representing abusing of the right to application which, as a matter of fact, are one more disguised appeal motivated with disagreement with estimation of circumstances of the case, given by subordinate courts within the limits of their competence and according to the law;
To approve the measures inducing the sides properly and at the greatest possible measure to apply accessible cassation complaints, to provide correction of miscarriages of justice before the judgement becomes final and subjected to application [15]. committee of Ministers has offered the competent Russian authorities to give within a year the plan of actions on taking and realization of measures of general character necessary for prevention of infringements of the requirements of legal definiteness, and has decided to continue consideration of the given question within the first half of the year 2007. 2006 the European Court made decisions which have recognized infringement of the principle of legal definiteness in connection with revision of judgements in the order of supervision according to the Civil Procedural Code of the Russian Federation from November 14, 2 002. the case of Borshchevsky against Russia the state - respondent referred that in the given case the supervising proceeding has been initiated by department of pension fund which acted as the person participating in the case instead of the state body. However, the European Court did not consider the given circumstance deciding [16]. The European Court first of all has noted, that between coming into force of the judgement made in favour of the applicant, and excitation of supervising proceeding there has passed extremely long period of time - more than two years and three months. The Civil Procedural Code of the RSFSR has not established deadlines for appeal of judgements in the order of supervision, thus, appeal of judgements was supposed during the uncertain time. In the given case the supervising proceeding has been excited according to the new Civil Procedural Code of the Russian Federation which provides the opportunity of application with the supervising complaint within one year term from the date of coming of the decision into validity (Part 2 Article 376 ). However the regulations determining the order of coming into force of the Code according to the explanations of the Plenum of the Supreme Court of the Russian Federation, suppose appeal in court of the supervising instance of any judgement which came into force before February 1, 2 003 [ 17] In this case department of pension fund has taken advantage of the opportunity and has appealed the decision made in favour of the applicant which came into force 25 months ago [18]. European Court has emphasized, that the judgement obligatory and subjected to execution can be cancelled solely at presence of exclusive circumstances, instead of making another decision on the case. In the Russian legal system on the ground for cancellation or changes of judgements by courts of appeal instance [19] appreciably coincide with the grounds for cancellation or change of judgements in the order of supervision (item 4 Part 1 Article 362 and Article 387 of the Civil Procedural Code of the Russian Federation). Thus, situations when the final judgement in favour of the applicant is put under doubt, could be possible to avoid, if department of pension fund had applied common means of appeal. It is necessary to note, however, that the current Civil Procedural Code of the Russian Federation, as well as earlier working Civil Procedural Code of the RSFSR, supposes application in court of supervising instance even if the person participating in the case has not preliminary settled common means of appeal. In the given case department of the pension fund, at least, has twice not taken advantage of the right to appeal the judgement, having missed the ten-day term of submission of cassation complaints concerning the decision from April, 5, 2002 and the definition from October, 14, 2002 concerning the same question. The representative of department of pension fund was not present in court session on October, 14, 2 002 though had been properly notified about it. The state - respondent has not specified any exclusive circumstances which could interfere with representation on behalf of department of pension fund of the arguments to the district court and to apply common means of appeal during the appropriate time [20]. constitutional right minister judicial European Court considered, that, having satisfied the requirement of department of pension fund about cancellation of judgement from April, 5, 2002, the Presidium of the Krasnodar territory court has violated the principle of legal definiteness and the right of the applicant to access to justice raquo ;, stipulated by item 1 Article 6 of the Convention. positions expressed by the European Court in the decision on the case of Borshchevsky, have been c...
