicant has no clear or practical opportunity for the Russian
courts to determine the infringement of his effective freedom of
movement, because of the systematic denial of access to judicial
information (unpublished decisions and judgments), a perverse
application of the rules of procedures (no right to participate to
the hearings), and the apparent systematic practice to ignore the
European Convention based-claims when rendering a decision on
inadmissibility (unsatisfactorily reasoned judgments). This
demonstrates a structural barrier to adjudicating European
Convention based-claims. The very essence of the right to a court
was thereby impaired here, and such a systemic denial of justice
cannot be justified as consistent with the proper administration
of justice.
107. As regards to the Principal Applicant this Court may conclude a
violation of the "right to a court" as protected under the article
6 S: 1 of the Convention in these circumstances of the following
facts of complete secrecy of justice (no opportunity of the
Applicant to participate in administration of justice):
1. use of "secret" evidence by the Supreme Court sitting ex parte in
chambers;
2. no hearing by the Supreme Court sitting ex parte in chambers;
3. no notification to the Applicant of the appeal hearing;
4. lack of access to the secret evidence before or during the appeal;
5. use of the secret evidence by the Supreme Court of Appeal;
6. no participation in the appeal hearing;
7. no publication of decisions of both courts;
8. no remedy to the right to court from the Constitutional Court.
* D.3. The Requirement to Respect the Principle of Adversarial
Process under Article 6 S: 1 of the Convention
THE LAW
108. The principle of equality of arms and adversarial process has
been defined by the European Court on many occasions. Indeed, it
requires that each party be given a reasonable opportunity to have
knowledge of and comment on the observations made or evidence
adduced by the other party and to present its case under
conditions that do not place it at a substantial disadvantage
vis-`a-vis its opponent.^ Each party must in principle have the
opportunity to make known any evidence needed for his claims to
succeed.^
109. Also, the European Court has affirmed that the effect of Article
6 S: 1 is, inter alia, to place the "tribunal" under a duty to
conduct a proper examination of the submissions, arguments and
evidence adduced by the parties, without prejudice to its
assessment of whether they are relevant to its decision.^ Finally,
the trust of those who are subject to judicial decision in the
functioning of justice is based, among other things, in the
assurance that they could express themselves on all materials in
the case.^
ALLEGED VIOLATION
110. First, it should be noted that the 2013 case was still in the
procedural stage. Consequently, the State as a responding party
(the Government of the Russian Federation and the Federal Ministry
of Internal Affairs) has not been notified yet of the Principal
Applicant's application of 5 April 2013 directed against it. In
other words, the Principal Applicant is the only party before the
Supreme Court sitting ex parte in chambers and the Supreme Court
of Appeal and both times before the Constitutional Court. This
means that the principal opponent of the Principal Applicant was
the Judges of Supreme Court given that he wanted to reverse the
decision of the Supreme Court sitting ex parte in chambers in
order to see the case judged on its merit, and given that the
Supreme Court sitting ex parte in chambers brought evidence on its
own initiative in its decision. In addition, it should be
considered that the compliance with the principle of adversarial
process is ensured by the judge whose role is to guarantee the
fairness of proceedings. In this context, the principle of
equality of arms and adversarial process must be understood as the
obligation for the court to make available all relevant material
and elements which are taken into account when the court makes its
decision. Indeed, the European Court noted in Elles and Others v.
Switzerland (2010):
Dans plusieurs affaires concernant la Suisse, la Cour a constate une
violation de l'article 6 S: 1 au motif que le requerant n'avait pas
ete invite `a s'exprimer sur les observations d'une autorite
judiciaire inferieure, d'une autorite administrative ou de la partie
adverse.^
111. In the same perspective, there has been a violation of the
principle of adversarial proceeding which implies the principles
of equality of arms in the present case, because the Principal
Applicant could not take note and comment on the relevant material
(the 2007 case material) which was vital to his 2013 case. Indeed,
as mentioned in the statement of facts, the Judge of first
instance ruled the case as being inadmissible on the basis of an
unpublished judgment which was neither available to the public,
nor to the Applicant, nor to his legal representative, the
Applicant-Lawyer. It was only a few days before the appeal that
the Principal Applicant accessed the judgment by his own private
channels, but this could not help much since the 2007 judgment
only stated the conclusions of the Court without giving the
parties' identity, the grounds of the application and the details
of the arguments presented before the Court. In fact, this latter
information was only contained in the case material, which they
were also not able to access despite request made in the appeal.
112. This raises the question of unjustified "secret" evidence.
Indeed, according to the European Court: ``the right to access to
all of the available evidence is restricted under two limitations:
the protection of national and vital interest and the protection
of Fundamental rights of others."^ However, none of these reasons
could be, or was applied in the present case. Consequently, the
2007 case materials can be deemed as "secret" evidence in fact,
since only Judges have access to this information and can give
access to this information, which they did not do. As a result,
the Principal Applicant was unable to prepare for the hearing in
appeal,^ because they could not take note and comment on the
information that directly affected the outcome of the case. At
this point, it is possible to see that no true adversarial process
was guaranteed, which also implies the related infringement of the
principle of equality of arms.
113. In Chambaz v. Switzerland (2012), the European Court stated that
when secret evidence is not subject to the control of the
jurisdiction of first instance, the lack of equity in the
procedure should be repaired in an appeal court by the
communication of all relevant materials.^ The unjustified use of
the secret evidence in first instance was not repaired in the
Supreme Court of Appeal. This latter reiterated the lower Court's
decision, did not allow the Applicant to access the 2007 case
materials and did not let him present further submissions to
discuss it. The lack of assistance of the Judges in this matter is
a breach of the principle of equality of arms. Indeed, in McGinley
and Egan v. The United Kingdom (1998) the European Court stated
that the principle of equality of arms can also be breached when
the person holding relevant information (in this case, the Supreme
Court) prevented the Applicant from gaining access to documents in
its possession which would have assisted him in the legal
proceedings.^ Thus, being denied his right to be heard, to present
his arguments and to comment on the relevant information of his
case, the Applicant found himself in a situation which places him
at a substantial disadvantage both in respect of lodging an
appeal, and in the subsequent presentation of any appeal.
114. In light of the explanations above, the Judges of the Supreme
Court sitting ex parte in chambers and the Supreme Court of Appeal
have not fulfilled their duties. By failing to ensure the equality
of arms and the adversarial process itself, they undermined the
confidence of the Principal Applicant and the Applicant-Lawyer in
the functioning of the judicial system, which is supposed to be
guaranteed in a free and democratic society. As a consequence, the
Court should find related violations of the guarantees of
adversarial proceedings and the equality of arms under Article 6
S: 1 of the European Convention in regards to the Principal
Applicant.
* D.4. The Right to a Public Hearing under Article 6 S: 1 of the
Convention
THE LAW - ORAL HEARING AND EFFECTIVE PARTICIPATION
115. The entitlement to the right to a "public hearing" in Article 6
S: 1 implies the right of a party to be present before the Court^
and subsequently the right to an "oral hearing", that is to say to
participate effectively at the hearing. Indeed, the European Court
had found that in proceedings before a court of first and only
instance, the right to a "public hearing" in the sense of Article
6 S: 1 entails an entitlement to an "oral hearing" unless there
are exceptional circumstances that justify dispensing with such a
hearing.^ The exceptional character of the circumstances which may
justify dispensing with an oral hearing essentially relate to the
nature of the issues to be decided by the competent national
court, but not the frequency of such situations.^ There may be
proceedings in which an oral hearing may not be required: for
example where there are no issues of credibility or contested
facts which necessitate a hearing and the courts may fairly and
reasonably decide the case on the basis of the parties'
submissions and other written materials.^
VIOLATION - ORAL HEARING AND EFFECTIVE PARTICIPATION
116. In the present case, the absence of a public and oral hearing is
due to the fact that the Russian Courts assessed the case on
procedural matters. However, because of anomalies, that is to say
the absence of adequate opportunities for the Applicant to put
forward his case in writing and to challenge the evidence against
him, an oral hearing should have been granted in the Supreme Court
of Appeal.
117. As explained before, the Supreme Court sitting ex parte in
chambers took its Decision of 10 April 2013 based upon an
unpublished and inaccessible case of 2007 and upon case materials
which contained de facto secret evidence which already checked the
legality of the normative challenged Regulations, supposedly on
the same grounds (Decision No. ГКПИ07-527 of 09 August 2007.).
This could not even be verified as the 2007 case materials were
altogether inaccessible to the Applicant even on demand, and the
grounds were completely absent from the text of the 2007 judgment
(See Annex 27). Consequently, the present 2013 case was ruled
inadmissible only on the basis of a "secret" precedent which
challenged the same Regulations, but probably not on the same
grounds as to the present application.^ Moreover, this means that
the Applicant could not effectively contest the decision and
reasonably prepare for the appeal, since he lacked essential
information.
118. This application of the rules of procedure (on decisions of
inadmissibility) was questionable insofar since it raised doubts
as to the respect of the principles enshrined in the right to a
fair trial (such as an adversarial process and a reasoned
judgment). This could have been remedied on appeal, but it was
not.
119. Where proceedings by the Supreme Court sitting ex parte in
chambers at first instance did not involve the Applicant's
attendance, this may be cured at the appeal level, as long as the
appeal court is entitled to rule on questions of fact as well as
law. In the instant case, the decision by the Supreme Court
sitting ex parte in chambers was made without any hearing as it
was an inadmissibility decision. However, given that there were
anomalies in the decision of first instance, the Supreme Court of
Appeal must have given the Principal Applicant the opportunity to
challenge in writing or orally the 2007 "secret" evidence put
against him by the Supreme Court sitting ex parte in chambers. The
Principal Applicant could not present appropriate written
submissions since he had no access to the 2007 case material.
While he and his legal representative were able to access the
court room during the appeal, the Supreme Court of Appeal did not
let them participate at all in the hearing, either by submissions
or orally, and ignored their demand to access the 2007 case
evidence used to rule against the Principal Applicant, and did not
suspend the proceedings. It is one thing to be physically present
before the Court; it is another to be allowed to participate
effectively.
120. According to the Russian domestic procedure before an appeal
Court, the Judge must take the
attendance of the parties before starting the trial (Part 2 of Article
161 of Civil Procedure Code). But the Supreme Court of Appeal totally
ignored this part and immediately passed to the examination of the
case without accepting any submission (written or oral) and refusing
to let the Applicant and his legal representative, the
Applicant-Lawyer, speak. In fact, the Supreme Court of Appeal
proceeded as if the concerned party was not there. It is interesting
to mention that the European Court noted the Russian habit to
disregard the presence of applicants before appeal instances. In
Kolegovy v. Russia (2012) the applicant was not properly notified in
due time for the appeal hearing; and the Russian Court accepted oral
submissions from the State in absence of the applicant:
"The participation in the hearing enabled the other party to submit
observations on the applicants' appeal submissions, which were not
communicated to the applicants and to which they could not reply
orally. The Court reiterates that it has frequently found a violation
of Article 6 S: 1 of the Convention in cases raising issues similar to
the one in the present case."^
121. The Russian Court of Appeal invoked Part 2 of Article 333 of the
Civil Procedure Code and prohibited the Applicant and his legal
representative, the Applicant-Lawyer, from speaking altogether:
"A separate appeal or prosecutor's presentation against a ruling of a
court of the first instance, except for rulings to suspend proceedings
in respect of a case, to terminate proceedings in respect of a case or
to shelve an application shall be considered without notifying the
persons participating in the case" (Part 2 of Article 333 of the Civil
Procedure Code).
122. It is true that on the one hand, this article does not oblige the
appeal Court to notify the parties when reviewing their case. But,
on another hand, it does not prohibit the attendance or the
participation of the parties to the hearing. Moreover, Article 14
Part 1 Section 2 Subsection "в" of the Federal Law No 262-FZ, 22
December 2008 "On Providing Access to Information on the
Activities of Courts in the Russian Federation" obliges courts to
publish such information as date, time and place of hearings on
their Court web-sites. This was the way Principal Applicant in the
present case found out about the date, time and place of the
hearing of his appeal.
123. In addition, and bearing in mind that there was no oral hearing
before the Supreme Court sitting ex parte in chambers, and the
Principal Applicant and the Applicant-Lawyer never had the
opportunity to gain knowledge of, to comment upon, or challenge
the use and the content of the 2007 "secret" precedent used to
adjudicate against him. As a consequence, by forbidding the
Principal Applicant and the Applicant-Lawyer from speaking, the
Supreme Court of Appeal interpreted the law in a perverse way
which contradicts the Judges' basic responsibility to ensure
fairness of proceedings. In fact, by refusing to fix judicial
errors committed by the judge of first instance, the Supreme Court
of Appeal has simply failed to exercise its jurisdiction as a
Court of Appeal.
124. These errors could have been repaired by the Constitutional Court
since the latter can both invalidate laws and compel a lower court
to review a case. But the Constitutional Court also refused to
exercise its jurisdiction. On 24 September 2013, the
Constitutional Court ruled as inadmissible the application of the
Principal Applicant filed on 24 June 2013 challenging the
interpretation of Part 2 of Article 333 of the Civil Procedure
Code. It should be stressed that the application by the
Applicant-Lawyer was ignored by the Constitutional Court, the
latter having never replied to his application. According to the
Constitutional Court's reasoning (Annex 19)^ , if a Court allows
the Applicant to take part in a hearing on a procedural matter, it
somehow infringes the principle of equality of arms in relation to
the other party (that is, the State in the present case). However,
as the Russian Government and the Ministry of Internal Affairs has
not been "notified" yet of the 2013 complaint filed against it up
until this point, and the case was not yet considered on the
merits, there never was an actual case involving another party
(the Russian Government and the Ministry of Internal Affairs). In
other words, there was no "other" party or defendant at this stage
of the proceedings (10 April 2013 or 4 June 2013), but only the
Judges and the Applicant. Consequently, this argument used by the
Constitutional Court is untenable and its refusal to consider the
arguments of the parties on the merits demonstrated a violation of
Article 6 S: 1 at the systemic level.
125. In addition, we must mention that before the constitutional
complaint by the Principal Applicant of 24 June 2013 on
challenging Part 2 of Article 333, on 30 November 2012 the
Constitutional Court in its judgment No29-P^ ^ruled that inter
alia Part 2 Article 333 of CPC corresponds to the Russian
Constitution in regard to lack of obligation to notify parties
about the time, date, and place of appeal hearing on legality of
inadmissibility decision. The judgment No29-P of 30 November 2012
by the Constitutional Court served as a ground to reject the
constitutional complaint of 24 June 2013 by the Principal
Applicant (once again the complaint of the Applicant-Lawyer was
ignored). By doing so, the Constitutional Court failed to
distinguish facts of the Principal Applicant's case (he and his
representative were not allowed to participate in the appeal
hearing) from the facts of the applicants in the judgment No 29-P
of 30 November 2012 (the applicants were not notified of the date,
time and place of appeal hearings).
126. The Constitutional Court Judge G.A. Zhilin delivered a separate
opinion on the judgment No 29-P of 30 November 2012 arriving at
the conclusion that inter alia Part 2 of Article 333 of CPC does
not correspond to the Constitution of the Russian Federation, its
Articles 19 (Part 1), 46 (Part 1), 55 (Part 3) и 123 (Part 3), and
violates rights of parties to a fair trial.
127. The Constitutional Court judgment No 29-P of 30 November 2012 is
heavily criticised by the academic community. Absolute majority of
opinions of academic experts requested by the Constitutional Court
(exceptions are Urals State Law Academy and Omsk State University)
arrived at the conclusion that Part 2 Article 333 of CPC violated
the right to a fair trial. ^After the Constitutional Court
judgment No 29-P of 30 November 2012 was announced, a number of
academics published articles criticizing the Constitutional Court
judgment No 29-P of 30 November 2012 and supporting the separate
opinion by Justice G.A. Zhilin.^
128. As a result, it can clearly be stated that there has been no
effective participation of the Applicant at any stage of the
proceedings, to the extent that his right to a public hearing was
violated again and again in each instance. He was never given an
adequate opportunity to challenge in writing or orally the
unjustified secret evidence used against him.
THE LAW - PUBLIC JUDGMENT
129. Article 6 S: 1 provides that: "Judgment shall be pronounced
publicly (...) in a democratic society". The European Court
affirmed that it was not necessary for the judgment actually to be
read out in open court, and that States enjoyed discretion as to
the manner in which judgments should be made public. The
requirement of publicity of judgments under this provision may be
satisfied by making judgments available in court registries or
publishing them in writing.^^ At least, anyone who establishes an
interest should obtain the full text of judgments of the Court.^
ALLEGED VIOLATION - PUBLICITY AND PUBLIC JUDGMENT.
130. As mentioned above (see, section on adversarial process), the
Judge of the Supreme Court sitting ex parte in chambers rejected
the present case on the basis of a case from 2007 which was not
published anywhere. Furthermore, only partial information was
given to the Principal Applicant (the date of the judgment, the
name of the Court and the case number) and none of the higher
Courts published this case or the related case materials which,
until today, remain de facto "secret" evidence. In this regard, in
Ryakib v. Russia, the European Court found a violation of Article
6 S: 1 "where the decisions of courts of both levels of
jurisdiction, before which a case concerning compensation for
detention was heard in private, were not delivered publicly and
were not otherwise accessible to the public."^ Mutatis mutandis,
this precedent should apply to the instant case (no public
judgment, no access to the 2007 case materials, no hearing in the
Supreme Court sitting ex parte in chambers, no publication of
inadmissibility decisions, no oral hearing in appeal, no minute).
Moreover, the European Court added:
"In a case in which dispensing with a public hearing was found to be
unjustified, the provision of access to the case file to those who
established a legal interest in the case and the publication of
decisions of special interest, mostly of the appellate courts or the
Supreme Court, was held not to suffice in order to comply with the
publicity requirement in question."^
131. In other words, even if the higher Courts would have allowed the
Applicant to access the 2007 case material, which they did not, it
nevertheless would not have sufficed because as it has been
explained previously the Supreme Court had no legitimate reason to
prevent the holding of a public hearing in this case. Thus, by not
publishing the judgment of 2007, by not allowing access to the
2007 case materials and by subsequently using them to dismiss an
application, the Supreme Court of both instances violated the
Applicant's right to a public judgment which directly affected the
inadmissibility decision.
132. This situation is explained by the fact that in Russia, the
mandatory publication of judgments has existed since 2010, but
this obligation has been restricted to judgments rendered on the
merits.^ Therefore, procedural decisions are not published and the
judgments on the merits dating from before 2010 may also not have
been published. Although at the level of domestic law, Russia had
no obligation to publish the judgments rendered in 2007, it had an
obligation to do so from the standpoint of international law.
Indeed, Russia joined the Council of Europe on 28 February 1996
and ratified the European Convention on 5 May 1998. As a result,
Russia had to comply with the requirements of the Convention. It
should have respected the principle of "judgment pronounced
publicly" by publishing the 2007 judgment in its entirety, or at
least by giving access to it and the related case materials^ as
the Applicant had asked for.
133. Also, as explained previously, the Russian Courts are not obliged
to publish decisions on procedural issues. Consequently, the
respective Decisions issued by the Supreme Court sitting ex parte
in chambers and the Supreme Court of Appeal in this case were not
published in addition to the fact that the proceedings were not
held in public. In Malhous v. The Czech Republic (2001), the
European Court reiterated the right to publicity:
"The holding of court hearings in public constitutes a fundamental
principle enshrined in paragraph 1 of Article 6. This public character
protects litigants against the administration of justice in secret
with no public scrutiny; it is also one of the means whereby
confidence in the courts can be maintained. By rendering the
administration of justice transparent, publicity contributes to the
achievement of the aim of Article 6 S: 1, namely a fair trial, the
guarantee of which is one of the fundamental principles of any
democratic society, within the meaning of the Convention."^
134. Thus, by not publishing the decisions in the present case, the
Russian Courts establish a secret system of justice (altogether
violating the right of publicity). Moreover, the pattern
illustrated by this case may be repeated in any other case
challenging any normative act of the government and its agents.
Indeed, by maintaining this system where the publication of
decisions is optional, the judiciary may continue to dismiss
future applications seeking to contest or review of provisions of
the 1999 and 2000 Regulations as being inadmissible based on the
unpublished 2007 judgment, thereby effectively insulating the
State against any legal proceedings. Future applicants will
neither be able to access similar admissibility decisions,
understand the nature of the Courts' reasoning, or know how many
times this pattern was repeated. Such a system leaves no trace of
the current legal situation. Proceedings on inadmissibility are
held in chambers, no proces-verbal exists, decisions are
unpublished and case materials remain inaccessible as no timely
access is ever granted. This portrait of a secret system of
justice raises serious doubts as to the principle of legal
certainty, and fairness of proceedings in a democratic society. In
the end, justice loses sight of its original purpose, since the
decisions on admissibility may be based solely on willingness of
judges to perform their duties properly, and fully exercise their
jurisdiction, thus leaving the door open to arbitrariness.
135. In this perspective, the European Court must conclude that a
violation of the right to a public hearing guaranteed by Article
6S: 1 of the Convention occurred in regards to the Principal
Applicant.
* D.5. The Requirement to Give Reasons and Consider the Arguments of
the Parties under Article 6S: 1 of the Convention
THE LAW
136. The lack of examination of the argument of the Applicant
regarding the European Convention is a violation of the right to a
fair trial, ensured by Article 6 S: 1, as it has been recognised
by the European Court on many occasions.
137. Indeed, "Article 6 para. 1 (art. 6-1) obliges the courts to give
reasons for their judgments".^ Furthermore, a national Court is
under a duty to "conduct a proper examination of the submission,
arguments and evidence adduced by the parties, without prejudice
to its assessment of whether they are relevant to its decision".^
138. However, national Courts have some discretion when considering
arguments and evidence, since Article 6 S: 1 does not require a
Court to give a detailed answer to every argument raised.^
Nevertheless, the Court must justify its activities by giving
reasons for its decisions^: "the national Courts must indicate
with sufficient clarity the grounds on which they based their
decision"^ in order to demonstrate that the parties have been
heard.^
139. In addition, the right to a fair trial as guaranteed by Article 6
S: 1 of the European Convention includes the parties' right to
raise observations they judge relevant and that this right is not
solely theoretical:
"La Convention ne visant pas `a garantir des droits theoriques ou
illusoires mais des droits concrets et effectifs. Ce droit ne peut
passer pour effectif que si ces observations sont vraiment
<>, c'est-`a-dire dument examinees par le tribunal saisi."^
140. Therefore, even though the obligation to state reasons will vary
depending on the nature of the decision and the circumstances of
the case, the European Court states that a national Court's
silence could give rise to doubt on the scope of the examination
conducted by that Court.^ Consequently, if a national Court
considers that certain arguments and/or evidence presented by an
Applicant have no merit, or are irrelevant to the matter in
dispute, it must state the reason why they are not considered.
VIOLATION
141. The guarantees underlying Article 6 S: 1 must be applied before
all types of courts, including in the present case the Supreme
Court sitting ex parte in chambers, the Supreme Court of Appeal
and the Constitutional Court of the Russian Federation.
142. As mentioned in the statement of facts, the Principal Applicant
filed a complaint before the Supreme Court, and later before the
Court of Appeal, challenging the application of Article 12 of the
1999 Regulation and 2000 Regulation on the ground of Article 2 of
Protocol 4 to the European Convention. Before the Constitutional
Court, he filed two complaints subsequently, 1) challenging the
application of the 1999 Regulation and 2000 Regulation on the
grounds of Article 2 of Protocol 4 and the Russian Constitution;
2) challenging the interpretation by the Supreme Court of Appeal
of Part 2 of Article 333 of the Civil Procedure Code on the
grounds of Article 6 of the European Convention and the Russian
Constitution.
143. Despite the fact that each of these Courts were aware of the
alleged violations, they neglected to mention the European
Convention and disregarded these violations in their judgments.
This failure to even mention these arguments in their decisions
has resulted in a breach of the requirement to state the reasons
for a decision set out in Article 6(1) of the European Convention.
The Applicant had no way of knowing if he was heard, or whether
his arguments were considered.
144. Moreover, all of the Courts refused to consider the case on the
merits. The reasoning of the Supreme Court sitting ex parte in
chambers and the Court of Appeal were based on the 2007 case which
was neither available to the public nor to the Applicant or the
Applicant-Lawyer . Even when the Applicant managed to get a
summary of the 2007 case at a much later date, this was not of
much help since the grounds of the case and the identity of the
party in question were only accessible in the case materials,
which had not been made available to the Principal Applicant or
his legal representative. The Supreme Court of Appeal ignored the
Applicant's request to access this information (i.e. the 2007 case
materials). The Applicant, therefore could not submit additional
arguments for his appeal application, in addition to the fact that
the Supreme Court of Appeal did not let him or his lawyer speak in
Court or present additional arguments. The conclusions of both the
Supreme Court sitting ex parte in chambers and the Supreme Court
of Appeal were therefore based on "secret" evidence.^ Furthermore,
there was no way to know if the 2007 case was based on any
provisions of the European Convention, as was the 2013 case
regarding the Principal Applicant. If the 2007 case was truly
based on the same grounds as the 2013 case, then the Supreme Court
should have updated its interpretation of its 2007 decision in
accordance with the contemporary jurisprudence of the European
Court in 2013, which it did not do and could not reasonably claim
to have done.
145. However, in Russian domestic law, it is specified that a judge
shall refuse to consider an application on the merits "if there
exists the judgment of the Court that has come into legal effect
which has verified the legality of the disputed legal normative
act of the state government body, of the local self-government
body or of the official on the grounds specified in the
application."^ The Supreme Court of Appeal affirmed that the 2007
case which served as a precedent and the present case was based
"on the same grounds".^ Yet, there is no way to verify or to
challenge this claim since, as mentioned before, the grounds of
the 2007 case could only be identified from the relevant case
material which was never published and remained only accessible to
the Court without any legitimate or recognized reason for such a
denial of access to information. In addition, the important issues
related to violations of the European Convention were completely
left unaddressed in both the 2007 and 2013 cases, which has left
the Applicant clueless as to whether the same grounds were ever
considered or not.
146. In relation to the Constitutional Court, in both cases
(challenging the 1999 and 2000 Regulations and Part 2 of Article
333 of CPC) the Constitutional Court refused to consider
applications on the merits, basing its decisions on some
jurisprudence which were not founded on the rights protected by
the European Convention, and therefore were not based on the same
grounds specified in the Applicant's claim.
147. Consequently, it is clear that each of the four Courts completely
overlooked the Applicant's allegations of violations of the
European Convention both in their judgments and in the
jurisprudence relied upon. The Supreme Court sitting ex parte in
chambers and the Supreme Court of Appeal based their decisions on
some illegitimate "secret" jurisprudence that could not be
discussed or examined, and without any justification. Therefore,
the four refusals to consider the cases on the merits are
unsatisfactorily reasoned, each leading in a breach of Article 6
S: 1 .
148. This is not a case where a tribunal has taken the liberty not to
respond in detail to each argument, but rather a case where
tribunals have chosen to consciously ignore valid arguments
brought up by the Applicant. Indeed, these omissions by the Courts
give rise to serious doubts as to the scope of the examination
undertaken by them.^ Moreover, a constitutional-type court is a
fortiori under a duty to ensure that litigants enjoyed in the
proceedings before it the fundamental guarantees laid down in
Article 6 of the European Convention.^ The requirement of a
justification exists to protect against arbitrariness and to
require the Judge to explain what motivated his decision. The
legal process finds much of its legitimacy in the justification of
its judgments, which is totally absent in the present case.
149. The Court should thus conclude a violation of Article 6 S: 1 of
the Convention as regards the unfairness of proceedings in regards
to the Principal Applicant.
* E. VIOLATIONS OF THE RIGHT TO AN EFFECTIVE REMEDY (VIOLATION OF
ARTICLE 13)
THE LAW
150. Article 13 provides:
"Everyone whose rights and freedoms as set forth in [the] Convention
are violated shall have an effective remedy before a national
authority notwithstanding that the violation has been committed by
persons acting in an official capacity."
151. The European Court has held that a domestic appeals procedure
cannot be considered effective within the meaning of Article 13 of
the European Convention, unless it affords a possibility to deal
with the substance of an "arguable complaint" under the Convention
and to grant appropriate relief. Giving direct expression to the
States' obligation, enshrined in Article 1 of the Convention, to
protect human rights first and foremost within their own legal
system, Article 13 establishes an additional guarantee for an
individual in order to ensure that he or she effectively enjoys
those rights.^
152. Moreover, Article 13 of the Convention requires that the national
legal system must make available to the individual concerned the
effective possibility of challenging the measure complained of and
of having the relevant issues examined with sufficient procedural
safeguards and thoroughness by an appropriate domestic forum
offering adequate guarantees of independence and impartiality.^
153. Finally, the scope of the Contracting States' obligations under
Article 13 of the Convention varies depending on the nature of the
applicant's complaint. The "effectiveness" of a "remedy" within
the meaning of this provision does not depend on the certainty of
a favourable outcome for the applicant. At the same time, the
remedy required by Article 13 must be "effective" in practice as
well as in law in the sense either of preventing the alleged
violation or its continuation, or of providing adequate redress
for any violation that has already occurred.^
* E.1. In Conjunction with Article 2 of Protocol No. 4 and Article
14 to the Convention
154. In the present case, the claim that an act of the authorities may
have infringed the Principal Applicant's right to freedom of
movement on discriminatory grounds is arguable, as assessed above
(see above: Alleged Violation of Article 2 of Protocol No. 4 and
Article 14 to the Convention).
155. Russian law provided for a possibility to appeal to the Supreme
Court and/or the Constitutional Court against the application by
the Federal Government Article 12 of the 1999 Regulation and by
the Minister of Interior Affairs of Article 3 of the 2000
Regulation inconsistent with the European Convention (Article 2 of
Protocol No. 4, Article 14, Article 10), and/or the Russian
Constitution.
156. However, the Supreme Court sitting ex parte in chambers, the
Supreme Court of Appeal and the Constitutional Court all refused
to consider the case on the merits. As illustrated above (see: The
"right to a court" under Article 6 S: 1 of the Convention -
section D.2.), the portrait of the closed and secretive system of
justice in Russia is eloquent as to the ineffectiveness of a
so-called remedy. 1) The Applicant applied to a Court which
rejected his application on the basis of an unpublished secret
judgment and related case material no one can access but the Court
itself. 2) No reasons were given or recognized as to why the
evidence was made secret in practice; 3) The Supreme Court of
Appeal did not exercise its jurisdiction by completely ignoring
the Principal Applicant's requests to access the 2007 case
materials and to suspend the proceedings in order to guaranty the
requirements of the principle of an adversarial trial process; 4)
The Courts never publish inadmissibility decisions, so there is no
transparency, or legal certainty as to the procedural questions;
5) The present case concerning the Applicant, which has
systematically been denied admissibility, and remains itself
entirely secret and inaccessible to the general public; 6) The
Supreme Court sitting ex parte in chambers did not allow
participation, nor did the Supreme Court of Appeal; 7) The Supreme
Court sitting ex parte in chambers, the Court of Appeal and both
Constitutional Courts disregarded the European Convention's
grounds of the application when deciding, and base their decisions
on secret a decision which potentially does not share similar
grounds to the present case before them, so the Applicant has had
no way to know if he was heard, or completely ignored; 8) The
Constitutional Court refused to exercise its jurisdiction to order
a new hearing.
157. As a result, the portrait leads to the conclusion of a systemic
denial of justice where a citizen, under Russian jurisdiction and
with a legitimate claim, cannot question the legality of a Federal
Government Regulation, and even less so on the grounds of the
European Convention. Moreover, such a decision and all other
similar decisions remain secret and are never made public.
158. Of course, in such conditions where the Principal Applicant was
denied access to remedies, the Principal Applicant got no
appropriate redress to enforce his fundamental rights. No other
effective remedy or relief exists in Russian law.^
159. This Court should therefore conclude that in regards to the
Principal Applicant there has been a violation of Article 13 of
the Convention, because the remedies in the present case do not
meet the "effectiveness" standard both in practice and in law.
* E.2. In Conjunction with Article 10 of the Convention
160. In the present case, the claim that an act of the authorities may
have infringed the Principal Applicant and the Applicant-Lawyer's
right to freedom of expression is tenable, as assessed above (see:
C. Violation of Article 10 of the Convention).
161. Russian law provided the Principal Applicant and the
Applicant-Lawyer a cosmetic "possibility" to contest before the
Constitutional Court the Supreme Court of Appeal's interpretation
and application of Part 2 of Article 333 of the Civil Procedure
Code, which are inconsistent with the European Convention
(Articles 10 and 6), and/or the Russian Constitution.
162. However, for a lawyer as an officer of the Court, freedom of
expression can only be exercised before the Court while
representing the client. When the Court of Appeal refused to
exercise its jurisdiction to terminate the ongoing and continuous
violations of Article 10 of the Convention in effect, notably by
not letting the lawyer speak, access the information to the case,
add submissions or present arguments, and by even refusing to
consider a request to suspend the proceedings, then no effective
remedy existed for the professional legal representative qua
victim (and his client, the Applicant) unless the Constitutional
Court were to order a new hearing of the case. Indeed, the
Constitutional Court has jurisdiction to order new proceedings for
the client to be satisfied, but the Constitutional Court
altogether refused to exercise its jurisdiction to do so in
regards to the Principal Applicant and ignored the application of
the Applicant-Lawyer altogether. No declarations or disciplinary
sanctions are available to the Principal Applicant to remedy to
the situation. The Applicant-Lawyer was in fact kept from
fulfilling his occupational requirements, and could technically be
sued for negligence. Russian law provided no possibility for the
Applicant-Lawyer to remedy the alleged violation of his own
freedom of expression, as evidenced by the Constitutional Court
having completely ignored his application.
163. In short, the systemic problem is as follows:
1. Before the Supreme Court of Appeal, there was
A. a breach of access to information by ignoring the Principal
Applicant's request to access the 2007 case material (the "secret"
evidence) used to reject the admissibility of his application, 1.
B. a breach of the Principal Applicant and the Applicant-Lawyer's
freedom of expression by preventing them from participating in the
hearing, while there was neither any hearing of first instance nor
the possibility to comment on the "secret" evidence used in the
lower Court's decision; 2)
By not considering any request, including to suspend the proceedings,
the Supreme Court of Appeal prejudiced both the Applicant-Lawyer who
could not fulfill his professional requirements, and the Principal
Applicant who could not have his civil and conventional rights
adjudicated fairly;
The only remedy for the infringement of the Principal Applicant and
the Applicant-Lawyer's freedom of expression was for the
Constitutional Court to order new proceedings, which it did not do.
Instead, the Constitutional Court refused to exercise its jurisdiction
to remedy the situation, and rejected the claim of the Principal
Applicant on dubious legal logic (namely: "If the Court allows the
participation of the Applicant, the right of the defendant, who did
not come to the Court, is violated", even though there was no actual
defendant at the admissibility phase, since there was no actual case
yet). It also ignored the application by the Applicant-Lawyer and
overlooked any of the Applicant's claims related to the European
Convention both in the reasoning of its decision and in the choice of
jurisprudence to support its motivations, therefore failing to give
appropriate reasons to its decision. Obviously, the Principal
Applicant and his legal representative, the Applicant-Lawyer, in
practice had no possibility to have their case considered on the
substance with sufficient procedural safeguards and thoroughness.
Overall, this case demonstrates that there is a judicial culture of
secrecy, where unpublished judgments with inaccessible case materials
are used to justify inadmissibility decisions, while these decisions
are simply not published at all (Article 5.5 of the Order of 18 June
2010 by the Chief Justice of the Supreme Court), which is in breach of
the right to access information and the principle of judicial
transparency and legal certainty. Moreover, by invoking the new Part 2
of Article 333 of the Civil Procedure Code, the Russian Judiciary
deprived the Principal Applicant and his legal representative, the
Applicant-Lawyer, of the right to participate in the hearing, and to
be heard during the hearing of the Supreme Court of Appeal, and to
express themselves at any judicial level in practice.
By being denied a legal remedy, the Principal Applicant, as well as
the Applicant-Lawyer, whose application to the Constitutional Court
challenging Part 2 of Article 333 of CPC was ignored altogether,
received no appropriate redress to enforce his fundamental rights. No
other effective remedy or relief exists in Russian law.
The European Court should conclude in regards to the Principal
Applicant and the Applicant-Lawyer as to related violations of Article
13 of the Convention, as no remedies in the present case meet the
"effectiveness" standard both in practice and in law.
IV. Statement relative to article 35 S: 1 of the Convention
Final decision (date, court or authority and nature of decision)
Appeal decision of 4 June 2013 by the Appeal Collegium of the Russian
Supreme Court which rejected the appeal by the Principal Applicant on
the decision of 10 April 2013 by the Russian Supreme Court Judge
Emysheva V.A. (Емышева В.А.) which ruled inadmissible the application
by the Principal Applicant challenging Article 12 of the 1999
Regulation and Article 3 of the 2000 Regulation which violated the
Principal Applicant's rights to freedom of movement.
Other decisions (list in chronological order, giving date, court or
authority and nature of decision for each of them)
1. Decision of 10 April 2013 by the Russian Supreme Court Judge
Emysheva V.A. (Емышева В.А.) which ruled inadmissible the
application by the Principal Applicant challenging Article 12 of
the 1999 Regulation and Article 3 of the 2000 Regulation which
violated the Principal Applicant's rights to freedom of movement.
2. Appeal Decision of 4 June 2013 by the Appeal Collegium of the
Russian Supreme Court which rejected the appeal by the Principal
Applicant on the decision of 10 April 2013 by the Russian Supreme
Court Judge Emysheva V.A. (Емышева В.А.) which ruled inadmissible
the application by the Principal Applicant challenging Article 12
of the 1999 Regulation and Article 3 of the 2000 Regulation which
violated the Principal Applicant's rights to freedom of movement.
3. Decision of 24 September 2013 by the Constitutional Court on
inadmissibility of the application of 22 May 2013 by the Principal
Applicant challenging Article 12 of the 1999 Regulation and
Article 3 of the 2000 Regulation in connection with Part 3 of
Article 27 of the Federal Law "On Security of Road Traffic."
4. Decision of 24 September 2013 by the Constitutional Court on
inadmissibility of the application by the Principal Applicant of
24 June 2013 challenging Part 2 of Article 333 of the Civil
Procedure Code. The application by the Applicant-Lawyer was
ignored by the Constitutional Court.
Is there or was there any other appeal or other remedy available to
you which you have not used? If so, explain why you have not used it.
There were no other effective remedies available.
V. Statement of the object of the application
The Principal Applicant seeks a determination by this Court
violations of his right to
1. freedom of movement under Article 2 Protocol No. 4,
2. freedom from discrimination under Article 14 (read in conjunction
with Article 2 of Protocol No. 4),
3. freedom of expression under Article 10,
4. a fair trial under Article 6 S: 1,
5. an effective remedy under Article 13 (read in conjunction with
Article 2 of Protocol No. 4 and Article 14 to the Convention and
in conjunction with Article 10).
The Applicant-Lawyer seeks a determination by this Court violations of
his right to
1. freedom of expression under Article 10,
2. an effective remedy under Article 13 (read in conjunction with
Article 10),
The Applicant-NGO/News-Agency seeks a determination by this Court
violation of its right to freedom of expression under Article 10.
The Principal Applicant seeks a ruling that Russia must conduct an
effective investigation into violations of his right to a fair trial
and effective remedy including but not limited to affording him
standing as a litigant to make the Supreme Court and the
Constitutional Court claims.
All three Applicants in the present case also seek just satisfaction
under Article 41.
VI. Statement concerning other international proceedings
Have you submitted the above complaints to any other procedure of
international investigation or settlement? If so, give full details.
No, we have not submitted the above complaints to any other procedure
of international investigation or settlement.
VII. List of documents (Annexes)
1. Reply of 16 March 2013 by the Head of the police station Stadnuk
I.I. rejecting the application of the Principal Applicant for the
duplicate of driving licence.
2. Regulation by the Government of the Russian Federation No.1396 of
15 December 1999.
3. Regulation by the Minister of Internal Affairs of the Russian
Federation No.782 of 20 July 2000.
4. Application by the Principal Applicant of 5 April 2013 to the
Russian Supreme Court.
5. Decision of 10 April 2013 by the Russian Supreme Court's judge
Emysheva V.A. (Емышева В.А.) which ruled inadmissible the
application by the Principal Applicant challenging Article 12 of
the 1999 Regulation and Article 3 of the 2000 Regulation which
violated the Principal Applicant's rights to freedom of movement.
6. Appeal of 15 April 2013 on the Decision of 10 April 2013 by the
Supreme Court.
7. Power of attorney (doverennist) by the Principal Applicant to the
Applicant-Lawyer to represent the Principal Applicant before
national Courts.
8. Memorandum by representative of the Applicant, the
Applicant-Lawyer, dated 4 June 2013 for submission at the appeal
hearing on 4 June 2013.
9. Print screen of information about the date, time and the place of
the appeal hearing from the website of the Russian Supreme Court.
10. Appeal Decision of 4 June 2013 by the Appeal Collegium of the
Russian Supreme Court which rejected the appeal by the Principal
Applicant on the decision of 10 April 2013 by the Russian Supreme
Court's judge Emysheva V.A. (Емышева В.А.) which ruled
inadmissible the application by the Principal Applicant
challenging Article 12 of the 1999 Regulation and Article 3 of the
2000 Regulation which violated the Principal Applicant's right to
freedom of movement.
11. Request dated 7 November 2013 to the Supreme Court by the head of
the Sverdlovsk regional non-governmental organization "Sutyajnik"
and the head of its news agency "Sutyajnik-Press" Sergey Beliaev
(the Applicant-NGO/News-Agency) to receive a copy of Decisions on
Enikeev's case delivered by the Supreme Court on 10 April 2013 and
on 4 June 2013.
12. Text of Article 5.5 of the Order of 18 June 2010 by Chief Justice
of the Supreme Court.
13. Application of 22 May 2013 by the Principal Applicant to the
Constitutional Court of the Russian Federation challenging Article
12 of the 1999 Regulation and Article 3 of the 2000 Regulation in
connection with Part 3 of Article 27 of the Federal Law "On
Security of Road Traffic."
14. Letter of 21 June 2013 by the Secretariat of the Constitutional
Court rejecting the application by the Principal Applicant of 22
May 2013.
15. Follow on application of 18 July 2013 to the Russian
Constitutional Court.
16. Decision of 24 September 2013 by the Constitutional Court on
inadmissibility of the application of 22 May 2013 by the Principal
Applicant challenging Article 12 of the 1999 Regulation and
Article 3 of the 2000 Regulation in connection with Part 3 of
Article 27 of the Federal Law "On Security of Road Traffic."
17. Application of 24 June 2013 by the Principal Applicant and the
Applicant-Lawyer to the Russian Constitutional Court challenging
Part 2 of Article 333 of the Civil Procedure Code.
18. Letter of 2 August 2013 by the Secretariat of the Constitutional
Court to the Principal Applicant rejecting the application of the
Principal Applicant of 24 June 2013.
19. Follow on application of 26 August 2013 to the Russian
Constitutional Court.
20. Decision of 24 September 2013 by the Constitutional Court on
inadmissibility of the application by the Principal Applicant of
24 June 2013 challenging Part 2 of Article 333 of the Civil
Procedure Code.
21. Immigration and Refugee Board of Canada, Russia: Residence
registration system; official procedures to change registration;
whether registration is required to access government services;
police treatment of ethnic minorities and unregistered persons;
regional restrictions on registration, particularly in Moscow, St.
Petersburg and Yekaterinburg, 14 December 2009, RUS103311.E.
22. Letter of reply from the Supreme Court to Bugrova's request.
23. Power of attorney of the Principal Applicant to Anton Burkov to
represent before the European Court.
24. Power of attorney of the Applicant-Lawyer to MJ Fernandes to
represent before the European Court.
25. Power of attorney of the Applicant-NGO/News-Agency to Anton Burkov
to represent before the European Court.
26. Reply of 27 December 2012 by the Supreme Court (Карюк Владимир
Ильич karyuk_vi@vsrf.ru) on the request made by Simmons
Deborah-Jane.
27. Judgment No. ГКПИ07-527 of 09 August 2007.
VIII. Declaration and signature
I hereby declare that, to the best of my knowledge and belief, the
information I have given in the present application form is correct.
Place
Date
(Signature of the Applicant or of the representative)
Anton Burkov - Representative of the first Applicant - Principal
Applicant - E. Enikeev
Anton Burkov - the second Applicant - the Applicant-Lawyer
Anton Burkov - Representative of the third Applicant - the
Applicant-NGO/News-Agency
^[2]http://sutyajnik.ru/rus/aboutus.html
^[3]http://sutyajnik.ru/news/
^The registration in a Russian city directly depends on the landlord.
The landlord is the person who registers a resident. The landlord must
show to the authorities his own registration or the ownership document
of the flat. Refusals from landlords to register their tenants are
common practice in Russia, particularly in Moscow. Landlords usually
do not want to pay taxes for the income they receive from their
tenants. Therefore, they are reluctant to register their tenants as
residing in the apartments they own. Lodging a complaint against a
landlord because of the refusal to register leads usually leads to a
termination of the lease contract and expulsion by the landlord.
^"12. Прием экзаменов у граждан, выдача и замена им водительских
удостоверений осуществляется Государственной инспекцией на территории
того субъекта Российской Федерации, где гражданин зарегистрирован по
месту жительства или по месту пребывания."
^"13. Прием экзаменов, выдача и замена водительских удостоверений
гражданам Российской Федерации, не зарегистрированным по месту
жительства или по месту пребывания, осуществляется Государственной
инспекцией по месту их фактического проживания."
^"3. Прием экзаменов у граждан, выдача и замена им водительских
удостоверений осуществляются Государственной инспекцией в пределах
субъекта Российской Федерации, на территории которого гражданин
зарегистрирован по месту жительства или по месту пребывания."
^"4. Прием экзаменов у граждан Российской Федерации, выдача и замена
им водительских удостоверений при отсутствии регистрации по месту
жительства и месту пребывания в пределах Российской Федерации
осуществляется Государственной инспекцией по месту их фактического
проживания на основании решений лиц, указанных в пункте 5 Инструкции".
^"8. Судья отказывает в принятии заявления, если имеется вступившее в
законную силу решение суда, которым проверена законность оспариваемого
нормативного правового акта органа государственной власти, органа
местного самоуправления или должностного лица, по основаниям,
указанным в заявлении."
^"Заявитель по настоящему делу указывает основания противоречия
оспариваемых нормативных актов, ранее не являвшиеся предметом судебной
проверки. В частности указывается 1. противоречие нормам
международного права - части 1 статьи 2 "Свобода передвижения"
Протокола 2 к Конвенции о защите прав человека и основных свобод".
^Статья 161. Проверка явки участников процесса. 1. Секретарь судебного
заседания докладывает суду, кто из вызванных по гражданскому делу лиц
явился, извещены ли неявившиеся лица и какие имеются сведения о
причинах их отсутствия. 2. Председательствующий устанавливает личность
явившихся участников процесса, проверяет полномочия должностных лиц,
их представителей.
^The audio recording of the question and the response can be found at
http://sutyajnik.ru/audio/280.mp3
^Статья 333. Порядок подачи и рассмотрения частной жалобы,
представления прокурора. 1. Подача частной жалобы, представления
прокурора и их рассмотрение судом происходят в порядке,
предусмотренном настоящей главой, с изъятиями, предусмотренными частью
второй настоящей статьи. 2. Частная жалоба, представление прокурора на
определение суда первой инстанции, за исключением определений о
приостановлении производства по делу, о прекращении производства по
делу, об оставлении заявления без рассмотрения, рассматриваются без
извещения лиц, участвующих в деле.
^[4]http://sutyajnik.ru/rus/aboutus.html
^[5]http://sutyajnik.ru/news/
^The propiska system applied to migrants, asylum seekers and refugees
in Council of Europe member states: effects and remedies, Report Doc.
9262 of 12 October 2001, Committee on Migration, Refugees and
Demography, Rapporteur: Mr Boriss Cileviчs, Latvia, Socialist Group,
available at
[6]http://assembly.coe.int/ASP/Doc/XrefViewHTML.asp?FileID=9539&Langua
ge=en
^Ibid.
^http://www.unhchr.ch/tbs/doc.nsf/%28Symbol%29/6c76e1b8ee1710e38025682
4005a10a9?Opendocument.
^Регистрация или отсутствие таковой не могут служить основанием
ограничения или условием реализации прав и свобод граждан,
предусмотренных Конституцией Российской Федерации, законами Российской
Федерации, Конституциями и законами республик в составе Российской
Федерации.
^^See Tatishvili v. Russia, No. 1509/02, 22 February 2007, Para 33,
47.
^The propiska system applied to migrants, asylum seekers and refugees
in Council of Europe member states: effects and remedies, Report Doc.
9262 of 12 October 2001, Committee on Migration, Refugees and
Demography, Rapporteur: Mr Boriss Cileviчs, Latvia, Socialist Group,
available at
[7]http://assembly.coe.int/ASP/Doc/XrefViewHTML.asp?FileID=9539&Langua
ge=en
^PACE in Resolution 1277 (2002) on the honouring of obligations and
commitments by the Russian Federation, which was adopted on 23 April
2002.
^See at [8]http://rzd.ru [14.10.2013].
^Supra note 20.
^Ibid.
^Okpisz v. Germany, ECtHR, 25.10.2005, 59140/00
^Olbertz vs. Germany, ECtHR, 25.5.1999, 37592/97; Burden vs. UK, ECtHR
v. 29.4.2008, 13378/05 No. 59
^Clift vs. UK, ECtHR, 13.7.2010, 7205/07 No. 66
^For more on Russian Residence registration system please refer to
Immigration and Refugee Board of Canada, Russia: Residence
registration system; official procedures to change registration;
whether registration is required to access government services; police
treatment of ethnic minorities and unregistered persons; regional
restrictions on registration, particularly in Moscow, St. Petersburg
and Yekaterinburg, 14 December 2009, RUS103311.E, available at:
http://www.refworld.org/docid/4b7cee8728.html [accessed 5 November
2013] (See Annex 21).
^Recommendation Rec(2002)2 of the Committee of Ministers to member
states on access to official documents, online:
.
^Recommandation Rec(2003)15 du Comite des Ministres aux Etats membres
sur l'archivage des documents electroniques dans le secteur juridique,
online : .
^Recommendation Rec(2002)2 of the Committee of Ministers to member
states on access to official documents, online:
, at III.
^Ibid.
^Kobenter and Standard Verlags Gmbh v. Austria, no. 60899/00, 2
November 2006, at paragraph 29.
^Tarsasag a Szabadsagjogokert v. Hungary, no. 37374/05, 14 April 2009.
^Ibid, at paragraph 28.
^Benthem v. Netherlands, no. 8848/80, 23/10/1985.
^Ringeisen v. Austria, no. 2614/65, 16/07/1971.
^H v. Belgium, no. 8950/80, 30/11/1987.
^Kenedi v. Hungary, no. 31475/05, 26/05/2009.
^Interights Manual for Lawyers - Right to A Fair Hearing under the
ECHR (Article 6), 2010, p. 9, online
.
^Article 333 of the Civil Procedure Code - Procedure for Filing and
Considering a Separate Appeal or Prosecutor's Presentation: 1. A
separate appeal or prosecutor's presentation shall be filed and they
shall be considered by a court in the procedure provided for by this
article, with the waivers stipulated by Part Two of this article. 2. A
separate appeal or prosecutor's presentation against a ruling of a
court of the first instance, except for rulings to suspend proceedings
in respect of a case, to terminate proceedings in respect of a case or
to shelve an application shall be considered without notifying the
persons participating in the case.
^See mutatis mutandis Kenedi v. Hungary, cited, same civil right was
violated.
^See argumentation of the alleged violation of article 10. Same
arguments about art 333 apply here.
^See, amongst many authorities, Aksoy v. Turkey judgment of 18
December 1996, Reports 1996-VI, p. 225, S: 92; Waite and Kennedy v.
Germany [GC], no. [9]26083/94, S: 50, ECHR 1999-I; Golder v. the
United Kingdom, judgment of 21 February 1975, Series A, no. 18, p. 18;
and Beneficio Cappella Paolini v. San Marino, no. 40786/98,
13/07/2004, para 28-29.
^See Bellet v. France, judgment of 4 December 1995, Series A no.
333-B, p. 42, S: 36; and Beneficio Cappella Paolini v. San Marino, no.
40786/98, 13/07/2004, para 28-29.
^See, among other authorities, Fayed v. The United Kingdom, no.
17101/90, 21/09/1994, S: 65; Bellet v. France, 4 December 1995, S: 31,
Series A no. 333-B; Levages Prestations Services v. France, 23 October
1996, S: 40, Reports 1996-V; and Gobec v. Slovenia, no. 7233/04,
03/10/2013, para 159.
^See, mutatis mutandis, Miragall Escolano and Others v. Spain,
nos. [10]38366/97, [11]38688/97, [12]40777/98, [13]40843/98,
[14]41015/98, [15]41400/98, [16]41446/98, [17]41484/98, [18]41487/98
and [19]41509/98, ECHR 2000-I; see Bulena v. the Czech Republic,
no. [20]57567/00, S: 28, 20 April 2004; and Lay Lay Company Limited v.
Malta, no. 30633/11, 23/07/2013, para 55-56.
^See Kaufmann v. Italy, no. [21]14021/02, S: 33, 19 May 2005; and
Lupas and Others v. Romania (No. 1), no. 1434/02, 35370/02 and
1385/03, 14/12/2006, para 63-64 and 73.
^Lupas and Others v. Romania (No. 1), no. 1434/02, 35370/02 and
1385/03, 14/12/2006, para 73-77.
^Beneficio Cappella Paolini v. San Marino, no. 40786/98, 13/07/2004,
para 29.
^Hadjianastassiou v. Greece, no. 12945/87, 16/12/1992, para 34-37.
^Dunayev v. Russia, no. 70142/01, 24/05/2007, para 36-38.
^Судья Верховного Суда России объясняет, почему дело рассматривается в
присутствии заявителя, но без его участия: "Потому что мы вас не
должны слушать... И мы вас не вызывали" / Available at
http://sutyajnik.ru/cases/522.html.
^See Krчmar and Others v. the Czech Republic, no. [22]35376/97, S: 39,
3 March 2000; Dombo Beheer B.V. v. the Netherlands, 27 October 1993,
S: 33, Series A no. 274; and Gryaznov v. Russia, no. 19673/03,
12/06/2012.
^See Mantovanelli v. France, 18 March 1997, S: 33, Reports of
Judgments and Decisions 1997 II; and Joksas v. Lithuania, no.
25330/07, 12/11/2013.
^See Kraska v. Switzerland judgment of 19 April 1993, Series A no.
254-B, p. 49, at paragraph 30; and Van de Hurk v. The Netherlands, no.
16034/90, 19/04/1994.
^See Ziegler v. Switzerland, S: 38; and Locher and Others v.
Switzerland, no. 7539/06, 30/07/2013.
^See Nideroest-Huber c. Suisse, 18 fevrier 1997, S: 24, Recueil 1997
I; F.R. c. Suisse, no [23]37292/97, S: 36, 28 juin 2001; Ziegler c.
Suisse, no [24]33499/96, S: 33, 21 fevrier 2002; Contardi c. Suisse,
no [25]7020/02, S: 40, 12 juillet 2005; Spang c. Suisse, no
[26]45228/99, S: 28, 11 octobre 2005; Ressegatti c. Suisse, no
[27]17671/02, S: 30, 13 juillet 2006; Kessler c. Suisse, no
[28]10577/04, S: 31, 26 juillet 2007; and Elles and Others v.
Switzerland, no. 12573/06, 16/12/2010.
^See Chambaz v Switzerland, no. 11663/04, 05/04/2012; and Dowsett v.
Royaume-Uni, no. 39482/98, 24/06/2003, S:42.
^See Annex 4 and Minutes of the hearing recorded by the lawyer.
^See I.J.L. and others v. United Kingdom, no. 29522/95 30056/96
30574/96, 19/09/2000, S: 149; and Chambaz v Switzerland, no. 11663/04,
05/04/2012.
^The Court considers that, if it were the case that the respondent
State had, without good cause, prevented the applicants from gaining
access to, or falsely denied the existence of, documents in its
possession which would have assisted them in establishing before the
PAT that they had been exposed to dangerous levels of radiation, this
would have been to deny them a fair hearing in violation of Article 6
S: 1. See McGinley and Egan v. The United Kingdom, no. 21825/93
23414/94,^ 09/06/1998.
^Interights Manual for Lawyers - Right to A Fair Hearing under the
ECHR (Article 6), 2010, p.39, online
.
^See, for instance, Fredin v. Sweden (no. 2), 23 February 1994, S:S:
21-22, Series A no. 283 A; Fischer v. Austria, 26 April 1995, S: 44,
Series A no. 312; Allan Jacobsson v. Sweden (no. 2), 19 February 1998,
S: 46, Reports of Judgments and Decisions 1998 I; Salomonsson v.
Sweden, no. 38978/97, S: 34, 12 November 2002; Lundevall v. Sweden,
no. 38629/97, S: 34, 12 November 2002; Doery v. Sweden, no. 28394/95,
S: 37, 12 November 2002; Goec, v. Turkey [GC], no. 36590/97, S:S:
47-52, ECHR 2002 V; and Vilho Eskelinen and Others v. Finland [GC],
no. 63235/00, S: 73, ECHR 2007 IV.
^See Andersson v. Sweden, no. 17202/04, 07/12/2010.
^See, for example, Doery v. Sweden, no. [29]28394/95, S: 37, 12
November 2002, and Pursiheimo v. Finland (dec.), no. [30]57795/00, 25
November 2003; compare Lundevall v. Sweden, no. [31]38629/97, S: 39,
12 November 2002, and Salomonsson v. Sweden, no. [32]38978/97, S: 39,
12 November 2002; Goec, v. Turkey [GC], no. [33]36590/97, S: 51, ECHR
2002-V,; Schuler-Zgraggen v. Switzerland, 24 June 1993, S: 58, Series
A no. 263 and the cases cited therein; Haakansson and Sturesson v.
Sweden, 21 February 1990, S: 66, Series A no. 171-A; Helmers v.
Sweden, judgment of 29 October 1991, Series A no. 212-A, p. 16, S: 36;
and Jussila v. Finland, no. 73053/01, 23/11/2006.
^In accordance with Part 8 of Article 251 of CPC the Judge may refuse
to rule the application to be admissible if there is a judgment of the
court entered into force which has checked the legality of the
challenged normative legal act of the government or official on the
grounds specified in the application. See Annex 5.
^See, among other authorities, Yakovlev v. Russia, no. [34]72701/01,
S:S: 19 et seq., 15 March 2005; Groshev v. Russia, no. 69889/01,
20/10/2005, S:S: 27 et seq.; Mokrushina v. Russia, no. 23377/02,
05/10/2006, S:S: 20 et seq.; Prokopenko v. Russia, no. [35]8630/03,
S:S: 17 et seq., 3 May 2007; and Kolegovy v. Russia, no. 15226/05,
01/03/2012.
^Постановление КС РФ от 30 ноября 2012 г. N 29-П "По делу о проверке
конституционности положений части пятой статьи 244.6 и части второй
статьи 333 Гражданского процессуального кодекса Российской Федерации в
связи с жалобами граждан А.Г. Круглова, А.В. Маргина, В.А. Мартынова и
Ю.С. Шардыко" // РГ. 2012. 14 дек.
^Борисова Е.А. Развитие норм ГПК РФ о проверке и пересмотре судебных
постановлений: теория и практика. // Вестник гражданского процесса,
2013, N 4 (E.A. Borisova. The development of the Civil Procedure Code
of the Russian Federation norms on the inspection and review of the
judgments: theory and practice. // Vestnik Grazhdanskogo Protsessa
No4, 2013).
^Борисова Е.А. Развитие норм ГПК РФ о проверке и пересмотре судебных
постановлений: теория и практика. // Вестник гражданского процесса,
2013, N 4 (E.A. Borisova. The development of the Civil Procedure Code
of the Russian Federation norms on the inspection and review of the
judgments: theory and practice. // Vestnik Grazhdanskogo Protsessa
No4, 2013); Enikeev E. and Burkov A., Bez Menia Menia Zhenili //
Newspaper "эж-Юрист", No. 37 от 20.09.2013, available at
http://sutyajnik.ru/articles/462.html; and S.F. Afanasiev. K probleme
realizatsii prava byt vislushannim v sude pri rassmotrenii
grazhdanskikh del. // Vestnik grazhdanskogo protsessa. No 4. 2012.
(С.Ф. Афанасьев. К проблеме реализации права быть выслушанным в суде
при рассмотрении гражданских дел. // Вестник гражданского процесса.
No. 4. 2012.); Terekhova L.A. O prave suda apelljacionnoj instancii
vozvrashhat' delo na novoe rassmotrenie v sud pervoj instancii [On the
right of the appellate court returned the case to the court of first
instance] // Arbitration and Civil Procedure. 2012. No. 2.^
^Supra note 69.
^See Pretto and Others v. Italy, no. 7984/77, 08/12/1983, S:20-28;
Interights Manual for Lawyers - Right to A Fair Hearing under the ECHR
(Article 6), 2010, p. 43-44, online
.
^See Pretto and Others, cited, S:S: 27-28; Axen v. Germany, no.
8273/78, 08/12/1983, S: 32; Sutter v. Switzerland, no. 8209/78,
22/02/1984, S: 34; and Ryakib Biryukov v. Russia, no. 14810/02,
17/01/2008.
^See Werner v. Austria, 24 November 1997, S:S: 56 60, Reports of
Judgments and Decisions 1997-VII; and Ryakib v. Russia, cited.
^See Moser v. Austria, no. [36]12643/02, S: 103, 21 September 2006;
and Ryakib v. Russia, cited.
^According to Article 5.5 of the Order of 18 June 2010 by the judges
of the Supreme Court. Based on Article 1(4) of the Federal Law of
2008, a judicial act is a ruling, issued in a form complying with
relevant law, on the substance of a case examined in the procedure for
administering constitutional, civil, administrative or criminal
justice or for administering justice in a court of arbitration.
Therefore, Article 1(4) of the Federal Law of 2008 is under-inclusive
since the definition of a judicial act simply omits to include any
decisions rendered on inadmissibility.
^In the present case, the 2007 judgment in question did not contain
essential information like the legal grounds of the case and the
arguments of the former applicant - this information is contained in
the case material. Neither the case material nor the judgment was
accessible to the public.
^See Golder v. The United Kingdom, no. 4451/70, 21 February 1975,
Series A no. 18, p. 18, S: 36; and Lawless c. Irlande, no. 332/57, 14
November 1960, Series A no. 1, p. 13.
^Hiro Balani v. Spain, no. 303-B, 09 December 1994, at paragraph 27.
^Kraska v. Switzerland, no. 13942/88, 19 April 1993, at paragraph 30;
Van de Hurk v. The Netherlands, no. 16034/90, 19 April 1994, at
paragraph 59.
^Van de Hurk v. the Netherlands, cited, at paragraph 61; Ruiz Torija
v. Spain, no. 303-A, 9 December 1994, at paragraph 29.
^Suominen v. Finland, no. 37801/97, 1 July 2003, at paragraph 36.
^Hadjianastassiou v. Greece, no. 252, 16 December 1992, at paragraph
33.
^Kuznetsov and Others v. Russia, no. 184/02, 11 January 2007, at
paragraphs 83 to 85.
^Dulaurans v. France, no 34553/97, 21 March 2000, at paragraph 33.
^Ruiz Torija v. Spain, cited, at paragraphs 29-30.
^"Secret evidence" here is not employed in the traditional meaning of
the term, since there was neither a national security reason nor any
other legitimate or recognized reason to deny access to the decision.
It became secret evidence in fact, not in law, without having been
declared so.
^Part 8 of Article 251 of Civil Procedure Code; Decision of Supreme
Court of Appeal, par. 4, in Annex 10.
^Decision No. ГКПИ07-527, 09.08.2007.
^Hiro Balani v. Spain, no. 18064/91, 09/12/1994, at paragraph 25.
^Gast and Popp v. Germany, no. 29357/95, 25 February 2000, at
paragraph 63.
^See, among others, Kudl/a v. Poland [GC], no. [37]30210/96, ECHR 2000
XI, S: 152; T.P. and K.M. v. the United Kingdom [GC], no.
[38]28945/95, ECHR 2001-V, S: 107; Riener v. Bulgaria, no.
[39]46343/99, S: 142, 23 May 2006; Milen v. Bulgaria, no. 40026/07,
para 24, 03/09/2013; Burdov v. Russia (no. 2), no. [40]33509/04, S:
96, ECHR 2009; Yuriy Nikolayevich Ivanov v. Ukraine, no.[41]
a[42]40450/04, S: 63, ECHR 2009; and Delvina v. Albania, no. 49106/06,
para 69, 08/03/2011.
^See, mutatis mutandis, Shebashov v. Latvia (dec.), 9 November 2000,
no.gra [43]50065/99; Al-Nashif v. Bulgaria, no. [44]50963/99, 20 June
2002; Riener v. Bulgaria, no. [45]46343/99, S: 138, 23 May 2006; Milen
Kostov v. Bulgaria, no. 40026/07, par. 20, 03/09/2013; and Kudl/a v.
Poland [GC], no. 30210/96, S: 157, ECHR 2000 XI.
^See Burdov v. Russia (no. 2), no. [46]33509/04, S: 97; Yuriy
Nikolayevich Ivanov v. Ukraine, no. [47]40450/04, S: 64; Delvina v.
Albania, no. 49106/06, par. 70, 08/03/2011; and Kudl/a v. Poland [GC],
no. 30210/96, S: 157, ECHR 2000 XI.
^No measures were adopted or applied by the Ministry of interior to
render accessible the registration in Moscow, or to get a duplicate of
a driver's license at the effective place of residence when the
applicant is already registered elsewhere. Of course the applicant
cannot take to chance to de-register from his previous place and then
risk being without registration for an undetermined period, since it
is almost impossible to register in Moscow. The Government is
conscious of the systemic problem: for example, it has modified the
license plate legislation in order to permit citizens to get a plate
anywhere in the country no matter their registered place of residence.
But those substantive arguments have not been discussed in the present
case since the applicant had no access to justice at all.
50
50
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43. http://hudoc.echr.coe.int/sites/eng/Pages/search.aspx
44. http://hudoc.echr.coe.int/sites/eng/Pages/search.aspx
45. http://hudoc.echr.coe.int/sites/eng/Pages/search.aspx
46. http://hudoc.echr.coe.int/sites/eng/pages/search.aspx
47. http://hudoc.echr.coe.int/sites/eng/pages/search.aspx
Скрытых ссылок:
48. file://localhost/tmp/\l
49. http://hudoc.echr.coe.int/sites/eng/Pages/search.aspx
50. http://hudoc.echr.coe.int/sites/eng/Pages/search.aspx
51. http://hudoc.echr.coe.int/sites/eng/Pages/search.aspx
52. http://hudoc.echr.coe.int/sites/eng/Pages/search.aspx
53. http://hudoc.echr.coe.int/sites/eng/Pages/search.aspx
54. http://hudoc.echr.coe.int/sites/eng/Pages/search.aspx
55. http://hudoc.echr.coe.int/sites/eng/Pages/search.aspx
56. http://hudoc.echr.coe.int/sites/eng/Pages/search.aspx
57. http://hudoc.echr.coe.int/sites/eng/Pages/search.aspx
58. http://hudoc.echr.coe.int/sites/eng/Pages/search.aspx
59. http://hudoc.echr.coe.int/sites/fra/Pages/search.aspx
60. http://hudoc.echr.coe.int/sites/fra/Pages/search.aspx
61. http://hudoc.echr.coe.int/sites/eng/pages/search.aspx
62. http://hudoc.echr.coe.int/sites/eng/pages/search.aspx
63. http://hudoc.echr.coe.int/sites/eng/pages/search.aspx
64. http://hudoc.echr.coe.int/sites/eng/pages/search.aspx
65. http://hudoc.echr.coe.int/sites/eng/pages/search.aspx
66. http://hudoc.echr.coe.int/sites/eng/Pages/search.aspx
67. http://hudoc.echr.coe.int/sites/eng/Pages/search.aspx
68. http://hudoc.echr.coe.int/sites/eng/Pages/search.aspx
69. http://hudoc.echr.coe.int/sites/eng/Pages/search.aspx
70. http://hudoc.echr.coe.int/sites/eng/Pages/search.aspx
71. http://hudoc.echr.coe.int/sites/eng/Pages/search.aspx
72. http://hudoc.echr.coe.int/sites/eng/Pages/search.aspx
73. http://hudoc.echr.coe.int/sites/eng/Pages/search.aspx
74. http://hudoc.echr.coe.int/sites/eng/Pages/search.aspx
75. file://localhost/tmp/wv-j14076
76. http://hudoc.echr.coe.int/sites/eng/Pages/search.aspx
77. http://hudoc.echr.coe.int/sites/eng/Pages/search.aspx
78. http://hudoc.echr.coe.int/sites/eng/pages/search.aspx
79. http://hudoc.echr.coe.int/sites/eng/pages/search.aspx
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