26
ORLOVSKAYA ISKRA v. RUSSIA JUDGMENT
only party to the proceedings at all the levels of jurisdiction, and was the
one who sought supervisory review. No prosecutor played any part in the
proceedings whatsoever. It has not been suggested, and the Court finds no
reason to consider, that following determination of the applicant
organisation’s supervisory-review applications it remained open to a
prosecutor to lodge, at any time, a new application for review.
73. Second, it appears that the supervisory-instance courts were, in
principle, empowered to deal with the substance of the relevant Convention
issue, including the assessment of the pertinent factual and legal elements.
74. Third, as regards the relief, the Court finds that the supervisoryreview court was empowered not only to uphold the lower courts’ decisions
but also to vary them, thus putting an end to the proceedings, and to
overturn those decisions with or without ordering a re-examination of the
case by the lower courts.
75. Fourth, the Court notes that, as with the criminal procedure
examined in Berdzenishvili v. Russia (see also Kashlan v. Russia (dec.),
no. 60189/15, 19 April 2016), the CAO provided no details about any timelimit for seeking supervisory review at the material time. The Court
reiterates in this connection that the absence of time-limits for using a
remedy creates uncertainty, and in principle renders nugatory the six-month
rule contained in Article 35 § 1 of the Convention (see Galstyan, § 39, and
Berdzenishvili, both cited above).
76. However, in 2006 the Constitutional Court issued a decision in
which it stated that pending a legislative amendment of the CAO courts of
general jurisdiction were to refer to the similar provisions contained in the
Code of Commercial Procedure (CComP) in relation to the supervisory
review procedure for commercial cases, including administrative offence
cases against legal entities and entrepreneurs (see paragraph 31 above).
Under the CComP an application for supervisory review was to be lodged
within three months of the date when the last impugned judgment entered
into force. It notes in this connection that the Court agreed in 2009 that the
supervisory-review procedure under the CComP (which remained in force
until August 2014) had the status of a remedy in commercial cases (see
Kovaleva and Others v. Russia (dec.), no. 6025/09, 25 June 2009).
77. The Court observes that the 2006 decision by the Constitutional
Court was published and thus was accessible to all concerned, including
parties to CAO proceedings and the courts, who were to rely on it as the
applicable law. The Court also notes that, as transpires from a number of
court decisions issued on the regional level in more recent years, following
the legislative reform in December 2008 entailing the deletion of
Article 30.11 that was at the heart of the 2006 constitutional decision, this
decision was no longer applied by the courts since the amended review
procedure became based on the new Article 30.12 of the CAO. The review
procedure after 2008 falls outside the scope of the present case and thus the