SECOND SECTION

CASE OF NIKITIN v. RUSSIA

( Application no. 50178/99 )

JUDGMENT

STRASBOURG

20 July 2004

FINAL

15/12/2004

In the case of Nikitin v. Russia ,

The European Court of Human Rights (Second Section) , sitting as a Chamber composed of:

Mr J.-P. Costa , President , Mr A.B. Baka , Mr L. Loucaides , Mr K. Jungwiert , Mr V. Butkevych , Mr M. Ugrekhelidze , Mr A. Kovler , judges , and Mrs S. Dollé , Section Registrar ,

Having deliberated in private on 13 November 2003 and 29 June 2004 ,

Delivers the following judgment, which was adopted on the last - mentioned date:

PROCEDURE

1 . The case originated in an application (no. 50178/99) 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 Aleksandr Konstantinovich Nikitin ( “ the applicant ” ) , on 18 July 1999 .

3 . The applicant alleged that the supervisory review proceedings conducted after his final acquittal constituted a violation of his right to a fair trial and a violation of his right not to be tried again in criminal proceedings for an offence of which he had been finally acquitted.

4 . The application was allocated to the Second Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constitu ted as provided in Rule 26 § 1.

5 . By a decision of 13 November 2003 , the C hamber d eclared the application partly admissible.

6 . The applicant and the Government each filed observations on the merits (Rule 59 § 1). The Chamber having decided, after consulting the parties, that no hearing on the merits was required (Rule 59 § 3 in fine ), the parties replied in writing to each other ’ s observations.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

7 . The applicant was born in 1952 and lives in St Petersburg .

8 . In February 1995 the applicant, a former nav al officer, joined an environmental project conducted by Bellona, a Norwegian non-governmental organisation, to work on a report entitled “The Russian Northern Fleet – Sources of Radioactive Contamination” (“the report”).

9 . On 5 October 1995 Bellona ’ s Murmansk office was searched by the Federal Security Service ( ФСБ РФ – “the FSB”). The FSB seized the draft report, interrogated the applicant and instituted criminal proceedings on suspicion of treason , since the draft report allegedly contained information , classified as officially secret , concerning accidents on Russian nuclear submarines .

10 . O n 20 October 1998 the applicant ’ s trial on a c harge of treason through espionage and a charge of aggravated disclosure of an official secret began before St Petersburg City Court . After four days of hearing s , the case was remitted for further investigation on 29 October 1998 . The court considered that the indictment was vague, which impaired the applicant ’ s defen c e and prevented the court from carrying out an examination on the merits. It also found that the investigation file left open the question whether the report contained any official secrets as such , and that it did not contain a “proper and complete” expert evaluation of possible public sources of the information in question or of the estimated damage. The court ordered the prosecution to conduct an additional expert examination into the possibility that the applicant had obtained the disputed information from public source s and to take other steps to complete the in vestigation.

11 . On 3 November 1998 the prosecution appealed against this decision, claiming that the case was clear enough for determination by a court and that there was no need for further investigation.

12 . On 4 February 1999 the order for further investigation was upheld by the Supreme Court of the Russian Federation ( “ the Supreme Court ” ).

13 . O n 23 November 1999 the St Petersburg City Court resumed the applicant ’ s trial on the same c harges .

14 . On 29 December 1999 the St Petersburg City Court acquitted th e applicant o n all the charges , having found that the applicant had been prosecuted on the basis of secret and retroactive decrees .

15 . The prosecution appealed.

16 . On 17 April 2000 the Supreme Cour t upheld the acquittal. The court found that the charges were based on secret and retroactive decrees which were incompatible with the C onstitution. The acquittal thus became final .

17 . On 30 May 2000 the Pro cura tor General filed a request with the Presidium of the Supreme Court to review the case in supervisory proceedings ( протест на приговор , вступивший в законную силу ). He challenged the judgment on the grounds of wrongful application of the law governing official secrets, the vagueness of the indictment – which had led to procedural prejudice against the applicant – and other defects in the criminal investigation, in particular the lack of an expert report as to whether the disputed info rmation had originated from public sources. He called for a re assessment of the applicable law and of the facts and evidence i n the case file , and for the case ’ s remittal for fresh investigation.

18 . On 13 September 2000 the Presidium of the Supreme Court dismissed the Pro cura tor General ’ s request and upheld the acquittal. While it acknowledged that the investigation had been tainted with flaws and short comings , it found that the prosecution could not rely on them in calling for a remittal , as it had been entirely within the prosecution ’ s control to redress them at an earlier stage in the proceedings. Moreover, the Presidium pointed out that the investigation authority had earlier been required to remedy exactly the same defects as th ose relied on in the request to quash the acquittal. It observed that o n 29 Octob er 1998 the court had expressly instructed the investigati ng authority , in ter alia , to conduct a study of info rmation in the public domain in order to ascertain whether the applicant could have obtained the disputed data from public sources.

19 . On 17 July 2002 the Constitutional Court of the Russian Federation examined the applicant ’ s challenge to the laws which allow ed supervisory review of a final acquittal.

20 . In its ruling of the same date , the Constitutional Court declared incompatible with the Constitution the legislative provisions permitting the re-examin ation and quash ing of an acquittal on the grounds of a prejudicial or incomplete investigation or court hearing or on the ground of inaccurate assessment of the facts of the case, save in cases w here new evidence had emerged or there had been a fundamental defec t in the previous proceedings.

21 . The Constitutional Court ’ s judgment stated, inter alia :

“ ... Article 4 of Protocol No. 7 to the Convention provides that the right not to be tried or punished twice does not prevent the reopen ing of the case in accordance with the law and criminal 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.

It follows ... that , subject to the above requirements, the national legislation may provide for a system by which a case may be reopen ed and a final judgment be quashed, and may specify where, depending on the case, a procedure for reopen ing on the grounds of new or newly discovered evidence or a supervisory review should apply.

Any ex emption from the general prohibition on re sum ing proceedings to the detriment of the acquitted or convicted person may be justified only in exceptional circumstances , where a failure to rectify a miscarriage of justice would undermine the very essence of justice and the purpose of a verdict as a judicial act and would upset the required balance between the constitutionally protected values involved, including the rights and legitimate interests of convicted persons and th ose of the victims of crime. In the absence of any possibility of revers ing a final judgment resulting from proceedings tainted by a fundamental defect that was crucial for the outcome of the case , an erroneous judgment of this type would continue to have effect notwithstanding the principle of general fairness ... and the principle of judicial protection of fundamental rights and freedoms.

3.2. Under the [Constitution and the Convention] any possibility provided for at national level of quash ing a final judgment and review ing a criminal case must be subject to strict conditions and criteria clearly defining the grounds for such re view , given that the judgment concerned is already binding and determinative of the individual ’ s guilt and sentence.

However , the grounds for review of final judgments provided for in the Cod e of Criminal Procedure [of 1960 ] go beyond these limits. When establishing a procedure for the re view of final convictions and, especially, acquittals ... definite grounds should have been formulated to ensure that such a procedure would be implemented with sufficient distinctness, precision and clarity to exclude its arbitrary application by the courts. In fail ing to do so, [the legislature] mis applied the c riteria which deriv e from [the Constitution] and Article 4 of Protocol No. 7 to the Convention for the quashing of final judgments in criminal cases ...

Furthermore, [ the power] of a supervisory instance to remit a case for fresh investigation where it concludes, through its own assessment of evidence, that the previous investigation has been prejudicial or incomplete, is incompatible with the constitutional principles of criminal procedure and with the Constitutional Court ’ s jurisprudence, in that it gives the prosecution an unfair advantage by providing it with additional opportunities to establish guilt even after the relevant judgment ha s become operative . It follows that a court of supervisory instance cannot quash a final acquittal only on the ground of it s being unfounded ... Accordingly, the prosecutor is not entitled to request the supervisory review of such a judgment on the ground that it is unfounded ... ”

II. RELEVANT DOMESTIC LAW AND OTHER MATERIALS

A. Applicable legislation

1. Date on which a judgment becomes effective

23 . Under the terms of Article 356 of the Code of Criminal Procedure, a judgment takes effect and is enforceable from the da te on which the appeal court renders its decision or, if no appeal has been lodged, once the t ime-limit for appeal has expired .

2. G rounds for supervi sory review and reopening of a case

Article 379 Grounds for setting aside judgments which have become effective

“ The grounds for quashing or varying a judgment [on supervisory review] are the same as [those for setting aside judgments ( which have not taken effect ) 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 in vestigation 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 convict ed person ’ s personality. ”

Article 384 Grounds for reopen ing case s due to new circumstances

“ Judgments, decisions and rulings which have become effective may be set aside on account of newly discovered circumstances.

The grounds for reopen ing a criminal case are as follows:

(i) with regard to a judgment which has become effective , the establishment of false witness testimony or false expert opinion ; forgery of evidence, investigation records, court records or other documents ; or an indisputably erroneous translation which ha s entail ed the pronouncement of an unfounded or unlawful judgment;

(ii) with regard to a judgment which has become effective , the establishment of criminal abuse of their powers by judges when examining the case ;

(iii) with regard to a judgment which has become effective , the establishment of criminal abuse of their powers by investigation officers dealing with the case, where this has entailed the pronouncement of an unfounded or unlawful judgment or a decision to terminate the prosecution;

(iv) other circumstances , unknown to the court at the time when the case was examined, which , alone or combined with other previously established facts , prove a convicted person ’ s innocence or the commi ssion by him or her of an offence which is more or less serious than th at of which he or she was convicted, or which prove the guilt of a person who was acquitted or whose prosecution was terminated. ”

3. Authorised officials

24 . 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 Pro curat or General , the President of the Supreme Court of the Russian Federation or their respective d eputies in re lation to any judgment other than those of the Presidium of the Supreme Court, and by the p residents of the regional courts in respect of any judgment of a regional or subordinate court. A party to criminal or civil proceedings could solicit the intervention of those officials for a review.

4. Limitation period

25 . Article 373 of the Code of Criminal Procedure set a limitation period of one year during which a request calling for the supervisory review of an acquittal could be brought by an authorised official. The period r a n from the da te on which the acquittal took effect .

5. The effect of a supervisory review on acquittal s

26 . 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 th e competent court . The court could examine the case on the merits and was not bound by the scope and grounds of the request for supervisory review .

27 . The Presidium could dismiss or grant the request. If it dismissed the request , the earlier judgment remained in force . If it granted the request, the Presidium could decide to quash the judgment and terminate the criminal proceedings , to remit the case for a new investigation , to order a fresh court examination at any instance , to uphold a first - instance judgment reversed on appeal , or to vary or uphold any of the earlier judgments.

28 . 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 a new examination.

29 . On 1 July 2002 a new Code of Criminal P rocedure came into force. Under Article 405, the application of supervisory review is limited to th os e cases where it does not involve changes that would be detrimental to the convicted person. A cquittals and decisions to discontinue the proceedings may not be the subject o f a supervisory review.

B. Relevant materials

30 . On 19 January 2000 , at the 694 th meeting of the Ministers ’ Deputies , the Committee of Ministers of the Council of Europe a dopted Recommendation No. R (2000) 2 on the re-examination or reopen ing of certain cases at domestic level following judgments of the European Court of Human Rights . The r ecommendation encouraged the Contracting Parties to examine their national legal systems with a view to ensuring that there exi st ed adequate possibilities t o re - examine the case, including the reopen ing of proceedings, in instances where the Court had found a violation of the Convention .

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 4 OF PROTOCOL No . 7 TO THE CONVENTION

31 . The applicant contend ed that the supervisory review proceedings which took place after his final acquittal constituted a violation of his right not to be tried again in criminal proceedings for an offence of which he had been finally acquitted. He allege d that , at the least, he was liable to be tried again on the same c harges , since the very fact of the Pro cura tor General ’ s lodging a request for supervisory review created the potential for a new prosecution. He relied on Article 4 of Protocol No. 7 to the Convention , the relevant parts of which provide:

“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 reopen ing 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.

... ”

A. The p arties ’ submissions

32 . The Government consider ed that , for the purposes of Article 4 of Protocol No. 7 , the supervisory review proceedings did not constitute a second trial. They contend ed that the domestic law at the material time did not permit the supervisory instance to convict the a pplicant , but only to quash the previous judgments and to remit the case for fresh examination in adversarial proceedings. In support of their position , they referred to the Constitutional Court ’ s ruling of 17 July 2002 i n the applicant ’ s case. The Government submit ted that the applicant ’ s acquittal c ould not be said to have been invalidated or suspended at any time, given that the P ro curat or General ’ s request w as dismissed by the Presidium.

33 . The Government further point ed out that , following the recent change in the legislation , final acquittals c ould no longer be challenge d by way of su pervisory review, and other judgment s c ould not be challenged by way of supervisory review if they would be detrim ent al to a convicted person .

34 . The applicant contest ed the Government ’ s position and submit ted that , contrary to the non bis in idem principle , the Pro cura tor General ’ s request had made him liable to be tried again for an offence of which he had been finally acquitted . Although the outcome remained unchanged, he had effectively been prosecuted twice for the same offence. He claim ed that the supervisory review was not justified as an exceptional reopen ing ‑ permitted by the second paragra ph of Article 4 of Protocol No. 7 ‑ because the Presidium had established no fundamental defect in previous proceedings which would require a re -examination of the case .

B. The Court ’ s assessment

– whether the re had been a “final” decision before the supervisory instance intervened , or whether the supervisory review was a n integral part of the ordinary procedure and i tself provided a final decision;

– whether the applicant was “tried again” in the proceedings before the Presidium ; and

– wh ether the applicant became “liable to be tried again” by virtue of the Pro curator General ’ s request .

Finally, the Court will consider whether , in the circumstances of the case, the supervisory review could in principle have give n r ise to any form of duplication of the criminal proceedings , contrary to the protection afforded by Article 4 of Protocol No. 7.

1. Whether the applicant ha d been “ fina lly acquitted” prior to the supervisory review

38 . The Court notes that the procedural law at the time allowed certain officials to challenge a judgment which had taken effect . The grounds for supervisory review were the same as for lodging an ordinary appeal. With regard to acquittals, the request for supervisory review could be lodged within one year of the judgment ’ s taking effect . Assuming that the Presidium granted the Pro cura tor General ’ s request and th at th e proceedings were re launched, the ensui ng ruling would still constitute the only decision in the applicant ’ s criminal case, with no other decision remaining concurrently in force, and that decision would be “final”. Thus, it appears that the domestic legal system in Russia at the time did not regard decisions such as the acquittal in the present case as “final” until the time-limit for making an application for supervisory review had expired. On that basis, the decision by the Presi dium of the Supreme Court o n 13 September 2000 not to accept the case for supervisory review would be the “final” decision in the case. On suc h an interpretation, Article 4 of Protocol No. 7 would have no application what so ever in the present case, as all the de cisions before the Court related to the s ame single set of proceedings.

2. Whether the applicant was “ tried again ” in the proceedings before the Presidium

40 . The Court observes that the Pr o cura tor General ’ s request for supervisory review of the acquittal was examined by the Presidium . Its determination was limited, at that stage, to the question whether to grant the request for supervisory review. In the circumstances of the present case , the Presidium did not accept the application for review, and the final decision remained that of 17 April 2000 .

41 . It follows that the applicant was not “tried again ” within the meaning of Article 4 § 1 of Protocol No. 7 in the proceedings by which the Presidium of the Supreme Court rejected the Pro cura tor General ’ s request for supervisory review of the applicant ’ s acquittal.

3. Whether the applicant was “ liable to be tried again ”

42 . The Court has further consider ed whether the ap plicant was “liable to be tried again ” , as he allege d . It notes that , had the request been granted , the Presidium would have bee n required, by Article 380 of the Code of Criminal Procedure in force at the time , to choose one of the options set out in paragraph 27 above. Importantly, the Presidium was not empowered to make a new determination on the merits in the same proceedings , but merely to decide whether or not to grant the Pro cura tor General ’ s request.

43 . It appears therefore that the potential for resumption of proceedings in this case would have been too remote or indirect to constitute “ liability ” for the purposes of Article 4 § 1 of Protocol No. 7 .

44 . Although the elements discussed in paragraphs 40 to 43 above are in themselves sufficient to demonstrate that supervisory review in this case did not lead to a violation of Article 4 of Protocol No. 7, the Court notes that there exists a substantive, and thus more important, reason to reach the same conclusion. It considers that the crucial point in this case is that supervisory review could not in any event have given rise to a duplication of criminal proceedings , within the meaning of Article 4 § 1 of Protocol No. 7, for the following reasons.

45 . The Court observes that Article 4 of Protocol No. 7 draws a clear distinction between a second prosecution or trial , which is prohibited by the first paragraph of that Article , and the resumption of a trial in exceptional circumstances, which is provided for in its second paragraph. Article 4 § 2 of Protocol No. 7 expressly envisages the possibility that an individual may have to accept prosecution on the same c harges, in accordance with domestic law, where a case is reopened following the emergence of new evidence or the discovery of a fundamental defect in the previous proceedings.

47 . T he applicant ’ s argument that the supervisory review was unnece ssary and amounted to an abuse of process is not relevant to the ques tion of compliance with Article 4 of Protocol No. 7: t he manner in which the power was exercised is relative to the overall fairness of criminal proceedings, but cannot be decisive for the purpose of identifying the procedure as a “ reopen ing ” as opposed to a “second trial” . O n the fact s of the present case , the proceedings aimed at securing a supervisory review were a n attempt to have the proceedings reopen ed rather than a n attempt ed “second trial”.

48 . Finally, the Court notes that the conformity with the requirem ent of lawfulness under Article 4 § 2 of Protocol No. 7 is undisputed in the present case .

49 . The Court concludes t hat the applicant was not liable to be tried or punished again within the meaning of Article 4 § 1 of Protocol No. 7 to the Convention , and that accordingly there has been no violation of that provision .

II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

50 . The applicant maintain ed that the supervisory review proceedings conducted after his final acquittal constituted a violation of his right to a fair trial. He relied on Article 6 § 1 of the Convention , the relevant part of which provides:

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

A. The parties ’ submissions

51 . In their post-admissibility submissions, t he Government state d that the supervisory review proceedings did not constitute a new examination of the applicant ’ s criminal charge because the request to quash the acquittal lodged by the Pro cura tor General had been dismissed by the Presidium of the Supreme Court without examining the merits. They inform ed the Court that, just as Article 380 § 2 of the Code of Criminal Procedure prohibited the Presidium from increas ing a sentence or chang ing a legal classification to a more serious one without remitting the case for new examination, the Presidium itself was unable to replac e an acquittal with a conviction while simultaneously granting the request for reopen ing. They also claim ed that , since the supervisory review proceedings had no adverse impact on the applicant ’ s final acquittal, they c ould not have constitute d a violation of the applicant ’ s right to a fair hearing withi n the meaning of Article 6 § 1 of the Convention.

52 . The Government point ed out that the supervisory review in the present case had been conducted in accordance with the procedure prescribed by law. In particular, the Procurator General ’ s request had been lodged within one year of the acquittal taking effect .

53 . The applicant disputed those submissions and maintain ed that the very possibility of challeng ing the final and enforceable acquittal had violate d his right to a fair trial. He state d that , although the supervisory review had complied with the formal requirements imposed by law at the material time, it had not been necessary. He claim ed that , in the circumstances of the case , the P ro cura tor General ’ s call for supervisory review proceedings had clearly been an abus e of process and incompatible with the Convention principles.

B. The Court ’ s assessment

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Holds that there has been no violation of Article 4 of Protocol No. 7 to the Convention;

2 . Holds that there has been no violation of Article 6 § 1 of the Convention.

Done in English, and notified in writing on 20 July 2004 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

S. Dollé J.-P. Costa Registrar President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the concurring opinion of Mr Loucaides is annexed to this judgment.

J.-P. C . S. D .

CONCURRING OPINION OF JUDGE LOUCAIDES

I have voted with the majority that there h as been no violation of Article 4 of Protocol N o. 7 and Article 6 § 1 of the Convention in this case. However, the reasons for my finding as regards the applicant ’ s complaint under Article 4 of Protocol No. 7 are different from those of the majority. In my opinion, the applicant was not a victi m in respect of this complaint.

In order to examine the merits of the complaints in question, we should first be satisfied that the applicant was either tried or prosecuted (see Zigarella v. Italy (dec.), no. 48154/99, ECHR 2002-IX) through, or as a result of, the request by the Pro cura tor General to the Presidium of the Supreme Court that the case be reviewed in supervisory proceedings.

However, the Presidium of the Supreme Court dismissed the P ro cura tor General ’ s request, with the result that no supervisory proceedings against the applicant ever took place. In the circumstances, I do not see how the applicant can be considered a victim as regards his complaint that supervisory review proceedings took place after his final acquittal, and that such proceedings constituted a violation of his right not to be tried again in criminal proc e ed ings for an offence of which he had been finally acquitted.

In other words, the Pro cu r ato r General ’ s request for a review of the case having been dismissed, one cannot speak of any commencement or recommencement of prosecu tion or trial of the applicant.

It is true that Article 4 of Protocol No. 7 refers to the right not to be “ liable to be tried or punished again ... for an offence ...” (emphasis added). However, in my opinion, no one can be considered “liable” to be tried or prosecuted, in any real sense, for an offence unless all the necessary legal prerequisites for that trial or prosecution, according to the relevant national legal system, are satisfied. In this case, one of the essential prerequisites for the further trial or prosecution of the applicant, at the material time, was approval of the Procurator General ’ s request for review of the case, a co ndition that was not satisfied.

Moreover, since his acquittal, the applicant has n ot faced a ny other charge in whatever form. In the absence of such measures, I do not see how he could be considered as having been “liable” to prosecution for the purposes of Article 4 of Protocol No. 7, unless we stretch the concept of “prosecution” beyond its normal or established meaning.