THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Applications nos. 46133/99 and 48183/99 
by Yelena Pavlovna SMIRNOVA and Irina Pavlovna SMIRNOVA 
against Russia

The European Court of Human Rights (Third Section), sitting on 3 October 2002 as a Chamber composed of

Mr I. Cabral Barreto, President
 Mr L. Caflisch
 Mr R. Türmen
 Mr B. Zupančič
 Mrs M. Tsatsa-Nikolovska
 Mr K. Traja
 Mr A. Kovler, judges
and Mr M. Villiger, Deputy Section Registrar,

Having regard to the above applications lodged on 9 November and 31 October 1998,

Having regard to its decision of 7 November 2000 to join the applications;

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

The applicants, Ms Yelena Pavlovna Smirnova (“the first applicant”) and Ms Irina Pavlovna Smirnova (“the second applicant”) are twin sisters. They are Russian nationals, who were born in 1967 and live in Moscow.

A.  The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

1.  Criminal proceedings against the applicants

On 5 February 1993, criminal proceedings were initiated against the applicants on suspicion of defrauding a Moscow bank on a credit matter. The prosecution’s case was that the applicants concerted to obtain a loan in the bank on the security of a flat which did not in fact belong to them.

On 26 August, according to the applicants, or 27 August 1995, according to the Government, the first applicant was arrested and remanded in custody. Several days later, on 31 August 1995, she was charged with large-scale concerted fraud.

On 5 September 1995, the proceedings against the second applicant were discontinued.

Following her arrest, the first applicant’s lawyer lodged an application for release with the Tverskoy District Court of Moscow. On 13 September 1995, the court held that the application was not suitable for examination because by that time the preliminary investigation had been finished.

On 26 March 1996, the prosecution forwarded the first applicant’s case to the Tverskoy District Court for examination.

On 21 March 1997 the Tverskoy District Court found that the evidence against the first applicant gathered by the prosecution, although serious, did not take into account all possible occasions of fraud and that the proceedings against the second applicant had been curtailed without good reason because there had been evidence of her involvement in the offence too. The court remitted the case against the first applicant for further investigation. Of its own motion the court also re-instituted criminal proceedings against the second applicant and joined them to the first applicant’s case. It was furthermore ordered that the first applicant should stay in detention, and that the second applicant, who was in hiding at that time, should be imprisoned as soon as the police established her whereabouts.

The first applicant’s lawyer and the second applicant both lodged appeals against the decision of 21 March 1997. The Moscow City Court disallowed the appeals on 23 July 1997.

Since the second applicant continued to hide from the investigative authorities, it was decided to sever her case from that of the first applicant and to stay it. The term of the first applicant’s detention was extended.

On 9 December 1997, the Lyublinskiy District Court of Moscow ordered that the first applicant should be released from custody on the ground that the extension of her detention had been unlawful and having regard to her poor health. She was released conditionally under the pledge not to leave her permanent residence.

On 15 December 1997, the case against the first applicant was for the second time forwarded to the Tverskoy District Court for examination on the merits.

On 30 March 1999, the police arrested the second applicant and took her into custody. The proceedings against her were resumed.

The second court examination of the case against the first applicant took place on 31 March 1999. The Tverskoy District Court noted that the second applicant had by that time been arrested, and that given the close factual links between the offences imputed to the sisters, the proceedings against them should be joined. The court also established that the first applicant’s right as a defendant to take thorough cognisance of the prosecution file before the hearing had not been respected. As a result, the case against the first applicant was joined to the second applicant’s case and remitted to the Tverskoy District Prosecutor’s Office for further investigation. On the same day the first applicant was imprisoned in view of the gravity of the accusation.

The decision of 31 March 1999 became final on 13 May 1999 after it had been upheld on appeal by the Moscow City Court.

On 29 April 1999, the Lyublinskiy District Court granted the second applicant’s application for release from custody because the investigative authorities had failed to submit convincing material to justify her detention. The appeal filed by the Tverskoy Public Prosecutor was allowed on 19 May 1999 by the Moscow City Court, but by that time the second applicant had left the prison.

On 20 May 1999, the Tverskoy District Court considered that the case against the second applicant should be returned to the Tverskoy Prosecutor’s Office to be joined with the first applicant’s case.

On 3 September 1999, the second applicant was arrested and detained.

On 2 October 1999, the first applicant was released from prison because the investigation had come to an end and because the detention period set by the General Prosecutor’s Office had expired.

Shortly afterwards, on 7 October 1999, the second applicant was also released. Both applicants signed an undertaking not to leave their permanent residence.

The case file prepared by the investigating authorities was handed over to the Tverskoy District Court on 29 October 1999. The judge who accepted the case for consideration ruled on 10 November 1999 that the applicants should be remanded in custody pending trial in view of the gravity of the accusations and the applicants’ character.

On 14 January 2000, based on the second applicant’s complaint, the Constitutional Court delivered a judgment in which it declared unconstitutional Article 256 of the Code of Criminal Procedure, to the extent that it gave courts dealing with criminal cases the power of their own motion to initiate the criminal prosecution of third persons not being party to the original proceedings, to apply measures of restraint, and, as a consequence, to order further investigations. The court held that the principle of the separation of powers did not allow the courts to substitute themselves either for victims of crimes by initiating criminal proceedings, or for State prosecutors, whose responsibility was to initiate such proceedings when appropriate.

Based on the judgment of the Constitutional Court, on an unspecified date, the acting president of the Moscow City Court lodged an application for supervisory review of the applicants’ case.

On 24 February 2000, the Presidium of the Moscow City Court granted the application. The decisions of 21 March and 23 July 1997 were quashed in respect of the second applicant; the decision of 31 March 1999 was quashed in respect of both applicants; the decisions of 13 and 20 May and 10 November 1999 were also quashed. The case against the applicants was sent for further investigation. The second applicant was released, whereas the first applicant remained in prison.

On 20 March 2000, the Prosecutor of the Tverskoy District again instituted criminal proceedings against the second applicant. The second applicant’s case was joined to that of the first applicant.

On 20 April 2000, the investigation of the applicants’ case was concluded. On 25 April 2000, the prosecution file and indictment were transmitted to the Tverskoy District Court. The same day, the first applicant was released because of the expiry of the custody period.

The examination of the applicants’ case was scheduled for 9 June 2000. However, the hearing did not take place because the applicants, who had been several times summoned for the service of the indictment, had failed to appear.

The hearing adjourned until 22 August 2000 again failed to take place due to the applicants’ refusal to appear before the court.

Given the applicants’ persistent avoidance of the court proceedings and their absence at their permanent address, on 28 August 2000 the Tverskoy District Court ordered their arrest. The proceedings were stayed pending the establishment of the applicants’ whereabouts.

On 12 March 2001, the applicants were arrested and detained.

Upon the applicants’ arrest, the court proceedings were resumed. The prosecution requested that the court order a psychiatric examination of the applicants in view of their eccentric behaviour. On 16 July 2001, the Tverskoy District Court granted the prosecutor’s request. The proceedings were stayed pending the expert study.

On 24 September 2001, the court extended the custody period for a further three months.

On 9 January 2002, the Tverskoy District Court found the applicants guilty and sentenced the first applicant to eight years’ imprisonment and forfeiture of estate, and the second applicant – to six years’ imprisonment with forfeiture of estate.

On 9 April 2002, the Moscow City Court annulled the judgment, closed the proceedings and discharged the applicants from serving the sentence under the statute of limitations without indicating reasons for such decision.

The applicants were released from custody in the courtroom.

2.  Proceedings concerning the first applicant’s passport

In the course of the first applicant’s arrest on 26 August 1995 her national identity paper – the “internal passport” – was withheld. The passport was enclosed in the case file at the Tverskoy District Court.

The first applicant made several unsuccessful attempts to recover her passport, filing complaints to courts and prosecutors of various instances.

The lack of passport created difficulties in the first applicant’s everyday life.

Thus, on 15 December 1997 the Moscow Social Security Service informed the first applicant that she could not be employed in view of the absence of her passport. On 22 December 1997, the first applicant was informed by a Moscow clinic that free medical assistance could only be provided to her if she presented an insurance certificate and her passport. On 7 April 1998, a law firm informed the first applicant that it was not in a position to employ her in view of the lack of her passport. For the same reason, on 15 April 1998, the Moscow Telephone Company refused to install a telephone line in the first applicant’s home.

On 29 April 1998, the Office of the Moscow Prosecutor advised the Tverskoy District Court to return the passport to the first applicant.

On an unspecified date, in reply to the first applicant’s inquiry of 18 May 1998, the President of the Tverskoy District Court informed her that the passport could be made available to her for certain purposes but that it should nonetheless remain in the case file because otherwise identifying her for procedural purposes could be difficult in view of her similar appearance to her twin sister, who was in hiding at the time.

On 2 June 1998, the Moscow City Notary Office notified the first applicant that a verification of her identity on the basis of the passport or another document proving the identity was indispensable for carrying out notarial acts.

On 29 June 1998, the President of the Tverskoy District Court confirmed that the passport should be retained in the case file.

On 30 July 1998, the Tverskoy District Court declined the first applicant’s challenge of the judge who had refused to return the passport.

According to the statement of witnesses, on 10 December 1998, the registration of the first applicant’s intended marriage was disallowed in view of the absence of the passport.

According to other witnesses, on 19 March 1999, the first applicant was stopped by a police patrol for an identity check. As she was unable to produce the passport, she was taken to a police station and had to pay an administrative fine.

According to a police report submitted by the Government, on 31 March 1999, a police patrol came to the applicants’ home to escort the first applicant to the court hearing which was to take place the same day. Both applicants were at home. Perplexed by their almost identical appearance, the police demanded that the applicants identify themselves or produce identity papers. Having met a refusal, and knowing that the second applicant was also being looked for by the police, the patrol decided to arrest both applicants and took them to a police station.

On 6 October 1999, the investigation officer in charge of the first applicant’s case returned the passport to her.

3.  Proceedings before the United Nations Human Rights Committee

On 19 June 1996, the first applicant submitted her case to the Human Rights Committee set up under Article 28 of the International Covenant on Civil and Political Rights of 16 December 1966.

In her communication, registered by the Committee under no. 71211996, the applicant complained, with reference to Articles 7, 9, 10 and 14 of the Covenant, about the arbitrariness of her arrest on 26 August 1995, the lack of effective judicial control of it and about the conditions in the remand prison.

On 20 March 1998, the Human Rights Committee examined the applicant’s communication and declared it admissible under Articles 7, 9, 10 and 14 § 3 of the Covenant. An examination on the merits was ordered.

The proceedings before the Committee are currently pending.

B.  Relevant domestic law

1.  Code of Criminal Procedure of 1964

Article 11 (1) - Personal inviolability

“No one may be arrested otherwise than on the basis of a judicial decision or a prosecutor’s order.”

Article 89 (1) - Application of preventive measures

“When there are sufficient grounds for believing that an accused person may evade an inquiry, preliminary investigation or trial or will obstruct the establishment of the truth in a criminal case or will engage in criminal activity, as well as in order to secure the execution of a sentence, the person conducting the inquiry, the investigator, the prosecutor or the court may apply one of the following preventive measures in respect of the accused: a written undertaking not to leave a specified place, a personal guarantee or a guarantee by a public organisation, or placement in custody.”

Article 92 - Order and decision on the application of a preventive measure

“Upon application of a preventive measure a person conducting an inquiry, an investigator or a prosecutor shall make a reasoned order, and a court shall give a reasoned decision specifying the criminal offence which the individual concerned is suspected of having committed, as well as the grounds for choosing the preventive measure applied. The order or decision shall be notified to the person concerned, to whom at the same time the procedure for appealing against the application of the preventive measure shall be explained.

A copy of the order or decision on the application of the preventive measure shall be immediately handed to the person concerned.”

Article 96 - Placement in custody

“Placement in custody as a preventive measure shall be effected in accordance with the requirements of Article 11 of this Code concerning criminal offences for which the law prescribes a penalty in the form of deprivation of freedom for a period of more than one year. In exceptional cases, this preventive measure may be applied in criminal matters for which a penalty in the form of deprivation of freedom for a period of less than one year is prescribed by law.”

Article 97 - Time-limits for pre-trial detention

“A period of detention during the investigation of offences in criminal cases may not last longer than two months. This time-limit may be extended by up to three months by a district or municipal prosecutor ... if it is impossible to complete the investigation and there are no grounds for altering the preventive measure. A further extension up to six months from the day of placement in custody may be effected only in cases of special complexity by a prosecutor of a subject of the Russian Federation ...

An extension of the time-limit for such detention beyond six months shall be permissible in exceptional cases and solely in respect of persons accused of committing serious or very serious criminal offences. Such an extension shall be effected by a deputy of the Prosecutor General of the Russian Federation (up to one year) and by the Prosecutor General of the Russian Federation (up to 18 months).”

Article 101 - Cancellation or modification of a preventive measure

“A preventive measure shall be cancelled when it ceases to be necessary, or else changed into a stricter or a milder one if the circumstances of the case so require. The cancellation or modification of a preventive measure shall be effected by a reasoned order of the person carrying out the inquiry, the investigator or the prosecutor, or by a reasoned court decision after the case has been transferred to a court.

The cancellation or modification, by the person conducting the inquiry or by the investigator, of a preventive measure chosen on the prosecutor’s instructions shall be permissible only with the prosecutor’s approval.”

Article 223-1 - Setting a date for a court hearing

“If the accused is kept in custody, the question of setting a date for a court hearing must be decided no later than 14 days after the case reaches the court.”

Article 239 - Time-limits for examination of the case

“The examination of a case before the court must start no later than 14 days as from the fixing of a hearing date.”

2.  Laws concerning national identity papers

Section 1 of the Rules regarding the passport of a citizen of the Russian Federation adopted by the Decree of the Russian Government No. 828 of 8 July 1997 provides that the passport of a citizen represents the basic document proving the citizen’s identity on the territory of Russia.

Pursuant to Section 5, the passport shall contain information about the citizen’s residence, liability to military service, marital status, minor children, issue of other identity documents.

Section 21 provides that the passport of convicted persons and persons remanded in custody shall be seized by investigative authorities or a court and adduced to the case file. When the citizen is released, the passport shall be returned.

Article 178 of the Code of Administrative Offences of 1984 establishes that residing without a valid passport or residential registration shall be punishable with an official warning or a fine.

The Moscow Government Decree No. 713 of 17 July 1995, concerning the rules of residential registration, establishes a fine of up to five times the minimum wage if residential registration cannot be shown, and up to fifty times the minimum wage in case of repeated violations.

COMPLAINTS

1.  Both applicants complain in substance about their repeated detention on remand which they allege was unjustified and unlawful.

2.  Relying on Article 6 § 1 of the Convention, the applicants complain that it took the domestic courts an unreasonably long time to determine the criminal charge against them.

3.  Relying on Article 6 § 2 of the Convention and Article 4 of Protocol No. 7, the second applicant complains about the re-institution of her criminal prosecution on 21 March 1997 by the Tverskoy District Court. She says that in so doing the court had no regard to the fact that the charges had been dropped on 5 September 1995 and therefore created a situation of double jeopardy.

Besides, in so doing the court assumed functions of the prosecution and undermined the impartiality of its judicial function.

4.  The first applicant complains under Articles 1, 8 and 12 of the Convention, and Articles 2 and 3 of Protocol No. 1, that the withholding of her passport creates a situation which she describes as “civil death”, i.e. being prevented from living a normal citizen’s life.

She claims that as a person bearing no passport she is prevented from becoming a member of an association, entering into marriage, drawing up a will or donation through a notary, receiving registered mail, concluding written contracts, obtaining medical care, obtaining licences for commercial activities, being employed, voting, applying to an educational institution or participating in civil court hearings.

In addition, the applicant submits under Articles 6 and 13 of the Convention that no appeal was available against the decision of the Tverskoy District Court to seize her passport.

The first applicant concludes her complaints about the withholding of the passport by claiming that it constitutes a violation of Article 7 of the Convention – no punishment without law – since she was once subjected to an administrative fine for not carrying the passport with her and risks incurring similar fines in the future.

THE LAW

1.  The applicants complain in substance under numerous Convention articles about their repeated detention on remand which, they allege, was unjustified and unlawful.

a)  The Government have objected that the Court took into consideration the issues related to the first applicant’s arrests on its own initiative. In the Government’s view it would be improper for the Court to investigate complaints not raised by the applicants, and it would contravene the principles of adversary justice.

The Court considers that it has jurisdiction to review in the light of the entirety of the Convention’s requirements circumstances complained of by an applicant. In the performance of its task, the Court is, notably, free to attribute to the facts of the case, as found to be established on the evidence before it, a characterisation in law different from that given by the applicant or, if need be, to view the facts in a different manner; furthermore, it has to take account not only of the original application but also of the additional documents intended to complete the latter by eliminating initial omissions or obscurities (see the Foti and Others v. Italy judgment of 10 December 1982, Series A no. 56, § 44).

Besides, from the outset, the information furnished by both applicants showed their general discontent with the way their criminal case had been dealt with, and especially with their repeated arrests. The original submissions were later supplemented with additional arguments, notably the applicants’ observations of 10 October 2001 in furtherance of this grievance.

Consequently, the Court, being required to give a ruling in the light of the case as it now stands, holds that it has jurisdiction to settle this issue.

b)  The Government further submit that, pursuant to Article 35 § 2 (b) of the Convention, the Court should not deal with the first applicant’s complaint because it has already been submitted to the investigation by the United Nations Human Rights Committee.

The first applicant contests this argument. She asserts that her application to Geneva in 1995 concerned only the events that predated the application, namely, the impossibility to obtain a judicial review of her arrest on 26 August 1995 and therefore could not touch upon the facts which happened afterwards and were submitted to the Court in November 1998.

Article 35 § 2 (b) of the Convention, insofar as relevant, reads as follows:

“2.  The Court shall not deal with any application submitted under Article 34 that

(b)  ... has already been submitted to another procedure of international investigation or settlement and contains no relevant new information.”

The Court recalls that this provision is intended to avoid the situation where several international bodies would be simultaneously dealing with applications which are substantially the same. A situation of this type would be incompatible with the spirit and the letter of the Convention, which seeks to avoid a plurality of international proceedings relating to the same cases (see Calcerrada Fornieles and Cabeza Mato v. Spain, application no. 17512/90, Commission decision of 6 July 1992, Decisions and Reports (DR) 73, p. 214).

The Court’s task is therefore to ascertain to what extent the proceedings before it overlap with those before the United Nations Human Rights Committee.

The Court notes, first, that communication no. 71211996 pending before the Human Rights Committee was lodged by and concerns only the first applicant, and its effects cannot for this reason be extended to the second applicant.

Next, the first applicant’s complaints in that case were directed against her arrest on 26 August 1995 and, in particular, the question whether this arrest was justified, the impossibility to challenge it in the courts, and the alleged inadequate conditions of detention. The scope of the factual basis for the first applicant’s application to the Court, although going back to the arrest of 26 August 1995, is significantly wider. It extends to the whole of the proceedings which terminated in 2002, and includes the first applicant’s arrest on three more occasions since 26 August 1995.

It follows that the first applicant’s application is not substantially the same as the petition pending before the Human Rights Committee, and that being so, it falls outside the scope of Article 35 § 2 (b) of the Convention and cannot be rejected pursuant to that provision.

c)  The Court finds it appropriate to consider the applicants’ complaint first under Article 5 § 1 (c) of the Convention. This provision reads as follows:

“1.  Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

...

(c)  the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so...”

With regard to the substance of the second applicant’s complaints, the Government submit that her arrest on 30 March 1999 was not incompatible with the Convention because it was carried out in compliance with the domestic laws of criminal procedure. The Government emphasise that the application of Article 5 §§ 3 and 4 of the Convention in this field is limited by the reservation made by Russia upon ratification of the Convention.

The Government also claim that the arrest of 30 March 1999 was motivated by the particular circumstances of the case and the second applicant’s persistent avoidance of the proceedings by absconding and making attempts to leave the country. The second arrest that came about on 3 September 1999 was, according to the Government, a logical consequence of the annulment on 19 May 1999 of the court decision granting her release. The third arrest was effected pursuant to the decision of the Tverskoy District Court of 10 November 1999 which decided that the second applicant’s detention was needed for the proper carrying out of the trial given the seriousness of the charge against the second applicant and her repeated avoidance of the proceedings.

The second applicant contests these arguments, claiming that the criminal case against her had, in fact, never been brought by the competent investigative authorities. The first applicant maintains that her arrests were unlawful and disclosed an abuse of power by the State. She also claims that the proceedings in her case lasted too long.

To the extent that the events of the applicants’ case fall within the Court’s competence ratione temporis, i.e. that they took place after the Convention had come into force in respect of Russia on 5 May 1998, the Court has satisfied itself that the detention of the applicants complied with the requirements under Article 5 § 1 (c) of the Convention in that it was based on a reasonable suspicion of their having committed a criminal offence punishable under the Criminal Code and was necessary to prevent their fleeing from justice.

The initial detention of the applicants, namely of the first applicant on 26 August 1995 and of the second applicant on 30 March 1999, was based on evidence gathered in the course of the investigation whereby it appeared that the applicants had defrauded a bank on a credit matter and conspired in fraudulent realty transactions. The subsequent arrests were ordered in the framework of the same criminal proceedings. In the Court’s opinion there is nothing in the reasoning of the domestic authorities which could be regarded as arbitrary or unreasonable, or as lacking a factual basis.

It follows that this part of the applicants’ complaints is manifestly ill-founded within the meaning of Article 35 § 3 and must be rejected under Article 35 § 4 of the Convention.

d)  The Court will next consider the applicants’ complaint under Article 5 § 3 of the Convention about the length of their pre-trial detention. This provision, insofar as relevant, reads as follows:

“Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”

The Government claim that the applicants’ arrests did not contravene the Convention. The applicants do not accept this claim.

The Court considers, in the light of the parties’ submissions under Article 5 of the Convention, that this part of the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

2.  The applicants complain under Article 6 § 1 of the Convention of the undue length of the proceedings. Article 6 § 1, insofar as relevant, reads as follows:

“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”

The Government present their observations in respect of the second applicant only. They claim that the prosecution file only reached the Tverskoy District Court on 29 October 1999 on the ground that the second applicant’s conduct in the course of the proceedings, in particular her recurring failure to appear, did not contribute to a speedy progress of the investigation. Although the first examination of the case by the Tverskoy District Court was originally scheduled for 23 November 1999, the earliest day suitable for the hearing was 17 February 2000 because the judge who was to sit in the case was engaged in other proceedings. On 24 February 2000 all the previous decisions in the second applicant’s case were quashed and a further investigation was ordered. The case came before the Tverskoy District Court for the second time on 26 April 2000 and is (as of 23 February 2001 – the day of the submission of the Government’s observations) still pending because the applicants have again gone into hiding. The Government conclude by saying that the authorities did everything within their power to ensure the speedy examination of the case on the merits, and that it is not therefore possible to speak about a breach of the “reasonable time” criterion of Article 6 § 1.

The applicants contend the Government’s arguments by saying that the arguments do not touch upon the substance of the complaint.

The Court considers, in the light of the criteria established by its case-law on the question of “reasonable time”, and having regard to all the material in its possession, that an examination of the merits of the complaint is required.

3.  The second applicant complains under Article 6 § 2 of the Convention and Article 4 of Protocol No. 7 that the re-initiation of the proceedings after their discontinuance violated her right to be presumed innocent and not to be tried or punished twice.

Article 6 § 2 of the Convention reads as follows:

“2.  Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”

Article 4 of Protocol No. 7, insofar as relevant, reads as follows:

“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 Government claim that the public prosecutor complied with the laws of criminal procedure when on 20 March 2000 he again instituted criminal proceedings against the second applicant. Insofar as the proceedings instituted by the Tverskoy District Court on 21 March 1997 had been terminated, this had been so on account of the ruling of the Constitutional Court.

The second applicant replies that the renewed institution of criminal proceedings cannot be regarded as lawful because the same charges against her had been dropped before.

The Court considers, first, that the presumption of innocence guaranteed by Article 6 § 2 of the Convention requires, inter alia, that when carrying out their duties, the members of a court should not start with the preconceived idea that the accused has committed the offence charged; the burden of proof is on the prosecution, and any doubt should benefit the accused (see, among other authorities, the Barberà, Messegué and Jabardo v. Spain judgment of 6 December 1988, Series A no. 146, p. 33, § 77).

The Court, however, finds no indication that the trial court started from the presumption that the second applicant had committed the offences of which she had been charged. Thus, there is no appearance of a violation of Article 6 § 2 of the Convention.

As to Article 4 of Protocol No. 7, the Court recalls that the aim of this Convention provision is to prohibit the repetition of criminal proceedings that have been concluded by a final decision (see the Gradinger v. Austria judgment of 23 October 1995, Series A no. 328-C, p. 65, § 53).

The final decision in the applicants’ case was given on 9 April 2002 by the Moscow City Court which discharged the applicants from serving their sentence under the statute of limitations. No further proceedings on the same subject have taken place. The discontinuance of criminal proceedings by a public prosecutor did not amount to either conviction or an acquittal, and therefore Article 4 of Protocol No. 7 finds no application to the second applicant’s situation either.

It follows that these complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

4.  In addition, the first applicant complains under numerous Convention provisions, in particular under Article 8 of the Convention, about her being dispossessed of her internal passport, an identity document essential for everyday living in the country. She adds that she did not have any effective remedy against this infringement of her rights.

The Government submit that the Tverskoy District Court refused to return the passport to the applicant before the end of the proceedings because her twin sister was at the time being looked for by the investigation authorities. The case file against the sisters contained evidence that they had several times made use of their almost identical appearance in order to obstruct the proceedings. The refusal of the Tverskoy District Court to give back the passport was not absolute as the court was ready to make the passport temporarily available to the first applicant for certain crucial needs, e.g. marriage or employment, and the court made this point clear to the applicant. Besides, on 6 October 1999 the applicant received the document back.

The first applicant objects by claiming that the interference with her Article 8 rights, such as the withholding of her passport was, could not be justified by the mere fact that there were criminal charges against her and that her twin sister was in hiding. The first applicant also has doubts as to the authenticity of the police report of 31 March 1999 relied on by the Government, because by that time both sisters had already been imprisoned. The applicant adds that the interference with her rights did not end on 6 October 1999 when the passport was returned to her by the investigative officer, since as soon as the court proceedings against her recommenced, the passport was again seized by the court.

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicants’ complaints concerning their pre-trial detention and the length of the criminal proceedings; and the first applicant’s complaint about the withholding of her passport;

Declares the remainder of the application inadmissible.

Mark Villiger Ireneu Cabral Barreto 
 Deputy Registrar President

Yelena SMIRNOVA and Irina SMIRNOVA v. RUSSIA DECISION


Yelena SMIRNOVA and Irina SMIRNOVA v. RUSSIA DECISION