THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 72776/01 
by Afanasiy Semenovich BRATYAKIN 
against Russia

The European Court of Human Rights (Third Section), sitting on  
9 March 2006 as a Chamber composed of:

Mr B.M. Zupančič, President
Mr J. Hedigan
Mr L. Caflisch
Mr C. Bîrsan
Mr A. Kovler
Mrs A. Gyulumyan, 
Mrs R. Jaeger, judges,

and Mr V. Berger, Section Registrar,

Having regard to the above application lodged on 14 April 2001,

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 Afanasiy Semenovich Bratyakin, is a Russian national who was born in 1950 and lives in Kolomna. He is represented before the Court by Mr A. Volkov, a lawyer practising in Kolomna. 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 11 December 1998 the Kolomenskiy Town Court of the Moscow Region convicted the applicant of tax evasion. The applicant was sentenced to five years’ imprisonment. He started serving his sentence that same day.

On 9 April 1999 the Moscow Regional Court, on appeal, upheld in part the first-instance judgment and reduced the applicant’s prison sentence to one year and six months.

On 20 June 1999 the applicant filed a petition with the President of the Moscow Regional Court in which he requested a supervisory review of his case. He alleged that the courts had not determined the specific amount of tax evaded and that they had not therefore established that any criminal offence had been committed. He pleaded not guilty and requested that both the judgment of 11 December 1998 and the decision of the appellate court of 9 April 1999 should be quashed.

On 15 July 1999, following the Amnesty Act of 18 June 1999, the applicant was discharged from serving the remaining term of his sentence and was released from prison.

On 16 November 1999 the Presidium of the Moscow Regional Court, upon its President’s request to uphold the applicant’s petition, quashed the decision of 9 April 1999. In its ruling the Presidium stated, inter alia, that the judgment against the applicant did not specify what constituted the criminal conduct under each particular head of the criminal charge. It also found that the cassation instance had exceeded its jurisdiction when it had reclassified one episode and convicted the applicant of an offence that was not part of the original criminal charge. Furthermore, the Presidium established that the cassation instance had not addressed certain substantive points of the applicant’s appeal. The Presidium remitted the case for a fresh examination by the cassation instance.

On 13 March 2000 the Moscow Regional Court re-examined the case in the light of the finding by the supervisory instance. It remitted the case for reconsideration to the first-instance court.

On 24 January 2001 the Kolomenskiy Town Court of the Moscow Region convicted the applicant of tax evasion and sentenced him to one year and six months’ imprisonment. The same judgment discharged the applicant from the punishment by virtue of the Amnesty Act of 26 May 2000.

The applicant lodged an appeal against his conviction on the grounds, inter alia, that he had already been convicted of the same offence in the first set of proceedings.

On 27 February 2001 the Moscow Regional Court upheld the first-instance judgment on appeal. Addressing the applicant’s claim that he had been tried twice for the same offence, the court stated that the first conviction had been quashed and that the reopening of proceedings did not constitute a second trial.

After the judgment became final, the applicant attempted to initiate supervisory review proceedings by filing petitions with the President of the Moscow Regional Court and with the Supreme Court of the Russian Federation. His petitions were rejected on 14 May 2001 and 29 January 2002 respectively.

B.  Relevant domestic law

1.  Supervisory review in criminal proceedings

Section VI, Chapter 30, of the 1960 Code of Criminal Procedure (Уголовно-процессуальный кодекс РСФСР), as applicable at the material time, allowed certain officials to challenge a judgment which had become final and to have the case reviewed on points of law and procedure. The supervisory review procedure (Articles 371-383) was distinct from proceedings in which a case was reviewed in the light of newly-established facts (Articles 384-390). However, similar rules applied to both procedures (Article 388).

(a)  Date on which a judgment becomes final

Article 356 of the Code of Criminal Procedure provided that a judgment took effect and became enforceable from the date on which the appellate court delivered its judgment or, if it was not appealed against, once the time-limit for appeal had expired.

(b)  Grounds for supervisory review and reopening of a case

Article 379  
Grounds for setting aside judgments which have become final

“The grounds for quashing or varying a judgment [on supervisory review] are the same as [those for setting aside judgments (which have not become final) on appeal] ...”

Article 342  
Grounds for quashing or varying judgments [on appeal]

“The grounds for quashing or varying a judgment on appeal are as follows:

(i)  prejudicial or incomplete investigation or pre-trial or court examination;

(ii)  inconsistency between the facts of the case and the conclusions reached by the court;

(iii)  a grave violation of procedural law;

(iv)  misapplication of [substantive] law;

(v)  discrepancy between the sentence and the seriousness of the offence or the convicted person’s personality.”

(c)  Authorised officials

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 Procurator-General, the President of the Supreme Court of the Russian Federation or 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 seek the intervention of those officials to apply for such a review.

(d)  Limitation period

Article 373 of the Code of Criminal Procedure set a limitation period of one year during which an application for a supervisory review that might be detrimental to a convicted person could be submitted by an authorised official. The period ran from the date on which the impugned judgment became enforceable.

(e)  The effect of a supervisory review

Under Articles 374, 378 and 380 of the Code of Criminal Procedure, a request for supervisory review was to be considered by the judicial board (the Presidium) of the appropriate court. The court could examine the case on the merits, was not bound by the scope and grounds of the request for supervisory review and was obliged to conduct a full review of the evidence.

The Presidium could dismiss or grant the request. If the request was dismissed, the earlier judgment remained operative. If it granted the request, the Presidium could decide to quash the judgment and terminate the criminal proceedings, remit the case for a new investigation, order reconsideration by a court at any instance, uphold a first-instance judgment reversed on appeal, or vary 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 classification of a conviction or sentence to the defendant’s advantage. If it found a sentence or legal classification to be too lenient, it was obliged to remit the case for reconsideration.

2.  Amnesty

The Code of Criminal Procedure of 1960, as applicable at the relevant time, provided as follows:

Article 5. Circumstances entailing termination of prosecution

“Criminal prosecution cannot be started, or, if already started, shall be discontinued if...

1)  the absence of a criminal act has been established;

2)  the absence of corpus delicti has been established;

3)  a limitation period applies;

4)  a Law providing for amnesty has been enacted and [the person concerned] is thereby absolved from punishment...;

...

If the circumstances indicated in subparagraphs 1, 2, 3 and 4 are discovered at the stage of examination by a court, the court must continue its examination of the case until it is complete and pronounce an acquittal if grounds 1 or 2 apply, or a conviction if grounds 3 or 4 apply and discharge the convicted person from the sentence. ...”

Section 5 of the Amnesty Act of 18 June 1999 absolved all persons convicted for the first time whose sentence did not exceed five years, and who had already served at least one third of their sentence, from serving the remaining term.

Section 1 of the Amnesty Act of 26 May 2000 absolved all persons convicted for the first time and whose sentence did not exceed three years from serving their sentence.

COMPLAINT

The applicant complained that as a result of the supervisory review he had been liable to be tried and punished again in criminal proceedings for an offence for which he had already been convicted. He relied on Article 6 of the Convention and Article 4 of Protocol No. 7.

THE LAW

The applicant relied on Article 4 of Protocol No. 7 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...”

A.  The parties’ submissions

The applicant claimed that he had been tried and convicted twice for the same criminal offence. 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 discontinue the criminal proceedings against him. Given that he had served his sentence he believed that this was the only procedural decision the court could reasonably take and, in any event, his intention was not to have the merits of the case reassessed. He also pointed out that the new judgment had taken no account of the sentence he had already served because it discharged him from punishment simply by applying the Amnesty Act.

The Government contested the applicant’s allegations. They pointed out that the supervisory review had been initiated at the applicant’s own request. They also submitted that the resulting proceedings had been in the applicant’s favour since the latest judgment had removed certain facts from the charges.

The Government considered that the applicant had not been tried twice for the same offence. They stated that the previous judicial decisions had been quashed and that the criminal proceedings had ended with the one and only final decision determining his criminal charge. The Government further considered that the decision to reopen the case was fully justified because the Supreme Court had identified serious shortfalls in the judicial decisions which were detrimental to the applicant’s rights and which could affect the outcome of the case. In the new proceedings the shortfalls were remedied for the benefit of the applicant and in the interest of justice. 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.

B.  The Court’s assessment

The Court has previously examined a case raising similar complaints under the Convention (see Nikitin v. Russia, no. 50178/99, ECHR 2004-VIII).

As regards the applicability of Article 4 of Protocol No. 7 to supervisory review the Court found the following:

“46.  The Court notes that the Russian legislation in force at the material time permitted a criminal case in which a final decision had been given to be reopened on the grounds of new or newly discovered evidence or a fundamental defect (Articles 384-390 of the Code of Criminal Procedure). This procedure obviously falls within the scope of Article 4 § 2 of Protocol No. 7. However, the Court notes that, in addition, a system also existed which allowed the review of a case on the grounds of a judicial error concerning points of law and procedure (supervisory review, Articles 371-383 of the Code of Criminal Procedure). The subject matter of such proceedings remained the same criminal charge and the validity of its previous determination. If the request was granted and the proceedings were resumed for further consideration, the ultimate effect of supervisory review would be to annul all decisions previously taken by courts and to determine the criminal charge in a new decision. To this extent, the effect of supervisory review is the same as reopening, because both constitute a form of continuation of the previous proceedings. The Court therefore concludes that for the purposes of the ne bis in idem principle supervisory review may be regarded as a special type of reopening falling within the scope of Article 4 § 2 of Protocol No. 7.”

The Court observes that in the present case a final judgment had been quashed on the grounds of serious procedural defects and that the case was reconsidered by two judicial instances which delivered the final judgment. As in the Nikitin case cited above, the subject matter of the new proceedings consisted of the same criminal charge and the validity of its previous determination. Having regard to the above findings, the Court concludes that the supervisory review in the instant case constituted a reopening of the case owing to the fundamental defect in the previous proceedings, within the meaning of Article 4 § 2 of Protocol No. 7. Accordingly, the complaint raises no issues under Article 4 § 1 of Protocol No. 7.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 and must be rejected pursuant to Article 35 § 4 of the Convention.

The Court further notes that, having dismissed a complaint under Article 4  of Protocol No. 7, it should nevertheless pursue its examination under Article 6 § 1 because the protection against duplication of criminal proceedings is only one of the specific safeguards associated with the general guarantee of a fair hearing in criminal proceedings. Therefore the mere fact that the supervisory review was compatible with Article 4 of Protocol No. 7 is not sufficient to establish compliance with Article 6 (see Nikitin, cited above, §§ 37 and 54). The supervisory review proceedings must also provide for all the general guarantees of a fair trial.

The Court reiterates that the mere possibility of reopening a criminal case is prima facie compatible with the Convention, including the guarantees of Article 6. However, the actual manner in which it is used must not impair the very essence of a fair trial. In other words, the power to reopen criminal proceedings must be exercised by the authorities so as to strike, to the maximum extent possible, a fair balance between the interests of the individual and the need to ensure the effectiveness of the system of criminal justice (see Nikitin, cited above, §§ 54-61).

In the specific context of supervisory review, the Court requires that the authorities respect the binding nature of a final judicial decision and allow the resumption of criminal proceedings only if serious legitimate considerations outweigh the principle of legal certainty. In particular, a review of a final and binding judgment should not be granted merely for the purpose of obtaining a rehearing and a fresh determination of the case, but rather to correct judicial errors and miscarriages of justice (see Brumărescu v. Romania [GC], no. 28342/95, § 62, ECHR 1999-VII, and Ryabykh 
v. Russia
, no. 52854/99, §§ 52-58, ECHR 2003-IX). In addition, the review must afford all the procedural safeguards of Article 6 § 1 and must ensure the overall fairness of the entire proceedings (see Vanyan v. Russia, no. 53203/99, §§ 63-68, 15 December 2005).

Turning to the circumstances of the present case, the Court first of all observes that it was the applicant himself who had solicited the supervisory review of his conviction, and the parties agreed that it was as a result of his petition that the President of Moscow Regional Court put the case before the Presidium with a proposal to have it re-examined. Furthermore, the Presidium found a number of serious grounds for quashing the judgment complained of. Having regard to the Presidium’s reasoning, the Court does not find that it went beyond its margin of appreciation in deciding whether the violations cited were sufficiently serious as to require a re-hearing of the case. Accordingly, the issue of legal certainty does not appear to be a matter for concern in the present case.

The Court further refers to the applicant’s grievances on two specific points.

Firstly, the applicant complained that the Presidium, after having found defects in the original judgment, did not terminate the proceedings but instead remitted the case for reconsideration.

The Court notes that the domestic law in force at the material time required the supervisory instance to conduct a full review on the points of substantive and procedural law and to determine the scope of future proceedings if necessary. The Presidium found that the judicial instances had failed to indicate the substantive element of the corpus delicti, had exceeded their jurisdiction and had failed to address a number of legitimate points of the applicant’s appeal. Indeed, the Presidium’s decision to quash the judgment, flawed as it was with such defects, does not appear unreasonable or arbitrary. Neither does it appear that in the circumstances of the case the Presidium might reasonably have been expected to discontinue the proceedings without entering into the merits of the case, or to substitute itself for the lower instances and determine the criminal charges against the applicant. Moreover, it appears that the Presidium and the courts considering the remitted case did not pursue any avenues which could be regarded as detrimental to the applicant. Therefore the Court does not consider that the Presidium’s decision to remit the case, or the ensuing retrial, undermined the overall fairness of the proceedings against the applicant.

Secondly, the applicant complained about the absence in the final judgment of a clause expressly deducting the portion of the sentence he had already served from the final conviction.

The Court is not convinced by the applicant’s argument. Whilst imposing a punishment, the court at the same time discharged the applicant from serving his sentence by virtue of the 2000 Amnesty Act. There is no reason to believe that the period he had already served would not have been deducted from the final sentence, had the amnesty not applied.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 and must be rejected pursuant to Article 35 § 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Vincent Berger Boštjan M. Zupančič 
 Registrar President

BRATYAKIN v. RUSSIA DECISION


BRATYAKIN v. RUSSIA DECISION