[New search]
[Contents list]
[Printable RTF version]
[Help]
FIRST
SECTION
CASE OF SABAYEV v. RUSSIA
(Application
no. 11994/03)
JUDGMENT
STRASBOURG
8
April 2010
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 Sabayev v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis,
President,
Anatoly Kovler,
Elisabeth
Steiner,
Dean Spielmann,
Sverre Erik
Jebens,
Giorgio Malinverni,
George Nicolaou,
judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 18 March 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 11994/03) 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 Maksim Anatolyevich
Sabayev (“the applicant”), on 13 February 2003.
- The
Russian Government (“the Government”) were represented by
Mr P. Laptev and Mrs V. Milinchuk, former Representatives of the
Russian Federation at the European Court of Human Rights.
- In
his first application form of 13 February 2003 the applicant
complained about the outcome of the proceedings in his case and also
alleged that he had been denied an opportunity to attend the
supervisory review hearing in his case. By letter of 1 February 2005
the applicant also complained about the allegedly unlawful
composition of the trial court in his criminal case.
- On
26 September 2006 the President of the First Section decided to
communicate the complaint concerning the applicant's alleged
inability to take part in the supervisory review hearing in his case
to the Government. It was also decided to examine the merits of the
application at the same time as its admissibility (Article 29 §
3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1968 and lives in the town of Kolomna in the
Moscow Region.
- By
judgment of 16 September 1999 the Elektrostal District Court of the
Moscow Region examined the criminal case against the applicant and
three other co-accused. The court convicted the applicant of
aggravated blackmail and kidnapping and sentenced him to sixteen
years' imprisonment. That sentence was upheld on appeal by the Moscow
Regional Court on 25 January 2000.
- Thereafter
the applicant sought to initiate supervisory review of his case.
- The
applicant's supervisory review request to the Presidium of the Moscow
Regional Court was partly successful. On 18 January 2001 the
Presidium of the Moscow Regional Court, sitting as a supervisory
review body, re-examined his case and partly changed the judgment of
16 September 1999.
- On
26 February 2002 the applicant requested one of the Deputy Presidents
of the Supreme Court to initiate supervisory review proceedings in
his case before the Supreme Court, arguing that the lower courts
wrongly assessed the evidence in the case and failed to apply the
domestic law correctly.
- Apparently
in response to that request, on 11 June 2002 the Deputy President of
the Supreme Court decided to initiate supervisory review proceedings
in respect of the decisions of the lower courts in the applicant's
case. The main reason for that decision was that while the lower
courts had made a correct assessment of the facts of the case, they
had erred in the legal characterisation of the offence committed by
the applicant.
- According to the Government, on 5 November 2002
notifications that the supervisory review hearing would take place on
19 November 2002 were sent to the applicant and the lawyer who had
represented him at the trial. They were also invited to respond to
the arguments of the Deputy President of the Supreme Court.
- According to the applicant, he received a notification
in the form of a telegram about the hearing of 19 November on 6
November 2002. From the documents submitted by the applicant it
follows that he received a copy of the request of 11 June 2002 only
on 27 November 2002, that is already after the supervisory review
hearing in his case.
- The applicant explained that once the main set of
criminal proceedings was over, the lawyer in question had ceased to
represent him. He submitted a copy of the lawyer's letter dated 29
January 2006, in which the lawyer had confirmed the absence of any
agreement to act on the applicant's behalf in the supervisory review
proceedings of 19 November 2002. The lawyer also confirmed the
receipt of the notification of 5 November 2002, along with a
copy of the request of 11 June 2002, but stated that he had been
unable to react to these documents for lack of authority.
- The parties agreed that the applicant asked to attend
the supervisory review hearing in person.
- The applicant submitted a copy of that request. The
request was made on 10 November 2002 but was not received by the
Supreme Court until 26 November 2002.
- On 19 November 2002 the Supreme Court, in the presence
of the prosecutor and one of the other co-defendants' lawyers,
examined the arguments of the Deputy President's supervisory review
appeal and amended the sentence by changing the charges of aggravated
kidnapping to aggravated deprivation of liberty. The applicant's
sentence was thus reduced from sixteen to thirteen years of
imprisonment accordingly.
- By
letter of 4 December 2002 the Supreme Court notified the applicant of
the outcome of the supervisory review proceedings.
II. RELEVANT DOMESTIC LAW
- Section
VI, Chapter 30 of the Code of Criminal Procedure of 1960
(Уголовно-процессуальный
кодекс
РСФСР),
in force at the material time, allowed certain officials to challenge
a judgment which had become effective and to have the case reviewed.
- Pursuant
to Article 356 of the Code of Criminal Procedure of 1960, a judgment
became effective and enforceable as of the day when the appeal
instance pronounced its decision or, if the judgment had not been
appealed against, when the time-limit for appeal expired.
Article 379. Grounds for setting aside judgments
which have become effective
“The grounds for quashing or changing a judgment
[on supervisory review] are the same as [those for setting aside
judgments which have not become effective on cassation appeals].”
Article 342. Grounds for quashing or changing
judgments [on cassation appeal]
“The grounds for quashing or changing a judgment
on appeal are as follows:
(i) prejudicial or incomplete inquest,
investigation or court examination;
(ii) inconsistency between the facts of the
case and the conclusions reached by the court;
(iii) serious violation of procedural law;
(iv) misapplication of [substantive] law;
(v) inappropriate sentence considering the
gravity of the offence and the convict's personality.”
- Article
371 of the Code of Criminal Procedure of 1960 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 and 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 such officials for a
review.
- According to Articles 374, 378 and 380 of the Code of
Criminal Procedure of 1960, the 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 extraordinary appeal. The
Presidium could dismiss or uphold the request. If the request was
dismissed, the earlier judgment remained in force. If it upheld the
request, the Presidium could decide whether to quash the judgment and
terminate the criminal proceedings, to remit the case for a new
investigation, or for fresh court examination at any instance, to
uphold a first-instance judgment reversed on appeal, or to amend and
uphold any of the earlier judgments.
- Article
380 §§ 2 and 3 of the Code of Criminal Procedure of 1960
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 too lenient, it had to remit the case for fresh
examination.
- Under
Article 377 § 3 of the Code of Criminal Procedure of 1960,
a public prosecutor took part in a hearing before a supervisory
review body. The convicted person and his or her counsel could be
summoned if the supervisory review court found it necessary. If
summoned, they were to be given an opportunity to examine the
application for supervisory review and to make oral submissions at
the hearing. On 14 February 2000 the Constitutional Court of the
Russian Federation ruled that the convicted person's presence was not
optional but mandatory if the grounds for initiating the supervisory
review proceedings could worsen his personal situation.
- Under
Article 407 of the new Code of Criminal Procedure of 2001, which
entered into force on 1 July 2002, the convicted person and his
counsel are notified of the date, time and place of hearings before
the supervisory review court. They may participate in the hearing
provided that they have made a specific request to do so.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicant complained under Article 6 of the Convention of the outcome
of the criminal proceedings against him. Furthermore, he complained
that the decision of the Supreme Court of 19 November 2002 had
prevented him from exercising his defence rights properly and thus
rendered the supervisory review proceedings unfair. The Court is of
the view that this complaint falls to be examined under Article 6 §
1 of the Convention, which provides:
“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 disagreed. They submitted that no fresh charge had been
brought against the applicant in the supervisory review procedure, in
which the initial conviction for kidnapping had merely been
re-characterised as the less serious offence of unlawful deprivation
of liberty.
- The
Government further stated, with reference to Article 377 of the Code
of Criminal Procedure as amended by Decision of the Constitutional
Court of 14 February 2000, that the summoning of parties to a
supervisory review hearing remained at the discretion of the relevant
court provided the review procedure was not triggered by an
application that would be to the applicant's detriment. The
Government noted that the application for supervisory review, as well
as the prosecutor's pleadings at the hearing, were not to the
applicant's detriment. Given that the supervisory review procedure
had benefited the applicant by sentencing him to a shorter term of
imprisonment as a result of a new legal classification of his
actions, the Government were of the view that the Supreme Court's
failure to secure the attendance of the applicant and his counsel did
not breach Article 6 of the Convention.
- The
applicant contended that he did not have a fair trial in the
proceedings before the supervisory review court. In his view, he had
faced a new charge. He was informed of the proceedings and the
contents of the Deputy President's request too late. The applicant
stated that he had been deprived of an opportunity to be present and
to submit arguments on that particular issue. In view of the above
and having regard to the fact that the prosecution had participated
in the hearing, the applicant considered that there had been a breach
of Article 6 of the Convention.
B. The Court's assessment
1. Admissibility
- In
so far as the applicant complained generally of the outcome of the
criminal proceedings against him, the Court notes that it is not
called upon to examine alleged errors of fact and law committed by
the domestic judicial authorities, provided that there is no
indication of unfairness in the proceedings concerned. In this
respect, the Court notes that the Supreme Court examined the
request for supervisory review lodged by the Deputy President of the
Supreme Court of Russia, re-opened the proceedings in the case and
amended the lower courts' decisions. It re-characterised the
applicant's offence from aggravated kidnapping to aggravated
deprivation of liberty, reducing his sentence from sixteen to
thirteen years of imprisonment. For the remainder, it upheld the
previous court decision in his case.
- The
Court is of the view that, in so far as the Supreme Court reopened
the proceedings in the applicant's case and amended the decisions of
the lower courts, the supervisory review proceedings concerned the
determination of a criminal charge against the applicant.
Accordingly, it finds that Article 6 § 1 of the Convention under
its criminal head applies to those proceedings (see, among other
authorities, Vanyan v. Russia, no. 53203/99, §§
56-58, 15 December 2005).
- The
Court observes that this part of the application is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
2. Merits
(a) General principles
- The
Court reiterates that
it flows from the notion of a fair trial that a person charged with a
criminal offence should, as a general principle, be entitled to be
present and participate effectively in the first-instance hearing
(see Colozza v. Italy, 12 February 1985, §§ 27 and
29, Series A no. 89).
- The
personal attendance of the defendant does not necessarily take on the
same significance for an appeal hearing, even where the appellate
court has full jurisdiction to review the case on questions of both
fact and law. Regard must be had in assessing this question to, among
other things, the special features of the proceedings involved and
the manner in which the defence's interests are presented and
protected before the appellate court, particularly in the light of
the issues to be decided by it and their importance for the appellant
(see Belziuk v. Poland, 25 March 1998, § 37, Reports
of Judgments and Decisions 1998 II).
- It
is also of crucial importance for the fairness of the criminal
justice system that the accused be adequately defended, both at first
instance and on appeal (see Lala v. the Netherlands, 22
September 1994, § 33, Series A no. 297 A).
- The
principle of equality of arms is only one feature of the wider
concept of a fair trial, which also includes the fundamental right
that criminal proceedings should be adversarial. The latter means, in
a criminal case, that both prosecution and defence must be given the
opportunity to have knowledge of and comment on the observations
filed and the evidence adduced by the other party (see Brandstetter
v. Austria, 28 August 1991, §§ 66 and 67, Series A
no. 211).
(b) Application of the above principles to
the instant case
- The
Court observes that the supervisory review proceedings under the Code
of Criminal Procedure of 1960 were different from “ordinary”
appeal proceedings in that, among other things, the power to initiate
them was vested with certain senior judicial and prosecution
officers, and not with the parties.
- The
fact remains, however, that the supervisory review court was not
bound by the scope of the request for supervisory review but had the
power to carry out a full-scale judicial review of the decisions in
the case by quashing or amending them, remitting the case to lower
courts or an investigator, or terminating the criminal proceedings
partly or altogether (see paragraph 21). The Supreme Court did
exercise its power by amending the conviction and the applicant's
sentence, thereby determining a criminal charge against him (see
paragraph 16).
- Having
regard to the above, the Court considers that in order to satisfy the
principle of fairness enshrined in Article 6 of the Convention the
Supreme Court should have notified the applicant or his defence
lawyer of the contents of the prosecution's supervisory review
request and the date and place of the hearing. Since the prosecution
was later present at the supervisory review hearing of 19 November
2002 and made submissions, the principle of adversarial proceedings
also required that the defence be present at that hearing in order to
be able to contest and comment on the arguments advanced by the
prosecution. In such circumstances, the Court rejects as irrelevant
the Government's reference to the fact that the absence of the
applicant and his counsel from the hearing was not unlawful under
domestic law.
- On the facts, the Court notes that the applicant was
denied a proper opportunity to familiarise himself with the contents
of the Deputy President's supervisory review request (see paragraphs
11-15). This made prior notice of the date of the supervisory review
hearing (see paragraph 12) meaningless in practical terms, as the
applicant was unable to present his arguments to the Supreme Court
not only in person or through his defence counsel (see paragraphs 14
and 15), but also in writing. The Court cannot agree with the
Government's reference to the notification and service of the
relevant supervisory review request on the applicant's former
counsel. The documents submitted by the applicant (see paragraph 13)
clearly demonstrated that at the relevant time he was not represented
by the lawyer in question or indeed by any other lawyer, and in the
absence of a clear indication to the contrary the Supreme Court
should have clarified this issue with the applicant himself.
- Overall,
the Court finds the above considerations sufficient to conclude that
the supervisory review proceedings before the Supreme Court did not
comply with the requirements of fairness.
- There
has therefore been a breach of Article 6 § 1 of the Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- Lastly, as to the applicant's complaint about the
trial court's allegedly unlawful composition, the Court notes that
the grievance was brought out of time, as the last decision in the
applicant's criminal case was taken on 19 November 2002, and the
applicant complained about it in his letter of 1 February 2005.
- It
follows that this part of the application should be rejected pursuant
to Article 35 §§ 1 and 4 of the Convention.
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 considered that the outcome of the criminal proceedings in
his case was erroneous and unjust and asked for 100,000 United
States dollars to compensate for the alleged damage.
- The
Government submitted that the claims were unsubstantiated and
generally excessive.
- The Court observes, as stated above, that the Supreme
Court amended the applicant's conviction in his absence and failed to
notify him of the hearing. The Court considers that the applicant
indisputably sustained non pecuniary damage, which cannot be
compensated solely by a finding of a violation. Deciding on an
equitable basis, it awards him 3,000 euros for non-pecuniary damage,
plus any tax that may be chargeable on this amount.
B. Costs and expenses
- The
applicant made no claim in respect of costs and expenses. The Court
considers that there is no call to make an 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
- Declares the complaint concerning the fairness
of the supervisory review proceedings before the Supreme Court
admissible and the remainder of the application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of 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 3,000
(three thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage, to be converted into Russian roubles
at the rate applicable at the date of settlement;
(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 8 April 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
