Exhaustion of domestic remedies. Necessity of exhausting domestic remedies before applying to a European court

In accordance with Part 3 of Art. 46 of the Constitution Russian Federation of 12.12.1993, everyone has the right, in accordance with international treaties, to apply to interstate bodies for the protection of human rights and freedoms, if all available domestic remedies have been exhausted. This wording is based on Art. 2 of the Optional Protocol to the International Covenant on Civil and Political Rights, which also requires the exhaustion of all available domestic remedies before contacting the UN Human Rights Committee.

Otherwise, the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter - the Convention) approaches the exhaustion of domestic remedies. In Art. 35 § 1 of the Convention states that the European Court of Human Rights (hereinafter - the Court) may accept a case for consideration only after all domestic remedies have been exhausted in accordance with generally recognized norms of international law. “At present, the most important rules of admissibility are the requirement to exhaust domestic remedies and bring the application to the Court within six months of the date of the final domestic decision ... were exhausted "1.

The court noted that the purpose this provision is to provide Contracting Parties with an opportunity to prevent or remedy violations of which they may be guilty before allegations of those violations are brought before the Court. Consequently, States are exempted from responsibility for their actions before an international body as long as they have had the opportunity to remedy the situation with the help of their legal systems 2.

This rule is based on the assumption reflected in Art. 13 of the Convention (“the right to an effective remedy”), with which it has a close relationship, that there is an effective remedy in the national legal system for every alleged violation of the Convention, regardless of whether it is incorporated into national law or not 3 ...

Art. 35 § 1 of the Convention requires the applicant to raise the issue of the violation of his rights before the relevant state authority, at least on the merits and in accordance with formal requirements and in compliance with the time limits, and then any procedural measure which can prevent a violation of the Convention 4.

An effective remedy is one that was available to the applicant both in theory and in practice, was able to provide him with redress in respect of his complaint and had a reasonable chance of success. (The difference between the requirement to exhaust all available and effective remedies is, inter alia, that, as a general rule, to apply to the UN Human Rights Committee, an applicant filing a complaint against Russia must apply to a Russian supervisory court, and to apply to the European Court of Human Rights, an appeal to the cassation instance is sufficient.)

With regard to the effectiveness of remedies, there is a distribution of the burden of proof. Thus, a Government objecting to the admissibility of a complaint on this ground must provide evidence of the existence of an effective remedy in respect of the applicant's complaint. If the Government succeeds in doing so, the applicant, in turn, must prove that such a remedy was in fact exhausted by him, or was inadequate and ineffective in the applicant's particular case, or there were special conditions exempting the applicant from the obligation to exhaust it 5 ...

The Court recognized that the rule of exhaustion of legal remedies should be applied with a certain degree of flexibility and without excessive formalism 6. He further pointed out that this rule is not absolute and should not be applied automatically, in considering whether it has been complied with, it is necessary to investigate the special circumstances of each case 7. This means, among other things, that the Court must be aware of not only the formal existence of remedies in the legal system of a Contracting Party, but also the general legal and political context in which they operate, as well as the personal circumstances of the applicants.

The requirement to exhaust domestic remedies is also closely related to the requirement to lodge an application with the Court within six months from the day these remedies were exhausted. Moreover, if no remedy is available to the applicant, the complaint must be filed within six months from the date of the violation of the rights guaranteed by the Convention 9. If the ineffectiveness of one or another remedy becomes obvious to the applicant after contacting him, the six-month period begins to run from the moment the applicant became aware of the ineffectiveness of such a remedy 10.

In accordance with the general requirements of the Convention, as interpreted by the Court, we will consider the effectiveness of certain remedies provided for in the Russian legal system. Due to the existence of three "branches" of the judiciary in Russia, the effectiveness of procedures in constitutional, general and arbitration jurisdictions should be considered separately.

In the Russian legal literature, it is argued that the appeal to Constitutional Court The Russian Federation is not a prerequisite for the exhaustion of domestic remedies 11. It appears that this conclusion was made on the basis of the decision on the inadmissibility of the complaint by Tumilovich v. Russia 12, in which the Court indicated that the refusal of the Constitutional Court of the Russian Federation to consider the applicant's complaint on its merits as not within its jurisdiction was not an issue to be resolved.

Such claims, however, are refutable. “In legal systems with a written constitution, a constitutional complaint must be filed to challenge a law or practice allegedly in violation of the Convention. So, in Germany or Spain, the complaint should, as far as possible, be submitted to the Constitutional Court ”13. Moreover, in the decision on the inadmissibility of the complaint of Grishankov and Grishankov v. Latvia 14, the Court indicated that in cases where the national legislation as a whole is contested (and not any specific measures taken in accordance with it or in violation of it) and when the national the legal system allows challenging such norms in the Constitutional Court; a constitutional complaint is an effective remedy.

The questions of the compliance of Russian legislation with the Convention came up before the Court in two cases: Ryabykh v. Russia 15 and Rakevich v. Russia 16. In the first case, the Court ruled that by quashing the final judgment by way of supervision, the principle of legal certainty was not observed and the applicant, in violation of Art. 6 § 1 of the Convention was denied access to a court. In the second case, the applicant did not have the opportunity to independently challenge the legality of her placement in a psychiatric hospital, since the Law of the Russian Federation of 02.07.1992, No. 3185-1 "On psychiatric care and guarantees of citizens' rights during its provision" 17 imposed such authority exclusively on medical institution, which contradicted Art. 5 § 4 of the Convention. However, in both cases, the issue of applying to the Constitutional Court of the Russian Federation with a requirement to recognize the unconstitutionality of the relevant provisions of the Code of Civil Procedure of the RSFSR and the Law on Psychiatric Care was not raised by the Representative of the Russian Federation and, accordingly, the Court did not consider, since specific actions were taken against the applicants in accordance with the contested legislation (cancellation of a final judgment and placement in a psychiatric hospital), in what way they differ from the complaint of Grishankov and Grishankov against Latvia, in which the applicants challenged the Latvian legislation on the language of secondary education, which had not yet been applied to them.

Thus, if the applicant disputes specific actions that violate the Convention, even if taken in full accordance with the law, he must first of all use a civil claim, an administrative complaint or an application to initiate a criminal case as a remedy, and not an appeal to the Constitutional Court. In any event, the author would classify the constitutional complaint as a “dubious remedy” that the Court may find ineffective. By relying on them, the applicant may miss the six-month time limit for filing an application with the Court. To avoid an unfavorable decision, both a preliminary letter to the Court and an appeal to the national authority should be submitted, indicating in the preliminary letter which remedy it is currently using 18.

For courts of general jurisdiction, Russian procedural legislation provides for up to four judicial stages of consideration of a case: first instance, appeal and (or) cassation instance, review of the case by way of supervision. A cassation (where possible - an appeal) appeal against a decision unfavorable for the applicant is mandatory 19.

Supervisory proceedings, at least in the form in which they existed prior to the adoption of the new Civil Procedure and Criminal Procedure Codes, were recognized as an ineffective remedy, since its initiation depended solely on discretionary powers. officials specified in the law 20. A similar order after the reform of procedural legislation in 2001-2002. survived only in the Code of Administrative Offenses 21.

The new regulation of supervisory proceedings, which reduces the powers of officials and gives more rights to the parties, has not yet become the subject of the Court's review. In our opinion, the supervisory proceedings in accordance with Art. 2 p. 2 art. 381 Code of Civil Procedure of the Russian Federation and sub. 2 p. 3 art. 406 of the Code of Criminal Procedure of the Russian Federation is still initiated by the judge's ruling on the transfer of the case to the supervisory instance court, and not by the supervisory complaint of one of the parties, and therefore continues to fail to meet the requirement for the effectiveness of the remedy - the applicant's ability to initiate the examination of his case on his own.

In cases where the applicant complains about non-execution of a court decision in his favor, an appeal against the actions of the bailiff-executor is not required if there is no fault of his failure to execute the decision 22, but it is obligatory if there are guilty actions (inaction) of the bailiff 23.

Before filing a complaint for violation of Art. 6 in cases where the other party presents falsified evidence in court proceedings, it is necessary to raise the issue of falsity of evidence before the cassation instance 24.

With regard to criminal proceedings, by a decision on the admissibility of Trubnikov's complaint against Russia 25, the court found it ineffective to appeal against the decisions of the investigator to the prosecutor, but noted that, despite the lack of general jurisdiction the power to initiate a criminal case, the possibility judicial annulment the refusal to open a criminal investigation (into the death of the applicant's son) constituted an effective remedy.

In addition, the Court draws a distinction between the exhaustion of legal remedies under Art. 5 (“the right to liberty and security of person”) and Art. 6 (“right to a fair trial”) 26. If, in order to file a complaint about alleged violations of procedural guarantees under Art. 6 of the Convention, it is necessary to appeal against the judgment, then for filing a complaint under Art. 5 it is only necessary to appeal against procedural decisions on detention (Article 5 § 1 (c)) and prolongation of detention (Article 5 §§ 3 and (or) 4). An appeal against the verdict as a whole (although all previous rulings, including those on detention and prolongation of detention in custody, are also appealed along with the verdict) is not an effective remedy for filing a complaint about a violation of Art. 5 of the Convention.

Applying to an arbitration court for the protection of your rights is an effective remedy. Thus, in its decision on the complaint Kozlov v. Russia 27, the Court indicated that the domestic remedies were not exhausted, since the applicant did not apply to the arbitration court, although the need to apply to it was expressly indicated by the court of general jurisdiction.

In addition to the consideration of the case by the arbitration court in the first instance, the Arbitration Procedure Code of the Russian Federation provides for the appeal and cassation appeal of decisions. The new procedure for considering cases by the Supreme Arbitration Court of the Russian Federation in the order of supervision, as in the case of the Code of Civil Procedure of the Russian Federation and the Code of Criminal Procedure of the Russian Federation, did not become the subject of the Court's consideration, but in the decision on the inadmissibility of the complaint of JSC Uralmash against Russia 28 transitional provisions on supervisory proceedings 29 were found to be an extraordinary, and therefore ineffective, remedy.

With regard to Russia, a separate problem is the exhaustion of domestic remedies in the context of the armed conflict in the Chechen Republic. In Akdivar v. Turkey, the Court indicated that one of the special conditions exempting the applicant from the obligation to exhaust remedies could be “the complete passivity of the national authorities in the face of serious allegations of misconduct or harm by State agents, for example, when they were unable to conduct an investigation or offer help. In such cases, it can be said that the burden of proof is shifting once more, and the respondent Government is under an obligation to show what they have done in response to the scale and seriousness of the problems for which the complaint is being lodged ”30.

At present, the Court has declared admissible six applications 31, combined into three cases concerning the conflict in the Chechen Republic, but the issue of the applicants' exhaustion of domestic remedies has not been resolved by the Court, but added to the issues to be examined on the merits.

When considering these complaints, the Representative of the Government of the Russian Federation proposed three remedies that were not used by the applicants: an appeal to the Supreme Court of the Russian Federation, which would refer the case for consideration at first instance to a court outside the Chechen Republic, filing a claim for compensation for damage to the court at the place of residence of the applicants ( since not all of them were living in the Chechen Republic at the time of filing the complaints), an appeal to the Main Directorate of the General Prosecutor's Office of the Russian Federation for the supervision of the implementation of laws on federal security and interethnic relations in the North Caucasus in the city of Essentuki. However, the Government did not submit a single judicial or prosecutorial decision capable of rectifying a situation similar to that of the applicants. In addition, the complainants argued that the State did not comply with its obligations to investigate cases of allegedly unlawful deprivation of life 32 and the use of torture and other cruel and degrading treatment 33. The applicants drew the Court's attention to the administrative practice of non-investigation and impunity of crimes committed by law enforcement agencies both during the conflict and in peacetime, as well as to the failure of the Government's proposed remedies to remedy the situation in which the applicants found themselves. The assessment of the parties' arguments will be made by the Court when deciding the issues of the merits of the complaint.

The court can rule not only a violation of the rights guaranteed by the Convention in Section I and the Protocols thereto, but also a violation of Art. 34 in fine, imposing an obligation on the State not to hinder the applicant in any way from effectively exercising his right to lodge an individual complaint with the Court. At the same time, the requirement to exhaust domestic remedies is not applicable to complaints of violation of Art. 34 of the Convention. The Court, in its decision on the admissibility of Klyakhin v. Russia 34, noted that “Article 34 of the Convention imposes on the Contracting States the obligation not to interfere with the right of individuals to effectively present and maintain their complaints before the Court. Such a duty grants the applicant a right different from those set forth in the Convention or its Protocols. Due to the nature of this right, the requirement to exhaust domestic remedies does not apply to it. In view of the importance attached to the right of individual complaint, it would be unreasonable to require the applicant to resort to ordinary judicial procedure in national jurisdiction in each of the cases in which the prison authorities interfered with his correspondence with the Court. ”

In addition, there is a special procedure for the consideration of a case by the Court. Art. 39 of the Rules of Court provides that the Chamber of the Court or its President, where necessary, may, at the request of a party or other interested person, or on its own initiative, indicate to the parties any interim measure which, in its or his opinion, should be taken in the interests of the parties. or proper procedures. As a rule, in practice, the decision on interim measures is taken in cases where the applicant is facing extradition or expulsion, and consists in an invitation to the respondent State not to extradite or expel the applicant 35. The application of interim measures usually requires the Court to decide immediately on the matter. Therefore, Practice Direction 36 issued by the President of the Court under Art. 32 of the Rules of Court, it is indicated that the complaint and documents on it can be filed some time before the final decision in the national system is made in cases where the applicant and (or) his representative presume a decision not in their favor and this decision can be executed in very short timeframes to give the Court time to consider the request for an interim measure. For Russia, this is relevant in cases of administrative expulsion from the Russian Federation of foreign citizens, decisions on which are executed within a few days from the date of their entry into force.

Evolution of the control mechanism of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

As already emphasized, the European Commission of Human Rights, like the European Court of Human Rights, was a body created specifically to ensure compliance with the obligations assumed by the states parties to the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms. Both of these bodies were institutions of the European Convention, not the Council of Europe.

According to part 1 former article 20 of the European Convention, the Commission consisted of a number of members equal to the number of States parties to the Convention.

The Commission began its activities in July 1955, when the required minimum number of states made a declaration recognizing its competence under former Article 25 to consider complaints from individuals.

Members of the European Commission have participated in its work in a personal capacity. During their entire term of office, they should not have held any office incompatible with their independence and impartiality as members of the Commission or with the requirements “for members of the Commission”.

The independence of the position of members of the Commission vis-à-vis their governments also stemmed from the text of the oath they took on assuming office (Rule 3 of the Rules of Procedure of the European Commission). 69

The consequence of this was the fact that civil servants could not be elected to the European Commission. Until 1990, the text of the Convention did not contain any other requirements for candidates for membership in the Commission. However, in the practice of elections, additional criteria were also developed:

a) candidates must have high moral qualities;

b) they must have competence in human rights issues;

c) they must have had significant legal or judicial experience.

Protocol No. 8 to the Convention, which entered into force on 1 January 1990, supplemented the Convention by, inter alia, the following:

"Applicants must be of high moral character and meet the requirements for appointment to high judicial office, or have a recognized authority in matters of domestic or international law." Such a detailed listing of the requirements that the members of the European Commission on Human Rights had to satisfy, such "close" attention to the settlement of this issue is not accidental. Independence, impartiality, objectivity and high professionalism in their field are, perhaps, the basic qualities that members of any international expert bodies on human rights should possess, not only within the Council of Europe, but also within the United Nations. Defining the criteria for election to human rights expert bodies is generally the primary consideration in the development of new international human rights treaties. In addition, the high authority of the members of the expert control body is one of the main guarantees of its successful work. The experience of the Council of Europe in this matter, it seems, can be very useful.

The Commission did not function on a permanent basis, therefore the Secretariat played an important role in the activities of the entire system. The hearing of the cases in the Commission took place behind closed doors. The confidential nature of this procedure had both positive and negative aspects for the effective protection of human rights and freedoms guaranteed by the European Convention.

This nature of the consideration of cases in the Commission led to the fact that not all the details of the functioning of the control mechanism became public, which did not help to build confidence in the system, and also did not stimulate the filing of petitions. Moreover, the very public (open) nature of the hearings would already be to a certain extent a sanction, since in this way states would be the object of criticism from other states and public opinion. Finally, consideration of cases of violation by the state of its obligations under the Convention, not behind closed doors, would have a preventive effect in relation to other potential "countries - offenders".

On the other hand, experience shows that states are more willing to accept international control when it is not open, at least at the initial stage. Proof of this is the fact that it took 35 years for all States parties to the European Convention to accept the private complaints procedure. In addition, for the Commission to successfully fulfill its functions under part 1 of former Article 28 (ensuring amicable settlement), an element of confidentiality seemed to be an indispensable condition. In such conditions, states, as a general rule, show a great inclination to make certain concessions, which would be much more difficult if they had already made an open statement about their position and participated in the discussion of cases that received public resonance.

The European Commission of Human Rights has primarily considered the admissibility of the submitted petitions in the context of former Articles 26 and 27 of the European Convention, which contained requirements for admissibility. If the petition was accepted, the Commission, together with representatives of the parties, examined it in order to establish the facts. At the same time, it presented itself “at the disposal of the interested parties in order to ensure an amicable settlement of the issue on the basis of respect for human rights determined by the provisions of ... the Convention” (point (c) of part 1 of the former Article 28 of the European Convention).

If such a settlement was reached, the Commission prepared a report summarizing the facts and the agreed decision, which it then forwarded to “the States concerned, the Committee of Ministers and the Secretary General of the Council of Europe for publication” (Article 28 § 2). In the event that a friendly settlement could not be reached, the Commission prepared a factual report in which it also expressed its views on whether or not there had been a violation of the Convention. This report was sent to the Committee of Ministers of the Council of Europe and interested parties. At the same time, when sending a report to the Committee of Ministers, the Commission could “make such proposals as it deems appropriate” (part 3 of article 31).

The main purpose of the European Commission on Human Rights was to select, filter a large number of petitions, which was supposed to go to the Strasbourg control authorities. Thus, the consideration of the admissibility of petitions was considered key in the future work of the Commission.

When a complaint was received by the European Commission, it went through the registration procedure, which meant that the complaint was now in the process of being considered by the Commission, from which no conclusions should be drawn about the admissibility of the complaint.

In relations with the Commission, states used the services of their representatives - agents who could be assisted by advisers. 70 Individuals, non-governmental organizations or groups of individuals could file complaints or appear before the Commission through a lawyer or any other person resident in the territory of a State party to the Convention, unless the Commission decided otherwise (Rule 32 of the Rules of Procedure of the European Commission) .71 The parties did not bear any the costs of the procedure before the Commission, all of which were paid by the Council of Europe. Very important was the provision of Rule 36 of the Rules of Procedure of the European Commission, which established the following:

"The Commission or, if it is not currently in session, its Chairperson may indicate to the parties the interim measures, the adoption of which seems desirable in the interests of the parties or the proper consideration of the case in the Commission" 72.

It follows from the text of the Rule that we are talking about recommendations from the Commission, which do not impose any legal obligations on states. This also follows from the text of the Convention itself, which did not authorize the Commission to impose interim binding measures. At the same time, as practice shows, states were sensitive to such recommendations of the European Commission. It should also be noted that the Commission resorted to such actions only in the most extreme cases, when it clearly followed from the facts presented by the author of the petition that there was a violation of the Convention, and reluctance to take the proposed measures could result in irreparable damage to the interests of the parties or the course of the proceedings. According to the author of this work, in some cases, the provision of former article 25 of the Convention that states parties that have recognized the right to an individual petition “undertake not in any way to hinder the effective exercise of this right” could also lead to an obligation to follow the interim measures indicated Commission.

The decision to declare the petition inadmissible was final and not subject to appeal. While the decision on the admissibility of the petition could be reviewed at any time in the future. Moreover, the European Court of Human Rights also reserved the right to declare the petition inadmissible.

Former articles 26 and 27 of the European Convention contained an exhaustive list of grounds for declaring petitions inadmissible. Taking into account the fact that these provisions practically unchanged “migrated” into the new text of the European Convention in accordance with Protocol No. 11, but already in the aspect of the functioning of the new single European Court of Human Rights, it seems more appropriate to consider the grounds for declaring complaints inadmissible below in section on the functions of the current Court. Here I would like to make only the following remarks. When examining the issue of admissibility and inadmissibility of a petition, the European Commission inevitably faced the need to study not only questions of fact, but also questions of law. In other words, at this stage the Commission had to consider the case on the merits, which, however, did not fall within its competence according to the European Convention. In reality, however, the Commission had to perform a very real judicial function.

In the event that the Commission found the complaint admissible, it, in accordance with paragraph (a) of paragraph 1 of former Article 28, conducted “jointly with the representatives of the parties, the examination of the complaint”. At the same time, the Commission placed itself at the disposal of the interested parties in order to ensure an amicable settlement of the issue based on respect for human rights determined by the provisions of ... the Convention ”(paragraph (c) of Part 1 of Article 28).

During such an examination, the complaint could still be declared inadmissible under Article 29 if “during its examination it becomes clear that one of the reasons why, under the provisions of Article 27, the said complaint cannot be accepted”.

The Commission's proper understanding of all aspects of the case helped it to reach an amicable settlement, as well as to form its opinion on whether or not there was a violation of the Convention. In this regard, it was not enough for the Commission to examine only the facts and circumstances of the case; she equally had to study questions of law.

If at the stage of the study of the admissibility of the complaint, the European Commission acted “as the present judicial authority”And rendered“ legally binding decisions ”73, the examination of the complaint in accordance with the former Article 28 was more of a quasi-judicial nature. At the same time, the latter was characterized by considerable freedom in the conduct of the study on the part of the Commission, which adapted the study procedure to the circumstances of each particular case.

If the Commission deemed it necessary, it, in accordance with paragraph (a) of paragraph 1 of former Article 28 and Rule 34 (2) of the Commission's Rules of Procedure 74, could conduct an investigation, including a visit to the territory of a State party to the Convention. At the same time, for the effective conduct of such an investigation, the states concerned, after exchanging views with the Commission, had to create “necessary conditions”.

There were no provisions in the Convention, and even now there are no provisions allowing for the coercion of States parties to cooperation. Moreover, such a state of affairs would clearly contradict the principle of state sovereignty. At the same time, it seems that in case of refusal of states to cooperate in visiting the country, when such a visit was absolutely necessary, it would be possible to appeal to the Committee of Ministers. The resolution of the Committee of Ministers could have a significant impact on the state in order to facilitate its cooperation with the Commission and the fulfillment of treaty obligations under Article 28. However, in practice, such cases were not noted. In addition, in case of refusal to cooperate, one of the possible options for the development of the situation would be the sending of a petition by one of the States parties to the Convention to another by virtue of the former Article 24 of the Convention (the right to send interstate petitions to the Strasbourg control authorities), the subject of which would be a violation of Article 28 contract.

To conclude a brief historical excursion into the functioning of the European Commission on Human Rights, it should be mentioned that, in accordance with part 1 of former Article 30 of the Convention, the Commission could “at any stage of the proceedings decide to exclude a complaint from its list of cases, if the circumstances lead to the conclusion that , what:

a. the applicant does not intend to pursue his complaint, or

v. the issue has been resolved, or

with. for any other reason established by the Commission, it was not justified to continue the examination of the complaint.

However, the Commission continues to consider complaints if it is required by respect for the human rights defined in ... the Convention. ”

In the event that the Commission decided to remove a complaint from its list of cases after it had been declared admissible, it was required to draw up a report containing a statement of the facts and a decision to exclude the complaint, together with the reasons for doing so. Such a report was sent to the parties, as well as by way of information to the Committee of Ministers of the Council of Europe. In addition, the report could have been published by the Commission (part 2 of former Article 30).

If the examination of the complaint was not completed on any of the grounds listed in paragraph 2 of Article 28, Articles 29 or 30, the Commission, in accordance with Part 1 of Article 31, prepared a “report containing facts” and expressed “its opinion that , whether the established facts prove a violation by the respective state of its obligations under ... the Convention ”. The report could "have set out the individual views of the Commissioners on this matter." This report was sent to the Committee of Ministers of the Council of Europe, as well as to the states concerned, which did not have the right to publish it (part 2 of article 31).

The Commission's report was not a legally binding decision, as the authority to adopt such was exclusively vested in the Committee of Ministers or the European Court of Human Rights. The latter two bodies were not bound by the findings of the Commission in its report, although it was the most important document of all that was used in hearings before the Committee of Ministers and the Court. It is also important to note that the Commission, in its opinion, was not bound by the conclusions of its previous reports when considering subsequent cases of a similar nature. In fact, the Commission's case-law was fairly stable both on the admissibility of complaints and on the interpretation of the rights and freedoms listed in the European Convention.

As already indicated above, in accordance with the provisions of the European Convention, the Commission was also required to place itself at the disposal of the parties concerned “in order to ensure an amicable settlement” of the dispute that arose “on the basis of respect for the human rights determined by the provisions of ... the Convention”.

If an amicable settlement could not be reached, the Commission continued its examination of the case, after which, in accordance with former article 31, it drew up a factual report in which it expressed “its opinion as to whether the facts found prove a violation by the State concerned of its obligations under ... . Convention ". This was the end of the proceedings before the Commission, but this does not mean that the European Commission has ceased to fulfill its functions of conciliation. At the stage of consideration of the case in the Committee of Ministers or in the European Court, the proceedings could also be terminated due to an agreement between the parties. The Commission often played the role of an intermediary in this. It appears that in the event that the respondent State did not comply with the terms of the amicable settlement, the most appropriate body to take action would be, by analogy with the provisions of parts 2 and 3 of former Article 32 and former Article 54, the Committee of Ministers of the Council of Europe. At the same time, the Convention did not contain any clarifications in this regard. Thus, the European Commission on Human Rights performed functions of a triple nature: firstly, judicial (at the stage of considering the issue of admissibility - inadmissibility of complaints); secondly, quasi-judicial (at the stage of consideration of the complaint in accordance with Articles 28 and 31 of the Convention); thirdly, political (at the stage of promoting the achievement of a friendly settlement).

16. The structure of the European Court of Human Rights and the organization of its activities. The European Court of Human Rights, which is not a permanent court, is headquartered in Strasbourg. As a rule, it sits for a week in each month. The Court consists of a number of judges equal to the number of member states of the Council of Europe, and may not have more than one citizen of the same member state. The judges are elected for a nine-year term by the Parliamentary Assembly from lists of three candidates each nominated by states. During their term of office, they must not hold office that is incompatible with the independence, impartiality and requirements of that office. The Court may consider cases only in relation to states that have recognized its compulsory jurisdiction or have agreed to refer a particular case to the Court. Cases can be submitted to the Court by the state. After October 1, 1994, when Protocol 9 to the Convention entered into force, a case may also be referred to the Court by a person, group of persons or a non-governmental organization. If the case is submitted to the Court by the applicant himself in accordance with Protocol 9, then a group of three judges , including a judge elected from the State concerned, may decide unanimously that the case will not be heard by the Court; in this case, the decision on the case is made by the Committee of Ministers. The applicant and his lawyer may participate in the proceedings before the Court and present memoranda and oral arguments during the hearings. The Court will form chambers of nine judges to hear cases. The ex officio members of the chamber are the chairman or deputy chairman, as well as a judge who is a national of the state that is a party to the dispute. If the “national judge” is unable to sit or recuses himself, then the state concerned may appoint a special judge. The names of the remaining members of the chamber are drawn by lot. The Chamber thus constituted may, and in some circumstances must, relinquish its jurisdiction in favor of the Large Chamber, composed of nineteen judges, which in exceptional cases may in turn relinquish its jurisdiction in favor of the plenary session of the Court. V.G. Golovin. European Union: a new stage of integration.-M. , Eksmo, 1996; The court considers the case on the basis of written comments and oral statements of the participants in the process. Initially, the procedure is written and involves the submission of memoranda and other documents; the Court then usually holds hearings, which in principle are open. After the hearings, the judges debate behind closed doors and decide by majority vote whether there has been a violation of the Convention. If a violation is found, the Court may also provide just satisfaction to the injured party, including compensation for moral and material damage and reimbursement of costs and expenses. Judges can express dissenting opinions (with consent or disagreement), which are attached to the decision. The decision is usually announced publicly by the President of the Court. It is final and not subject to appeal.

17.Procedure for the consideration of individual complaints at the European Court of Human Rights. Stages of legal proceedings. The most important condition is that you need to apply only after the case has been considered by the highest judicial instance in the country, that is, the Plenum of the Supreme Court. All costs of the European Court, according to Art. 58, bears the Council of Europe. The complainant bears the costs only for registered letters with the submitted documents. Yumashev Yu.M. Legal regulation of foreign direct investment in the EEC.- M.:, Jurist, 1988 1. The European Court of Human Rights is an international body that, under certain conditions, can accept complaints submitted by persons who complain that their the rights provided for in the Convention have been violated. This convention is an international treaty on the basis of which the majority of European states are obliged to respect certain fundamental human rights. These rights are contained in the Convention, as well as in Protocols 4 and 6, which are also signed by some states. 2. If the applicant considers that any of the listed states has committed a violation of one of these fundamental rights against him, he has the right to apply to the European Court, which can only consider those complaints that relate to the rights guaranteed by the Convention and the Protocols. except for all the others. The European Court is not an appellate court in relation to the national instances and can neither overturn nor change their decisions, it cannot intercede for you before the national instance against which the complaint is directed. 3. The European Court of Justice can only consider those applications which are directed against states that have ratified the Convention and relate to events that occurred after the date of ratification of the Convention. This date may vary depending on which state it is directed against and whether it concerns a right recognized by the Convention or one of the Protocols. 4. The applicant can only lodge complaints against actions or decisions of the public authorities of one of these states, parliament, administration, court, etc. The European Court of Justice cannot consider complaints against individuals or private institutions. 5. Before filing a complaint with a court, the applicant will have to use all possible domestic remedies in the State against which he is bringing the complaint. For example, he must apply to a higher court that is competent in his case, but if he complains about an unfair judgment or, more precisely, a conviction, an attempt to revise the process is not necessary if the usual appeal methods have already been used. When appealing, he must comply with all the rules of the procedure, especially the time limits prescribed by law. If he was denied a claim for failure to meet deadlines or the relevant rules, the court may not be able to consider his complaint. 6. When the highest national authority renders its decision, the applicant has a period of six months to lodge an application with the European Court. If his complaint is about a conviction, the time period starts from the date of the final judgment in the normal course of the proceedings, and not from the moment when the review of the process was refused. If, after this period has elapsed, the applicant has not set out his claims at least in a short form, the Court will not be able to consider his complaint. 7. If the applicant believes that violations of the rights guaranteed by the Convention or one of the Protocols have been committed in relation to him, and that all the above requirements have been met, he must send a letter to the Secretariat containing the following clarifications to the address: 8. The letter must contain the following information: a) a short summary of the complaint; b) an indication of the right or rights guaranteed by the Convention that are violated c) the remedies that were used; d) a list of decisions made in the case by the official authorities, indicating their exact date, a summary and the authority that issued them. Copies of the above documents must be attached to the letter. 9. The Secretariat will reply to the applicant. Other documents, information, or clarification about his complaint may be required. The Registrar may inform him of the application of the Convention in a case such as that indicated and will advise him if the complaint is manifestly inadmissible. At the same time, the Secretariat cannot provide information regarding the legislation of the state against which the complaint is directed. 10. If it follows from the correspondence with the Secretariat that the complaint can be registered, and if the complainant so wishes, the Secretariat will send a form so that the complainant can submit the complaint. Once the form has been completed and sent back to the Secretariat, the complaint will be submitted to the court for review. 11. The Secretariat will keep the complainant informed of the progress of the complaint. The procedure in court is not public and at least initially takes place in writing. Consequently, the applicant's personal presence in Strasbourg is unnecessary. 12. If possible, a lawyer should be consulted to represent the applicant's complaint. Later, during the procedure, you can get free legal assistance. Ametistov E.M. Modern trends in the development of the law of the European Community. //, Sov. state and law. ”- 1985. - No. 7;

18.Execution of judgments of the European Court of Human Rights. On June 10, 2010, the European Court of Human Rights issued a ruling on the complaint “Religious community of Jehovah's Witnesses in Moscow against Russia”. The European Court of Human Rights found the decision of the Russian court to dissolve the religious community of Jehovah's Witnesses in Moscow in violation of Articles 6, 9 and 11 of the European Convention and ordered Russia to pay the applicants 70,000 euros. The Court concluded that the interference with the applicants' rights to freedom of religion and association was unfounded and held that the dissolution of the community was “too severe and disproportionate in relation to the legitimate aim pursued by the authorities”, as the domestic courts had failed to present grounds showing that the applicant community forced the destruction of the family, violated the rights and freedoms of its members and third parties, persuaded its followers to commit suicide and refuse medical assistance, infringed on the rights of non-Witness parents and their children, and also encouraged its members to refuse to fulfill the obligations established by law [

Impact of the decisions of the European Court of Human Rights on the internal law of the states parties to the European Convention.

In the process taking place in an international judicial body, the norms of international law are applied, and a decision is made on the basis of these norms. Such a decision is executed by the state in accordance with its national law, the norms of which coincide or are brought into line with international legal norms. Otherwise, the state is obliged to bring these norms of national law in accordance with international law or to legally recognize the priority international law over the national. Thus, the judicial precedents of the European Court of Human Rights have a positive impact on judicial practice, and sometimes on the legislation of states, and also contribute to the practical implementation of human rights and freedoms.

Legal status of the Representative of the Russian Federation at the European Court of Human Rights.

The Russian judge at the ECHR is Anatoly Kovler.

Pavel Laptev worked for a long time as the authorized representative of the Russian Federation (that is, the government's lawyer), in 2007 Veronika Milinchuk was appointed to this position, in 2008 - Georgy Matyushkin.

The Representative of the Russian Federation at the European Court of Human Rights - Deputy Minister of Justice of the Russian Federation is appointed by the President of the Russian Federation on the proposal of the Chairman of the Government of the Russian Federation from among persons with higher legal education and fluent in one of the official languages of the Council of Europe.

The Commissioner in his activities is guided by the norms of international law, binding on the Russian Federation, the Constitution of the Russian Federation, federal laws, decrees and orders of the President of the Russian Federation, decrees and orders of the Government of the Russian Federation.

The Commissioner works in cooperation with federal government bodies, government bodies of the constituent entities of the Russian Federation and local government bodies, as well as with the Interdepartmental Commission of the Russian Federation for Council of Europe Affairs.

Functions and powers of the Commissioner

Protection of the interests of the Russian Federation when considering complaints to the ECHR filed by the Russian Federation on the basis of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Studying the legal consequences of the Court's judgments against the member states of the Council of Europe, and preparing, taking into account the practice of the Court and the Committee of Ministers of the Council of Europe, recommendations on improving the legislation of the Russian Federation and law enforcement practice, as well as on the participation of the Russian Federation in international treaties and on the development of international law, meeting the interests of the Russian Federation;

Ensuring interaction federal bodies state power, state power bodies of the constituent entities of the Russian Federation and bodies local government in the execution of the judgments of the Court and the decisions of the Committee of Ministers of the Council of Europe in connection with complaints about the violation by the Russian Federation of the provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms, including the restoration of the violated rights of the applicants, the payment of the awarded by the Court monetary compensation and the adoption of general measures aimed at eliminating and (or) preventing violations of the provisions of the said Convention by the Russian Federation.

Authorized in accordance with the functions assigned to him:

upon receipt of notification on a complaint against the Russian Federation - immediately informs the interested federal government bodies, government bodies of the constituent entities of the Russian Federation and local government bodies;

Requests from federal state authorities, executive authorities of the constituent entities of the Russian Federation and local self-government bodies the necessary information on the factual and legal aspects of the case for the effective representation of the interests of the Russian Federation in the Court and the Committee of Ministers of the Council of Europe, including copies of all necessary documents related to the case ; these bodies are obliged to provide the Commissioner with such information no later than one month after receiving the request; in exceptional cases, the Ombudsman has the right to set shortened terms for the execution of his request;

Forms the position of the Russian Federation on the case, acts as a representative of the Russian Federation in the proceedings in the Court and when considering the implementation of the decisions of the Court in the Committee of Ministers of the Council of Europe, engages for these purposes representatives of the General Prosecutor's Office of the Russian Federation, relevant executive authorities, Russian and foreign lawyers and experts, including on a contractual basis, coordinates the formed position with the Ministry of Foreign Affairs of the Russian Federation, if the case affects the political aspects of international relations, and also, if the case is related to the proceedings of other cases in international courts, with the federal executive body, responsible for ensuring the representation of the interests of the Russian Federation in such cases;

Conducts, in agreement with the interested federal government bodies, government bodies of the constituent entities of the Russian Federation and local government bodies, negotiations on the pre-trial settlement of cases on complaints filed against the Russian Federation, and, through the mediation of the Court, concludes appropriate amicable agreements with the applicants; informs the Court of the amicable agreements reached with the applicants by the Commissioner or the interested federal state authorities, state authorities of the constituent entities of the Russian Federation and local authorities, as well as the readiness of the Russian authorities to pay compensation to the applicants for the harm caused unilaterally; ensures the payment of compensation under the signed Amicable Agreements and unilateral statements, as well as controls the implementation of the necessary payments and (or) the fulfillment of other obligations to compensate for the harm caused by federal government bodies, government bodies of the constituent entities of the Russian Federation and local governments in in accordance with the settlement agreements concluded by them with the applicants;

In the event that the Court issues a decision on the violation of the Russian Federation of the provisions of the Convention on the Protection of Human Rights and Fundamental Freedoms, it notifies the interested federal government bodies, government bodies of the constituent entities of the Russian Federation and local government bodies, which, no later than one month after receiving the appropriate notification, notify the Commissioner of measures taken to ensure the execution of the judgment of the Court by eliminating violations of the provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms, including the restoration of violated rights of applicants, and (or) preventing such violations, and send supporting documents to the Commissioner for their subsequent submission to the Committee of Ministers The Council of Europe; informs the Constitutional Court of the Russian Federation, the Supreme Court of the Russian Federation, the Supreme Arbitration Court of the Russian Federation and the General Prosecutor's Office of the Russian Federation about the adoption by the Court of the said decision; in the event the Court issues a decision on awarding compensation to the applicant for the harm caused, draws up and sends the documents necessary for the payment of compensation to the authorized body, which, no later than 15 days after receiving them, makes the appropriate payment to the applicant and sends copies of the confirming payment documents to the Commissioner;

Provides, together with interested federal executive authorities, the development of relevant draft laws and submits to established order proposals on the use of the right of legislative initiative, if the execution of the decisions of the Court is associated with the introduction of amendments and additions to federal laws;

Provides, together with interested federal executive authorities, the preparation of draft relevant regulatory legal acts and submits them for consideration by the relevant government authorities, if the execution of the Court's decisions is associated with the introduction of amendments and additions to the regulatory legal acts of the President of the Russian Federation, the Government of the Russian Federation, and other regulatory legal acts;

Informs the Permanent Representative of the Russian Federation to the Council of Europe on the implementation or progress of the execution of the decisions of the Court and provides him with advisory assistance in the consideration by the Committee of Ministers of the Council of Europe on violations of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Creates, as necessary, working groups from representatives of federal government bodies.

Human rights and freedoms guaranteed by the European Convention for the protection of human rights and fundamental freedoms: general characteristics.

The European Convention for the Protection of Human Rights and Fundamental Freedoms is one of the main documents of the Council of Europe. This international treaty was signed in 1950 and entered into force on September 3, 1953. The Convention establishes inalienable rights and freedoms for everyone and obliges states to guarantee these rights to everyone who is under their jurisdiction. The main difference between the Convention and other international treaties in the field of human rights is the existence of a really operating mechanism for the protection of declared rights - the European Court of Human Rights (abbreviated ECHR), which considers individual complaints about violations of the Convention. Any citizen of a Council of Europe country who believes that his rights and freedoms enshrined in any article of the Convention have been violated has the opportunity to apply to the European Court of Human Rights if the relevant article has been ratified by his country.

Text of Art. 46 of the Constitution of the Russian Federation in current edition for 2020:

1. Everyone is guaranteed judicial protection of his rights and freedoms.

2. Decisions and actions (or inaction) of state authorities, local self-government bodies, public associations and officials may be appealed against in court.

3. Everyone has the right, in accordance with international treaties of the Russian Federation, to apply to interstate bodies for the protection of human rights and freedoms, if all available domestic remedies have been exhausted.

Commentary on Art. 46 of the Constitution of the Russian Federation

1. and proclaimed human and civil rights and freedoms as the highest value ensured by justice, and imposed on the state the obligation to recognize, respect and protect human and civil rights and freedoms.

The content of the commented article 46 of the CRF is a logical continuation, according to which the state protection of human and civil rights and freedoms in Russia is guaranteed. The fact is that judicial protection is one of the types of state protection of human and civil rights and freedoms * (219) and is a mechanism for the enforcement of guarantees of human and civil rights and freedoms, established by the state through a system of specialized state bodies - courts.

In science, judicial protection is considered as an institution constitutional law, as a public relation and state function * (220). Sometimes judicial protection is equated with justice * (221) or is considered as a guarantee of access to it. In criminal procedural science, judicial protection is understood as "a set of organizational and procedural rules provided to the suspect, the accused and the victim to protect their rights and legitimate interests"* (222).

In the theory of law, judicial protection is considered as an integral part of law enforcement function states * (223). However, it is natural in rule of law strengthening the influence of the judiciary, its isolation from law enforcement, separation into an independent branch of state power inevitably leads to the development of judicial protection of the rights and freedoms of citizens into an independent state function.

As noted by the authors of the Concept of judicial protection of human and civil rights and freedoms * (224), judicial order is the most perfect of all the methods and means of ensuring the rights of the individual known to the world human civilization. The powers of power are legitimate only within the framework of the observance of human rights. Violation of generally accepted standards in this area is the basis for a change in the status of the government itself. The idea of the priority of judicial protection of the rights, freedoms and legally protected interests of any subjects legal relationship has come a long way of development and implementation in practice * (225). The nature of judicial protection allows us to consider it a universal, and therefore the most effective way to protect violated rights and freedoms of the individual.

2. Citizens have the right to appeal both the decisions and actions (inaction) of state authorities, local government bodies, public associations and officials, and the information that served as the basis for these actions (decisions), or both at the same time. At the same time, citizens are exempted from the obligation to prove the illegality of the contested actions (inaction), however, they must prove the fact of violation by these actions (inaction) of their rights and freedoms. The procedural obligation to documentary proof of the legality of the contested actions is imposed on the bodies and persons whose actions (inaction) are being contested.

Judicial protection of rights and freedoms is regulated by federal laws, including:

Federal constitutional law of December 31, 1996 N 1-FKZ "On the judicial system of the Russian Federation" * (226);

Federal Law of December 17, 1998 N 188-FZ "On justices of the peace in the Russian Federation" * (227);

The law of the Russian Federation of April 27, 1993 N 4866-1 "On appeal in court of actions and decisions that violate the rights and freedoms of citizens" * (229).

The most general normative legal act regulating issues related to citizens' appeals is the Law of the Russian Federation "On Appealing Actions and Decisions Violating the Rights and Freedoms of Citizens in Court", the main fundamental content of which is that a wide range of actions can be appealed to the court. bodies, and not only state, but also local government, as well as public associations.

3. The commented constitutional norm at the highest level proclaims the possibility of everyone, in accordance with international treaties of the Russian Federation, to apply to interstate bodies for the protection of human rights and freedoms in the event that all available domestic remedies have been exhausted * (230).

International protection of human rights and freedoms is an opportunity to appeal to the European Court of Human Rights or other international human rights organizations in accordance with the international treaties of Russia, if all judicial instances within the country have been passed.

Adoption of the Bill of Human Rights * (231), including the Universal Declaration of Human Rights of 1948 * (232), International Covenant on Civil and Political Rights 1976 * (233), International Covenant on Economic, Social and cultural rights 1976, * (234) Optional Protocol No. 1 and Optional Protocol No. 2 to the International Covenant on Civil and Political Rights, made fundamental changes in the status of a person * (235). So, according to Art. 2 of Optional Protocol No. 1, “persons who claim that any of their rights enumerated in the Covenant have been violated and who have exhausted all available domestic remedies may submit written communications to the Committee for consideration”.

In accordance with the provisions of international treaties, a certain system of interstate bodies has been formed, endowed with the functions of control over the activities of the state in the field of human rights protection. Thus, Russia complements domestic methods of protecting rights and freedoms by international means. International law distinguishes between:

a) universal bodies (UN bodies):

The UN General Assembly, in accordance with the UN Charter, has the right to consider the principles of cooperation in maintaining international peace and security, discuss any issues related to international peace and security, and make recommendations on them, except for those cases when a dispute or situation is under consideration by the Security Council and etc .;

The UN Commission on Human Rights consists of 18 members (elected for four years) and was created to monitor the implementation of the conditions of the Covenant on Civil and Political Rights and two Optional Protocols thereto by the participating States;

The Committee on the Elimination of Racial Discrimination consists of 18 experts and oversees the implementation International convention on the elimination of all forms of racial discrimination, which was adopted by the General Assembly in 1965;

The Committee against Torture consists of 10 experts and monitors the implementation of the Convention against Torture, adopted by the General Assembly in 1984 and entered into force three years later, in 1987 * (236);

b) regional bodies operating within a territory. Thus, Russia's accession to the Council of Europe and the signing of the European Convention for the Protection of Human Rights and Fundamental Freedoms * (237) opened up the opportunity for our citizens to submit individual complaints to the European Court of Human Rights (ECHR).

Clause 1 of Art. 35 of the Convention determines that the Court can only accept a case after all domestic remedies have been exhausted. If an analysis of the factual circumstances of the case makes it possible to determine the admissibility of most of the complaints under the previous conditions, then in this case one cannot do without understanding the nuances of the domestic law of the respondent state. The countries of the Council of Europe are replete with a variety of legal systems, and the procedure for resolving cases is far from uniform. In most cases, this requires going through all domestic courts. The chain ends after the decision comes into legal force. In economic disputes, in cases under the jurisdiction of justices of the peace, as well as in new Criminal Procedure Code RF is a three-tier procedure, including the first, appeal and cassation instance. For the rest civil affairs it is possible to appeal to the European Court after passing only two instances. However, if the applicant was not consistent in challenging his case to each of these instances, the Court will declare his application inadmissible.

There is one more court “instance” in the Russian Federation - supervisory proceedings. The court, having considered the admissibility of the complaint in one of the cases against Russia, recognized the passage of this procedure as unnecessary, since its initiation does not depend on the applicant, but on the discretion of individual officials. Now, in the "Explanatory Note for Those Wishing to Apply to the European Court of Human Rights", sent to all applicants, it is indicated that the jurisprudence of the Court does not consider the procedure for reviewing judicial decisions that have entered into legal force, provided for as an effective remedy, as an effective remedy. Russian legislation... However, in connection with the entry into force of the new Civil procedural code, according to which any participant in the case who does not agree with the court decision can initiate the supervisory review procedure, it is likely that this principle of the European Court will be revised. In addition, the requirement to exhaust the remedies may extend to the evidence and arguments relied upon by the applicant when applying to the Court. For example, if the applicant operates with evidence that was previously available but was not examined by the national authorities, or if the applicant did not refer to the relevant provisions of the Convention, although nothing prevented this when considering his case domestically, then he risks that his complaint will be declared inadmissible. due to not using all means of protection. Exhaustion of all remedies also means that the applicant must comply with the domestic procedural rules on the jurisdiction and jurisdiction of cases. If the applicant misses the deadline for applying to the appropriate authority, even by mistake, then his complaint cannot be considered by the Court.

At the same time, the question arises whether the applicant is obliged to apply to the Constitutional Court of the Russian Federation if a law was applied in his case, the provisions of which are contrary to the Constitution? The court has not yet given its assessment of this circumstance, and the State's lawyers have not yet used this argument as an objection to the complaints against it. But given the peculiarities of the domestic constitutional proceedings, it seems that the applicants do not need to apply to this instance, especially if their case was considered by another competent body. The fact is that the courts of general jurisdiction by virtue of paragraph 1 of Art. 15 of the Constitution and nn. "C" clause 2 of the Resolution of the Plenum of the RF Armed Forces dated October 31, 1995 No. 8 are authorized to directly apply the Constitution as an act of direct action in case of contradiction with it federal laws or other regulations. And the Constitutional Court is empowered only to recognize the provisions of the law as compliant or inconsistent with the Constitution; resolution of a specific dispute on violated rights is not within its competence. According to Part 2 of Art. 100 of the Federal Constitutional Law "On the Constitutional Court of the Russian Federation", if the Constitutional Court of the Russian Federation has found the law applied in a particular case to be inconsistent with the Constitution of the Russian Federation, this case, in any case, is subject to review by the competent authority in the usual manner. In such circumstances, an appeal to the Constitutional Court of the Russian Federation in cases that are being considered or considered in another competent authority can be considered an attempt to initiate a procedure for reconsidering the case after going through the usual appeal procedure, which is not recognized by the European Court. as an effective remedy. Finally, there is an important caveat to this admissibility condition - the applicant is not obliged to seek remedies that the Court considers “ineffective”. This principle was developed by the case-law of the Court, taking into account the requirements of Art. 13 of the Convention. Therefore, as a rule, it is not required to resort to various non-judicial procedures (for example, in administrative bodies or to the Commissioner for Human Rights in the Russian Federation), which do not have the powers of a court.

Keywords

EUROPEAN COURT OF HUMAN RIGHTS/ COMPLAINTS / DOMESTIC REMEDIES / FINAL INTERNAL SOLUTION / ALLEGED VIOLATION OF RIGHTS/ EXHAUST / / COMPLAINT / DOMESTIC REMEDIES / FINAL DOMESTIC DECISION / NATIONAL AUTHORITIES / ALLEGED VIOLATION OF CONVENTION RIGHTS/ EXHAUSTION

annotation scientific article on law, the author of the scientific work - Gerasimenko Tamara Yurievna

The purpose of the article is to reveal the characteristics of such an important condition for filing a complaint with the European Court of Human Rights, as exhaustion. The right to an individual complaint is fairly considered hallmark and the greatest achievement of the European Convention on Human Rights. Exhaustion rule domestic remedies is an important part of the functioning of the protection system provided for by the Convention and its basic principle. At the same time, national legislation should provide effective remedies in the event of a violation of the Convention.

Exhaustion of domestic remedies as a condition of lodging a complaint before the European Court of Human Rights

The subject. The article is devoted to the subject of the exhaustion of domestic remedies before filing a complaint to the European Court of Human Rights... The purpose. The purpose of this article is to show and reveal the characteristics of such important condition of lodging a complaint before the European Court of Human Rights as the exhaustion of domestic remedies. The methodology. The following scientific methods have been used to write this article: analysis, comparing and making conclusions. Results, scope of application. The right of individual petition is rightly considered to be the hallmark and the greatest achievement of the European Convention on Human Rights. Individuals who consider that their human rights have been violated have the possibility of lodging a complaint before the European Court of Human Rights... However, there are important admissibility requirements set out in the Convention that must be satisfied before a case be examined. Applicants are expected to have exhausted their domestic remedies and have brought their complaints within a period of six months from the date of the final domestic decision. The obligation to exhaust domestic remedies forms part of customary international law, recognized as such in the case law of the International Court of Justice. The rationale for the exhaustion rule is to give the national authorities, primarily the courts, the opportunity to prevent or put right the alleged violation of the Convention. The domestic legal order should provide an effective remedy for violations of Convention rights. Conclusions. The rule of exhaustion of domestic remedies is an important part of the functioning of the protection system under the Convention and its basic principle.

The text of the scientific work on the topic "Exhaustion of domestic remedies as a condition for filing an application with the European Court of Human Rights"

UDC 340.158

DOI 10.24147 / 2542-1514.2017.1 (3) .168-173

EXHAUSTING NATIONAL REMEDIES AS A CONDITION FOR FILING A COMPLAINT WITH THE EUROPEAN COURT OF HUMAN RIGHTS *

T.Yu. Gerasimenko

Omsk Law Academy, Omsk, Russia

Article Information

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Keywords

European Court of Human Rights, complaints, domestic remedies, final domestic decision, alleged violation of rights, exhaustion

The purpose of the article is to reveal the characteristics of such an important condition for filing a complaint with the European Court of Human Rights, as the exhaustion of domestic remedies.

The right to individual complaint is rightly considered to be the hallmark and greatest achievement of the European Convention on Human Rights. The rule of exhaustion of domestic remedies is an important part of the functioning of the protection system provided for by the Convention and its basic principle. At the same time, national legislation should provide effective remedies in the event of a violation of the Convention.

EXHAUSTION OF DOMESTIC REMEDIES AS A CONDITION OF LODGING A COMPLAINT BEFORE THE EUROPEAN COURT OF HUMAN RIGHTS

Tamara Yu. Gerasimenko

Omsk Law Academy, Omsk, Russia

European Court of Human Rights, complaint, domestic remedies, final domestic decision, national authorities, alleged violation of Convention rights, exhaustion

The subject. The article is devoted to the subject of the exhaustion of domestic remedies before filing a complaint to the European Court of Human Rights.

The purpose. The purpose of this article is to show and reveal the characteristics of such important condition of lodging a complaint before the European Court of Human Rights as the exhaustion of domestic remedies.

The methodology. The following scientific methods have been used to write this article: analysis, comparing and making conclusions.

Results, scope of application. The right of individual petition is rightly considered to be the hallmark and the greatest achievement of the European Convention on Human Rights. Individuals who consider that their human rights have been violated have the possibility of lodging a complaint before the European Court of Human Rights. However, there are important admissibility requirements set out in the Convention that must be satisfied before a case be examined. Applicants are expected to have exhausted their domestic remedies and have brought their complaints within a period of six months from the date of the final domestic decision. The obligation to exhaust domestic remedies forms part of customary international law, recognized as such in the case - law of the International Court of Justice. The rationale for the exhaustion rule is to give the national authorities, primarily the courts, the opportunity to prevent or put right the alleged violation of the Convention. The domestic legal order should provide an effective remedy for violations of Convention rights. Conclusions. The rule of exhaustion of domestic remedies is an important part of the functioning of the protection system under the Convention and its basic principle.

* The article has been prepared on the basis of materials received by the author during a study tour at the European Court of Human Rights in Strasbourg in November 2016.

Law Enforcement Review 2017, vol. 1, no. 3, pp. 168-173

1. Introduction

It should be admitted that, despite the emerging trend of a decrease in the number of applications from the Russian Federation to the European Court of Human Rights (hereinafter referred to as the ECHR, the Court), their total number remains quite high. According to official statistics, if in 2010 the number of complaints was 14,309, then in 2016 5,591 complaints were filed. Thus, over the past seven years, the number of applications to the ECHR has decreased by 61% 1.

This fact can be explained not only by the improved functioning and increased efficiency of the Russian justice system, but also by the policy of toughening the requirements for compliance with the admissibility criteria of complaints by the ECHR. One such criterion is the exhaustion of domestic remedies.

2. Possibility of individual filing of a complaint with the European Court of Human Rights as a basic provision of the European Convention on Human Rights

The right to an individual complaint is rightly considered the hallmark and greatest achievement of the European Convention on Human Rights (hereinafter - the Convention) 2. A person who believes that his rights have been violated has the opportunity to file a complaint with the ECHR. However, there are strict admissibility requirements set out directly in the Convention, which must be met before the ECtHR case is heard. In particular, potential applicants must exhaust domestic remedies and can only submit complaints within six months from the date of entry into force of the domestic decision.

It is also important to note that the number of complaints is far from always comparable to their quality. It is clear that most individuals who file individual complaints lack the necessary and sufficient knowledge of the requirements and criteria for admissibility.

1 Laceyko A. At the meeting-seminar the chairmen of the courts summed up the results of the past year and determined the priorities for the current one. URL: https://zakon.ru/blog/ 2017/03/09 / na_soveschanii-seminare_predsedatelej _sudov_podveli_itogi_proshedshego_goda_i_opredelili _prioritety_ (date accessed: 26.04.2017).

2 Convention for the Protection of Human Rights and Fundamental

the legislation of the Russian Federation. 2001.

No. 2. Art. 163.

3. Normative justification of the right to appeal to the European Court of Human Rights

According to Art. 35 of the Convention, this admissibility condition is based on the generally recognized norms of international law. The obligation to exhaust domestic remedies is part of the international customary law, recognized as such in the practice of the International Court of Justice. This condition is found in other international treaties related to human rights: the International Covenant on Civil and Political Rights and the Optional Protocol thereto, the American Convention on Human Rights and the African Charter on Human and Peoples' Rights.

4. The subsidiary nature of the mechanism established by the Convention

The ECtHR plays a subsidiary role in relation to national systems for the protection of human rights, and it is not a supranational authority3. Therefore, it is most optimal that the national courts first have the opportunity to decide on the conformity of domestic law with the Convention. In the event that the complaint nevertheless ends up in Strasbourg, the ECHR should be able to use the conclusions of the national courts, since the latter are in direct and direct contact with the parties to legal relations in their countries4.

It is necessary to pay attention to the fact that paragraph 1 of Art. 35 of the Convention speaks only of domestic remedies: it does not require the exhaustion of remedies under international organizations... On the contrary, if the applicant submits the case to another supranational body in accordance with another procedure of international investigation or settlement, the complaint may be rejected on the basis of paras. b clause 2 of Art. 35 of the Convention. In this regard, the ECHR independently decides whether this or that instance is domestic or international5.

3 Application no. 25579/05, A, B, C v. Ireland, judgment of 16 December 2010. Hereinafter, access to the resource: URL: http://hudoc.echr.coe.int (date of access: 26.04.2017).

The primary purpose of the rule of exhaustion of domestic remedies is to enable national authorities (primarily the courts) to prevent or correct an alleged violation of the Convention. This task stems from the position reflected in Art. 13 of the Convention, according to which in the domestic legal order there must be effective remedies against violations of the rights guaranteed by the Convention. This is precisely the subsidiary nature of the mechanism established by the Convention6.

5. Selection of potential remedies

At the same time, the rule of exhaustion of internal legal means protection is not absolute and cannot be applied automatically7. Initially, applicants are required to comply with the rules and procedures established in domestic law. Otherwise, the complaint may be rejected due to failure to comply with the conditions of Art. 35 of the Convention. Article 35 of the Convention will not be considered complied with if the appeal to the national authority is not considered due to a procedural error of the applicant himself.

It is also important that in the case when the national court considered the applicant's appeal on the merits, even recognizing this appeal inadmissible, the conditions of Art. 35 of the Convention will be considered fulfilled8.

If the situation is such that the applicant has several potential effective means legal protection, he needs to use only one of them9. If one tool was used, then calls to another tool, the task of which practically coincides with the task of the first, is not required10. Thus, it is up to the applicant to choose the most suitable remedy. In the event that domestic law provides for several parallel remedies that are different in their legal nature, then from the applicant who tried to achieve the elimination of the alleged violation

By recourse to one of these remedies, the Convention should not necessarily require recourse to other remedies that essentially perform the same task11.

6. Availability of Potential Internal Remedies for Applicants

In direct proceedings before the domestic courts, there is no need to invoke directly any right guaranteed by the Convention. In the event that the applicant did not invoke the provisions of the Convention, then, relying on domestic law, he must present arguments of such content that would give the national courts grounds to be the first to react to the alleged violation of the Convention.

Applicants should use only those available internal means that can only be used directly (that is, directly by the applicants themselves). At the time of the trial, the remedies must be effective both in theory and in practice. In other words, they must be accessible, capable of satisfying claims, and there must be a reasonable prospect of a positive outcome 12.

At the same time, the use of any discretionary or extraordinary remedies is not required. If the remedy is not directly available to the applicant, but depends on the discretionary powers of the intermediate participant in the relationship, then this remedy is ineffective. An internal remedy that does not contain time limits for considering appeals and thus generates uncertainty cannot be considered effective.

Does clause 1 of Art. 35 of the Convention, the submission of an individual complaint to the Constitutional Court will depend largely on certain characteristics of the legal system of the respondent state, as well as on the limits of the jurisdiction of its Constitutional Court.

It should be remembered that if the applicant attempts to use a remedy, it is not considered

9 Application no. 65681/01, Moreira Barbosa v. Portu-

my Court as appropriate, the time spent on this appeal does not interrupt the six-month period, which may lead to the rejection of the application by the Court due to the omission of this period.

Protective equipment must function with sufficient quality assurance, not only in theory but also in practice. In order to determine whether a remedy meets the criteria of accessibility and effectiveness, it is necessary to take into account the specific circumstances of each case. Judicial practice should be sufficiently well-established in the national legal system. In addition, the Court must take into account not only the remedies theoretically provided for in the domestic legal system, but also the general legal and political context of the situation, as well as the applicant's personal circumstances13. It is up to the Court to decide, in the light of all the circumstances of a particular case, whether the applicant did everything that could reasonably be expected of him to exhaust domestic remedies. It should be noted that state boundaries (both de facto and legally) are not in themselves an obstacle to the exhaustion of domestic remedies. Applicants residing outside the jurisdiction of the respondent State are not exempted from the obligation to exhaust domestic remedies in that State, despite possible practical inconveniences.

7. Exemption from the obligation to exhaust domestic remedies

In accordance with generally recognized principles of international law, an applicant may, in certain circumstances, be exempted from the obligation to exhaust available domestic remedies15. The requirement of exhaustion does not apply in cases where it is proven that there is an administrative practice, expressed in the

18 Application no. 43376/06, Prencipe v. Monaco, judg-

the reprisal of actions that violate the Convention and the connivance of the official authorities, which makes any procedure useless or ineffective16. In cases where the requirement for the applicant to use any means would be unreasonable in practice and would create disproportionate obstacles to the implementation of the guaranteed Art. 34 of the Convention on the Right to Personal Appeal, the Court finds that the applicant is exempted from the obligation to use this remedy17. If a fine is levied for appeal to any authority, depending on the outcome of the case and this fine is not related to abuse or violation, then such an instance is no longer considered mandatory for use18.

If the respondent State claims non-exhaustion of domestic remedies, then it must prove that the applicant did not seek an effective and accessible remedy19. The availability of such a tool must be sufficiently demonstrated by both law and practice.20 This remedy must have a clear basis in domestic law and must also ensure that the situation giving rise to the complaint can be remedied; however, the likelihood of a positive outcome of the case must be reasonable21. The existence and development of the claimed remedy, as well as its scope and scope, must be clearly identified and confirmed or supplemented by the practice of judicial or other authorities22.

The applicant's obligation to exhaust domestic remedies is generally assessed as of the date of the application to the Court, except in isolated cases where special circumstances may be present23. However, the Court may take into account the situation where final stage remedies will be completed shortly after the application has been lodged, but before the Court has

bears its decision on admissibility24. If, however, the respondent State wishes to state an argument of non-exhaustion, it must do so, as the circumstances and the very nature of the objection permit, in its memorandum before deciding on admissibility. The objection of non-exhaustion of domestic remedies is often combined with the merits of the case, in particular in cases involving procedural obligations or guarantees.

The issue of the exhaustion of domestic remedies is usually decided in the light of the stage at which the domestic proceedings were at the time of the application to the Court. The court also takes into account the effectiveness and availability of newly emerged remedies in the event of their appearance. As to when it will be considered fair to require an applicant to seek a new remedy that has appeared in the legal system in connection with a change judicial practice... The Court considers that it would be unfair to require the exhaustion of such a new remedy without giving individuals a reasonable time to study the judgment. The length of such a “reasonable time” depends directly on the circumstances of each case, but usually the Court finds that such a time period is six months26. As a general rule, red tape cases do not require recourse to a remedy that does not have a preventive effect or does not guarantee compensation. The procedure for challenging the length of a trial should itself proceed without significant delay and provide a decent level of compensation.

If, however, the Court finds that there are general or structural deficiencies in domestic law or law enforcement practice, it may require the respondent State to pay attention to the situation and, if necessary, take effective measures to ensure that cases of this kind

were not submitted to the Court27. The court may decide that the state should change something in the existing set of remedies, or create new remedies that can actually effectively remedy the alleged violations of the rights guaranteed by the Convention28.

In the event that the respondent Government has introduced a new remedy, the Court examines the issue of its effectiveness29. The court considers this issue by examining the circumstances of each case; its conclusion about the effectiveness or ineffectiveness of the new legal framework should be based on practical application new norms. However, neither the fact that there is a lack of judicial or administrative practice in relation to the application of the legislative framework, nor the risk that the proceedings may take significant time, cannot in itself mean that a new remedy is ineffective. If the Court concludes that a new remedy is effective, it means that other applicants in similar cases should apply it. However, on one condition - if the applicants' access to this new tool was not closed due to the missed application deadline. This refers to the domestic remedies that emerged following the submission of the applications to the Court. The assessment of the exceptional circumstances that oblige the applicant to use this tool is made taking into account the new national regulatory framework, as well as the context in which this innovation was introduced.

Exhaustion of domestic remedies is one of the most important and fundamental admissibility criteria when filing a complaint with the ECtHR. Its observance has a direct impact on the further fate of the complaint and its potential consideration on the merits.

26 Application no. 2115/04, Depauw v. Belgium, judg-

Gerasimenko Tamara Yurievna - Post-Graduate Student, Department of Constitutional and Municipal Law

Omsk Law Academy 644010, Russia, Omsk, st. Korolenko, 12 E-mail: [email protected]

BIBLIOGRAPHIC DESCRIPTION OF THE ARTICLE

Gerasimenko T.Yu. Exhaustion of domestic remedies as a condition for filing a complaint with the European Court of Human Rights / T.Yu. Gerasimenko // Law enforcement. - 2017. -T. 1, No. 3. - S. 168-173. - DOI: 10.24147 / 2542-1514.2017.1 (3) .168-173.

INFORMATION ABOUT AUTHOR

Tamara Yu. Gerasimenko - PhD student, Department of Constitutional and Municipal Law

Omsk Law Academy

12, Korolenko ul., Omsk, 644010, Russia

Email: [email protected]

BIBLIOGRAPHIC DESCRIPTION

Gerasimenko T.Yu. Exhaustion of domestic remedies as a condition of lodging a complaint before the European Court of Human Rights. Pravoprime-nenie = Law Enforcement Review, 2017, vol. 1, no. 3, pp. 168-173. DOI: 10.24147 / 2542-1514.2017.1 (3) .168-173. (In Russ.).

The right to judicial protection under the Constitution of the Russian Federation.

Right to judicial protection(eng. Right for Legal Defense) guarantees citizens the protection of rights and freedoms in the courts. This is one of the basic human rights. Judicial protection is one of the most important state methods of protecting the rights, freedoms and legitimate interests of subjects of law, carried out in the form of justice and guaranteed by the state.

The Universal Declaration of Human Rights provides that everyone has the right to effective redress by the competent national courts in cases of violation of his fundamental rights conferred on him by the constitution or law (Article 8) and that everyone, in order to determine his rights and obligations and to establish justification of the criminal charge brought against him, has the right, on the basis of full equality, to have his case heard publicly and in compliance with all requirements of fairness by an independent and impartial tribunal (Article 10).

The European Convention on Human Rights provides that everyone, in the event of a dispute over his civil rights and obligations, or when any criminal charge is brought against him, has the right to a fair and public hearing in reasonable time an independent and impartial tribunal established by law (art. 6 para. 1).

In addition to state methods of protecting rights, freedoms and interests in modern legal systems, other methods of protecting rights are also allowed, for example, such as self-defense of law (Article 14 of the Civil Code of the Russian Federation). However, only the presence in the legal system of the institution of judicial protection of rights based on the principle “every violated right is subject to judicial protection” is a necessary condition for the recognition of such a legal system as truly democratic.

In addition, the independence of the judiciary should be guaranteed in modern legal systems. This independence, ensured by measures of a legal, organizational, political, ideological nature, is an indispensable attribute of the non-fictitious institution of judicial protection of violated rights, in which judicial protection of violated rights of a subject is guaranteed, including in cases of infringement of human rights and freedoms by the state.

Excerpts from the Constitution of the Russian Federation

The right to judicial protection is declared in the Constitution of the Russian Federation.

In Art. 46 item 1. "Everyone is guaranteed judicial protection of his rights and freedoms." Thus, the exercise of this right is consolidated for everyone and for everyone. In addition, this right also applies to legal entities, since the latter are an association of individuals.

In paragraph 2 of Art. 46, the right of a citizen to appeal against actions (inaction) of public authorities is enshrined. "Decisions and actions (or inaction) of state authorities, local governments, public associations and officials may be appealed to the court"

Clause 3 of Article 46 establishes the right of a citizen of the Russian Federation to apply to international courts (European Court of Human Rights), if all options for resolving the issue within the state have been exhausted. "Everyone has the right, in accordance with international treaties of the Russian Federation, to apply to interstate bodies for the protection of human rights and freedoms, if all available domestic remedies have been exhausted"

Law enforcement activities carried out by the court in resolving social conflicts are directly determined by the rights and freedoms of a person and a citizen (Articles 2, 18 and 46 of the Constitution of the Russian Federation).

The need to properly protect these rights requires special guarantees in the legal proceedings itself, and the aforementioned constitutional norms not only indicate the purposefulness of the legal proceedings, but also consolidate the basis for the court's controlling activity in the sphere of justice.

The role of civil procedural law in strengthening the legality of the Russian Federation.

The role and position of the court in modern society.

The ongoing legal reform could not but affect the judicial activity. The basis of the reform in the field of judicial procedure is the strengthening of the judiciary and giving it the role of a third power in the state, along with the legislative and executive ones. The principle of separation of powers, formulated in ancient times and then developed in bourgeois France, is currently being introduced into the political and legal life of Russia.

In each country, the judiciary is understood in its own way, its authority and power are ensured in different ways. In Russia, both pre-revolutionary and post-revolutionary, the principle of the rule of law was in effect. And now the strengthening of the judiciary is taking place in combination with this principle, which is much more complicated than under the rule of judicial precedent.

The judiciary, functioning alongside the legislative and executive branches, must be able to resist them if necessary.

The judiciary is exercised through constitutional, civil, administrative and criminal proceedings. An important milestone in the development judicial system Russia was the adoption on December 31, 1996 of the Federal Constitutional Law "On the judicial system of the Russian Federation." According to the said Law, federal courts and courts of the constituent entities of the Russian Federation operate in the Russian Federation.

Federal courts include:

Constitutional Court of the Russian Federation;

Courts of general jurisdiction (the Supreme Court of the Russian Federation, the Supreme Courts of the republics, regional and regional courts, courts of federal cities, courts of an autonomous region and autonomous regions, district courts, military courts and specialized courts);

Arbitration courts (Supreme Arbitration Court of the Russian Federation, federal arbitration courts districts, arbitration courts of the constituent entities of the Russian Federation).

The courts of the constituent entities of the Russian Federation include: constitutional (statutory) courts of the constituent entities of the Russian Federation; justices of the peace

The structure of the judicial system.

Judicial system of Russia- a system of specialized state authorities (courts) administering justice on the territory of Russia. Judicial branch

1. Judicial power in the Russian Federation is exercised only by courts represented by judges and arbitration assessors... No other bodies and persons have the right to take upon themselves the administration of justice. 2. The judiciary is independent and acts independently of the legislative and the executive branch... 3. The judiciary is exercised through constitutional, civil, administrative and criminal proceedings.

Judicial system legislation

The judicial system of the Russian Federation is established by the Constitution of the Russian Federation and this Federal Constitutional Law.

Unity of the judiciary

The unity of the judicial system of the Russian Federation is ensured by: establishing the judicial system of the Russian Federation by the Constitution of the Russian Federation and this Federal Constitutional Law; compliance by all federal courts and justices of the peace with the rules of legal proceedings established by federal laws; the application by all courts of the Constitution of the Russian Federation, federal constitutional laws, federal laws, generally recognized principles and norms of international law and international treaties of the Russian Federation, as well as constitutions (statutes) and other laws of the constituent entities of the Russian Federation; recognition of the obligation to comply with judicial decisions that have entered into legal force throughout the territory of the Russian Federation; legislative consolidation of the unity of the status of judges; financing federal courts and justices of the peace from the federal budget.

The role of decisions of the Plenums of the Supreme Court of the Russian Federation in judicial practice.

Organizational and functional principles of civil procedural law.

Persons involved in the case.

The main subjects of civil procedural legal relations are the persons participating in the case - these are participants legally interested in the outcome of the case civil procedure who have the right to perform procedural actions affecting the course of the development of legal proceedings.

The persons involved in the case have a legal interest. The presence of a legal interest in a subject means that a court decision may affect its rights and obligations. Depending on the nature of the interest, personal (substantive) and state-legal, service (procedural-legal) legal interests are distinguished.

Personal legal interest in the outcome of the case is determined by the possibility of the influence of the court decision on the personal subjective rights and obligations of the participant. Such an interest is possessed by the parties (the plaintiff, the defendant, the applicant and interested persons in cases of public law and special proceedings), third parties. The named persons are the subjects of a controversial (other) material legal relationship submitted for consideration of the case.

State-legal, official legal interest means the conditionality of the participation of the relevant subject of its official position, the need to fulfill their functional responsibilities... These persons do not have a direct material-legal interest, since they are not subjects of a controversial (other) material-legal relationship. The subjects endowed with the named interest are the prosecutor and the subjects who, on their own behalf, protect the rights and interests of other persons.

The persons participating in the case have a wide range of rights, incl. rights, the implementation of which is aimed at the development, movement of legal proceedings (Art. 35 ?, 39 Code of Civil Procedure of the Russian Federation).

The list of persons participating in the case is fully enshrined in the law (Article 34 of the Code of Civil Procedure of the Russian Federation). This group of persons includes the parties, third parties, the prosecutor, persons applying to the court for the protection of the rights, freedoms and legitimate interests of other persons or entering into the process in order to give an opinion on the grounds provided for in Art. 4, 46 and 47 of the Code of Civil Procedure of the Russian Federation, applicants and other interested persons in cases of special proceedings and cases arising from public legal relations.

The named subjects act in civil proceedings on their own behalf and act either in defense of their own interests (parties, third parties), or the rights and interests of other persons (for example, state authorities and local self-government bodies).

Legal representation.

Legal representation Is a representative office, directly prescribed by law... It arises if citizens do not have or are deprived of civil and procedural legal capacity. The grounds for representation in this case are, for example, parental relations, an administrative act upon the appointment of guardianship or guardianship, a court decision upon adoption. Also, legal representation is provided in relation to citizens in need of guardianship and trusteeship, in relation to liquidated organizations in connection with their bankruptcy. Legal representatives may delegate the conduct of the case in court to another person they have chosen as their representative, such as a lawyer.

Legal representation is carried out in relation to:

· Minors

Disabled persons

Citizens recognized as missing in the prescribed manner

· The defendant, whose place of residence is unknown.

Court expenses.

Legal costs consist of the state duty (Ch.) and the costs associated with the consideration of the case.

The state duty is a monetary collection established by the state, levied from legal entities and individuals, in whose interests specially authorized bodies perform actions and issue documents of legal significance.

The procedure for payment, the size of Ch. and other issues are determined by the Law of December 9, 1991 (as amended on November 14, 2002) “On State Duty”. Gp. charged from statements of claim, cassation complaints, applications for special proceedings, copies (duplicates) of documents issued by the court.

Types of state duty:

1. Simple - is expressed in a solid monetary form (eg, minimum wage).

2. Proportional - calculated as a percentage of any amount.

3. Mixed (combined) - combines fixed sums of money and interest on certain

amounts (for example, from claims of a property nature).

To determine the amount of the claim, it is necessary to calculate the price of the claim.

The cost of the claim (c. And.) Is the monetary expression of the value of the disputed property.

Ex. c. and. on the collection of money - the amount to be recovered; on reclaiming property - the value of the property being sought; from claims of a non-property nature at the rate established by law, etc. (Article 91 of the Code of Civil Procedure).

C. and. determined before filing a claim with the court. The law provides for additional payments (in case of difficulties in determining the price. And.) And the return of rp. (fully or partially).

Return of the state duty - upon entering the state tax. in a larger amount, in case of refusal to accept, statement of claim, termination of proceedings on the case, return of an appeal, cassation, supervisory complaint. To return rp. an application must be submitted indicating the reason for the return. About the return of the rp. the court issues a ruling. Refunds are made by the tax authorities.

From payment of rp. exempt: plaintiffs in claims for reinstatement at work, in disputes about authorship, on the recovery of alimony; parties on applications for revision of court decisions in absentia, etc. (Article 89 of the Code of Civil Procedure).

The costs associated with the consideration of the case,

consist of the amounts payable to witnesses, experts, translators; expenses for payment of services of representatives; expenses for the production of on-site inspections, postage (Art. 94 Code of Civil Procedure).

Distribution of court costs - in the operative part of the decision. Awarded to a party in favor

which the decision was made.

In case of partial satisfaction of the claim - in proportion to the satisfied claims, in case of refusal of the claim - to the state's income.

Court fines.

Judicial fines (Articles 105-106 of the Code of Civil Procedure)

Fine - pecuniary punishment", A measure of material impact applied by the court to persons participating in the case, for failure to fulfill their procedural duties, violation of the order court session and to persons charged with the responsibility of promoting justice.

A fine is imposed only when it is provided by law (Articles 57, 105, 159 of the Code of Civil Procedure).

The issue of imposing a fine is resolved by the court by issuing a ruling, a copy of which is handed over to the person. This person can, within 10 days, ask for the addition of a fine or a reduction in its amount.

The issue is considered in the court session, failure to appear does not interfere with the consideration of the application. The decision to refuse a request to add a fine or reduce it can be appealed, while on a private complaint, the state fee is not paid.

The ruling on the fine applies to collection in 10 days from the date of its issuance. The fine is paid to the income of the local budget

Procedural complicity.

According to from st. 40 of the Code of Civil Procedure, a claim may be brought jointly by several plaintiffs or against several defendants. Such simultaneous participation in the group process on the side of the plaintiff or the defendant or on both sides at the same time of several persons is called procedural complicity.

The accomplices are called either co-plaintiffs (if they are on the side of the plaintiff) or co-defendants (on the side of the defendant).

Grounds for percent participation in accordance with Art. 40 CPC:

The subject of the dispute is general rights or the duties of several plaintiffs or defendants; - the rights and obligations of several plaintiffs or defendants have one basis; - the subject of the dispute is. homogeneous rights and obligations.

The classification of complicity is made on two grounds:

According to procedural and legal criteria, it differs depending on on whose side the complicity takes place: active C - when several persons are simultaneously involved on the side of the plaintiff; passive C - when several persons are simultaneously involved on the defendant's side; mixed C - when several persons participate simultaneously on the side of the plaintiff and the defendant.

According to the substantive criterion according to the degree of obligatory complicity: obligatory (necessary) complicity (obligatory participation in the case of all subjects of the disputed legal relationship as plaintiffs or defendants (for example, a claim for the division of common property cannot be considered without the participation of all owners). to all obligated persons, and his requirements cannot be considered separately, then the court must involve all these persons in the process.); optional (optional) complicity (admitted by the court at its discretion - it is possible only in cases where it meets the requirement of procedural economy, contributing to the reduction of time and money spent on the consideration of the case, ensuring timely and correct resolution of the dispute.).

Procedural rights and obligations of accomplices

Participants are endowed with equal procedural rights and bear the same procedural obligations listed in articles of the Code of Civil Procedure... Moreover, each of the accomplices in relation to the other side acts independently in the process. At the same time, accomplices have additional procedural rights. In particular, the partners may delegate the conduct of the case to one or more of the partners.

The persons involved in the case must conscientiously use all of their process. rights. carry the process. obligations established by the Code of Civil Procedure, other Federal Laws), 39 (change of the claim, rejection of the claim, recognition of the claim, settlement agreement) and other articles of the Code of Civil Procedure. Moreover, each of the accomplices in relation to the other side acts independently in the process

Requirements for the assessment of evidence.

The court evaluates the evidence according to its inner conviction based on a comprehensive, complete, objective and direct examination of the evidence available in the case. No evidence has a predetermined effect on the court. The court is obliged to reflect the results of the assessment of evidence in the decision, which provides the reasons why some evidence is accepted as a means of substantiating the conclusions of the court, other evidence is rejected.

The court cannot consider as proven the circumstances, confirmed only by a copy of a document or other written evidence, if the original of the document is lost and not handed over to the court, and the copies of this document presented by each of the disputing parties are not identical, and it is impossible to establish the true content of the original document with the help of other evidence

The concept of a claim.

Claim

following items:

Item;

Base.

The subject of the claim

Change of the subject of the claim

Basis of claim

Elements of the claim.

Claim- a request from an interested person to the court to protect his violated or disputed rights and legitimate interests.

The lawsuit is the central institution of civil procedural law. The claim includes following items:

Item;

Base.

The subject of the claim- indicated by the plaintiff subjective right, about which he asks the court to make a decision (for example, the subject of a claim for reinstatement at work is the right of a person to perform a certain job in accordance with an employment contract concluded with him).

In accordance with Art. 39 of the Code of Civil Procedure of the Russian Federation, the plaintiff has the right to change the basis or subject of the claim, increase or decrease the amount of the claim, or abandon the claim, the defendant has the right to recognize the claim, the parties can end the case with an amicable agreement.

Change of the subject of the claim- this is the replacement of the substantive claim of the plaintiff with another requirement, but within the limits of the declared dispute. Only the plaintiff can change the subject of the claim. The court can go beyond the scope of the claims in accordance with Art. 196 Code of Civil Procedure of the Russian Federation.

Basis of claim- a set of circumstances with which the plaintiff, as with legal facts, connects his substantive claim or the entire legal relationship.

A change in the basis of a claim is a change in the circumstances from which the plaintiff derives his claims. This is possible by adding additional facts to the basis of the claim or by other means. The basis of the claim may be changed by the court only with the consent of the plaintiff, since all changes in the claim dispute proceed only from the interests of the plaintiff. At the same time, you can change either the subject or the basis of the claim, otherwise a new claim will arise.

Counterclaim.

A counterclaim is a claim brought by the defendant against the plaintiff for joint consideration in the main process. Such a claim in accordance with Art. 137 of the Code of Civil Procedure may be declared by the defendant after the initiation of the case by the plaintiff and before the delivery of a court decision, in particular at the stage of preparing the case for trial, at various stages of the trial up to the adoption of a decision by the court.

The counterclaim must meet all the requirements (name of the court to which the application is submitted; full details of your own and of the defendant, what is the violation, the list of documents attached to the application, etc.), paid by the state. duty, to him d.b. copies of the number of defendants (ie co-plaintiffs in the initial claim) were attached and other requirements were met. The conditions for accepting a counterclaim are defined in Art. 138 Code of Civil Procedure:

1) if the counterclaim is aimed at offsetting the initial claim, n / a, when the plaintiff filed a claim for damages, and the defendant - to recover the amount of debt from the plaintiff for any obligation;

2) if the satisfaction of the counterclaim excludes in whole or in part the satisfaction of the initial claim.

3) if between the oncoming and initial claims there is a mutual connection and their joint consideration will lead to a faster and more correct resolution of disputes.

If a counterclaim is filed at the stage of the trial, it is possible to postpone the proceedings on the ground in order to provide the other party (the original plaintiff) with an opportunity for defense.

Counterclaim- this is independent requirement the defendant to the plaintiff, declared in the course of the proceedings for joint consideration with the initial claim before the court makes a decision on the case (Article 137 of the Code of Civil Procedure of the Russian Federation). A counterclaim is filed according to the general rules for filing a claim (Articles 131, 132 of the Code of Civil Procedure of the Russian Federation) in court at the place of consideration of the initial claim.

The counterclaim is accepted by the judge for consideration together with the initial claim of the plaintiff against the defendant only in cases and on the grounds of Art. 138 Code of Civil Procedure of the Russian Federation

Parts of the court session.

In the court session, it is customary to distinguish the following four parts:

preparatory, consideration on the merits, judicial pleadings, ruling and announcement of the decision.

Preparatory part: Performing procedural actions in this part of the session, the judge must come to the main conclusion - is it possible to consider the case on the merits in this court session or there are grounds for its postponement.

In this regard, the court must decide the following issues; whether the trial is possible with the given composition of the court; is it possible to make a decision without someone from the persons participating in the case; whether it is possible to consider the case on the merits with the evidence available in it.

Consideration of the case on the merits... Begins with a report from the presiding judge or one of the judges. The court finds out whether the plaintiff supports his claims, whether the defendant recognizes the plaintiff's claims and proposes to conclude an amicable agreement. In this part of the session, the main task of the court is to establish the factual side of the case. Consideration of the case on the merits after the report begins with an explanation of the persons participating in the case. The explanations take place in the prescribed manner: first the plaintiff, his representative, a third party from the plaintiff, then the defendant, ... Persons participating in the case can ask each other questions. The judges have the right to ask questions at any time when they give explanations. In case of failure to appear, explanations in writing shall be announced by the presiding officer. Having heard the explanations of the persons participating in the case, the court, taking into account their opinion, establishes the sequence of the examination of the evidence.

Witness removed from the courtroom and summoned during the examination on the merits. The presiding judge establishes his identity, explains his rights and obligations, warns about criminal liability for refusing to testify and for knowingly giving false testimony. The witness gives a signature, which is attached to the protocol. Each witness is interrogated separately. He gives explanations orally, if his readings are not connected with digital or other data that are difficult to keep in memory. These materials are presented to the court and can be attached to the case on the basis of a court ruling.

Remaining evidence are announced in the court session, examined by the court and presented to the persons participating in the case. Persons can give explanations and clarifications on the available evidence, which are recorded in the protocol with / s.

After examining all the evidence, the presiding judge gives the floor for an opinion on the case to the prosecutor, a representative government body or to the representative of the local self-government body participating in the process, asks other persons participating in the case, their representatives, if they wish to come up with additional explanations. In the absence of such statements, the presiding judge shall declare the consideration of the case on the merits completed, and the court proceeds to the judicial pleadings.

The persons participating in the case, their representatives in their speeches after the end of the consideration of the case on the merits shall not have the right to refer to circumstances that were not clarified by the court, as well as to evidence that was not examined in the court session.

If the court, during or after the judicial pleadings, finds it necessary to clarify new circumstances relevant to the consideration of the case, or to investigate new evidence, it shall issue a ruling on the resumption of the consideration of the case on the merits. After the end of the consideration of the case on the merits, the judicial debate takes place in a general manner.

The current Code of Civil Procedure has retained the requirements that apply to a court decision as an act of administering justice. Since the decision is critical procedural document, it must contain clear, legally correct wording, and avoid ambiguities that complicate its perception.

The decision of the court is stated in writing by the presiding judge or one of the judges. The decision of the court shall be signed by a judge in a single hearing of the case or by all judges in a collegial review of the case, including by a judge who has a dissenting opinion.

Article 198 of the Code of Civil Procedure contains required details, which must be contained in each of the four parts of the judgment.

In the introductory part of the court decision, the date (i.e. the day when the court decision was signed) and the place where the court decision was made (the place of the court session), the name of the court (exact and complete) that made the decision, the composition of the court (surname, name and patronymic of each of the judges), the secretary of the court session, the parties, other persons participating in the case (indicating their procedural status), their representatives, the subject of the dispute or the stated demand.

The descriptive part of the court decision must contain an indication of the claim of the plaintiff, the objections of the defendant and explanations of other persons participating in the case. In this part, the judge summarizes the stated claim, the circumstances confirming these requirements and the objections of the defendant. In the same part of the court decision, the circumstances connected with the performance of administrative actions by the parties must be reflected.

The circumstances given by the parties and other persons participating in the case are stated in the first person, in the form in which they are given by the persons participating in the case.

The reasoning part of the court decision must indicate the circumstances of the case established by the court, the evidence on which the court's conclusions about these circumstances are based, the arguments on which the court rejects certain evidence, the laws by which the court was guided.

The motives of the judgment are the judgments of the court, i.e. those considerations by which he came to a certain conclusion. The conclusion of the court about each fact, which, in its opinion, is established, must be confirmed by appropriate evidence. If the claim is recognized by the defendant, the reasoning part of the court decision can only indicate the recognition of the claim and its acceptance by the court. If the claim is denied in connection with the recognition as disrespectful of the reasons for missing the limitation period or the period for applying to the court, the reasoning part of the court decision indicates only the establishment by the court of these circumstances.

The operative part of the court decision must contain its conclusions about the satisfaction of the claim or about the refusal to satisfy the latter in whole or in part, an indication of the distribution of court costs, the term and procedure for appealing the court decision. The Code of Civil Procedure contains instructions on what the operative part of a court decision on certain categories of cases should contain. In addition, the Resolutions of the Plenum of the Top. RF courts for specific categories civil disputes govern the operative part of the court decision (cases on the protection of the honor and dignity of citizens and organizations; cases on compensation for harm caused by damage to health; cases related to the protection of consumer rights; cases on establishing paternity, etc.). In the cases provided for by the current legislation, in the operative part, an indication is given to deviate from the usual procedure for the execution of the decision (for example. immediate execution a court decision or ensuring its execution.

Requirements for a court order.

Court order- a court order with enforcement force, aimed at compulsory execution by the participants of certain legal relations of their obligations prescribed by the rule of law (Chapter 11 of the Code of Civil Procedure of the Russian Federation)

The most important requirements that a court decision must meet are legality and validity.

A legal decision is provided when:

1) judges, making decisions, were independent and were subject only to the Constitution of the Russian Federation and federal law;

2) the decision was made on the basis of the Constitution, federal constitutional laws in force on the territory of the Russian Federation, international treaties of the Russian Federation, federal laws and other regulatory legal acts;

3) by the court in case of contradiction legal regulations the decision was made in accordance with legal provisions having the greatest legal force;

4) the court, in the absence of legal norms governing controversial legal relations, has applied a law regulating similar relations (analogy of a law), and in the absence of such a law, the court made a decision based on the general meaning of the legislation, and first of all the Constitution of the Russian Federation;

5) by the court in case of contradiction of legislation international treaties the rules established by the indicated treaties ratified by the Russian Federation have been applied;

6) the court correctly applied the norms of the current procedural law, which regulate the procedure not only for making a decision, but also preparing the case for trial, considering the case on the merits;

7) the court, in the absence of a norm of procedural law regulating the relations arising in the course of the proceedings, applied the norm regulating similar relations (analogy of law), and in the absence of such a norm, the court acted on the basis of the principles of administering justice in the Russian Federation (analogy of law).

A court decision cannot be recognized as legal if:

1.the court has applied a law that is not applicable;

2. the court has not applied the applicable law;

3. the court misinterpreted the law.

Reasonable a decision should be recognized when it reflects facts that are relevant to the case, confirmed by evidence verified by the court, satisfying the requirements of the law on the relevance and admissibility of evidence, or by well-known circumstances that do not need proof, and also when it contains exhaustive conclusions of the court, arising from the established facts. The conclusions of the court on the factual circumstances of the case must correspond to the actual relationship of the parties.

1. the court will fully determine the range of the sought facts that are essential for the case;

2. the conclusions of the court on the presence or absence of legal facts essential for the resolution of the case will be based on the evidence examined in the court session.

Decision certainty- the issue of the content of the rights and obligations of the parties in connection with the controversial material legal relationship, which is the subject of the court's consideration, must be clearly resolved.

Unconditional decision- the operative part of the decision should not contain indications of the possibility of executing the court decision depending on the occurrence of any conditions.

Completeness of the solution- when making a decision, the court must take into account all the circumstances of the case and give an answer to the entire dispute, and not just part of it.

Article 122. Requirements for which a court order is issued

A court order is issued if:

the claim is based on a notarized transaction;

Commentary on Art. 46 of the Constitution of the Russian Federation

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