workRES JUDICATA IN PRACTICE OF THE EUROPEAN COURT ON HUMAN RIGHTS AND OF THE CONSTITUTIONAL COURT OF THE RUSSIAN FEDERATION
The principle res judicata, ie respect of the final judgement is one of consequences of the principle of legal definiteness [1]. The principle of legal definiteness assumes stability of legal regulation; participants of legal relations should have an opportunity in reasonable limits to foresee consequences of the behavior and to be confident in invariance of the officially recognized status, rights and duties [2]. In particular the principle of legal definiteness requires that in case when final decision made by court on any question would not be put under doubt [3]. It means that none of the sides should not possess the right to demand revision of final and enforced judgement simply for the purpose of renewal of trial and making the new decision on the case. Powers of higher courts on revision of judgements should be carried out for the purpose of correction of miscarriages of justice and inadequate legal proceedings instead of carrying out new trial of the case. Revision should not turn to the latent appeal, and simply in an opportunity of two points of view concerning the subject of dispute is not the ground for revision of the decision. Deviation from the given principle can be justified, only when it is required by the circumstances of essential and insuperable character [4].
For the first time the European Court ascertained incompatibility of revision of the judgement within the framework of the procedure similar to the Russian supervising proceedings, with the principle of legal definiteness and the right to fair proceeding in decision on the case of Brumaresku against Romania. The European Court has specified, that giving to the General Prosecutor by the Civil Procedural Code of Romania by the unlimited of any term of the right to appeal to the Supreme Court of Justice with demand on cancellation of the final and enforced judgement on the case in which he was not the side, leads to the judgement be appealed during uncertain time. In the given case on the ground of the appeal of the General Prosecutor the Supreme Court of Justice has brought to nothing results of the whole litigation terminated in the final judgement which by virtue of the principle res judicata was not subjected to revision and besides has already been executed. The European Court considered, that, having applied the regulations of the Civil Procedural code, the Supreme Court of Justice has violated the principle of legal definiteness, that in the concrete circumstances of the given case has simultaneously become the infringement of the right of the applicant whose favour the cancelled judgement has taken place, to the fair proceeding guaranteed by item 1 Article 6 of the Convention [5]. interrelation of the principle of legal definiteness and of the right to fair proceeding has been cleared in conterminous opinions of a number of judges on the given case. In conterminous opinion of Sir N. Brattsy to whom Judge B. Zupanchich has joined, specifies, that the fundamental requirement for fair proceeding is equality of the sides. In case when one of the sides on the case is the state, the principle of equality can be violated, if the European Court has ascertained in the decision on the case the Greek oil refining factories Stran and Stratis Andreadis against Greece [6], intervention of the legislative power in realization of justice assumes influence on the legal resolution of the dispute. Accordingly it is possible to conclude, that the principle of equality of the sides appears violated when at participation in proceedings of the state as one of the sides the Civil Procedural Code gives the General Prosecutor as the state official the right at any time to demand cancellation of the final and obligatory judgement made in favour of the private person. Besides the right to judicial protection becomes illusory if the legal system of the state-participant of the Convention supposes the opportunity of cancellation of the judgement, final, obligatory and even executed by the Supreme Court of Justice on demand of the General Prosecutor which can be requested at any time. the opinion of Judge K. Rozakis, the right to judicial protection is not simply theoretical right to consideration of the case in the internal court, it comprises lawful expectations that the final judgement will be respected by authorities and will be executed. In the considered case the applicant, possessing the right to bring the dispute with the state for consideration of court, could expect for reception of the decision possessing the status res judicata and subjected to execution, consequence of that would be restoration of his right to pro...
