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FIFTH
SECTION
CASE OF
CHERVONENKO v. RUSSIA
(Application
no. 54882/00)
JUDGMENT
STRASBOURG
29 January
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 Chervonenko v. Russia,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer
Lorenzen,
President,
Rait
Maruste,
Karel
Jungwiert,
Anatoly
Kovler,
Renate
Jaeger,
Mark
Villiger,
Zdravka
Kalaydjieva,
judges,
and
Claudia Westerdiek, Section
Registrar,
Having
deliberated in private on 6 January 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 54882/00) 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 Filipp Viktorovich
Chervonenko (“the applicant”), on 17 January 2000.
- The
applicant, who had been granted legal aid, was represented by Ms K.
Kostromina and Ms K. Moskalenko, lawyers practising in Moscow. The
Russian Government (“the Government”) were represented by
Mr P. Laptev and Ms V. Milinchuk, former Representatives of
the Russian Federation at the European Court of Human Rights.
- The
applicant alleged, in particular, that the supervisory review
conducted in the present case had violated his rights under Article 6
of the Convention and Article 4 of Protocol No. 7 to the Convention.
- By
a decision of 25 September 2006, the Court declared the application
partly admissible.
- The
Government, but not the applicant, filed further written observations
(Rule 59 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1958 and lives in Moscow.
- On
2 June 1996 the applicant had a quarrel with his neighbours and
stabbed one of them with a screwdriver causing him fatal injury. On
an unspecified date criminal proceedings were instituted against the
applicant. He was charged under Article 108 § 2 of the RSFSR
Criminal Code (Уголовный
кодекс
РСФСР)
with “deliberate infliction of physical injury leading to the
victim's death”.
- On
29 September 1997 the Kuntsevskiy District Court of Moscow examined
the case at first instance. It requalified the applicant's actions
and found him guilty of “murder committed in circumstances
where excessive force was used in self-defence” under Article
108 § 1 of the newly enacted Criminal Code of the Russian
Federation (Уголовный
кодекс
РФ), which had
entered into force on 1 January 1997. The court sentenced the
applicant to a prison term of one year and eight months, which was
calculated from 15 September 1996, when he was detained pending
trial.
- On
27 November 1997 the Moscow City Court upheld the judgment of 29
September 1997 at final instance.
- While
serving his sentence the applicant attempted to institute supervisory
review proceedings against these decisions. His request was rejected
by the Vice-President of the Moscow City Court on 2 March
1998.
- In
May 1998 the applicant was released after having served his sentence.
- On
8 October 1998 the Vice-President of the Supreme Court of Russia
lodged an application for supervisory review (протест
в порядке
надзора)
of the court decisions of 29 September and 27 November 1997. In the
application it was stated that although he had been indicted under
Article 108 § 2 of the old Criminal Code, the applicant had
been tried and convicted under a different provision, namely, Article
108 § 1 of the new Criminal Code. The new charge, as it was
further argued, was more serious than the original charge as it
implied, unlike the first one, an intention to cause death. However,
Article 254 of the Code of Criminal Procedure
(Уголовно-процессуальный
кодекс РСФСР)
prevented the trial court from amending charges unless it was to the
benefit of the accused.
- On
22 October 1998 the Presidium of the Moscow City Court granted the
application for supervisory review. The Presidium decided to quash
the court decisions on the grounds put forward in the application and
to remit the case for a new examination at first instance.
- On
16 July 1999 the Kuntsevskiy District Court found the applicant
guilty under Article 108 § 2 of the old Criminal Code of
“deliberate infliction of physical injury leading to the
victim's death”. The court sentenced the applicant to a prison
term of six years. In deciding the actual term to be served, the
court deducted from this period the prison term of one year and eight
months already served by the applicant. On the same day the applicant
started serving the remainder of the prison sentence.
- On
31 August 1999 the Moscow City Court upheld the judgment of 16 July
1999 at final instance.
- On
28 December 1999 the Vice-President of the Supreme Court of Russia
lodged an application for supervisory review of the court decisions
of 16 July and 31 August 1999. The application sought to have the
case remitted for a new court examination.
- On
27 January 2000 the Presidium of the Moscow City Court decided to
grant the application. The Presidium found that:
“... the sentence was quashed by the decision of
the Presidium of the Moscow City Court of 22 October 1998 ... on the
grounds that Article 254 of the Code of Criminal Procedure had been
violated as the court qualified [the applicant's] actions under a
provision under which he had not been indicted, thus violating [the
applicant's] right to defence ...
In accordance with Article 353 of the Code of Criminal
Procedure, the imposition of a more severe penalty or application of
a more serious criminal law on a new examination of a case at first
instance [after it has been remitted by the appellate court] is
allowed only if the initial sentence was quashed upon the
prosecutor's appeal ... on the grounds of an excessively lenient
penalty ...
Therefore, in the new examination of the case the court
was not allowed to qualify [the applicant's] actions under a more
serious provision and impose a more severe penalty than initially
imposed ...”
- The
Presidium decided once again to quash the court decisions and to
remit the case for a new examination at first instance. It ordered
the applicant to be released.
- On
30 August 2000 the Kuntsevskiy District Court of Moscow examined the
charges against the applicant and found him guilty under Article 111
of the old Criminal Code of “inflicting serious injuries in
circumstances where excessive force was used in self-defence”.
The court sentenced him to ten months' imprisonment. Taking into
account the prison terms already served, the court concluded that the
punishment had already been executed.
- No
appeal was lodged against the judgment of 30 August 2000, which
became final.
II. RELEVANT DOMESTIC LAW
A. Criminal Code
- The
RSFSR Criminal Code of 1960 provided that deliberate infliction of
physical injury leading to the victim's death was punishable by five
to twelve years' imprisonment. Article 111 provided that infliction
of serious injuries in circumstances where excessive force was used
in self-defence was punishable by up to one year's imprisonment.
- The Criminal Code of the Russian Federation, in force
since 1 January 1997, provides that murder committed in
circumstances where excessive force was used in self-defence is
punishable by up to two years' imprisonment (Article 108 § 1).
The Code provides that criminal liability and the applicable penalty
are determined by the law in force at the time of commission of the
criminal act and that retrospective application of a law or penalty
is not permissible unless it is to the advantage of the accused
(Articles 8 and 9).
B. Code of Criminal Procedure
- Article
254 of the 1960 Code of Criminal Procedure (Уголовно-процессуальный
кодекс РСФСР),
applicable at the relevant time, provided that a case was examined in
court only on the charge put before the court. The charge could be
amended by the court provided that this did not worsen the
defendant's situation and did not violate his or her right to
defence.
- Section
VI, Chapter 30, of the Code regulated the supervisory review
procedure which allowed certain officials to challenge a judgment,
which had entered into force, and have the case reviewed on points of
law and procedure. The supervisory review procedure is to be
distinguished from proceedings which review a case because of newly
established facts.
- Pursuant
to Section 356 a judgment entered into force and was subject to
execution as of the day when the appeal (cassation) instance issued
its judgment.
- Section
371 provided that the power to lodge an application for a supervisory
review (an extraordinary appeal) may be exercised by the President
and Vice-Presidents of the Supreme Court of Russia, the Prosecutor
General and his Deputies, in respect of 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 may
solicit the intervention of such officials for a review.
- Section
373 laid down a limitation period of one year during which an
application calling for the supervisory review of a conviction
judgment could be brought, if such an application sought a harsher
penalty. The same limitation period applied to an application brought
against an acquittal. It ran from the day when the conviction or the
acquittal entered into force.
- According
to Sections 374, 378 and 380, the application for supervisory review
was considered by the presidium of the relevant court which examined
the case on the merits, not being bound by the scope and grounds of
the application. The presidium could either dismiss the application
and thus uphold the earlier judgment, or grant the application. In
the latter case it had to decide whether to quash the judgment and
terminate the criminal proceedings, to remit the case for a new
investigation, or for a new court examination at any instance, to
uphold a first instance judgment reversed on appeal, or to amend and
uphold any of the earlier judgments.
- Section 382 provided that imposition of a graver
punishment or application of a harsher criminal law in the
examination of a case at first instance was allowed only if the
initial sentence had been quashed upon supervisory review on the
grounds seeking imposition of a graver penalty.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AND OF
ARTICLE 4 OF PROTOCOL No. 7 TO THE CONVENTION
- The
applicant alleged a violation of the guarantees provided for in
Article 6 of the Convention and Article 4 of Protocol No. 7 to the
Convention which read, in so far as relevant, as follows:
Article 6 of the Convention
“In the determination of ... any criminal charge
against him, everyone is entitled to a fair ... hearing ... by [a]
... tribunal ...”
Article 4 of Protocol No. 7
“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.”
A. The parties' submissions
- The
applicant claimed that he had been tried and convicted twice for the
same criminal offence because he had had to return to prison after
the first set of supervisory-review proceedings amending the charges
against him, although he regarded his sentence as having been served
in full. He also considered that the manner in which the courts had
dealt with his case was contrary to the principle of legal certainty.
He alleged that he had lodged a request for supervisory review
because he expected the supervisory instance to establish that the
judgment against him had been unlawful and acquit him of all charges.
He could not have foreseen that it might entail detrimental
consequences for himself, such as aggravation of the charge or
extension of the sentence. He considered that the criminal
proceedings, taken overall, had been conducted with gross unfairness
and numerous procedural irregularities.
- The
Government contested the applicant's allegations. They relied on
Article 4 § 2 of Protocol No. 7, which expressly permitted the
reopening of a criminal case if there had been a fundamental defect
in the previous proceedings that might affect the outcome of the
case. They claimed that the supervisory review in the present case
fell within the scope of that provision. They pointed out that both
sets of supervisory review were called for on the grounds of a
fundamental defect in the previous proceedings which were detrimental
to the applicant's rights and which could affect the outcome of the
case. They further submitted that the resulting judicial decision –
the judgment of 30 August 2000 – had remedied the serious
defects in both previous sets of proceedings and restored the
applicant's fundamental rights. Moreover, it had reduced the
applicant's sentence and apparently satisfied the applicant because
he had lodged no appeal against it. They stated that any violation
that had taken place in the criminal proceedings against him had been
remedied by the subsequent quashing of the erroneous judgments.
B. The Court's assessment
- 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 v. Russia, no. 58079/00, 27 July 2006;
and Radchikov v. Russia, no. 65582/01, 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 further notes that the complaints in the present case are
different from those examined in the above-cited cases in that they
do not concern the acts of quashing – which the applicant had
each time solicited himself – but the manner in which the
decisions to reopen the case, particularly the first one, were
transposed in the ensuing judicial proceedings.
- The
Court is prepared to accept that granting supervisory review was
justified both times by what appears to have constituted a
“fundamental defect in the previous proceedings” and was
brought in the applicant's own interest. The first round of the
retrial was intended to amend the charges so as to prevent the
applicant from being convicted of a more serious offence than the one
he had been indicted for. The supervisory review was thus granted on
the assumption that the defect of the previous proceedings would be
rectified for the applicant's advantage only. The grounds for the
second reopening were also valid and reasonable, namely, to rectify a
violation of the applicant's procedural rights in the second set of
proceedings. However, the Court considers that the system of
reopening of criminal case by means of extraordinary remedy should
not function on the assumption that the procedure remains open-ended
with a “final judgment” always amenable to modifications
and reversals, a situation which would run counter to the very
principles of res judicata and legal certainty
- The
Court notes that the judgment of 16 July 1999, as well as the appeal
decision of 31 August 1999 ran contrary to the principle of legal
certainty which is inherent in Article 6 § 1 of the Convention
and which, in the circumstances of the present case, required the
subordinate court to respect the purpose of the quashing of a final
and binding judgment and the scope of the new examination defined by
the superior court. By not pursuing the superior court's instructions
these judicial instances also encroached on the domestic statutory
protection against reformatio in peius to which the applicant
was entitled since the review was called for on the grounds of his
interests. Moreover, the failure to do so necessitated the second set
of supervisory review which involved yet another quashing of a final
judicial decision.
- The
Court observes that the Government accepted that the first
supervisory review, although initiated for the applicant's benefit,
resulted in what they called “a gravely unfair decision
violating his rights and unlawfully extending his sentence”.
However, the Government claimed that the second round of supervisory
proceedings put matters right ensuring that the applicant was brought
to justice without being deprived of the procedural guarantees
prescribed by law. They contended that the second quashing
effectively resolved the flagrant mistakes committed during the first
round of retrial. However, in so far as they may be understood as
claiming the loss of the victim status by the applicant after the
second quashing, the Court reiterates that “a decision or
measure favourable to the applicant is not in principle sufficient to
deprive him of his status as a 'victim' unless the national
authorities have acknowledged, either expressly or in substance, and
then afforded redress for, the breach of the Convention” (see
Dalban v. Romania [GC], no. 28114/95, § 44, ECHR
1999-VI). While the authorities in the present case indeed
acknowledged a violation of the applicant's rights in the first set
of re-trial, the Court considers that the second set of re-trial was
insufficient by itself to eliminate the adverse effects of the
quashed decisions, but that the notion of “redress”
required some form of tangible compensation. It notes that the
applicant served six months in excess of his original prison
sentence. In the absence of any submissions by the parties concerning
the possible avenues provided for in the domestic law for claiming
compensation in respect of these periods, the Court cannot but
observe that, as matters stand, no compensation has been paid to the
applicant for the violation of the applicant's right in the first
trial. In such circumstances it concludes that the criminal
proceedings against the applicant, taken as a whole, did not satisfy
the requirements of a “fair hearing” guaranteed by
Article 6 of the Convention.
- As regards the applicability of Article 4 of Protocol
No. 7 to supervisory-review proceedings, in the Nikitin case
cited above the Court found as follows:
“46. The Court notes that the Russian
legislation in force at the material time permitted a criminal case
in which a final decision had been given to be reopened on the
grounds of new or newly discovered evidence or a fundamental defect
(Articles 384-390 of the Code of Criminal Procedure). This
procedure obviously falls within the scope of Article 4 § 2 of
Protocol No. 7. However, the Court notes that, in addition, a system
also existed which allowed the review of a case on the grounds of a
judicial error concerning points of law and procedure (supervisory
review, Articles 371-383 of the Code of Criminal Procedure). The
subject matter of such proceedings remained the same criminal charge
and the validity of its previous determination. If the request was
granted and the proceedings were resumed for further consideration,
the ultimate effect of supervisory review would be to annul all
decisions previously taken by courts and to determine the criminal
charge in a new decision. To this extent, the effect of supervisory
review is the same as reopening, because both constitute a form of
continuation of the previous proceedings. The Court therefore
concludes that for the purposes of the ne bis in idem
principle supervisory review may be regarded as a special type of
reopening falling within the scope of Article 4 § 2 of Protocol
No. 7.”
- The Court observes that the judgment of 29 September
1997 of the Kuntsevskiy District Court of Moscow, which became final
after the applicant's appeal was rejected by the Moscow City Court on
27 November 1997, had been quashed on the grounds of serious
procedural defects and that the case was reconsidered by two judicial
instances, which delivered the final judgment. The latter judgment
was subsequently quashed, also on the grounds of a serious procedural
violation. As in the Nikitin case and other cases cited above,
the subject matter of the new sets of proceedings consisted of the
same criminal charge and the validity of its previous determination.
Having regard to the above findings, the Court concludes that the
supervisory review in the instant case constituted a reopening of the
case owing to a fundamental defect in the previous proceedings,
within the meaning of Article 4 § 2 of Protocol No. 7.
Accordingly, the complaint raises no issues under Article 4 § 1
of Protocol No. 7 separate from that under Article 6 of the
Convention (see Bratyakin, cited above, and Savinskiy v.
Ukraine (dec.), no. 6965/02, 31 May 2005).
- Therefore,
the Court finds a violation of Article 6 § 1 of the Convention
and finds that the applicant's complaints raise no separate issue
under Article 4 of Protocol No. 7 to 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 claimed 100,000 United States dollars in respect of
non-pecuniary damage.
- The
Government contested the claim as excessive and considered that any
finding by the Court of a violation would constitute sufficient just
satisfaction in the present case.
- The
Court considers that the applicant must have suffered distress and
frustration as a result of the harsher penalty imposed in the
criminal proceedings following the supervisory review. Making its
assessment on an equitable basis, it awards the applicant 2,000 euros
for non-pecuniary damage, plus any tax that may be chargeable on that
amount.
B. Costs and expenses
- The
applicant did not submit any claims for costs and expenses.
Accordingly the Court is not required to make any award 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 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, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 2,000 (two thousand euros)
in respect of non-pecuniary damage, 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 on that amount;
(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 29 January 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
