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FIRST
SECTION
CASE OF Eduard CHISTYAKOV v. RUSSIA
(Application
no. 15336/02)
JUDGMENT
STRASBOURG
9
April 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 Eduard Chistyakov 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,
Giorgio
Malinverni,
George Nicolaou, judges,
and Søren
Nielsen, Section Registrar,
Having
deliberated in private on 19 March 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 15336/02) 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 Eduard Nikolayevich
Chistyakov (“the applicant”), on 16 March 2002.
- The
Russian Government (“the Government”) were represented by
Mr P. Laptev, former Representative of the Russian Federation at
the European Court of Human Rights.
- On
20 January 2006 the Court decided to give notice of the application
to the Government. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the application at
the same time as its admissibility.
- The
Government objected to the joint examination of the admissibility and
merits of the application. Having considered the Government’s
objection, the Court dismissed it.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1952 and lives in the town of Kamyshin in the
Volgograd Region.
A. First round of proceedings
- The
applicant was employed as an expert in the local Forensic
Examinations Service. In 2000 he was accused of having been negligent
in the discharge of his professional duties and was dismissed from
his post. In March 2001 he was charged with having given a
deliberately false expert opinion.
- On
30 May 2001 the Kamyshin Town Court of the Volgograd Region convicted
the applicant as charged and sentenced him to one year of
correctional labour coupled with a fine amounting to 20% of his
income. Under the Amnesty Act 2000 the applicant was absolved from
serving his sentence.
- On
7 August 2001 the Volgograd Regional Court overturned the judgment
and discontinued the proceedings for want of corpus delicti.
The court held that the offence required express malice, which had
not been established on the facts of the case. The Rules on the
Forensic Medical Examination of Corpses allowed the expert to
determine the scope and methods of examination on the basis of
ministerial instructions. The applicant’s failure to conduct a
thorough corpse examination resulted from having chosen “the
wrong scope and methods”.
B. Supervisory review and second round of proceedings
- On a supervisory request from the Volgograd Region
Acting Prosecutor, on 21 September 2001 the Presidium of the Regional
Court quashed both judgments for insufficient substantiation and
remitted the case to the prosecutor for a new investigation. It held
as follows:
“Ruling on the discontinuation of the case, the
[appeal] court referred to the Rules on forensic examination of
corpse, annexed to the Decree 407 of 10 December 1996... According to
paragraph 1.11 of the Rules, ‘the scope and method of the
expert examination of a corpse is determined by the expert, taking
account of the aim and objectives of the examination, the
requirements of substantiation and objectivity of the expert’s
conclusions, directions of the normative instructions and
guidelines.’
So, the appeal court ruled that the insufficiency of the
corpse examination carried out by the applicant ...had been due to
his wrong choice as regards the scope and method of examination...
[T]he case file did not contain all normative documents
regarding the process of an expert examination.
The investigating authority and the court concluded that
[the applicant] had acted in gross disregard of the above Rules, only
on the basis of excerpts from these Rules. This did not allow for a
thorough examination of the case...”
The
prosecutor was present at the hearing and made
submissions to the Presidium of the Regional Court. According
to the applicant, neither he nor his counsel was apprised of this
hearing and consequently could not attend it.
- In the resumed proceedings, on 22 May 2002 the
applicant was convicted as charged and sentenced to one year of
correctional labour coupled with a fine amounting to 10% of his
income. Under the Amnesty Act 2000 the applicant was absolved from
serving his sentence.
- On 9 July 2002 the Regional Court set aside the
judgment of 22 May 2002 and discontinued the proceedings as
time-barred.
C. Supervisory review and third round of proceedings
- On
a supervisory review request from the President of the Regional
Court, on 20 September 2002 the Presidium of the Regional Court
quashed the appeal judgment and remitted the case to the appeal
court. The supervisory instance court stated that the defendant’s
consent should have been obtained for a discontinuation due to the
expiry of the limitation period.
- After
a fresh appeal hearing on 15 October 2002, the Regional Court upheld
the judgment of 22 May 2002.
- On
21 March 2006 the Deputy Prosecutor General of the Russian Federation
lodged a supervisory review request with a view to quashing the
judgment of 15 October 2002. On 26 April 2006 the Supreme Court
of Russia quashed the judgments of 20 September and 15 October 2002.
The Supreme Court indicated that the Code of Criminal Procedure in
force since 1 July 2002 did not allow supervisory review of a
court decision to discontinue a criminal case. In addition, the
Supreme Court stated that the Regional Court had mistakenly
considered that the applicant’s consent to the discontinuation
of the case had been necessary. The judgment of 9 July 2002 was
thereby reinstated in legal force.
- It
appears that the applicant appealed against the judgment of 21 March
2006. On 7 June 2007 a judge of the Supreme Court dismissed his
appeal.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The
relevant provisions of Russian law are outlined in the judgment of
Nikitin v. Russia (no. 50178/99, §§ 22-29, ECHR
2004).
- At
the relevant time, acquittals and decisions to discontinue the
proceedings could not be subject to supervisory review (Article 405
of the Code of Criminal Procedure 2001).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AS
REGARDS THE SUPERVISORY RULING OF 21 SEPTEMBER 2001
- The
applicant complained that this supervisory ruling which set aside the
judgment of 7 August 2001, had violated Article 6 § 1
of the Convention. He also alleged that neither he nor his
representative had been apprised of the hearing on 21 September 2001
and therefore could not attend it. Article 6 § 1 reads, in so
far as relevant, as follows:
“In the determination of ... any criminal charge
against him, everyone is entitled to a fair ... hearing within a
reasonable time ... by [a] ... tribunal...”
A. Admissibility
- The
Court notes that these complaints are not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention. It
further notes that they are not inadmissible on any other grounds.
They must therefore be declared admissible.
B. Merits
1. Quashing of the final judgment
- The
Government submitted that the judgment of 7 August 2001 was quashed
within an acceptable period of time not breaching the principle of
legal certainty.
- The
applicant maintained his complaint.
- 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 Brumărescu v. Romania [GC], no. 28342/95, § 61,
ECHR 1999 VII). 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 Nikitin v. Russia, no. 50178/99,
§§ 54-57, ECHR 2004 VIII; Savinskiy v.
Ukraine, no. 6965/02, § 23, 28 February 2006, and
Xheraj v. Albania, no. 37959/02, §§ 51-61, 29 July
2008). 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 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 the procedural safeguards of
Article 6 § 1 and must ensure the overall
fairness of the proceedings (see Vanyan v. Russia, no.
53203/99, §§ 63-68, 15 December 2005).
- Turning
to the present case, the Court observes that the final judgment by
which the criminal proceedings against the applicant had been
discontinued for want of corpus delicti, was quashed at the
prosecution’s request (see, by contrast, Fadin, cited
above, § 34). The supervisory-instance court did not simply
resume the proceedings, but remitted the case to the investigating
authority for further investigation. Undoubtedly, that decision
adversely affected the applicant’s individual situation (see,
by contrast, Nikitin, cited above, §§ 18 and 60).
- The
Court accepts that the supervisory review proceedings were initiated
within a relatively short period of time. However, that factor alone
is not sufficient to justify the quashing of the final judgment in
the applicant’s case. The Court does not accept the
Government’s argument that the supervisory review was aimed at
the correction of the fundamental defect in the previous proceedings
which might affect the outcome of the case. In that respect the Court
has had regard to the reasoning of the reviewing court, which stated
that the trial and appeal courts had not had at their disposal all
relevant ministerial instructions and documents to decide the case
(see paragraph 9 above).
- In
the Court’s opinion, the mere consideration that the trial and
appeal courts had not had regard to all relevant instructions cannot
in itself, in the absence of jurisdictional errors or serious
breaches of court procedure, abuses of power or any other weighty
reasons stemming from the interests of justice, indicate the presence
of a fundamental defect in the previous proceedings (see Radchikov v.
Russia, no. 65582/01, § 48, 24 May 2007).
Otherwise, the burden of the consequences of the 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 (ibid.). The Court considers that
the mistakes or errors of the national authorities should serve to
the benefit of the defendant. In other words, the risk of any mistake
made by the prosecuting authority or 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 notes that the grounds for supervisory review were
identical to the grounds for an appeal under the domestic law. Such
arrangement was in itself slightly conducive to the protection of
legal certainty and, in the present case, led to a situation where
the supervisory review court had dealt with the request for quashing
as if in ordinary appeal proceedings and had reopened the finalised
proceedings on vaguely formulated grounds and without considering the
implication of its decision for legal certainty.
- In view of the above considerations, the Court finds
that the quashing of the judgment of 7 August 2001 by way of
supervisory review amounted to a violation of
Article 6 § 1 of the Convention.
2. Procedural guarantees in supervisory review
proceedings
- The
Government submitted copies of the letters of 17 September 2001 which
the Regional Court sent by mail to the applicant and his
representative informing them of the date and time of the hearing on
21 September 2001. A copy of the prosecutor’s supervisory
request had been enclosed therewith.
- The
applicant maintained that he had not received any such notification.
He contended that under national law a notification should have been
by registered mail and that the Presidium court did not verify
whether the applicant had been duly notified of the hearing on 21
September 2001.
- In
view of the finding made in paragraph 28 above, the Court considers
that it is not necessary to examine whether the procedural guarantees
of Article 6 of the Convention were complied with.
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AS
REGARDS THE SUPERVISORY RULING OF 20 SEPTEMBER 2002
- The
applicant complained that the supervisory ruling of 20 September
2002, which set aside the judgment of 9 July 2002, had violated
Article 6 § 1 of the Convention (cited above).
- The
Government submitted that on 26 April 2006 the Supreme Court had
quashed the supervisory ruling in question. By doing so, the Supreme
Court acknowledged the violation of the Code of Criminal Procedure in
respect of the applicant. The Government concluded that the applicant
had lost his victim status.
- The
applicant submitted that the decision of 26 April 2006 had not been
satisfactory, in particular because it had not afforded him
compensation for unlawful prosecution.
- The Court considers that this part of the application
is linked to the complaint examined above and that, therefore, it
should also be declared admissible. However, having regard to the
conclusions in paragraph 28 above, the Court considers that it is not
necessary to examine whether the 2002 supervisory review proceedings
complied with Article 6 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 4 OF PROTOCOL No. 7
- The
applicant also contended under Article 4 of Protocol No. 7 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.
- The
Court considers that this part of the application is likewise
admissible. However, having once more regard to the conclusions in
paragraphs 28 and 35 above, the Court considers that the applicant’s
complaints raise no separate issue under the Convention and its
Protocols (see Radchikov, cited above § 55).
IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- Lastly,
the applicant complained that the
investigating authorities were slow in bringing charges against him
and that the trial judge had been biased in that he had written a
letter to his former employer.
- The
Court has examined the remainder of the applicant’s complaints
as submitted by him. However, having regard to all the material in
its possession, it finds that these complaints do not disclose any
appearance of a violation of the rights and freedoms set out in the
Convention or its Protocols. It follows that this part of the
application must be rejected as being manifestly ill-founded,
pursuant to Article 35 §§ 3 and 4 of the Convention.
V. 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 125,000 euros (EUR) in respect of pecuniary and
non-pecuniary damage. He claimed that the domestic court refused to
reinstate him in his post with reference to the judgment of 22 May
2002 which was in force after the supervisory ruling of 20 September
2002.
- The
Government submitted that the amount claimed was excessive and
unsubstantiated.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim. On
the other hand, it awards the applicant EUR 1,000 in respect of
non-pecuniary damage, plus any tax that may be chargeable.
B. 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
- Declares the complaints concerning the
supervisory rulings admissible and the remainder of the application
inadmissible;
- Holds that there has been a violation of Article
6 of the Convention on account of the 2001 supervisory review
proceedings;
- Holds that there is no need to examine the
procedural complaint under Article 6 of the Convention;
- Holds that there is no need to examine whether
the 2002 supervisory review proceedings complied with 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 1,000 (one
thousand euros) in respect of non-pecuniary damage, to be converted
into Russian roubles at the rate applicable on the date of
settlement, plus any tax that may be chargeable;
(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 9 April 2009, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
