Reopening of Proceedings Following a Judgment of the European Court of Human Rights

10
Jan 2016

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Introduction

Since 2004, the legal system of the Republic of Serbia has provided an opportunity to reopen proceedings following a judgment of the European Court of Human Rights (Court in Strasbourg). Since one of the obligations of the Council of Europe Member States is to prevent the future cases of violation of human rights, Serbia made amendments in its Code of Civil Procedure after it became a Member State in 2003. To enable prevention of human rights violation or to stop and cure the existing violation, it was necessary to allow the case to be revisited.

However, what remained unclear was, to what extent should the judgment of the Court in Strasbourg influence reopening of the proceedings. A question was raised whether the possibility to seek reopening on this ground is given only to persons who were the applicant before the Court in Strasbourg or other persons who are in the same legal and factual situation can also seek reopening of their case. This article will argue that the effect of the judgment of the European Court has to be extended in such a way to allow reopening of the proceedings to each case where a person in the same or similar factual and legal situation seeks revisiting of the case. This stance will be supported by the interpretation of the relevant legislation, Supreme Court statements, legal doctrine and Council of Europe legislation.

Relevant Legislation

Reopening of civil proceeding represents an extraordinary legal remedy in Serbian legislation, which is used against effective court decisions. It is listed as one of the possible twelve reasons to reopen proceedings in the Code of Civil Proceedings. When deciding on reopening of a proceeding, the national court will first decide if it will allow reopening of the case. Only after the Court has made a positive decision, it will reopen proceedings. It is important to bear in mind that the deadline to submit a proposal to reopen a proceeding is 60 days. This deadline starts from the day when the party gained the opportunity to use a final decision of the European Court which is the ground of reopening the proceeding.

Article 426 of the Code prescribes it is possible to seek reopening of the procedure if a Party gains the opportunity to use the decision of the Court in Strasbourg that found violations of human rights, which could have affected the outcome of litigation before the national court and could influence the adoption of a favorable decision.

In other words, the relevant provision prescribes that a particular party who won the case before Strasbourg Court would undoubtedly be able to use such decision of the Court in Strasbourg and seek reopening of the case. However, the legislation in force is silent when it comes to other persons in the same factual and legal situation.

It is important to stress in this respect that the Code of Civil Proceedings from 2004 had a much obvious solution. The wording of the Article 422 expressly mentioned that reopening of the proceedings will be allowed if the Court in Strasbourg has rendered a decision finding a violation of human rights against Serbia in the same or in the similar legal relation. It is unclear why the Code of Civil Procedure was amended in this respect. However, one could argue that Article 422 of the Code of Civil Procedure from 2004 certainly represents an argument in favor of the extended effect of the decision of the Strasbourg Court in Serbian legal system.

Supreme Court Stance and Legal Doctrine

Council of Europe Legislation

In addition, if only applicants could initiate the reopening of the proceeding before the European Court, it would bring the parties to a vicious circle and consequently, seriously jeopardize legal certainty. Namely, the Court in Strasbourg does not deas with applications that are substantially same as cases that were already examined by the Court. Therefore, that party could not fulfill the admissibility criteria to turn to the European Court, since their case would be the same as the case that was already examined. On the other hand, domestic courts would reject reopening of the proceeding because the party did not receive a decision of the European Court initiated by their own application. The mentioned provision is introduced in order to prevent the European Court from dealing with an excessive number of cases and due to that, avoids repetitive cases to be lodged. Instead of that and in order to make sure the individuals are entitled to receive reparation for the violations, the Council of Europe suggested to the Member States to introduce the case-law of the European Court as a reason for reopening proceedings. Therefore, more than half of the Member States enabled reopening of civil proceeding following the judgment of the European Court. Of course, the Member States had the freedom to prescribe special conditions which refer to the way of the adoption and to the time limits.

These statements are completely following the interpretation of the Convention on Human Rights. The Member States are obliged to enable the injured party restitutio in integrum – the condition as it was before the violation. This is enshrined in the Article 46 of the Convention which lays down that the Member States undertake to abide by the judgment of the European Court in any case to which they are parties. To fulfill this, they should avoid future violations of human rights. The Committee of Ministers supervises the execution of the judgments of the European Court. Also, the Member States have to submit a report on the individual and general measures in order to prevent the harmful consequences of human rights violations. Therefore, the obligations of the Member States include not only paying the just satisfaction, but also undertaking preventional measures to avoid the future similar violations and to stop the ongoing violations. It is clear that the case-law of national courts should change in the light of the case-law of the European Court. So, how would that be possible if there is no opportunity to accept the proposal to reopen proceedings?

Conclusion

From this brief legal analysis, it is clear that the effect of the judgment of the European Court has to be extended in such a way to allow reopening of the proceedings to each case where a person in the same or similar factual and legal situation seeks revisiting of the case. Any other solution would run contrary to the aim of the European Convention and other Council of Europe legislation. Thus, it would seriously prevent persons whose human rights have been violated by Serbian national courts from to obtain restitutio in integrum only because they did not initiate proceedings before the Court in Strasbourg.

Keeping in mind the growing tendency of turning to the European Court and raising the awareness of the obligation to implement the opinions of the European Court, it is to be expected to use more the possibility to reopen a proceeding on the ground of the European Court case-law in the future. For this reason, it is paramount for Serbian courts to adopt a unified stand in this regard.

In any case, reopening of the civil procedure based on this legal ground requires a profound understanding of human rights issues, and it is paramount for a client to be represented by a human right lawyer before the court.

[1] Supreme Court Bulletin 3/2011, page 13-26.

[2] V. Boranijašević, Povrede ljudskih prava i osnovnih sloboda kao razlog za ponavljanje parničnog postupka, Zb. Prav. fak. Rij. (1991) v. 32, br. 1, 511-526 (2011), page 515.

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