BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
FIRST
SECTION
CASE OF
FEDOROV v. RUSSIA
(Application
no. 63997/00)
JUDGMENT
STRASBOURG
26
February 2009
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Fedorov v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos
Rozakis,
President,
Nina
Vajić,
Anatoly
Kovler,
Elisabeth
Steiner,
Khanlar
Hajiyev,
Dean
Spielmann,
Sverre
Erik Jebens,
judges,
and
Søren Nielsen, Section
Registrar,
Having
deliberated in private on 5 February 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 63997/00) against the Russian
Federation lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Russian national, Mr Vladimir Aleksandrovich
Fedorov (“the applicant”), on 12 November 2000.
- The
applicant was represented by Mr A.V. Kiryanov, Mrs E.V. Kiryanova
and Mr K.N. Lugantsev, lawyers practising in Taganrog. The
Russian Government (“the Government”) were represented by
Mr P. Laptev, former Representative of the Russian Federation at the
European Court of Human Rights.
- The
applicant complained, in particular, under Article 6 §§ 1
and 3 (b) and (c) of the Convention about the quashing in supervisory
review proceedings of the final judgment in his criminal case held by
the Taganrog Town Court on 24 September 1999 and about a violation of
his right to defend himself in those proceedings.
- By
a decision of 6 October 2005, the Court declared the application
partly admissible.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1967 and lives in Taganrog,
Rostov Region.
- On
24 September 1999 the Taganrog Town Court convicted the applicant and
three other persons of theft of cigarettes from a container in a sea
port, an offence provided for by Article 158 § 2 (a) of the
Criminal Code. The applicant was sentenced to two years’
imprisonment, and released conditionally with six months’
parole. The parties did not appeal and the judgment became final
seven days later.
- On
an unspecified date the prosecutor of the Rostov Region lodged an
application for supervisory review, seeking to have the judgment
quashed on the ground that there had been substantial violations of
the procedural law by the trial court.
- On
27 January 2000 the Presidium of the Rostov Regional Court conducted
supervisory review proceedings. The prosecutor, but not the applicant
or his counsel, was present at the hearing. The Presidium quashed the
judgment of 24 September 1999 in the part concerning the applicant on
grounds that the trial court had failed to examine and assess the
evidence correctly and that its findings were inconsistent with the
evidence. These considerations, in the Presidium’s view,
justified the quashing of the judgment under Article 379 of the Code
of Criminal Procedure. The case was remitted for fresh examination by
the first-instance court.
- On
14 February 2000 the Constitutional Court examined another case
challenging Article 377 of the Code of Criminal Procedure (see below)
and found that provision incompatible with the Constitution in so far
as it allowed a supervisory review in a criminal case to the
detriment of the acquitted or convicted person.
- According
to the applicant, neither he nor his counsel was informed of the
hearing held on 27 January 2000 or of the quashing. He learned about
these developments in the case on 13 September 2000, when summoned by
the Taganrog Town Court for the fresh examination of his case. Thus,
subsequently on an unspecified date the applicant requested the
Supreme Court to reverse, by way of supervisory review, the decision
of 27 January 2000 in the light of the Constitutional Court’s
ruling of 14 February 2000. In June 2001 the Deputy President of the
Supreme Court informed the applicant that his request was dismissed
on the ground that the decision in the applicant’s case had
been adopted before the Constitutional Court’s ruling.
- The
applicant applied to the Constitutional Court requesting that the
ruling of 14 February 2000 be extended to his case. On 21 December
2001 the Constitutional Court refused to examine the applicant’s
complaint as its subject matter was identical to that of the case
examined on 14 February 2000. It held that the ruling of 14 February
2000 applied to all persons whose cases had been reopened on the
basis of Article 377 of the Code of Criminal Procedure, hence the
decision of 27 January 2000 could still be reversed in ordinary
proceedings.
- In
the meantime, on 27 December 2000 the Taganrog Town Court, composed
of one professional and two lay judges, conducted a fresh examination
of the criminal case against the applicant. He was found guilty of
theft and convicted under Article 158 § 2 (а)
and (c) of the Criminal Code, and given a conditional sentence of two
years and six months’ imprisonment with six months’
parole. With reference to the Amnesty Act of 26 May 2000 the court
ordered that the applicant in any event be relieved from serving his
sentence. The parties did not appeal and the judgment became final
seven days later.
- On
5 November 2003 the prosecutor of the Rostov Region lodged an
application for supervisory review, requesting the Presidium of the
Rostov Regional Court to amend the judgment of 27 December 2000 by
reclassifying the applicant’s actions under Article 158 §
2 (a) of the Criminal Code, and to reduce the sentence to a year and
a half of conditional imprisonment. According to the Government, the
applicant was informed of the application for supervisory review and
of the hearing which was scheduled for 27 November 2003.
- On
27 November 2003 the Presidium of the Rostov Regional Court granted
the prosecutor’s application and amended the judgment of
27 December 2000 accordingly. The court ordered that the
applicant be relieved from serving the sentence due to the Amnesty
Act of 26 May 2000 remained in force.
II. RELEVANT DOMESTIC LAW
A. Criminal Code
Article 158
...
2. Theft committed
(a) by a group of persons acting in
conspiracy;
(b) with unlawful entry of premises or other
storage;
(c) with causing substantial damage to an
individual;
...
is punishable by a fine ..., or community works ..., or
correctional works ..., or imprisonment of up to five years.
B. Code of Criminal Procedure
- Section
VI, Chapter 30, of the 1960 Code of Criminal Procedure
(Уголовно-процессуальный
кодекс
РСФСР),
as in force at the material time, allowed certain officials to
challenge a judgment which had become effective and to have the case
reviewed on points of law and procedure. The supervisory review
procedure (Articles 371-83 of the Code) is distinct from proceedings
in which a case is reviewed in the light of newly established facts
(Articles 384-90). However, similar rules apply to both procedures
(Article 388).
1. Date on which a judgment becomes effective
- Under the terms of Article 356 of the Code of Criminal
Procedure, a judgment takes effect and is enforceable from the date
on which the appeal court renders its decision or, if no appeal has
been lodged, once the time-limit for appeal has expired.
2. Grounds for supervisory review
- Relevant
provisions of the Code of Criminal Procedure read as follows:
Article 379
Grounds for setting aside judgments
which have become effective
“The grounds for quashing or varying a judgment
[on supervisory review] are the same as [those for setting aside
judgments (which have not taken effect) on appeal] ...”
Article 342
Grounds for quashing or varying
judgments [on appeal]
“The grounds for quashing or varying a judgment on
appeal are as follows:
(i) prejudicial or incomplete investigation
or pre-trial or court examination;
(ii) inconsistency between the facts of the
case and the conclusions reached by the court;
(iii) a grave violation of procedural law;
(iv) misapplication of [substantive] law;
(v) discrepancy between the sentence and the
seriousness of the offence or the convicted person’s
personality.”
3. Authorised officials
- Article
371 of the Code of Criminal Procedure provided that the power to
lodge a request for a supervisory review could be exercised by the
Prosecutor-General, the President of the Supreme Court of the Russian
Federation or their respective deputies in relation to any judgment
other than those of the Presidium of the Supreme Court, and by the
presidents of the regional courts in respect of any judgment of a
regional or subordinate court. A party to criminal or civil
proceedings could solicit the intervention of those officials for a
review.
4. Limitation period
- Article
373 of the Code of Criminal Procedure set a limitation period of one
year during which a request calling for the supervisory review of an
acquittal could be brought by an authorised official. The period ran
from the date on which the acquittal took effect.
5. The effect of a supervisory review
- Under
Articles 374, 378 and 380 of the Code of Criminal Procedure, a
request for supervisory review was to be considered by the judicial
board (the Presidium) of the appropriate court. The court could
examine the case on the merits, was not bound by the scope and
grounds of the request for supervisory review and was obliged to
conduct a full review of the evidence.
- The
Presidium could dismiss or grant the request. If the request was
dismissed, the earlier judgment remained operative. If it granted the
request, the Presidium could decide to quash the judgment and
terminate the criminal proceedings, remit the case for a new
investigation, order reconsideration by a court at any instance,
uphold a first-instance judgment reversed on appeal, or vary or
uphold any of the earlier judgments.
- Article
380 §§ 2 and 3 provided that the Presidium could,
in the same proceedings, reduce a sentence or amend the legal
classification of a conviction or sentence to the defendant’s
advantage. If it found a sentence or legal classification to be too
lenient, it was obliged to remit the case for reconsideration.
- Under
Article 377 of the Code the public prosecutor took part in a hearing
of a supervisory review. A convicted person and his or her counsel
could be summoned if a supervisory review court found it necessary.
If summoned, they were to be given an opportunity to examine the
application for supervisory review and to make oral submissions at
the hearing.
C. Case-law of the Constitutional Court
- In
Ruling no. 2-P of 14 February 2000, the Constitutional Court declared
Article 377 incompatible with the Russian Constitution to the extent
that it had permitted the supervisory review hearing to decide on an
application for supervisory review which was to the detriment of the
convicted or acquitted person. The Court held that such a person and
his or her counsel should be able to study the application, they
should be notified of the date and place of the hearing and given an
opportunity to present their position on the arguments in the
application.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicant complained under Article 6 §§ 1 and 3 (b) and (c)
of the Convention about the quashing of the final judgment of 24
September 1999 in his criminal case and the failure of the Presidium
of the Rostov Regional Court to notify him of the application for
supervisory review of his case and of the hearing on 27 January 2000.
Article 6, in so far as relevant, reads:
“1. In the
determination of ... any criminal charge against him, everyone is
entitled to a fair ... hearing ... by [a] ... tribunal established by
law. ...
3. Everyone charged
with a criminal offence has the following minimum rights: ...
(b) to have adequate time and facilities for
the preparation of his defence;
(c) to defend himself in person or through
legal assistance of his own choosing ...”
A. The parties’ submissions
- The
Government pointed out that according to the Court’s judgment
in the case of Ryabykh higher courts’ power of review
should be exercised to correct judicial errors and miscarriages of
justice (see Ryabykh v. Russia, no. 52854/99, §
52, ECHR 2003-IX). The quashing of the judgment in the applicant’s
case was justified by substantial circumstances provided for by
Article 342 of the Code of Criminal Procedure. As regards the
applicant’s complaint about the supervisory review hearing in
absentia, the Government stated that Article 377 § 3 of the
Code of Criminal Procedure provided that convicted persons and their
counsels could be summoned to a supervisory review court’s
hearing only where necessary. Therefore, the parties’ presence
at the hearing before the Rostov Regional Court was not compulsory.
The Government underlined that the decision of the Constitutional
Court of 14 February 2000, which declared Article 377 § 3 of the
Code of Criminal Procedure incompatible with the Constitution, was
adopted after the supervisory review court’s decision of 27
January 2000 in the applicant’s case. In the course of new
supervisory review proceedings the applicant was informed of the
hearing on 27 November 2003 and served with a copy of a decision to
initiate the proceedings. The Government concluded that the
complaints should be rejected as manifestly ill-founded.
- The
applicant maintained his complaints. He submitted that the quashing
of the final judgment of 24 September 1999 violated the principle of
legal certainty because he was committed to trial again and had to
endure anxiety about his fate. Furthermore, the quashing of the
judgment was groundless. The applicant emphasised that had it not
been for the quashing of the judgment of 24 September 1999, his
original conviction would have been annulled on the expiration of the
six-month probation period on 1 April 2000 and he would have
retained his right to benefit from an application of the amnesty act,
as is possible once during a lifetime. The applicant also complained
that the Presidium of the Rostov Regional Court did not inform him or
his counsel about the application for supervisory review or the
hearing of 27 January 2000.
B. The Court’s assessment
- The
Court notes at the outset that the requirements of Article 6 § 3
are to be seen as particular aspects of the right to a fair trial
guaranteed by Article 6 § 1, and therefore the applicant’s
complaints under Article 6 §§ 1 and 3 should be examined
together (see Vacher v. France, 17 December 1996, §
22, Reports of Judgments and Decisions 1996-VI).
- The Court has previously examined cases raising
complaints under the Convention in relation to the quashing of a
final judicial decision (see Nikitin v. Russia, no. 50178/99,
ECHR 2004-VIII; Bratyakin v. Russia (dec.), no. 72776/01, 9
March 2006; Fadin, no. 58079/00, §§ 30-37, 27 July
2006; and Radchikov v. Russia, no. 65582/01, §§
54-55, 24 May 2007). It reiterates that the mere possibility of
reopening a criminal case is prima facie compatible with the
Convention, including the guarantees of Article 6. However, the
actual manner in which it is used must not impair the very essence of
a fair trial. In other words, the power to reopen criminal
proceedings must be exercised by the authorities so as to strike, to
the maximum extent possible, a fair balance between the interests of
the individual and the need to ensure the effectiveness of the system
of criminal justice (see Nikitin, cited above, §§
54-61). In the specific context of supervisory review, the Convention
requires that the authorities respect the binding nature of a final
judicial decision and allow the resumption of criminal proceedings
only if serious legitimate considerations outweigh the principle of
legal certainty (see Bratyakin, cited above).
- The
Court notes that the Presidium of the Rostov Regional Court granted
the prosecutor’s application for supervisory review and quashed
the judgment of 24 September 1999 on the grounds of the wrong
assessment of evidence and disagreement with the court’s
conclusions on the merits of the case. It follows that the grounds
for reopening the proceedings were based neither on new facts nor on
serious procedural defects, but rather on disagreement with the
assessment given by the lower instance.
- The
Court also notes that the prosecutor brought the request for
supervisory review having previously dispensed with an ordinary
cassation appeal that could be lodged on grounds identical to those
for an appeal under the domestic law (see paragraph 17 above). The
Court has already found such an arrangement in itself to be conducive
to the protection of legal certainty, as it may in certain cases lead
to a situation where the supervisory review court fails to consider
the implications of its decision for legal certainty by dealing with
the prosecutor’s arguments as if in ordinary appeal proceedings
and reopening finalised proceedings on vaguely formulated and
evanescent grounds (see Radchikov, cited above, §§
48-49).
- Accordingly
the Court finds that the quashing of the Taganrog Town Court’s
judgment of 24 September 1999 was not intended to correct a
fundamental judicial error or a miscarriage of justice but was used
merely for the purpose of obtaining a rehearing and a fresh
determination of the case. Therefore, the Court considers that the
State authorities failed to strike a fair balance between the
interests of the applicant and the need to ensure the effectiveness
of the criminal justice system.
- In
addition to that the Court notes that the applicant had not been
apprised of the application for supervisory review, was not given a
chance to lodge objections to having the case reopened and could not
participate in the Presidium’s hearing, unlike the prosecutor.
- In
view of the above considerations, the Court concludes that there has
been a violation of Article 6 of the Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The applicant requested the Court to make an award of
5,000 euros (EUR) for non-pecuniary damage.
- The
Government considered that any finding of a violation by the Court
would constitute sufficient just satisfaction in the present case.
- The
Court considers that the applicant suffered non-pecuniary damage,
which would not be adequately compensated by the finding of a
violation alone. Making its assessment on an equitable basis, it
awards the applicant EUR 1,000, plus any tax that may be chargeable
to the applicant on that amount.
B. Costs and expenses
- The
applicant also claimed EUR 1,600 for the costs and expenses incurred
before the Court, which included the translator’s and the
lawyers’ fees. He provided the copies of relevant contracts and
payment receipts.
- The
Government contested the claims on the grounds that these expenses
were not necessary, in particular that the applicant’s
representation by three counsel had not been justified; moreover the
applicant had not provided the power of attorney in respect of Mrs
E.V. Kiryanova and Mr K.N. Lugantsev.
- According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. The Court, having regard to the
certificates provided by the applicant, notes that the legal fees
have indeed been paid to the three lawyers. However, given that the
overall amount did not exceed what would appear reasonable in the
circumstances it does not consider that the arrangement by which the
work was shared between several lawyers should by itself prevent the
Court from making the award. The Court accordingly awards the sum of
EUR 1,600 covering costs and expenses for the proceedings before the
Court, plus any tax that may be chargeable to the applicant on that
amount.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Holds that there has been a violation of
Article 6 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 1,000 (one thousand
euros) in respect of non-pecuniary damage and EUR 1,600 (one thousand
six hundred euros) in respect of costs and expenses, to be converted
into the national currency of the respondent State at the rate
applicable at the date of settlement, plus any tax that may be
chargeable to the applicant;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 26 February 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
