Judicial Review after Constitutional Court Findings of Unconstitutionality

The central source of the Russian legal system is the Constitution of the Russian Federation. In order to ensure the supremacy of the Constitution of the Russian Federation, the Constitutional Court of the Russian Federation was created, which was called upon to check normative legal acts for compliance with the main law of the country. If any norm ceased to comply with the Constitution of the Russian Federation, the Constitutional Court of the Russian Federation had the authority to declare it unconstitutional. Recognition of a legal norm as inconsistent with the Constitution of the Russian Federation entails its exclusion from the legal system. Since this may affect both future and existing legal relations, the institution of review of judicial acts was introduced, including in connection with the decisions of the Constitutional Court of the Russian Federation.

In accordance with Article 309 of the Arbitration Procedure Code of the Russian Federation, an arbitration court may review a judicial act adopted by it and entered into force on the basis of new or newly discovered circumstances on the grounds and in the manner provided for by Chapter 37 of this Code.

Paragraphs 3 and 4 of the Resolution of the Plenum of the Supreme Commercial Court of the Russian Federation dated 30.06.2011 No 52 "On the Application of the Arbitration Procedure Code of the Russian Federation in the Review of Judicial Acts That Have Entered into Legal Force on the Basis of Newly Discovered Circumstances" clarify that when deciding on the review of a judicial act on the basis of new or newly discovered circumstances, the courts should proceed from the existence of grounds, provided for by Article 311 of the Arbitration Procedure Code of the Russian Federation, and compliance by the applicant with the conditions contained in Articles 312 and 313 of the Arbitration Procedure Code of the Russian Federation. At the same time, the circumstances that, according to Part 1 of Article 311 of the Arbitration Procedure Code of the Russian Federation, are grounds for the review of a judicial act, must be significant, i.e., capable of influencing the court's conclusions when adopting a judicial act.

According to the legal position set out in the Ruling of the Supreme Court of the Russian Federation dated 11.03.2021 No 306-ES20-16785, the institution of review of judicial acts on the basis of new circumstances is an extraordinary means of resuming proceedings in a case and is necessary in order to cease the existence of objectively erroneous judicial acts in a situation where the circumstances that make it possible to conclude that an error was made became known after the issuance of these judicial acts.

The limitation of the application of this institution stems from the need to comply with the principle of legal certainty, including the recognition of the legal force of court decisions and their irrefutability. Thus, when determining the review criteria, a balance must be maintained between the principle of legal certainty, on the one hand, and the inadmissibility of the existence of objectively erroneous decisions, on the other (Resolution of the Presidium of the Intellectual Property Rights Court dated 17.07.2024 in case No SIP-307/2021).

Grounds for review of judicial acts

In accordance with Parts 1 and 3 of Article 311 of the Arbitration Procedure Code of the Russian Federation, the grounds for the review of judicial acts are:

1. newly discovered circumstances – the circumstances in the case specified in Part 2 of the same Article of the Code and existing at the time of the adoption of the judicial act;
2. new circumstances – circumstances specified in Part 3 of this Article of the Code, which arose after the adoption of a judicial act, but are essential for the correct resolution of the case.

Among other things, the new circumstances are the recognition by the Constitutional Court of the Russian Federation of the law applied by the commercial court in a specific case, in connection with the adoption of a decision on which the applicant applied to the Constitutional Court of the Russian Federation, as inconsistent with the Constitution of the Russian Federation.

Deadlines

Article 312 of the Arbitration Procedure Code of the Russian Federation establishes the terms within which a person has the right to file an application for review of a judicial act on the basis of new or newly discovered circumstances.

Thus, the applicant has three months from the date of the appearance or discovery of the circumstances that are the basis for the review of the judicial act, and if the circumstances related to the determination or change in the resolution of the Plenum of the Supreme Court of the Russian Federation or in the resolution of the Presidium of the Supreme Court of the Russian Federation of the practice of application of a legal norm are revealed, from the date of publication of the resolution of the Plenum of the Supreme Court of the Russian Federation, the resolution of the Presidium of the Supreme Court of the Russian Federation.

If, however, rulings or changes in a resolution of the Plenum of the Supreme Court of the Russian Federation or in a resolution of the Presidium of the Supreme Court of the Russian Federation of the practice of application of a legal norm are revealed during the consideration of cassation appeals, submissions or supervisory appeals, the said three-month period shall be calculated from the date of publication of the ruling on the refusal to transfer cassation/supervisory complaints/submissions for consideration in a court session of the Investigative Committee of the Supreme Court of the Russian Federation or for consideration in a court session of the Presidium of the Supreme Court of the Russian Federation.

As in other cases, if the deadline for filing an application for the review of a judicial act is missed, it may be restored for a good reason if the relevant application was filed no later than six months from the date of the appearance or discovery of the circumstances that are the basis for the review.

Who can apply?

Based on Part 3 of Article 311 of the Arbitration Procedure Code of the Russian Federation, persons who participated in the case, as well as other persons, may file an application for review of a judicial act on the basis of new circumstances in connection with the recognition in a decision of the Constitutional Court of the Russian Federation of a law applied by the court in a specific case as inconsistent with the Constitution of the Russian Federation who did not participate in this case, on whose rights and obligations the court adopted a judicial act, in connection with the adoption of a decision on which the applicant appealed to the Constitutional Court of the Russian Federation.

Speaking about the persons who participated in the case, one should be guided by Article 53 of the Federal Constitutional Law of 21.07.1994 No 1-FKZ "On the Constitutional Court of the Russian Federation", which states that the parties to constitutional proceedings are the applicants - bodies or persons who sent an appeal to the Constitutional Court of the Russian Federation and bodies or officials who issued or signed an act, the constitutionality of which is subject to verification.

In accordance with Article 75 of the Federal Constitutional Law on the Constitutional Court of the Russian Federation, the decision of the Constitutional Court of the Russian Federation, among other things, must contain a direct reference to the need to review the case in respect of the applicant or the person in whose interests the complaint is filed, as well as an indication of the need to review the case in respect of persons other than the applicant or the person in whose interests the complaint is filed, in accordance with paragraph 7 of part 3 of Article 79 of this Law.

Paragraph 7 of Part 3 of Article 79 of the Federal Constitutional Law on the Constitutional Court of the Russian Federation also establishes that court decisions based on acts or their individual provisions recognized by the Constitutional Court of the Russian Federation as unconstitutional must be reviewed (and are not subject to execution until the review is made) in respect of persons other than the applicant or the person in whose interests the complaint is filed, if this is expressly stated by the Constitutional Court of the Russian Federation.

What to pay attention to?

It should be borne in mind that in cases of persons who were not participants in constitutional proceedings, law enforcement decisions based on an act recognized as unconstitutional are subject to review in cases established by federal law, if such decisions have not entered into force or have entered into legal force, but have not yet been executed or have been partially executed (Ruling of the Constitutional Court of the Russian Federation dated 05.02.2004 No 78-O).

In addition, in cases of persons who were not participants in constitutional proceedings, the decision of the Constitutional Court of the Russian Federation, which recognized the act as inconsistent with the Constitution of the Russian Federation, should not indicate the moment from which the normative act recognized as unconstitutional loses force.

A similar approach is set forth by the Constitutional Court of the Russian Federation in the rulings of the Constitutional Court of the Russian Federation of 27.05.2004 No 211-O, of 12.05.2006 No 135-O, of 01.06.2010 No 783-O-O, of 25.01.2012 No 178-O-O, of 08.11.2012 No 25-P, etc.

This often becomes a formal ground on which the courts refuse to review a judicial act due to new circumstances, due to the recognition by the Constitutional Court of the Russian Federation of the law as unconstitutional.

This is an important point, since the institution of review of judicial acts is of particular importance for disputes in the field of intellectual property, where the review of judicial acts may relate to the recovery of compensation, prohibition of the use of intellectual property, or refusal to protect rights.

For example, in case No A40-210216/2020, the review of a judicial act was refused due to new circumstances, due to the recognition by the Constitutional Court of the Russian Federation of the law as unconstitutional with reference to the above points.

Summing up, the review of judicial acts in connection with the recognition by the Constitutional Court of the Russian Federation of legal norms that do not comply with the Constitution of the Russian Federation is the most important tool for restoring violated rights and ensuring the supremacy of the Constitution of the Russian Federation. Despite the lack of uniformity of judicial practice in this matter, this institution plays a key role in the development of the legal system and the formation of constitutionally oriented judicial practice.