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FIFTH
SECTION
CASE OF
RADCHIKOV v. RUSSIA
(Application
no. 65582/01)
JUDGMENT
STRASBOURG
24 May
2007
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 Radchikov v. Russia,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Mr P. Lorenzen, President,
Mrs S.
Botoucharova,
Mr K. Jungwiert,
Mr V.
Butkevych,
Mr R. Maruste,
Mr A. Kovler,
Mr M.
Villiger, judges,
and Mrs C. Westerdiek, Section
Registrar,
Having
deliberated in private on 4 October 2005 and on 2 May 2007,
Delivers
the following judgment, which was adopted on the last mentioned
date:
PROCEDURE
- The
case originated in an application (no. 65582/01) 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 Valeriy Grigoriyevich
Radchikov, on 23 January 2001. The applicant died on
31 January 2001 and his daughters, Mrs Natalia Blinova and
Mrs Maria Radchikova, have decided to pursue the application. The
applicant was represented before the Court by Mrs. K. Moskalenko
and Mrs G. Orozaliyeva, lawyers practising in Moscow.
- The
Russian Government (“the Government”) were represented by
Mr P. Laptev, Representative of the Russian Federation at the
European Court of Human Rights.
- The
applicant alleged, in particular, that the quashing of his acquittal
was contrary to Article 6 of the Convention and Article 4 of Protocol
No. 7.
- By
a decision of 4 October 2005, the Court declared the application
partly admissible.
- The
Government, but not the applicant's representatives, filed further
written observations (Rule 59 § 1). The Chamber decided, after
consulting the parties, that no hearing on the merits was required
(Rule 59 § 3 in fine).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1956 and lived in Moscow.
A. The background of the case
- The
applicant engaged in commerce and at some point in the early 1990s
became the president of the Russian Afghan War Veterans Fund.
- In
April 1997 the authorities brought criminal proceedings against the
applicant and a few other persons on suspicion of several crimes,
including masterminding the murder of the applicant's business
rivals.
B. First-instance judgment
- On
21 January 2000 the Military Court of the Moscow District (Московский
окружной
военный
суд), sitting as a
bench composed of one professional judge and two lay assessors,
examined the case presented by the prosecution and acquitted the
applicant and his co-accused on all charges for lack of evidence of
his involvement in the alleged crimes (за
недоказанностью
участия
в совершении
преступлений).
C. Appeal proceedings
- On
26 January 2000 the prosecution lodged an appeal against the judgment
of 21 January 2000, arguing that the first-instance court had wrongly
assessed the evidence in the case and “failed to adopt measures
aimed at achieving a comprehensive, full and objective investigation
of all the circumstances of the case, to eliminate the
inconsistencies in the prosecution case file and to have regard to
all possible versions of events, but had pinpointed nonexistent
inconsistencies for which the investigative authority allegedly
failed to account”.
- The
prosecution suggested that the first instance court ought to have
eliminated the inconsistencies in the prosecution case file of its
own motion and requested the appeal court to remit the case for
re-trial.
- On
an unspecified date the parties, including the applicant and alleged
victims, filed their own arguments.
- By
decision of 25 July 2000 the Military Division of the Supreme Court
of Russia (Военная
коллегия
Верховного
Суда Российской
Федерации),
sitting as a bench of three professional judges, examined and
rejected the arguments of the prosecution and the alleged victims and
upheld the judgment of 21 January 2000 in full. The court noted
that:
“... Despite the arguments in the prosecution's
appeal about the incomplete and one sided nature of examination
of the case by the court, the judicial investigation was sufficiently
thorough and comprehensive.
All pieces of evidence presented by the prosecution and
the defence were examined at the court hearing.
The court ruled on all applications by the parties
concerning the examination of the evidence, took all necessary
measures to remedy the shortcomings of the investigation and
eliminate the inconsistencies in the oral statements of the
questioned persons, and as regards the questions requiring specialist
knowledge decided to carry out and then carried out appropriate
expert examinations.
At the same time, having evaluated the evidence examined
in its entirety, the court came to a reasoned conclusion that the
evidence was insufficient to convict and that every means of
collecting evidence in the court proceedings had been exhausted. In
fact, this was confirmed by the prosecutor (государственный
обвинитель),
who did not make any application for a fresh investigation in court
(судебное
следствие)
with a view to eliminating of the existing or newly discovered
inconsistencies, and the prosecutor who took part in the appeal
hearing ...
The constitutional principle of adversarial proceedings
and equality of arms in the administration of justice presupposes the
separation of the function of consideration of cases from the
functions of the prosecution and the defence submitting argument
before the court. Thus, the task of prosecution before the court
pertains to the prosecution bodies, whilst the court has an
obligation to formulate conclusions about the established facts,
regard being had to the evidence examined in the court hearing, to
evaluate objectively the lawfulness and validity of the charges, to
decide on the issue of acquittal or conviction, have due regard to
the evidence collected by the investigation bodies and the arguments
of the defence, thus securing the just and impartial resolution of
the case and granting the parties equal opportunities to defend their
positions. Hence, the court is empowered to determine the guilt of a
person only on condition that it has been proven by the prosecuting
bodies and officials. The lower court in the present case has fully
complied with this requirement of the Constitution of the RF ...
Having considered the evidence of guilt and innocence
presented in court by the parties, the court came to the conclusion
that it was insufficient to convict and that [the court] has
exhausted all statutory means of collecting additional evidence,
which is why it took a well-grounded decision to acquit [the
applicant and two co-accused] for lack of evidence of their
involvement in the criminal actions in respect of which they had been
accused by the investigative bodies, having interpreted, in
accordance with the requirements of the legislation and the
Constitution of the RF, all doubts about the guilt in their favour.”
D. Supervisory review proceedings
- On
25 August 2000 the Deputy Prosecutor General applied for supervisory
review of the judgments in the case, arguing that the lower courts
ought to have reacted to the breaches of the domestic law and various
deficiencies in the prosecution case file by remitting the case for
an additional investigation instead of acquitting the accused. He
referred to, among other things, paragraph 2 of Article 232(1) of the
RSFSR Code of Criminal Procedure in this connection.
- On
13 December 2000, the Presidium of the Supreme Court, sitting as a
bench of nine professional judges, heard the parties, including the
applicant and his counsel, and accepted the prosecution's arguments.
- The
court stated that:
“... the Presidium finds that the prosecution
appeal is well-founded and that it should be granted, as the
preliminary investigation and the trial, despite the requirements of
Article 20 of the RSFSR Code of Criminal Procedure, were conducted in
an incomplete and one-sided manner, without proper inquiry into
incriminating and exculpatory circumstances. ...”
- The
court pointed out several breaches of the domestic procedure by the
investigating authorities and various inconsistencies in the
prosecution case file and gave a number of detailed instructions as
to how these deficiencies should be eliminated. The court quashed the
judgment of 21 January 2000 and the appeal decision of 25 July
2000 and remitted the case for a fresh investigation
E. Subsequent developments
- On
31 January 2001 the applicant died in a car accident.
- On
2 April 2001 the prosecution discontinued the case in respect of the
applicant on account of his death, and pursued the investigation
against S., one of the persons who had stood trial and been acquitted
together with the applicant.
- On
28 May 2003 co-accused S. was found guilty and sentenced to fourteen
years' imprisonment.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Applicable legislation
- 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 and reopening of a
case
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.”
Article 384
Grounds for reopening cases due to new
circumstances
“Judgments, decisions and rulings which have
become effective may be set aside on account of newly discovered
circumstances.
The grounds for reopening a criminal case are as
follows:
(i) with regard to a judgment which has
become effective, the establishment of false witness testimony or
false expert opinion; forgery of evidence, investigation records,
court records or other documents; or an indisputably erroneous
translation which has entailed the pronouncement of an unfounded or
unlawful judgment;
(ii) with regard to a judgment which has
become effective, the establishment of criminal abuse of their powers
by judges when examining the case;
(iii) with regard to a judgment which has
become effective, the establishment of criminal abuse of their powers
by investigation officers dealing with the case, where this has
entailed the pronouncement of an unfounded or unlawful judgment or a
decision to terminate the prosecution;
(iv) other circumstances, unknown to the
court at the time when the case was examined, which, alone or
combined with other previously established facts, prove a convicted
person's innocence or the commission by him or her of an offence
which is more or less serious than that of which he or she was
convicted, or which prove the guilt of a person who was acquitted or
whose prosecution was terminated.”
By
ruling no. 4-P of 2 February 1996 the Constitutional Court of the
Russian Federation considered the fact that the applicable provisions
of the Code of Criminal Procedure did not provide for the supervisory
review of decisions of the Presidium of the Supreme Court and ruled
that Article 384 of the Code, which limited the possibilities of
contesting the merits of such decisions in the light of newly
established facts to “other circumstances, unknown to the court
at the time when the case was examined” was too restrictive
since it prevented the correction of judicial mistakes breaching
personal rights and freedoms. It therefore quashed part (iv) of
paragraph 2 of that Article as unconstitutional.
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 on acquittals
- 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 competent court. The court could examine
the case on the merits and was not bound by the scope and grounds of
the request for supervisory review.
- The
Presidium could dismiss or grant the request. If it dismissed the
request, the earlier judgment remained in force. If it granted the
request, the Presidium could decide to quash the judgment and
terminate the criminal proceedings, to remit the case for a new
investigation, to order a fresh court examination at any instance, to
uphold a first-instance judgment reversed on appeal, or to 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 a new examination.
- On
17 July 2002 the Constitutional Court of the Russian Federation
examined the challenge to the laws which allowed supervisory review
of a final acquittal. In its ruling no. 13-P of the same date, the
Constitutional Court declared incompatible with the Constitution the
legislative provisions permitting the re-examination and quashing of
an acquittal on the grounds of a prejudicial or incomplete
investigation or court hearing or on the ground of inaccurate
assessment of the facts of the case, save in cases where new evidence
had emerged or there had been a fundamental defect in the previous
proceedings.
- The
Constitutional Court's ruling stated, in particular:
“... Article 4 of Protocol No. 7 to the Convention
provides that the right not to be tried or punished twice does not
prevent the reopening of the case in accordance with the law and
criminal procedure of the State concerned, if there is evidence of
new or newly discovered facts, or if there has been a fundamental
defect in the previous proceedings, which could affect the outcome of
the case.
It follows ... that, subject to the above requirements,
the national legislation may provide for a system by which a case may
be reopened and a final judgment quashed, and may specify where,
depending on the case, a procedure for reopening on the grounds of
new or newly discovered evidence or a supervisory review should
apply.
Any exemption from the general prohibition on reopening
proceedings to the detriment of the acquitted or convicted person may
be justified only in exceptional circumstances, where a failure to
rectify a miscarriage of justice would undermine the very essence of
justice and the purpose of a verdict as a judicial act and would
upset the required balance between the constitutionally protected
values involved, including the rights and legitimate interests of
convicted persons and those of the victims of crime. In the absence
of any possibility of reversing a final judgment resulting from
proceedings tainted by a fundamental defect that was crucial for the
outcome of the case, an erroneous judgment of this type would
continue to have effect notwithstanding the principle of general
fairness ... and the principle of judicial protection of fundamental
rights and freedoms.
3.2. Under the [Constitution and the
Convention] any possibility provided for at national level of
quashing a final judgment and reviewing a criminal case must be
subject to strict conditions and criteria clearly defining the
grounds for such review, given that the judgment concerned is already
binding and determinative of the individual's guilt and sentence.
However, the grounds for review of final judgments
provided for in the Code of Criminal Procedure [of 1960] go beyond
these limits. When establishing a procedure for the review of final
convictions and, especially, acquittals ... definite grounds should
have been formulated to ensure that such a procedure would be
implemented with sufficient distinctness, precision and clarity to
exclude its arbitrary application by the courts. In failing to do so,
[the legislature] misapplied the criteria which derive from [the
Constitution] and Article 4 of Protocol No. 7 to the Convention for
the quashing of final judgments in criminal cases ...
Furthermore, [the power] of a supervisory instance to
remit a case for fresh investigation where it concludes, through its
own assessment of evidence, that the previous investigation has been
prejudicial or incomplete, is incompatible with the constitutional
principles of criminal procedure and with the Constitutional Court's
jurisprudence, in that it gives the prosecution an unfair advantage
by providing it with additional opportunities to establish guilt even
after the relevant judgment has become operative. It follows that a
court of supervisory instance cannot quash a final acquittal only on
the ground of its being unfounded ... Accordingly, the prosecutor is
not entitled to request the supervisory review of such a judgment on
the ground that it is unfounded ...”
6. The provisions of the new Code of Criminal Procedure
in respect of supervisory review proceedings
- On
1 July 2002 the new Code of Criminal Procedure came into force. Under
Article 405 of the Code, the application of supervisory review was
limited to those cases where it did not involve changes that would be
detrimental to the convicted person. Acquittals and decisions to
discontinue the proceedings cannot be the subject of a supervisory
review.
- By
ruling no. 5-P of 11 May 2005 the Constitutional Court of the Russian
Federation quashed Article 405 of the Code in so far as this
provision limited the judicial review of decisions, including
judgments which became effective, to those cases where it did not
involve changes that would be detrimental to the convicted person and
thus excluded the possibility of correcting fundamental defects in
the previous proceedings, which could affect the outcome of the case.
The court declared that the provision was in breach of both the
Constitution of the Russian Federation, Article 6 of the Convention
and Article 4 of Protocol No. 7, and struck it down. It further ruled
that, pending the introduction of amendments in the relevant
legislation, the supervisory review of court decisions, including
judgments which had become effective, was not limited to cases which
did not involve changes that would be detrimental to the convicted
person. The time-limit for an application for supervisory review was
set at one year.
7. The remittal of cases for an additional
investigation under the old and new Code of Criminal Procedure
- The
old Code of Criminal Procedure empowered the courts of various levels
to remit criminal cases for an additional investigation at any stage
of court proceedings, including first instance (Articles 221 and
232), appeal (Article 339) and supervisory review (Articles 378 and
380).
- Article
232(1) of the 1960 Code of Criminal Procedure listed the situations
in which the trial court should remit the case to the investigative
authorities for an additional investigation. In particular, the court
should do so in cases of incompleteness of the investigation which
could not be remedied in court (paragraph 1); serious violations of
the statutory criminal procedure by the investigative authorities
(paragraph 2); the existence of grounds for indicting the accused on
a new charge which is different but related to the existing charge,
or for replacing the charge with more serious or factually different
charges from the ones indicated in the bill of indictment (paragraph
3); the existence of grounds for bringing criminal proceedings in the
case in respect of persons other than the accused if it is impossible
to sever the case (paragraph 4); an erroneous decision to join or
sever cases (paragraph 5). When remitting the case for an additional
investigation, the court should indicate the grounds for its decision
and list the circumstances which ought to be clarified by the
investigative authorities during the fresh proceedings.
- By
ruling no. 7-P of 20 April 1999 the Constitutional Court of the
Russian Federation quashed paragraphs 1 and 3 of Article 232(1) as
unconstitutional in that they breached the principle of the
separation of powers and were incompatible with the role of the court
as an administrator of justice.
- By
ruling no. 1-P of 14 January 2000 the Constitutional Court had regard
to similar considerations and also quashed paragraph 4 as
unconstitutional.
- Article
20 of the Code provided that a court, a prosecutor and investigative
officials were under an obligation to undertake all measures provided
for by law to ensure a comprehensive, complete and objective
investigation of the circumstances of the case and establish both the
circumstances incriminating and exculpating the accused and
mitigating and aggravating circumstances.
- Under
the new Code of Criminal Procedure, the appeal (Article 378 of the
Code) and supervisory review courts (Article 410) have the power to
remit the case to the lower instance courts for a fresh examination
but no power to remit the case to the prosecutor for an additional
investigation.
B. Relevant materials
- On
19 January 2000, at the 694th meeting of the Ministers' Deputies, the
Committee of Ministers of the Council of Europe adopted
Recommendation No. R (2000) 2 on the re-examination or reopening of
certain cases at domestic level following judgments of the European
Court of Human Rights.
The recommendation encouraged the Contracting Parties to examine
their national legal systems with a view to ensuring that there
existed adequate possibilities to re-examine the case, including the
reopening of proceedings, in instances where the Court had found a
violation of the Convention.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicant complained under Article 6 § 1 of the Convention that
the supervisory review court had quashed his acquittal. This
provision, in so far as relevant, reads as follows:
“In the determination of ... any criminal charge
against him, everyone is entitled to a fair ... hearing ... by [a]
... tribunal...”
A. The parties' submissions
- The
Government submitted, first, that the supervisory review of the
applicant's acquittal had been lawful because the domestic procedure
had been respected. Secondly, they argued that the supervisory review
in the case had been justified by the need to correct the apparent
judicial error and therefore had not breached the applicant's Article
6 rights. Thirdly, according to the Government, a supervisory review
did not prejudge subsequent judgments by merely remitting the case
for a further investigation. Fourthly, the Government referred to the
Court's ruling in the case of Nikitin v. Russia (no.
50178/99, ECHR 2004 VIII) that the principle of legal certainty
was not absolute and argued that the reopening of the case at issue
was justified by the need to correct a “fundamental defect in
the previous proceedings which might affect the outcome of the case”
within the meaning of Article 4 of Protocol No. 7.
- The
applicant's lawyers argued that the applicant's acquittal had not
been quashed because of a fundamental defect in the proceedings or
because of new facts. In their view, the decision to quash had been
unlawful even under the domestic law because the Constitutional Court
permitted it only if there was a fundamental defect in the
proceedings or new facts had come to light. According to the
applicant's lawyers, the supervisory review body had failed to
address this point. In response to the Government's reference to
Nikitin, cited above, the applicant's counsel described it as
erroneous because the present case was factually different. Lastly,
they compared the present case to Ryabykh v. Russia
(no. 52854/99, ECHR 2003 IX), where the Court had found a
violation of Article 6. Overall, they concluded that the supervisory
review of the applicant's acquittal had been in breach of that
Convention provision.
B. The Court's assessment
1. General principles
- The Court reiterates the importance of one of the
fundamental aspects of the rule of law, namely, the principle of
legal certainty, which requires, among other things, that where the
courts have finally determined an issue, their ruling should not be
called into question (see, as leading authorities, Brumărescu
v. Romania [GC], no. 28342/95, § 61, ECHR 1999 VII,
and Ryabykh, cited above, § 51). In the
specific context of supervisory review in criminal cases, the Court
has previously held that this requirement is not absolute and that
any decision deviating from the principle must be assessed in the
light of Article 4 § 2 of Protocol No. 7, which expressly
permits a State to reopen a case due to the emergence of new facts,
or where a fundamental defect is detected in the previous proceedings
which was capable of affecting the outcome of the case (see, for
example, Nikitin, cited above, §§ 54-57, and
Savinskiy v. Ukraine, no. 6965/02, § 23, 28
February 2006).
- Thus,
the mere possibility of reopening a final judgment in a criminal case
is not as such incompatible with Article 6 of the Convention,
provided that the actual manner in which the reopening took place did
not impair the very essence of the applicant's right to a fair trial.
In particular, the Court has to assess whether, in a given case, the
power to launch and conduct a supervisory review was exercised by the
authorities so as to strike, to the maximum extent possible, a fair
balance between the interests of an individual and the need to ensure
the effectiveness of the system of criminal justice. In other words,
a review of a final and binding judgment should not be granted merely
for the purpose of obtaining a rehearing and a fresh determination of
the case, but rather to correct judicial errors and miscarriages of
justice.
- The
relevant considerations to be taken into account in this connection
include, in particular, the effect of the reopening and any
subsequent proceedings on the applicant's individual situation and
whether the reopening resulted from the applicant's own request; the
grounds on which the domestic authorities revoked the finality of the
judgment in the applicant's case; the compliance of the procedure at
issue with the requirements of the domestic law; the existence and
operation of procedural safeguards in the domestic legal system
capable of preventing abuses of this procedure by the domestic
authorities; and other pertinent circumstances of the case (see
Nikitin, cited above, § 60; Bratyakin v. Russia
(dec.), no. 72776/01, 9 March 2006; Fadin v. Russia, no.
58079/00, § 34, 27 July 2006; and Savinskiy, cited
above, §§ 24-26). Furthermore, proceedings before the
supervisory review court should afford all the procedural safeguards
of Article 6 § 1 and must ensure the overall
fairness of the entire proceedings (see Vanyan v. Russia, no.
53203/99, §§ 63-68, 15 December 2005).
2. Application of the above principles to the instant
case
- The
Court observes, and it seems undisputed between the parties, that in
the present case a final judgment acquitting the applicant on all
charges was re-examined and quashed by way of supervisory review at
the prosecution's request (see, by contrast, Fadin, cited
above, § 34). Having reviewed the case, the supervisory court
did not simply order the resumption of the judicial proceedings, but
remitted the case to the investigative authorities for an additional
investigation. Even despite the applicant's death after the
supervisory review proceedings, there is no doubt that this decision
adversely affected the applicant's individual situation (see, by
contrast, Nikitin, cited above, §§ 18 and 60). The
issue arises as to whether on the facts of the case, and regard being
had to the supervisory review proceedings and subsequent events, the
authorities struck, to the maximum extent possible, a fair balance
between the interests of the applicant and the need to ensure the
effectiveness of the system of criminal justice and thus complied
with Article 6.
- Having
examined the case file and the parties' submissions, the Court is not
persuaded that the authorities respected this requirement in the
present case. Whilst the Court accepts that the supervisory review
procedure was conducted in compliance with the requirements of the
domestic law and procedure, that there existed a one-year time-limit
for bringing supervisory review proceedings against the applicant's
acquittal which was indeed complied with and that the applicant and
his counsel were present at the supervisory review hearing and had
ample opportunities to state their case (see, by contrast, Vanyan,
cited above, §§ 63-68), these factors taken alone are
relevant but not sufficient to justify the quashing of the final
acquittal in the applicant's case.
- At
the outset the Court finds it difficult to accept the Government's
argument that the supervisory review was aimed at the correction of
“fundamental defects in the previous proceedings which might
affect the outcome of the case” within the meaning of Article 4
of Protocol No. 7. In this respect the Court notes that the reviewing
court stated as follows:
“... the Presidium finds that the prosecution
appeal is well-founded and that it should be granted, as the
preliminary investigation and the trial, despite the requirements of
Article 20 of the RSFSR Code of Criminal Procedure, were conducted in
an incomplete and one-sided manner, without proper inquiry into
incriminating and exculpatory circumstances. ...”
- In
the Court's view, the mere consideration that the investigation in
the applicant's case was “incomplete and one-sided” or
led to an “erroneous” acquittal cannot in itself, in the
absence of jurisdictional errors or serious breaches of court
procedure, abuses of power, manifest errors in the application of
substantive law or any other weighty reasons stemming from the
interests of justice (such as in the above-cited Bratyakin
case), indicate the presence of a fundamental defect in the previous
proceedings. Otherwise, the burden of the consequences of the
investigative authorities' lack of diligence during the pre-trial
investigation would be shifted entirely onto the applicant and, more
importantly, the mere allegation of a shortcoming or failure in the
investigation, however minor and insignificant it might be, would
create an unrestrained possibility for the prosecution to abuse
process by requesting the reopening of finalised proceedings. The
fear of an abuse of process is even more serious in situations where,
such as in the case at issue, the prosecution authorities, having
been fully aware of the alleged deficiencies in the investigation
(see paragraphs 10 and 11 above) and free to request the
first-instance and appeal courts to remit the case for an additional
investigation at earlier stages of proceedings prior to the adoption
of a final judgment in the case (see paragraphs 32 and 33 above),
choose not to avail themselves of this opportunity and have recourse
to an extraordinary remedy instead.
- The
Court further notes that the grounds for supervisory review were
identical to the grounds for an appeal under the domestic law (see
paragraph 22 above). Such arrangement was in itself slightly
conducive to the protection of legal certainty and, in the present
case, lead to a situation where the supervisory review court simply
failed 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.
- The
Court does not share the reasoning of the Presidium, namely that the
preliminary investigation and the trial “were conducted in an
incomplete and one-sided manner, without proper inquiry into
incriminating and exculpatory circumstances”. The Court
considers that the mistakes or errors of the state authorities should
serve to the benefit of the defendant. In other words, the risk of
any mistake made by the prosecuting authority, or indeed a court,
must be borne by the state and the errors must not be remedied at the
expense of the individual concerned.
- Finally,
the Court observes that the arguments used by the prosecution to
justify the reopening of the proceedings and fresh investigation of
the applicant's case were exactly the same as those used by the
prosecution in ordinary appeal proceedings to justify the remittal of
the case for re-trial. Since these arguments were examined and
rejected by the Supreme Court sitting as the bench of three
professional judges on appeal, the supervisory review proceedings
were, in essence, an attempt by the prosecution to re-argue the case
on the same points which failed on appeal.
- In
view of the above considerations, the Court finds that the quashing
of the applicant's acquittal in the present case 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.
- Accordingly,
the Court concludes that there has been a violation of Article 6 §
1 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 4 OF PROTOCOL No. 7 TO
THE CONVENTION
- The
applicant also contended that the supervisory review proceedings had
constituted a violation of his right not to be tried again in
criminal proceedings for an offence of which he had been finally
acquitted. He relied on Article 4 of Protocol No. 7 to the
Convention, the relevant parts of which provide:
“1. No one shall be liable to be tried
or punished again in criminal proceedings under the jurisdiction of
the same State for an offence for which he has already been finally
acquitted or convicted in accordance with the law and penal procedure
of that State.
2. The provisions of the preceding paragraph
shall not prevent the reopening of the case in accordance with the
law and penal procedure of the State concerned, if there is evidence
of new or newly discovered facts, or if there has been a fundamental
defect in the previous proceedings, which could affect the outcome of
the case.
...”
- The
Court observes that in the present case a final judicial decision was
quashed and the case remitted to the investigative authorities for a
fresh investigation. Having regard to its findings under Article 6
(see paragraph 51 above), the Court finds that the applicant's
complaints raise no separate issue under Article 4 of Protocol No. 7
(see Bratyakin, cited above, and Savinskiy v. Ukraine
(dec.), no. 6965/02, 31 May 2005).
III. 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's daughters each claimed 15,000 euros (EUR) for
non pecuniary damage. They alleged that the quashing of the
applicant's acquittal resulted in severe stress and frustration both
for the applicant and them.
- The
Government were of the view that the alleged pecuniary damage was
closely linked to the applicant's “personality and his
emotional sphere” and that the applicant's daughters could not
claim compensation in this respect on his behalf. They further
submitted that the applicant's claims were in any event excessive and
unsubstantiated.
- The
Court notes, in response to the Government's argument, that it has
repeatedly granted claims for compensation in respect of
non-pecuniary damage lodged by the next-of-kin on behalf of their
deceased relatives (see, for example, Vocaturo v. Italy,
judgment of 24 May 1991, Series A no. 206 C, pp. 29 and 30,
§§ 2 and 19, or
Raimondo v. Italy, judgment of 22 February 1994,
Series A no. 281-A, pp. 8 and 10, §§ 2 and 49) and that
there is nothing in the circumstances of the present case or in the
Government's submissions to justify a departure from that practice.
The Court observes that the applicant must have suffered a certain
degree of stress and frustration as a result of the quashing of his
acquittal. The actual amount claimed is, however, excessive. Making
its assessment on an equitable basis, it awards the applicant's
daughters jointly the overall sum of EUR 2,000 in respect of
non-pecuniary damage.
B. Costs and expenses
- The
applicant's daughters also claimed 928.05 United
States dollars (USD) for the costs and expenses incurred before the
Court (USD 390.19 in respect of legal fees and USD 537.86 in respect
of “other” fees). They submitted contracts concluded
between the applicant and his lawyers with indications of the fee
paid.
- The
Government did not agree with the amounts claimed, stating that the
alleged representation expenses had not been proved. The Government
also contested the amount claimed in respect of “other fees”.
- The
Court reiterates that in order for costs and expenses to be included
in an award under Article 41, it must be established that they were
actually and necessarily incurred and were reasonable as to quantum
(see, for example, Nilsen and Johnsen v. Norway [GC], no.
23118/93, § 62, ECHR 1999-VIII).
- In the present case, regard being had to the documents
submitted by the applicant's daughters, the above criteria and the
complexity of the case, the Court awards EUR 300 for costs and
expenses.
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 that no separate issue arises under
Article 4 of Protocol No. 7 to the Convention;
- Holds
(a) that
the respondent State is to pay the applicant's daughters, Mrs Natalia
Blinova and Mrs Maria Radchikova, within three months from the
date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following
amounts:
(i) EUR
2,000 (two thousand euros) jointly in respect of non pecuniary
damage;
(ii) EUR
300 (three hundred euros) jointly in respect of costs and expenses;
(iii) any
tax that may be chargeable on the above amounts;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts 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 24 May 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
