Last Updated on May 9, 2019 by LawEuro
THIRD SECTION
DECISION
Application no. 5497/18
Igor Aleksandrovich GALKIN
against Russia
The European Court of Human Rights (Third Section), sitting on 20 November 2018 as a Chamber composed of:
Vincent A. De Gaetano, President,
Branko Lubarda,
Helen Keller,
Dmitry Dedov,
Pere Pastor Vilanova,
Georgios A. Serghides,
Jolien Schukking, judges,
and Stephen Phillips, Section Registrar,
Having regard to the above application lodged on 29 December 2017,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Igor Aleksandrovich Galkin, is a Russian national, who was born in 1960 and lives in Moscow.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. The applicant, residing in the Golovinskiy municipal district of Moscow, wished to attend a meeting of a sub-committee of the District Municipal Council. His access to the meeting was restricted by reference to a decision of the Council. The applicant lodged an administrative claim under the Code of Administrative Procedure (the CAP), challenging the lawfulness of the decision. On 3 March 2017 the Moscow City Court, acting as the first-instance court, dismissed his claim. On 26 July 2017 the Administrative Chamber of the Supreme Court of Russia upheld the judgment on appeal. The applicant did not seek supervisory review of the judgment.
B. Relevant domestic law
4. Chapter 36 of the CAP provides that the Presidium of the Supreme Court considers applications for a supervisory review of final judgments issued by lower courts.
5. According to Article 332 § 2 (6) of the CAP, in an ordinary administrative case, that is where the proceedings started in a district court, parties may lodge an application for supervisory review against a cassation decision of the Administrative Chamber of the Supreme Court. It follows from Article 319 § 2 of the CAP, that cassation review is not possible in respect of judgments delivered by regional courts or the Supreme Court, acting as first-instance courts (for example, on complaints against municipal by-laws, as provided for in Article 20 § 1 (2) of the CAP). In that case, pursuant to subparagraphs 1 – 4 of Article 332 § 2 of the CAP, an application for a supervisory review may be lodged after the ordinary appeal proceedings in the Supreme Court. A supervisory-review application in such cases may be brought against a first-instance decision (taken either by a regional court or by the Supreme Court) and/or against an appeal decision of the Supreme Court.
6. Applications for a supervisory review may be brought within three months of the date on which the impugned decision became final (Article 333 § 2 of the CAP), on a number of grounds, including “breaches of human rights and freedoms enshrined in the Constitution of the Russian Federation or in principles of international law and international treaties to which the Russian Federation is a party”.
7. A supervisory-review application is examined by a single judge of the Supreme Court, who may dismiss the application or transfer it for the examination by the Presidium of the Supreme Court.
8. The Presidium of the Supreme Court, by way of a supervisory review, may uphold, amend or quash any judgment previously delivered in a case, and to remit the case for re-examination to the lower courts.
9. A supervisory-review application is examined by the Supreme Court within two or three months, depending on whether a case-file was requested from a lower court (Article 336 of the CAP).
10. The decision by a single judge not to submit the case to the Presidium may be overruled by the President or Deputy President of the Supreme Court (Article 337 of the CAP). The Code contains no explicit time-limits for the exercise of this power by the President or his or her Deputy.
THE LAW
11. The applicant complained under Articles 6, 10, 13 and 17 of the Convention about the decision of the Municipal Council restricting access of the public to the meetings of its sub-committees and about the dismissal of the applicant’s claim in which he challenged that decision. The Court will assume that Article 10 of the Convention is applicable in the present case and will examine the complaint solely in the light of its provisions, which, in so far as relevant, read as follows:
“1. Everyone has the right to freedom of expression. This right shall include freedom to … to receive … information … without interference by public authority and regardless of frontiers.”
12. The Court considers that the application is inadmissible on the grounds of non-exhaustion of domestic remedies for the reasons specified below.
13. The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges those seeking to bring a case against a State to use first the remedies provided by the national legal system, thus allowing States the opportunity to put matters right through their own legal systems before being required to answer for their acts before an international body. In order to comply with the rule, applicants should normally use remedies which are available and sufficient to afford redress in respect of the breaches alleged (see, among other authorities, Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999‑V).
14. The Court has already had an opportunity to examine the review system under the CAP in the case of Chigirinova v. Russia ((dec.), no. 28448/16, 13 December 2016), where it held that in disputes involving public authorities examined under the CAP, a person who intends to lodge an application with the Court has first to use remedies offered by the existing two-tier cassation procedure: firstly, before the presidium of a regional court and, subsequently, before the Administrative Chamber of the Supreme Court.
15. According to Article 319 § 2 of the CAP, judgments issued by a regional court are not amenable to cassation review, but subject to an appeal to the Chamber of the Supreme Court. Then, it is open to the parties to bring an application for a supervisory review within three months after the ordinary (“second-instance”) appeal proceedings (Articles 332 § 2 and 333 § 2 of the CAP).
16. The applicant in the present case was able to initiate a supervisory review after his appeal had been rejected by the Administrative Chamber of the Supreme Court and was entitled to a decision either dismissing or transferring his supervisory-review application for examination on the merits by the Presidium of the Supreme Court, in the same way as the applicants in Abramyan and Others v. Russia ((dec.), nos 38951/13 and 59611/13, §§ 42, 73 and 99-100, 12 May 2015)) would have been entitled to apply for supervisory review if their second cassation appeal had been considered on the merits and not declared inadmissible.
17. The supervisory-review procedure in this case, therefore, was directly accessible to the applicant and was capable of giving an answer to the substance of his Convention complaint (see paragraph 8 above).
18. The Court further notes that pursuant to Articles 332 and 333 of the CAP applications for a supervisory review may be lodged within three months of the date on which the first-instance judgment became final and that the supervisory proceedings fall within the exclusive domain of the Presidium of the Supreme Court, thus preventing the lower courts’ judgments from being challenged indefinitely before different courts (see, by contrast, Martynets v. Russia (dec.), no. 29612/09, ECHR 2009 and Denisov v. Russia, (dec.), no. 33408/03, 6 May 2004).
19. In view of the above, the Court finds that in cases where the proceedings under the CAP start at the regional level and are pursued before the Chamber of the Supreme Court, as in the present case, an application for a supervisory review falls within the sequence of domestic remedies which an applicant is required to exhaust for the purposes of Article 35 § 1 of the Convention.
20. The Court observes that the applicant has not lodged a supervisory‑review application with the Supreme Court of Russia. It therefore follows that his application to the Court must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 13 December 2018.
Stephen Phillips Vincent A. De Gaetano
Registrar President
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