FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 63997/00 
by Vladimir Aleksandrovich FEDOROV 
against Russia

The European Court of Human Rights (First Section), sitting on 6 October 2005 as a Chamber composed of:

Mr C.L. Rozakis, President
 Mrs S. Botoucharova
 Mr A. Kovler
 Mrs E. Steiner
 Mr K. Hajiyev
 Mr D. Spielmann, 
 Mr S.E. Jebens, judges
and Mr S. Nielsen, Section Registrar,

Having regard to the above application lodged on 12 November 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, Vladimir Aleksandrovich Fedorov, is a Russian national who was born in 1967 and lives in Taganrog in the Rostov Region of Russia. He is represented before the Court by Mr A.V. Kiryanov, Mrs E.V. Kiryanova and Mr K.N. Lugantsev, lawyers practising in Taganrog. The respondent Government are represented by Mr P. A. 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.

1.  Initial examination of the case

On 24 September 1999 the Taganrog Town Court convicted the applicant and three other persons of theft of cigarettes from a container in a sea port under Article 158 § 2 (a) of the Criminal Code and imposed a conditional sentence of two years’ imprisonment on a six months’ probation. The parties did not appeal and the judgment became final seven days later.

2.  Supervisory review and constitutional proceedings

On an unspecified date the Rostov region prosecutor lodged an application with the Presidium of the Rostov Regional Court to review the case in supervisory proceedings. The prosecutor requested to quash the judgment and order a fresh examination of the case in view of substantial violations of the procedural law by the trial court.

On 27 January 2000 the Presidium of the Rostov Regional Court granted the prosecutor’s application in so far as it concerned the applicant, quashed the judgment of 24 September 1999 and ordered a fresh examination of the applicant’s case. The grounds for the decision were the failure of the trial court properly to examine and assess the evidence and the resultant inconsistency between the evidence and the court findings, which were found by the court to be substantial violations of the criminal procedural law that required, under Article 379 of the Code of Criminal Procedure, the quashing of the judgment.

The prosecutor was present at the hearing. The applicant and his counsel were not informed of the hearing. Nor were they served a copy of the application for supervisory review and the decision taken. According to the applicant, he learned about these developments in the case on 13 September 2000, when summoned by the Taganrog Town Court.

The applicant applied to the Supreme Court of Russia, a higher supervisory review instance, requesting its competent officials to lodge an application for supervisory review of the decision of 27 January 2000 in the light of the decision of the Constitutional Court of Russia of 14 February 2000. In June 2001 the Deputy President of the Supreme Court informed the applicant that his request was dismissed on the ground that the decision the applicant complained of had been adopted before the Constitutional Court’s decision. The applicant’s subsequent equivalent appeals to the Supreme Court were to no avail.

The applicant lodged a constitutional complaint aiming at extending the decision of 14 February 2000 to his case. On 21 December 2001 the Constitutional Court held that even though the applicant had not been a party to proceedings which ended with the decision of 14 February 2000, the decision of 27 January 2000 of a supervisory review court in his case, if based on provisions of Article 377 of the Code of Criminal Procedure which were declared unconstitutional, can still be re-examined in ordinary proceedings. The Constitutional Court refused to examine the applicant’s complaint as its subject-matter was the same as examined by the decision of 14 February 2000.

3.  Fresh examination of the case

Following the decision of 27 January 2000 of the Presidium of the Rostov Regional Court, on 27 December 2000 the Taganrog Town Court composed of one professional and two lay judges, as a result of a fresh examination of the case, convicted the applicant of theft under Article 158 § 2 (а) and (в) of the Criminal Code and imposed a conditional sentence of two years and six months’ imprisonment on a six months’ probation. With reference to the Amnesty Act of 26 May 2000, the court ordered that the applicant be released from serving his sentence. The parties did not appeal and the judgment became final seven days later.

4.  New supervisory review proceedings

On 5 November 2003, after communication of the present application to the Government on 8 September 2003, the Rostov region prosecutor lodged with the Presidium of the Rostov Regional Court an application for supervisory review, requesting to amend the judgment of 27 December 2000 by reclassifying the applicant’s actions under Article 158 § 2 (a) of the Criminal Code and reducing the conditional sentence to a year and a half of imprisonment.

On 27 November 2003 the Presidium of the Rostov Regional Court granted the prosecutor’s application and varied the judgment of 27 December 2000 accordingly. With reference to the Amnesty Act of 26 May 2000 the court ordered that the applicant be released from the sentence.

B.  Relevant domestic law

1.  Supervisory review proceedings

Section VI, Chapter 30, of the Code of Criminal Procedure 1960, (Уголовно-процессуальный кодекс РСФСР), in force at the material time, allowed certain officials to challenge a judgment which had entered into force and to have the case reviewed on points of law and procedure.

Pursuant to Article 356 of the Code of Criminal Procedure, a judgment enters into force and is subject to execution as of the day when the appeal (cassation) instance pronounces its judgment or, if it has not been appealed against, when the time-limit for appeal (seven days according to Article 328 of the Code) has expired.

Article 379 of the Code set out grounds for setting aside judgments which have entered into force. It read:

“The grounds for quashing or changing a judgment [on supervisory review] are the same as [those for setting aside judgments which have not entered into force on cassation appeals]. ...”

Article 342 of the Code provided for the following grounds for quashing or changing judgments on cassation appeal:

(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)  grave violation of procedural law;

(iv)  misapplication of [substantive] law;

(v)  inadequacy of the sentence to the gravity of offence and the convict’s personality.

Article 371 of the Code of Criminal Procedure 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 or decision other than those of the Presidium of the Supreme Court, and by the Presidents of the regional courts in respect of any judgment or decision 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, 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 or decision 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 a fresh court examination at any instance, to uphold a first instance judgment reversed on appeal, to quash a decision taken on supervisory review and to amend or uphold any of the earlier judgments.

Article 380 §§ 2 and 3 provided that the Presidium could in the same proceedings reduce a sentence or amend the legal qualification of a conviction or sentence to the defendant’s benefit. If it found a sentence or legal qualification too lenient, it had to remit the case for a new examination.

On 1 July 2002 a new Code of Criminal Procedure entered into force. According to its Article 405, the application of supervisory review is limited to the cases where it does not involve changes to the detriment of the convicted person.

Under Article 377 § 3 of the Code of Criminal Procedure of 1960 a public prosecutor took part in a hearing before a supervisory review instance. Where a supervisory review court found it necessary, it could summon a convicted person and his or her counsel. If summoned, they were 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 above provision was incompatible with the federal Constitution where the grounds for supervisory review of a case were to the detriment of a convicted person.

Under Article 407 of the new Code of Criminal Procedure a 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 an explicit request to that effect.

2.  Lay judges

Article 15 of the Code of Criminal Procedure of 1960 provided that hearings in first-instance courts dealing with criminal cases should, subject to certain exceptions, be conducted by a single professional judge or by one professional and two lay judges. In their judicial capacity, lay judges enjoy the same rights as the professional judge.

Section 2 of the Lay Judges of the Federal Courts of General Jurisdiction Act provides that lists of lay judges should be compiled for every district court by local self-governing representative authorities, such lists being subject to confirmation by the legislature of the respective Federation entity. Section 5 of the Act, which determines the procedure for the selection of lay judges, provides that the president of a district court should draw lots at random from a list of names of a certain number of lay judges to be assigned to the competent district court. The number of lay judges assigned to every professional judge should be at least three times greater than that needed for a hearing. Since most criminal cases in Russia are examined by a court composed of one professional judge and two lay persons, it appears that every judge must have at least six lay judges attached to him or her. Out of these six, a judge picks two at random to sit in a particular case.

Under section 9 of the Act, lay judges should be called to serve in a district court for a period of fourteen days, or as long as the proceedings in a particular case last. Lay judges may not be called more than once a year.

3.  Other provisions

Under Articles 342 and 345 of the Code of Criminal Procedure of 1960, the adoption of a judgment by the unlawful composition of a trial court entails the quashing of the judgment by an appeal court.

Under Article 86 § 3 (a) of the Criminal Code, conviction to a conditional sentence is annulled after expiration of probation.

COMPLAINTS

1.  The applicant complained under Article 6 §§ 1 and 3 (b) and (c) of the Convention about the quashing in supervisory review proceedings of the final judgment of the Taganrog Town Court of 24 September 1999 in his criminal case and about a violation of his right to defend himself in those proceedings in that he was notified neither of the application for supervisory review nor of the hearing before the Presidium of the Rostov Regional Court on 27 January 2000 and, thus, not given an opportunity to comment on submissions by the prosecutor.

2.  The applicant also complained, invoking Article 14 of the Convention, about the refusal of the Supreme Court to lodge an application for supervisory review of the decision of the Presidium of the Rostov Regional Court of 27 January 2000.

3.  Lastly, he complained under Article 6 § 1 about a violation of his right to a trial by a tribunal established by law in that two lay judges of the Taganrog Town Court who convicted him on 27 December 2000 had not been appointed according to the law. In particular, they were not allegedly chosen to sit in his case by drawing of lots.

THE LAW

1.  The applicant complained under Article 6 §§ 1 and 3 (b) and (c) of the Convention about the quashing of the final judgment of 24 September 1999 in his criminal case and the failure of the Presidium of the Rostov Regional Court to notify him of the application for supervisory review of his case and of the hearing on 27 January 2000. Article 6 in so far as relevant reads:

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

3.  Everyone charged with a criminal offence has the following minimum rights: ...

(b)  to have adequate time and facilities for the preparation of his defence;

(c)  to defend himself in person or through legal assistance of his own choosing...”

The Government pointed out that according to the Court’s judgment in the case of Ryabykh higher courts’ power of review should be exercised to correct judicial errors and miscarriages of justice (see Ryabykh v. Russia, no. 52854/99, § 52, ECHR 2003-IX). The quashing of the judgment in the applicant’s case was justified by substantial circumstances provided for by Article 342 of the Code of Criminal Procedure. As regards the applicant’s complaint about the supervisory review hearing in absentia, the Government stated that Article 377 § 3 of the Code of Criminal Procedure provided that convicted persons and their counsels could be summoned to a supervisory review court’s hearing only where necessary. Therefore, the parties’ presence at the hearing before the Rostov Regional Court was not compulsory. The Government underlined that the decision of the Constitutional Court of 14 February 2000, which declared Article 377 § 3 of the Code of Criminal Procedure unconstitutional, was adopted after the supervisory review court’s decision of 27 January 2000 in the applicant’s case. In the course of new supervisory review proceedings the applicant was informed of the hearing on 27 November 2003 and served a copy of a decision to initiate the proceedings. The Government concluded that the complaints should be rejected as manifestly ill-founded.

The applicant disagreed. He asserted that the Presidium of the Rostov Regional Court should have informed him of the application for supervisory review and of the hearing in accordance with the Constitution, as was later confirmed by the Constitutional Court, and the Convention. The fact that he was not a party to proceedings before the Constitutional Court should not prevent a review of the decision of 27 January 2000 which was based on unconstitutional provisions of the law. The applicant further submitted that the quashing of the final judgment of 24 September 1999 violated the principle of legal certainty because he was committed to trial again and had to endure anxiety about his fate. Furthermore, the end result of the review of his case showed that the quashing of the judgment was groundless. The applicant noted that he retains his status as a victim of a violation of the Convention since the Government did not acknowledge that the Presidium of the Rostov Regional Court’s failure to inform him and his counsel of the application for supervisory review and the hearing violated the Convention. Nor did the authorities review the decision of 27 January 2000 in further supervisory review proceedings. The applicant emphasised that had it not been for the quashing of the judgment of 24 September 1999, his original conviction would have been annulled upon the expiration of the six-month probation period on 1 April 2000 and he would have retained his right to benefit from an application of an amnesty act as it is possible once during life time. The applicant noted that he and his counsel were not informed of the new application for supervisory review or the hearing on 27 November 2003.

The Court recalls that in accordance with Article 35 § 1 of the Convention an application must be introduced within six months of the date of the “final decision” in the chain of domestic remedies which have to be exhausted, or where there are no such remedies, from the date of the act complained of, or knowledge thereof. An exception may be made to the six-months rule only in the event of a continuing situation giving rise to a violation (see Hilton v. the United Kingdom, no. 12015/86, Commission decision of 6 July 1988, Decisions and Reports (DR) 57, pp. 113-115).

The Court notes that the applicant’s complaint concerned the supervisory review proceedings before the Presidium of the Rostov Regional Court which ended with its decision of 27 January 2000. According to the applicant, he learned of that decision on 13 September 2000, and that was not disputed by the Government. The Court observes that a decision taken on supervisory review could only be quashed in further supervisory review proceedings. It does not consider that the applicant was a victim of a continuing situation. It thus finds that in the present case the six-month period was set in motion on 13 September 2000, the date of the applicant’s first having knowledge of the decision of 27 January 2000 (see Karpov v. Russia (dec.), no. 65106/01, 19 October 2004). Less than six months had elapsed after that date before the application was introduced on 12 November 2000, thus complying with the six-month rule.

In the light of the parties’ submissions, the Court finds that this part of the application raises complex questions of fact and law, the determination of which should depend on an examination of the merits. Therefore, these complaints cannot be rejected as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring them inadmissible has been established.

2.  The applicant further complained about the refusal of the Supreme Court’s competent officials to lodge an application for supervisory review of the decision of the Presidium of the Rostov Regional Court of 27 January 2000. He relied on Article 14 of the Convention which reads:

“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

The Court has consistently held that Article 14 of the Convention complements the other substantive provisions of the Convention and the Protocols. This provision has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those provisions. Although the application of Article 14 does not presuppose a breach of those provisions – and to this extent it is autonomous – there can be no room for its application unless the facts at issue fall within the ambit of one or more of the latter (see, among many other authorities, Camp and Bourimi v. the Netherlands, judgment of 3 October 2000, ECHR 2000-X, pp. 129, 130 §34, and Van Raalte v. the Netherlands, judgment of 21 February 1997, Reports 1997-I, p. 184, § 33).

The applicant did not refer to any substantive provision of the Convention. He was essentially complaining that, unlike other convicted persons, he was refused by competent officials of the Supreme Court to lodge an application for supervisory review – an extraordinary remedy provided for by the Russian legislation - of the decision of 27 January 2000. Even assuming that the applicant complained that he was discriminated against in relation to his rights under Article 6 of the Convention, the latter provision does not apply, as such, to a failed request to re-open a case (see Nikitin v. Russia, no. 50178/99, § 60, ECHR 2004-...). In the circumstances of the present case it was not applicable to proceedings concerning the applicant’s failed request aiming at lodging an application for supervisory review of the above decision.

It follows that this part of the application is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

3.  Lastly, the applicant complained under Article 6 § 1 of the Convention, cited above, that the court which had convicted him on 27 December 2000 could not be considered to have been a “tribunal established by law” because it had been composed in breach of relevant national rules.

The Court recalls that Article 35 § 1 of the Convention provides that it may only deal with a matter after all domestic remedies have been exhausted. The Court observes in this regard that it was open to the applicant to appeal against the judgment of 27 December 2000 and request an appeal court to quash, by virtue of Articles 342 and 345 of the Code of Criminal Procedure, the judgment on the ground of its adoption by an unlawful composition of the first-instance court. The applicant chose not to do so.

It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicant’s complaints under Article 6 of the Convention concerning the supervisory review proceedings before the Presidium of the Rostov Regional Court which ended with the decision of 27 January 2000;

Declares the remainder of the application inadmissible.

Søren Nielsen Christos Rozakis 
 Registrar President

FEDOROV v. RUSSIA DECISION


FEDOROV v. RUSSIA DECISION