14
KABLIS v. RUSSIA JUDGMENT
Lashmankin and Others (cited above, §§ 356-60) concerning the events
between 2009 and 2012, the Court found that the judicial remedy under
former Chapter 25 of the Code of Civil Procedure (“the CCP”) and the
Judicial Review Act available to the applicants at the material time – in
addition to its inability to allow an enforceable judicial decision to be
obtained on the authorities’ refusal to approve the location, time or manner
of conduct of a public event before its planned date – had insufficient scope
of review. Any review was limited to examining the lawfulness of the
authorities’ proposal to change the location or time of a public event or the
manner in which it was to be conducted, and included no assessment of its
“necessity” or “proportionality”. That finding may be interpreted as
meaning that the judicial remedy under former Chapter 25 of the CCP and
the Judicial Review Act was ineffective both to prevent the alleged violation
and to provide adequate redress for a violation that had already occurred.
42. However, the present case concerns facts that occurred after
15 September 2015, the date on which the new CAP entered into force.
Given that the CAP introduced substantial changes to the applicable judicial
review procedures, and that it has not yet assessed the effectiveness of the
judicial review procedure under the CAP, the Court considers that it was not
unreasonable for the applicant to attempt to use that remedy in order to give
the domestic courts an opportunity to put matters right through the national
legal system, thereby respecting the principle that the machinery of
protection established by the Convention is subsidiary to the national
systems safeguarding human rights (see, for similar reasoning, Zubkov and
Others v. Russia, nos. 29431/05 and 2 others, § 106, 7 November 2017).
43. The Court notes that the applicant lodged a judicial review complaint
against the town administration’s refusal to approve the location of his
“picket” after its planned date. He therefore chose not to avail himself of a
possibility provided by the domestic law to have his complaint examined
before the planned date of the event, namely to use the judicial review
procedure under the CAP as a preventive remedy. He preferred to use that
procedure to seek acknowledgment and/or, in combination with a
subsequent civil claim, redress for the alleged violation of his right to
freedom of assembly that had already occurred.
44. The Court accordingly finds that, by lodging his application within
six months of the final judgment in the judicial review proceedings, the
applicant has complied with the six-month rule.
45. The Court notes that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 (a) of the Convention. It is not
inadmissible on any other grounds. It must therefore be declared admissible.