CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 9 avril 2009

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RUSSIA   (Application no. 15336/02)               JUDGMENT     STRASBOURG       9 April 2009       FINAL   09/07/2009   This judgment may be subject to editorial revision. In the case of Eduard Chistyakov v. Russia, The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Christos Rozakis, President,   Nina Vajić,   Anatoly Kovler,   Elisabeth Steiner,   Khanlar Hajiyev,   Giorgio Malinverni,   George Nicolaou, judges, and Søren Nielsen, Section Registrar , Having deliberated in private on 19 March 2009, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 15336/02) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Eduard Nikolayevich Chistyakov (“the applicant”), on 16 March 2002. 2.     The Russian Government (“the Government”) were represented by Mr P.   Laptev, former Representative of the Russian Federation at the European Court of Human Rights. 3.     On 20 January 2006 the Court decided to give notice of the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility. 4.     The Government objected to the joint examination of the admissibility and merits of the application. Having considered the Government’s objection, the Court dismissed it. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The applicant was born in 1952 and lives in the town of Kamyshin in the Volgograd Region. A.     First round of proceedings 6.     The applicant was employed as an expert in the local Forensic Examinations Service. In 2000 he was accused of having been negligent in the discharge of his professional duties and was dismissed from his post. In March 2001 he was charged with having given a deliberately false expert opinion. 7.     On 30 May 2001 the Kamyshin Town Court of the Volgograd Region convicted the applicant as charged and sentenced him to one year of correctional labour coupled with a fine amounting to 20% of his income. Under the Amnesty Act 2000 the applicant was absolved from serving his sentence. 8.     On 7 August 2001 the Volgograd Regional Court overturned the judgment and discontinued the proceedings for want of corpus delicti . The court held that the offence required express malice, which had not been established on the facts of the case. The Rules on the Forensic Medical Examination of Corpses allowed the expert to determine the scope and methods of examination on the basis of ministerial instructions. The applicant’s failure to conduct a thorough corpse examination resulted from having chosen “the wrong scope and methods”. B.     Supervisory review and second round of proceedings 9 .     On a supervisory request from the Volgograd Region Acting Prosecutor, on 21 September 2001 the Presidium of the Regional Court quashed both judgments for insufficient substantiation and remitted the case to the prosecutor for a new investigation. It held as follows: “Ruling on the discontinuation of the case, the [appeal] court referred to the Rules on forensic examination of corpse, annexed to the Decree 407 of 10 December 1996... According to paragraph 1.11 of the Rules, ‘the scope and method of the expert examination of a corpse is determined by the expert, taking account of the aim and objectives of the examination, the requirements of substantiation and objectivity of the expert’s conclusions, directions of the normative instructions and guidelines.’ So, the appeal court ruled that the insufficiency of the corpse examination carried out by the applicant ...had been due to his wrong choice as regards the scope and method of examination... [T]he case file did not contain all normative documents regarding the process of an expert examination. The investigating authority and the court concluded that [the applicant] had acted in gross disregard of the above Rules, only on the basis of excerpts from these Rules. This did not allow for a thorough examination of the case...” The prosecutor was present at the hearing and made submissions to the Presidium of the Regional Court. According to the applicant, neither he nor his counsel was apprised of this hearing and consequently could not attend it. 10.     In the resumed proceedings, on 22 May 2002 the applicant was convicted as charged and sentenced to one year of correctional labour coupled with a fine amounting to 10% of his income . Under the Amnesty Act 2000 the applicant was absolved from serving his sentence. 11.     On 9 July 2002 the Regional Court set aside the judgment of 22 May 2002 and discontinued the proceedings as time-barred. C.     Supervisory review and third round of proceedings 12.     On a supervisory review request from the President of the Regional Court, on 20 September 2002 the Presidium of the Regional Court quashed the appeal judgment and remitted the case to the appeal court. The supervisory instance court stated that the defendant’s consent should have been obtained for a discontinuation due to the expiry of the limitation period. 13.     After a fresh appeal hearing on 15 October 2002, the Regional Court upheld the judgment of 22 May 2002. 14.     On 21 March 2006 the Deputy Prosecutor General of the Russian Federation lodged a supervisory review request with a view to quashing the judgment of 15   October 2002. On 26 April 2006 the Supreme Court of Russia quashed the judgments of 20 September and 15 October 2002. The Supreme Court indicated that the Code of Criminal Procedure in force since 1   July 2002 did not allow supervisory review of a court decision to discontinue a criminal case. In addition, the Supreme Court stated that the Regional Court had mistakenly considered that the applicant’s consent to the discontinuation of the case had been necessary. The judgment of 9 July 2002 was thereby reinstated in legal force. 15.     It appears that the applicant appealed against the judgment of 21   March 2006. On 7 June 2007 a judge of the Supreme Court dismissed his appeal. II.     RELEVANT DOMESTIC LAW AND PRACTICE 16.     The relevant provisions of Russian law are outlined in the judgment of Nikitin v. Russia (no. 50178/99, §§ 22-29, ECHR 2004). 17.     At the relevant time, acquittals and decisions to discontinue the proceedings could not be subject to supervisory review (Article 405 of the Code of Criminal Procedure 2001). THE LAW I.     ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AS REGARDS THE SUPERVISORY RULING OF 21 SEPTEMBER 2001 18.     The applicant complained that this supervisory ruling which set aside the judgment of 7 August 2001, had violated Article   6   §   1 of the Convention. He also alleged that neither he nor his representative had been apprised of the hearing on 21 September 2001 and therefore could not attend it. Article 6 § 1 reads, in so far as relevant, as follows: “In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing within a reasonable time ... by [a] ... tribunal...” A.     Admissibility 19.     The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible. B.     Merits 1.     Quashing of the final judgment 20.     The Government submitted that the judgment of 7 August 2001 was quashed within an acceptable period of time not breaching the principle of legal certainty. 21.     The applicant maintained his complaint. 22.     The Court reiterates the importance of one of the fundamental aspects of the rule of law, namely the principle of legal certainty, which requires, among other things, that where the courts have finally determined an issue their ruling should not be called into question (see Brumărescu v. Romania [GC], no. 28342/95, §   61, ECHR 1999 ‑ VII). In the specific context of supervisory review in criminal cases, the Court has previously held that this requirement is not absolute and that any decision deviating from the principle must be assessed in the light of Article 4 § 2 of Protocol No.   7, which expressly permits a State to reopen a case due to the emergence of new facts, or where a fundamental defect is detected in the previous proceedings which was capable of affecting the outcome of the case (see Nikitin   v. Russia , no.   50178/99, §§   54-57, ECHR 2004 ‑ VIII; Savinskiy v. Ukraine , no.   6965/02, §   23, 28 February 2006, and Xheraj v. Albania , no. 37959/02, §§ 51-61, 29 July 2008). 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. 23.     The relevant considerations to be taken into account in this connection include, in particular, the effect of the reopening and any subsequent proceedings on the applicant’s individual situation and whether the reopening resulted from the applicant’s own request; the grounds on which the domestic authorities revoked the finality of the judgment in the applicant’s case; the compliance of the procedure at issue with the requirements of the domestic law; the existence and operation of procedural safeguards in the domestic legal system capable of preventing abuses of this procedure and other pertinent circumstances of the case (see Nikitin , cited above, § 60; Bratyakin v. Russia (dec.), no.   72776/01, 9 March 2006; Fadin v. Russia , no. 58079/00, §   34, 27 July 2006; and Savinskiy , cited above, §§   24-26). Furthermore, proceedings before the supervisory-review court should afford the procedural safeguards of Article   6   §   1 and must ensure the overall fairness of the proceedings (see Vanyan v. Russia , no. 53203/99, §§   63-68, 15 December 2005). 24.     Turning to the present case, the Court observes that the final judgment by which the criminal proceedings against the applicant had been discontinued for want of corpus delicti , was quashed at the prosecution’s request (see, by contrast, Fadin , cited above, § 34). The supervisory-instance court did not simply resume the proceedings, but remitted the case to the investigating authority for further investigation. Undoubtedly, that decision adversely affected the applicant’s individual situation (see, by contrast, Nikitin , cited above, §§ 18 and 60). 25.     The Court accepts that the supervisory review proceedings were initiated within a relatively short period of time. However, that factor alone is not sufficient to justify the quashing of the final judgment in the applicant’s case. The Court does not accept the Government’s argument that the supervisory review was aimed at the correction of the fundamental defect in the previous proceedings which might affect the outcome of the case. In that respect the Court has had regard to the reasoning of the reviewing court, which stated that the trial and appeal courts had not had at their disposal all relevant ministerial instructions and documents to decide the case (see paragraph 9 above). 26.     In the Court’s opinion, the mere consideration that the trial and appeal courts had not had regard to all relevant instructions cannot in itself, in the absence of jurisdictional errors or serious breaches of court procedure, abuses of power or any other weighty reasons stemming from the interests of justice, indicate the presence of a fundamental defect in the previous proceedings (see Radchikov   v. Russia , no. 65582/01, §   48, 24   May 2007). Otherwise, the burden of the consequences of the authorities’ lack of diligence during the pre-trial investigation would be shifted entirely onto the applicant and, more importantly, the mere allegation of a shortcoming or failure in the investigation, however minor and insignificant it might be, would create an unrestrained possibility for the prosecution to abuse process by requesting the reopening of finalised proceedings (ibid.). The Court considers that the mistakes or errors of the national authorities should serve to the benefit of the defendant. In other words, the risk of any mistake made by the prosecuting authority or a court must be borne by the state and the errors must not be remedied at the expense of the individual concerned. 27.     Finally, the Court notes that the grounds for supervisory review were identical to the grounds for an appeal under the domestic law. Such arrangement was in itself slightly conducive to the protection of legal certainty and, in the present case, led to a situation where the supervisory review court had dealt with the request for quashing as if in ordinary appeal proceedings and had reopened the finalised proceedings on vaguely formulated grounds and without considering the implication of its decision for legal certainty. 28 .     In view of the above considerations, the Court finds that the quashing of the judgment of 7 August 2001 by way of supervisory review amounted to a violation of Article 6 § 1 of the Convention. 2.     Procedural guarantees in supervisory review proceedings 29.     The Government submitted copies of the letters of 17 September 2001 which the Regional Court sent by mail to the applicant and his representative informing them of the date and time of the hearing on 21   September 2001. A copy of the prosecutor’s supervisory request had been enclosed therewith. 30.     The applicant maintained that he had not received any such notification. He contended that under national law a notification should have been by registered mail and that the Presidium court did not verify whether the applicant had been duly notified of the hearing on 21 September 2001. 31.     In view of the finding made in paragraph 28 above, the Court considers that it is not necessary to examine whether the procedural guarantees of Article 6 of the Convention were complied with. II.     ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AS REGARDS THE SUPERVISORY RULING OF 20   SEPTEMBER 2002 32.     The applicant complained that the supervisory ruling of 20   September 2002, which set aside the judgment of 9 July 2002, had violated Article   6   §   1 of the Convention (cited above). 33.     The Government submitted that on 26   April 2006 the Supreme Court had quashed the supervisory ruling in question. By doing so, the Supreme Court acknowledged the violation of the Code of Criminal Procedure in respect of the applicant. The Government concluded that the applicant had lost his victim status. 34.     The applicant submitted that the decision of 26 April 2006 had not been satisfactory, in particular because it had not afforded him compensation for unlawful prosecution. 35 .     The Court considers that this part of the application is linked to the complaint examined above and that, therefore, it should also be declared admissible. However, having regard to the conclusions in paragraph 28 above, the Court considers that it is not necessary to examine whether the 2002 supervisory review proceedings complied with Article 6 of the Convention. III.     ALLEGED VIOLATION OF ARTICLE 4 OF PROTOCOL No.   7 36.     The applicant also contended under Article 4 of Protocol No. 7 that the supervisory review proceedings had constituted a violation of his right not to be tried again in criminal proceedings for an offence of which he had been finally acquitted. 37.     The Court considers that this part of the application is likewise admissible. However, having once more regard to the conclusions in paragraphs 28 and 35 above, the Court considers that the applicant’s complaints raise no separate issue under the Convention and its Protocols   (see Radchikov , cited above § 55). IV.     OTHER ALLEGED VIOLATIONS OF THE CONVENTION 38.     Lastly, the applicant complained that the investigating authorities were slow in bringing charges against him and that the trial judge had been biased in that he had written a letter to his former employer. 39.     The Court has examined the remainder of the applicant’s complaints as submitted by him. However, having regard to all the material in its possession, it 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. V.     APPLICATION OF ARTICLE 41 OF THE CONVENTION 40.     Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A.     Damage 41.     The applicant claimed 125,000 euros (EUR) in respect of pecuniary and non-pecuniary damage. He claimed that the domestic court refused to reinstate him in his post with reference to the judgment of 22 May 2002 which was in force after the supervisory ruling of 20 September 2002. 42.     The Government submitted that the amount claimed was excessive and unsubstantiated. 43.     The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it awards the applicant EUR 1,000 in respect of non-pecuniary damage, plus any tax that may be chargeable. B.     Default interest 44.     The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1.     Declares the complaints concerning the supervisory rulings admissible and the remainder of the application inadmissible;   2.     Holds that there has been a violation of Article 6 of the Convention on account of the 2001 supervisory review proceedings;   3.     Holds that there is no need to examine the procedural complaint under Article 6 of the Convention;   4.     Holds that there is no need to examine whether the 2002 supervisory review proceedings complied with Article 6 of the Convention;   5.     Holds that no separate issue arises under Article   4 of Protocol No. 7 to the Convention;   6.     Holds (a)     that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article   44   §   2 of the Convention, EUR 1,000 (one thousand euros) in respect of non-pecuniary damage, to be converted into Russian roubles at the rate applicable on the date of settlement, plus any tax that may be chargeable; (b)     that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;   7.     Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 9 April 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.   Søren Nielsen   Christos Rozakis   Registrar   President