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FIRST SECTION
CASE OF STANISLAV ZHUKOV v. RUSSIA
(Application no. 54632/00)
JUDGMENT
STRASBOURG
12 October 2006
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 Stanislav Zhukov v. Russia,
The European Court of Human Rights (First Section), sitting as a
Chamber composed of:
Mr C.L. Rozakis,
President,
Mr L. Loucaides,
Mrs F. Tulkens,
Mrs N.
Vajić,
Mr A. Kovler,
Mrs E. Steiner,
Mr K. Hajiyev,
judges,
and Mr S. Nielsen, Section Registrar,
Having deliberated in private on 21 September 2006,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
- The case originated in an application (no. 54632/00)
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
Stanislav Yevgenyevich Zhukov (“the applicant”), on 5
January 2000.
- The applicant, who had been granted legal aid, was
represented before the Court by Mr A. Knyazev, a lawyer practising in
Moscow. The Russian Government (“the
Government”) were represented by their Agent, Mr P. Laptev,
Representative of the Russian Federation at the European Court of
Human Rights.
- The applicant alleged, in particular, that the
proceedings before the supervisory-review instance had been unfair
because the hearing had been conducted in his absence.
- The application was allocated to the First Section of
the Court (Rule 52 § 1 of the Rules of Court). Within
that Section, the Chamber that would consider the case (Article 27 §
1 of the Convention) was constituted as provided in Rule 26 § 1.
- By a decision of 31 March 2005 the Court declared the
application partly admissible.
- The Government but not the applicant filed observations
on the merits (Rule 59 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant was born in 1959 and lives in Moscow.
- On 15 December 1997 the Ostankinskiy District Court of
Moscow found the applicant guilty of
kidnapping committed by a group of persons with the use of violence
and of another minor offence. He was sentenced to five years'
imprisonment.
- On 7 May 1998 the Moscow City Court upheld, on appeal,
the applicant's conviction of kidnapping but discontinued the
prosecution in respect of the minor offence which had meanwhile
become time-barred.
- On an unspecified date the applicant asked the Moscow
City Court for supervisory review of his conviction. By letter of 26
May 1999, the City Court rejected his request.
- On 3 June 1999 the applicant lodged a request for
supervisory review with the Supreme Court of the Russian Federation.
- On 19 October 1999 a deputy president of the Supreme
Court of the Russian Federation lodged an application for
supervisory-review with the Presidium of the Moscow City Court. In
his view, the applicant had been an accomplice to kidnapping rather
than the actual doer and he had not resorted to violence.
- By letter of 27 October 1999, the applicant was
notified about the introduction of the application for supervisory
review. He was also told that he would be informed about the outcome
of the proceedings.
- On 11 November 1999 the Presidium of the Moscow City
Court examined the application for supervisory review. The applicant
was not invited to the hearing. The Moscow city prosecutor spoke
before the Presidium in support of the proposed recharacterisation.
The Presidium followed the proposal and found the applicant guilty of
being an accomplice to kidnapping without the use of violence (an
offence under Article 126 § 2 (a) of the Criminal Code in
conjunction with Article 33 § 5). The sentence remained
unaffected.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The RSFSR Code of Criminal Procedure (in force at
the material time)
- Article 254 required that the court examine the case
within the scope of the charges brought against the defendant. The
charge could be amended by the court, provided that such an amendment
did not aggravate the situation of the defendant or violate his right
to defend himself.
- Chapter 30 described the power of certain State
officials to contest criminal judgments by way of supervisory-review
proceedings in which the case could be reviewed on points of law and
procedure. The supervisory-review proceedings were distinct from
review of a case on account of newly discovered facts. The power to
lodge an application for supervisory review could be exercised by the
Prosecutor General, the presidents of the Supreme Court of the
Russian Federation and of the regional courts and their deputies. A
party to the proceedings could petition these officials for
institution of supervisory-review proceedings (Article 371).
- The supervisory-review instance was not bound by the
scope of the application for supervisory review and had to review the
criminal case in its entirety. It could uphold, amend or quash any of
the earlier judgments, vary the sentence, discontinue the criminal
proceedings or remit the matter for a new consideration by the trial
or appeal court. It could not, however, increase the sentence or
recharacterise the defendant's actions as a more serious offence
(Article 380).
- Article 377 established that a prosecutor had to be
present at the supervisory-review hearing. If necessary, the
convicted person and counsel could be summoned to the hearing in
order to make submissions. If summoned to the hearing, the defendant
and counsel should be able to study the application for supervisory
review.
B. 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 permitted the
supervisory-review instance to decide on an application for
supervisory review which was to the detriment of the convicted or
acquitted person. The Court held that such person and his or her
counsel should be able to study the application, they should be
notified about 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 (a), (b) and (c) that he had not received a fair trial in the
determination of the criminal charge on supervisory review because he
had not been notified of the date and place of the hearing and had
not been able to defend his case in person or through legal
representation. The relevant parts of Article 6 read as follows:
“1. In the determination of ... any
criminal charge against him, everyone is entitled to a fair and
public hearing ... by a ... tribunal...
3. Everyone charged with a criminal offence
has the following minimum rights:
(a) to be informed promptly, in a language
which he understands and in detail, of the nature and cause of the
accusation against him;
(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 or, if he has not sufficient
means to pay for legal assistance, to be given it free when the
interests of justice so require...”
- The applicant submitted that the supervisory-review
proceedings had resulted in the determination of a new criminal
charge against him. That new charge had never been brought against
him and he had not had a possibility to defend himself against it.
The arguments raised in his request for supervisory review had
differed from those contained in the application for supervisory
review brought by the deputy President of the Supreme Court. The
applicant and his counsel had not been aware of the contents of that
application and had no possibility to comment on the proposed
recharacterisation.
- The Government pointed out that a request for
supervisory review was merely a cause for introducing an application
for supervisory review by an authorised State official who was not
bound by the reasons exposed in the request. The applicant had been
informed, by letter of 27 October 1999, about the lodging of an
application for supervisory review but he had not sought leave to
attend the supervisory-review hearing. The Government conceded that
the applicant and his counsel had not been informed that the hearing
would take place on 11 November 1999. However, their presence had not
been necessary because the application for supervisory review had not
been to the applicant's detriment and no new charge had been
considered.
- The Court has already found a violation of the
fairness requirement of Article 6 § 1 of the Convention in the
case where the supervisory-review court adopted a different legal
characterisation of the applicant's offence without summoning him to
the hearing and affording him an opportunity to comment on the
application for supervisory review (see Vanyan v. Russia, no.
53203/99, §§ 63-68, 15 December 2005).
- Having regard to its case-law on the subject and the
material submitted by the parties, the Court notes that the
Government have not put forward any fact or argument capable of
persuading it to reach a different conclusion in the present case.
The Presidium of the Moscow City Court amended the conviction and
adopted a different legal characterisation of the applicant's
actions, thereby determining a criminal charge against him. The
prosecution was present before the Presidium and made oral
submissions in support of the recharacterisation. The Presidium had
to exercise a full review of the case and could dismiss the
application for supervisory review, quash the conviction and/or the
appeal judgment, discontinue the criminal proceedings, or amend any
of the earlier decisions. In these circumstances, the Court considers
that the Presidium of the Moscow City Court could not, if the trial
were to be fair, determine the applicant's case in the absence of the
applicant and/or his counsel. Had they been present, they would have
had an opportunity to plead the case and comment on the application
by the deputy President of the Supreme Court and on the oral
submissions by the prosecutor (see Vanyan, loc. cit.).
- In view of the above considerations the Court finds
that the proceedings before the Presidium of the Moscow City Court
did not comply with the requirements of fairness. There has therefore
been a breach of Article 6 § 1 of the Convention. In
the light of this finding it is not necessary to examine separately
whether the provisions of Article 6 § 3 have been complied with.
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.”
- The applicant did not submit a claim for just
satisfaction within the established time-limit. Accordingly, the
Court considers that there is no call to award him any sum under this
head.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Decides not to make an award under Article 41 of
the Convention.
Done in English, and notified in writing on 12 October 2006, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
