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FIRST
SECTION
CASE OF
SELIVERSTOV v. RUSSIA
(Application
no. 19692/02)
JUDGMENT
STRASBOURG
25 September
2008
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 Seliverstov 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 4 September 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 19692/02) 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 Aleksandr Vladimirovich
Seliverstov (“the applicant”), on 15 April 2002.
- The
applicant was represented by Mr S. Galikhanov, a lawyer practising in
Izhevsk. The Russian Government (“the Government”) were
represented by Mr P. Laptev, the former Representative of the Russian
Federation at the European Court of Human Rights.
- By
a decision of 30 June 2005, the Court declared the application
admissible.
- The applicant, but not the Government, filed further
written observations (Rule 59 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant was born in 1957 and lives in the town of
Sarapul in the Udmurtiya Republic.
- On
23 April 2001 the Supreme Court of the Udmurtiya Republic delivered a
judgment in a criminal case against the applicant and his
co-defendants, Mr T. and Mr Z. The court established that in
February-March 2000 the applicant, the then Head of the Sarapul Town
Property Management Committee, had detected certain irregularities in
the privatisation of a local brewery which, in his assessment, might
have rendered the privatisation void. The applicant had conspired
with T. and Z. to approach the director of the brewery to extort
350,000 Russian roubles (RUB) from the head of the brewery in
exchange for covering up those irregularities. The head had agreed to
pay RUB 200,000. On the day of payment the applicant prepared an
amended assessment report on the brewery’s immovable property,
signed it in his office and affixed the seal of the Property
Management Committee. Z. and T. delivered the report to the brewery
head and received the stipulated amount. On leaving the head’s
office they were apprehended by the police.
- The
trial court found the applicant guilty of having attempted to
solicit, through an intermediary, a large sum of money for performing
acts in the interests of the bribe-giver that were within the
applicant’s official competence. The court established that
those acts were punishable under Article 290 § 4 (c) and (d) of
the Criminal Code (“Bribery”) in conjunction with Article
30 § 3 (“Preparation of a criminal offence and an
attempted criminal offence”). The applicant was sentenced to
three years and six months’ imprisonment in a high-security
colony.
- The
applicant, but not the prosecution, appealed against the
first-instance judgment.
- On 17 October 2001 the Supreme Court of the Russian
Federation held an appeal hearing in the presence of the applicant’s
lawyer and a prosecutor. The applicant did not attend the hearing. In
his oral submissions the prosecutor asked the court to recharacterise
the applicant’s acts as attempted large-scale fraud committed
by an organised group (Article 159 § 3 (b) of the Criminal
Code in conjunction with Article 30 § 3), without reducing the
sentence. Pursuant to Article 338 of the 1960 Code of Criminal
Procedure, the court then asked the applicant’s lawyer to
submit “additional explanations”. The lawyer contended
that the granting of the prosecutor’s request would violate the
applicant’s right to prepare his defence because neither the
applicant nor the lawyer himself had been informed in advance of the
nature and grounds of the new charge and they had not had adequate
time to prepare their position. The lawyer relied, in particular, on
Article 6 § 3 (a) and (b) and Article 13 of the Convention.
- The
court then withdrew for deliberations and delivered its judgment by
which it recharacterised the applicant’s acts as attempted
large-scale fraud within the meaning of Article 159 § 3 (b) of
the Criminal Code in conjunction with Article 30 § 3 and upheld
the applicant’s imprisonment term. It reasoned as follows:
“Having correctly established the facts of the
case, the [trial] court, however, groundlessly characterised [the
applicant’s] acts as an attempt to solicit a bribe in
conspiracy with T. and Z. As the court acknowledged in the judgment,
the brewery privatisation documents had contained ‘defects’
that had been too insignificant to entail annulment of the
privatisation, and [the applicant], as the court established, had
been perfectly aware of it. By setting up a deception scheme designed
to get hold of a large amount of money because of the defects in the
documents, [the applicant], acting in collusion with T. and Z.,
attempted to steal another person’s property on a large scale
using his official position. These acts of [the applicant] are to be
characterised under Articles 30 and 159 § 3 (b) of the Criminal
Code...
Notwithstanding the change in the legal characterisation
of the defendants’ acts, it must be recognised that the
sentence imposed by the [trial] court corresponds to [the gravity of]
the offence and the information on their personalities.”
II. RELEVANT DOMESTIC LAW
A. Criminal Code of the Russian Federation
Article 290. Bribe-taking
“1. Obtaining a bribe in form of money,
securities, other property ... by an official -personally or through
an intermediary – for acts (omissions) in the interests of the
bribe-giver ... , provided such acts (omissions) are within the
competence of the official or he can facilitate the performance of
such acts (omissions) by virtue of his position...shall be punishable
by a fine ...or up to five years’ imprisonment ...
...
4. The acts enumerated in parts one, two and three
of the present Article, if they are committed...
...
c) with a solicitation of a bribe;
d) on a large scale,
shall be punishable by seven to twelve years’
imprisonment, accompanied by a confiscation of property or without
such.”
Article 159. Fraud
“1. Fraud, notably theft of other’s
property or acquisition of the right to other’s property by way
of deception or abuse of confidence, shall be punishable by a fine
... or up to three years’ imprisonment...
...
3 Fraud committed:
a) by an organised group;
b) on a large scale...
...
shall be punishable by five to ten years’
imprisonment, accompanied by a confiscation of property or without
such.”
Article 30. Preparation of a criminal offence and
attempted criminal offence
“...
3. An attempted criminal offence is an intentional
act (omission) of a person, directly aimed at committing an offence,
if however the offence had not been completed due to circumstances
beyond the will of that person.”
B. The 1960 Code of Criminal Procedure (in force at the
material time)
- Article
254 of the 1960 Code of Criminal Procedure required the court to
examine the case within the scope of the charge against the
defendant(s). 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. If the amendment entailed a
violation of the defence rights, the court was to remit the case for
an additional investigation. It was prohibited to prefer a more
serious charge or a charge based on substantially different factual
circumstances. The court could continue the trial if the amendment
only concerned abandonment of certain counts or aggravating
circumstances.
- Articles
339 and 342 provided that the appeal court could decide to dismiss
the appeal and uphold the judgment; to quash the judgment and remit
the case for an additional investigation or a fresh examination by a
trial court; to discontinue the criminal proceedings or to vary the
judgment, in particular, if the trial court had incorrectly applied
the law.
- Article
338 described the procedure for the examination of cases before the
appeal court. A judge rapporteur opened the hearing and gave a
summary of the facts of the case and the grounds of appeal. The
defendant first gave explanations, after which the prosecutor made
oral submissions. The defendant then made additional observations and
the court withdrew for deliberations and delivery of the judgment.
THE LAW
III. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicant complained that the appeal court had recharacterised his
acts, having failed to inform him in advance of the new charge, and
had thereby deprived him of his right to prepare his defence. He also
complained about inefficient assistance by his lawyer and incorrect
assessment of evidence by the domestic courts. The applicant relied
on Article 6 §§ 1 and 3 (a), (b) and (c) of the Convention,
the relevant parts of which 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...”
A. Recharacterisation of the offence by the appeal
court
1. Submissions by the parties
- The
applicant argued that he could not have foreseen that the appeal
court would amend the charges. The court of appeal did not refer to
Article 254 or any other provision of the Code of Criminal
Procedure governing recharacterisation of criminal offences. Nor had
it given any reasons for acceding to the prosecution’s request
and attributing to his acts a different legal characterisation which
was, moreover, based on a substantially different factual basis.
The
Government submitted that the legal recharacterisation of the
applicant’s acts by the Supreme Court was compatible with
Articles 254 and 342 of the Code of Criminal Procedure as the factual
basis of the charge had not been substantially modified and a more
lenient provision of the Criminal Code had been applied. They
submitted that the applicant could have foreseen the changes in the
characterisation of his acts because he had been represented by an
experienced lawyer.
2. The Court’s assessment
- The
Court reiterates that the provisions of paragraph 3 (a) of Article 6
reflect the need for special attention to be paid to the notification
of the “accusation” to the defendant. Particulars of the
offence play a crucial role in the criminal process, in that it is
from the moment of their service that the suspect is formally put on
notice of the factual and legal basis of the charges against him (see
Kamasinski v. Austria judgment of 19 December 1989,
Series A no. 168, pp. 36-37, § 79). Article 6 § 3 (a)
of the Convention affords the defendant the right to be informed not
only of the cause of the accusation, that is to say the acts he is
alleged to have committed and on which the accusation is based, but
also the legal characterisation given to those acts. That information
should be detailed (see Pélissier and Sassi v. France
[GC], no. 25444/94, § 51, ECHR 1999 II).
- The
scope of the above provision must be assessed in the light of the
more general right to a fair hearing guaranteed by Article 6 § 1
of the Convention. In criminal matters the provision of full,
detailed information concerning the charges against a defendant, and
consequently the legal characterisation that the court might adopt in
the matter, is an essential prerequisite for ensuring that the
proceedings are fair. In this respect it is to be observed that
Article 6 § 3 (a) does not impose any special formal requirement
as to the manner in which the accused is to be informed of the nature
and cause of the accusation against him. The Court further recalls
that sub-paragraphs (a) and (b) of Article 6 § 3 are connected
and that the right to be informed of the nature and the cause of the
accusation must be considered in the light of the accused’s
right to prepare his defence (see Pélissier and Sassi v.
France, cited above, §§ 52-54, and Lakatos v.
Hungary (dec.), no. 43659/98, 20 September 2001).
- Turning
to the circumstances of the present case, the Court finds no
indication that during the preliminary investigation the authorities
ever considered or mentioned the possibility of charging the
applicant with attempted large-scale fraud under Article 159 of the
Criminal Code. Equally, the arguments before the trial court were
confined to the offence of attempted large-scale bribery under
Article 290. The prosecution did not appeal against the trial
judgment, a fact which leads the Court to surmise that they had no
objections to the trial court’s legal characterisation of the
applicant’s acts. Hence, the Court finds nothing to suggest
that the applicant was made aware, at any time before the final
pleadings before the court of appeal, that he risked conviction under
Article 159 of the Criminal Code.
- Furthermore,
having regard to the definitions of the offences of bribe-taking and
fraud, as contained in the Criminal Code (see Relevant Domestic Law
above), the Court cannot but note significant differences in their
objective and subjective elements. The offence of fraud presupposes
that another person’s property is obtained by specific means,
namely deception or abuse of confidence, the perpetrator being aware
that the victim divests him- or herself of the asset on account of
the deceitful conduct. The objective element of bribe-taking consists
in accepting valuable assets in exchange for acts or omissions within
the perpetrator’s professional competence and its subjective
element requires that the bribe-taker be aware that he obtains the
asset precisely for the requested acts or omissions in the interest
of the bribe-giver. Taking into account these differences, the Court
does not consider that it was sufficiently foreseeable for the
applicant that he could be convicted of attempted fraud instead of
attempted bribe-taking (compare Pélissier and Sassi,
cited above, §§ 57-59; and, mutatis mutandis,
Miraux v. France, no. 73529/01, § 36, 26
September 2006). Nor is the Court convinced by the Government’s
argument that the applicant could have anticipated the amendment of
the charges against him because he was represented by an experienced
lawyer. It has already dismissed such arguments in a similar context,
finding that a mere reference to the abstract possibility that a
court might arrive at a different conclusion than the prosecution on
the issue of the qualification of an offence is not sufficient for a
proper exercise of the right to defence (see I.H. and Others
v. Austria, no. 42780/98, § 34, 20 April 2006).
Furthermore, in so far as the Government argued that a more lenient
provision had been applied, the Court considers that this fact is
irrelevant to the case at hand since the thrust of the applicant’s
complaint is not the severity of the punishment but the alleged
breach of his right to be informed of the charges against him and his
ability to prepare his defence and, in any event, the appeal court
upheld the applicant’s imprisonment term.
- It
is not for the Court to assess the merits of the defence the
applicant could have adopted, had he had an adequate opportunity to
make submissions on the charges, as recharacterised by the court of
appeal (see I.H. and Others, cited above, § 37).
Nevertheless, given the obvious differences in the constitutive
elements of the offences described above, the Court considers it
plausible to argue that the applicant’s defence to the charges
of attempted fraud would have been different from that used to
contest attempted bribe-taking (compare Sadak and Others,
§ 55, and Pélissier and Sassi, § 60,
both cited above).
- The
Court further observes that in some of its previous cases, when
examining similar complaints and assessing the fairness of the
criminal proceedings as a whole, it accepted that a
recharacterisation of an offence did not impair the defence rights
where the accused had a sufficient opportunity to defend themselves
in subsequent review proceedings, provided that they were entitled to
contest the conviction in respect of all relevant legal and factual
aspects before a court of appeal (see Dallos v. Hungary,
no. 29082/95, §§ 49-52, ECHR 2001 II;
Sipavičius v. Lithuania, no. 49093/99, § 31,
February 2002; and Feldman v. France (dec.), no. 53426/99,
6 June 2002).
- However,
in the present case it was not until the final pleadings before the
appeal court that the prosecution asked for the charges against the
applicant to be amended. The applicant’s counsel clearly
referred to the need to restructure and adapt the defence position in
view of this important change in the prosecution case. The Supreme
Court then withdrew for deliberations and pronounced a judgment by
which it recharacterised the applicant’s acts from attempted
bribe-taking to attempted fraud. Taking into account the fact that
the judgment in the applicant’s case became final and no
ordinary appeal lay against it (see Nikitin v. Russia,
no. 50178/99, § 39, ECHR 2004 VIII), it appears
that there was no further instance where the applicant could have
advanced his defence against the reformulated charge (see, by
contrast, Dallos, cited above, § 50; Lakatos v.
Hungary (dec.), no. 43659/98, 20 September; Sipavičius,
cited above, § 32; and Balette v. Belgium
(dec.), no. 48193/99, 24 June 2004). It also does not appear that the
applicant’s counsel had a possibility of submitting any
additional arguments during the appeal hearing (see, by contrast,
Bäckström and Andersson v. Sweden (dec.), no.
67930/01, 5 September 2006).
- The
Court accordingly considers that in using the right which it
unquestionably had to recharacterise facts over which it properly had
jurisdiction, the court of appeal should have afforded the applicant
an adequate possibility of exercising his defence rights on the issue
of attempted fraud in a practical and effective manner and in good
time (see Pélissier and Sassi, cited above, § 62).
However, this was not the case.
- In the light of the above, the Court concludes that
the applicant’s right to be informed in detail of the nature of
the accusation against him and his right to have adequate time for
the preparation of his defence were infringed. Consequently, there
has been a violation of Article 6 §§ 1 and 3 (a) and
(b) of the Convention.
B. Other complaints under Article 6
- The
Court refers to its conclusions in paragraph 24 above and finds it
unnecessary to examine the other complaints under Article 6 of the
Convention relating to the fairness of the proceedings (see Sadak,
cited above, § 69).
IV. 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 claimed RUB 1,040,186 in lost salary and 11,000,000 euros
(EUR) in respect of non-pecuniary damage.
- The
Government considered that the alleged loss of earnings had resulted
from the fact of the applicant’s conviction, which fell outside
the Court’s review in the present case. They further submitted
that the applicant’s claims were excessive.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged in respect of the loss of earnings.
It therefore rejects this claim. On the other hand, it accepts that
the applicant must have suffered distress and frustration resulting
from the violation of his right to be informed in detail of the
nature of the accusation against him and his right to have adequate
time for the preparation of his defence. Making its assessment on an
equitable basis, the Court awards the applicant EUR 1,000, plus any
tax that may be chargeable on that amount.
B. Costs and expenses
- The
applicant claimed RUB 104,000 in respect of costs and expenses
incurred before the domestic courts and this Court, broken down as
follows: RUB 2,000 in lawyers’ fees at the preliminary
investigation, RUB 22,000 for Mr Galikhanov’s fees before the
Supreme Court and RUB 80,000 for Mr Galikhanov’s fees
in the proceedings before this Court. He submitted receipts of
payment for legal services for the amount claimed.
- The
Government submitted that the expenses incurred in the domestic
proceedings should not be reimbursed because they had not been
incurred with a view to prevent or redress the alleged violation of
the applicant’s rights under the Convention. The amount claimed
in respect of Mr Galikhanov’s representation of the applicant
before the Court did not reflect the real costs and was excessive.
- The
Court notes that Mr Galikhanov represented the applicant before the
court of appeal in the domestic proceedings and throughout the
proceedings before this Court and that the applicant did not request
legal aid. According to the Court’s case-law, an applicant is
entitled to reimbursement of his 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. As regards the expenses
incurred during the preliminary investigation, the Court does not
consider that they were incurred in order to prevent the violation of
the applicant’s rights under Article 6. As regards
Mr Galikhanov’s services and in so far as the related
expenses have been necessarily incurred and were supported by the
relevant documents, the Court awards the applicant EUR 2,000 in
respect of costs and expenses, plus any tax that may be chargeable to
the applicant, and dismisses the remainder of his claims under this
head.
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 §§ 1 and 3 (a) and (b) of the Convention on
account of the recharacterisation of the applicant’s offence by
the appeal court;
- Holds that no examination of the applicant’s
further complaints under Article 6 is required;
- 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, the following
amounts, to be converted into Russian roubles at the rate applicable
at the date of settlement:
(i) EUR
1,000 (one thousand euros) in respect of non-pecuniary damage, plus
any tax that may be chargeable;
(ii) EUR
2,000 (two thousand euros) in respect of costs and expenses, 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 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 25 September 2008,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
