FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 54882/00 
by Filipp Viktorovich CHERVONENKO 
against Russia

The European Court of Human Rights (Fifth Section), sitting on  
25 September 2006 as a Chamber composed of:

Mr P. Lorenzen, President
 Mrs S. Botoucharova
 Mr V. Butkevych
 Mrs M. Tsatsa-Nikolovska
 Mr R. Maruste
 Mr A. Kovler, 
 Mr J. Borrego Borrego, judges
and Mrs C. Westerdiek, Section Registrar,

Having regard to the above application lodged on 17 January 2000,

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

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Filipp Viktorovich Chervonenko, is a Russian national who was born in 1958 and lives in Moscow. He is represented before the Court by Ms K. Kostromina and Ms K. Moskalenko, lawyers practising in Moscow. The Russian Government (“the Government”) are represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights.

A.  The circumstances of the case

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

On 2 June 1996 the applicant had a quarrel with his neighbours and he 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 Section 108 § 2 of the old Criminal Code (Уголовный кодекс РСФСР) of “deliberate infliction of physical injury leading to the victim’s death”.

On 29 September 1997 the Kuntsevskiy District Court of Moscow examined the case in the first instance. It re-qualified the applicant’s actions and found him guilty of a “murder committed in circumstances where excessive force was used in self-defence” under Section 108 § 1 of the new Criminal Code (Уголовный кодекс РФ), which 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, the date when he was detained on remand.

On 27 November 1997 the Moscow City Court upheld the judgment of 29 September 1997 in the 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 indicted under Section 108 § 2 of the old Criminal Code – the applicant had been tried and convicted under a different provision, i.e. Section 108 § 1 of the new Criminal Code. The new charge, as it was further argued, went beyond the gravity of the original charge as it implied, unlike the first one, an intention to cause death. However, Section 254 of the Code of Criminal Procedure (Уголовно-процессуальный кодекс РСФСР) prevented the trial court from modifying 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.

In the new examination of the case in the Kuntsevskiy District Court of Moscow, one of the applicant’s counsels filed a petition seeking to have certain evidence (various transcripts and an expert opinion) declared inadmissible. The counsel alleged that these materials had been obtained in violation of the rules of criminal procedure. He also requested to have two more witnesses summoned to court. Both the petition and the request were rejected by the court as unsubstantiated. It also appears that the applicant was dissatisfied with his officially appointed counsel and renounced his legal assistance, as the latter allegedly did not provide effective assistance.

On 16 July 1999 the Kuntsevskiy District Court found the applicant guilty under Section 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 in the final instance. It also dismissed the applicant’s submissions concerning the inadmissibility of the evidence, which he raised in his appeal.

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 Section 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 Section 353 of the Code of Criminal Procedure imposition of a graver penalty or application of a graver criminal law in the new examination of a case at first instance [after it had been remitted by the appeal instance] is allowed only if the initial sentence was quashed upon the prosecutor’s appeal ... on the grounds of excessively lenient penalty ...

Therefore, in the new examination of the case the court was not allowed to qualify [the applicant’s] actions under a graver law and to impose a graver 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 Section 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 of 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 and it became final.

B.  Relevant domestic law

The old Criminal Code

Section 108 § 2 of the Code provided that deliberate infliction of physical injury leading to the victim’s death was punishable by five to twelve years of imprisonment.

Section 111 provided that infliction of serious injuries in circumstances where excessive force was used in self-defence was punishable by up to one year of imprisonment.

The new Criminal Code (in force since 1 January 1997)

Section 108 § 1 of the Code provides that murder committed in circumstances where excessive force was used in self-defence is punishable by up to two years of imprisonment.

The Code provides that criminal liability and applicable penalty are determined by law in force at the time of commission of the criminal act and does not allow retrospective application of a law or penalty unless it is for the benefit of the accused (Sections 8 and 9).

The Code of Criminal Procedure

Section 254 of the Code, as in force at the relevant time, provided that a case was examined in court only on the charge put before the court. The charge could be modified by the court if 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.

COMPLAINTS 

1.  The applicant complained that the quashing of his final conviction judgment through supervisory review on 22 October 1998 and the subsequent new court examination of his case had violated his right not to be tried and punished twice for the offence for which he had already been finally convicted. He invoked Article 4 of Protocol No. 7 to the Convention.

The applicant also complained, with reference to the same supervisory review, that the hearing in the determination of a criminal charge against him was not fair, contrary to Article 6 of the Convention.

2.  The applicant further complained under Article 6 §§ 1 and 3 (b), (d) of the Convention that he had not received a fair trial by an impartial tribunal. He complained in particular that during the new examination of the case in the Kuntsevskiy District Court the court refused to declare inadmissible certain transcripts and an expert opinion on which the judgment was based; that the officially appointed lawyer had not co-ordinated his position with that of the applicant and that the District Court had rejected the applicant’s request to have two more witnesses examined.

THE LAW

1.  The applicant alleged a violation of guarantees provided for in Article 4 of Protocol No. 7 to the Convention and Article 6 of the Convention which provide in so far as relevant as follows:

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.”

Article 6 of the Convention

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

The applicant claimed that he had been tried and convicted twice for the same criminal offence because he had to return to prison after the first set of supervisory review which modified his charges, although he regarded his sentence as served in full. He also considered that the manner in which the courts dealt with his case was contrary to the principle of legal certainty. He alleged that he had lodged his request for supervisory review because he expected that the supervisory instance would establish that the judgment against him had been unlawful and would acquit him of all charges. He could not have foreseen that it might entail detrimental consequences for himself, such as aggravation of charge or extension of sentence. He considered that the criminal proceedings, taken overall, were 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 serious defects in both previous sets of proceedings and restored the applicant’s fundamental rights. Moreover, it reduced the applicant’s sentence and apparently satisfied the applicant because he lodged no appeal against it. They stated that any violation that had taken place in the criminal proceedings against him have been remedied by the subsequent quashing of the erroneous judgments.

In so far as the applicant’s complaints concern the conduct of supervisory review in the criminal proceedings against him, the Court considers, in the light of the parties’ submissions, that this part of application raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. It cannot therefore be regarded as 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 Court has examined the remainder of the applicant’s complaints as submitted by him. However, having regard to all material in its possession, the Court 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.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicant’s complaints concerning the supervisory review conducted in the criminal proceedings against him.

Declares inadmissible the remainder of the application.

Claudia Westerdiek Peer Lorenzen 
 Registrar President

CHERVONENKO v. RUSSIA DECISION


CHERVONENKO v. RUSSIA DECISION