FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 31697/03 by Levan Valeryevich BERDZENISHVILI against Russia

The European Court of Human Rights (First Section), sitting on 29 January 2004 as a Chamber composed of:

Mr C.L. Rozakis , President , Mrs F. Tulkens , Mrs N. Vajić , Mr E. Levits , Mrs S. Botoucharova , Mr A. Kovler , Mr K. Hajiyev , judges , and Mr S. Nielsen , Section Registrar ,

Having regard to the above application lodged on 17 September 2003,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Levan Valeryevich Berdzenishvili , is a Russian citizen of Georgian ethnic origin, who was born in 1984 and lives in Moscow. He was represented before the Court by Ms Arkenas Surova .

A. The circumstances of the case

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

The applicant and two other persons, B. and T., both of Russian ethnic origin, were charged with murder.

On 21 June 2002 the Moscow City Court convicted all three defendants. The court sentenced the applicant to seven years ’ imprisonment, and B. and T. to three and a half and four years ’ imprisonment respectively.

On 16 July 2002 the applicant filed a cassation appeal to the Supreme Court.

On 18 September 2002 the Supreme Court upheld the judgment as such but ruled that the applicant should serve his sentence in a prison with a lower security classification.

On 12 March 2003 the applicant asked the Presidium of the Supreme Court to lodge an application for supervisory review of the judgment. He maintained that the sentence was unfair as the trial court had disregarded his emotional distress at the time of the murder and a number of other extenuating circumstances.

On 10 June 2003 a judge of the Supreme Court refused to lodge the application for supervisory review.

B. Relevant domestic law

On 18 December 2001 the State enacted a new Code of Criminal Procedure (“CCrP”) to replace that of 1960. The CCrP came in force on 1 July 2002.

Article 373. Subject-matter of proceedings in a court of cassation

“A court of cassation shall examine cassation [appeals] in order to verify the lawfulness, validity and fairness of judgments and other court decisions.”

Article 379. Grounds for quashing or varying court decisions in cassation proceedings

“The grounds for quashing or varying a judgment on cassation shall be:

i ) a discrepancy between the conclusions reached by the court in the judgment and the facts established by the court of the first or appeal instance;

ii) a breach of the rules of criminal procedure;

iii) incorrect application of the criminal law;

iv) unfairness of the sentence.

2. Chapter 46 of the CCrP defines the execution of judgments:

Article 390. Entry into force and execution of judgments

“1. Where parties do not appeal against the judgment of a court of first instance, the judgment shall come into force on expiry of the time-limit for the lodging of an appeal or cassation appeal against it...

3. Where a cassation [appeal] is lodged, a judgment, unless quashed by the court of cassation, shall come into force on the date of the cassation decision...”

4. A judgment shall be put into effect by the court of first instance within 3 days of it coming into force or of the return of the case-file from the ... court of cassation.”

Article 392. Binding force of judgments, decisions and rulings

“1. Court judgments, decisions and rulings which have come into force shall be binding on all State bodies, local authorities, non-governmental organisations, State officials and other natural and legal persons. Judgments, decisions and rulings shall be strictly adhered to throughout the territory of the Russian Federation.

2. Non-execution of a judgment, decision or ruling shall be a criminal offence.”

3. Section 15 of the CCrP defines the procedures by which judgments which have come into force may be re-examined. Chapter 48 [1] , the first in this Section, defines the supervisory-review procedure:

Article 402. Appeal against judgments, decisions and rulings which have come into force

“1. Defendants who have been convicted or acquitted, their [counsel], victims or their counsel and the public prosecutor shall be entitled to petition for review of court judgments, decisions and rulings which have come into force in accordance with the procedure set out in the present Chapter.

2. The public prosecutor ’ s petition shall be termed a supervisory-review application ( представление ). Other parties ’ petitions shall be termed supervisory-review complaints ( жалоба ).”

Article 403. Courts which may examine supervisory-review complaints or applications

“Supervisory-review proceedings against:

1. ... a judgment of a District Court; a cassation judgment of ... a Regional Court... may be brought before the Presidium of a ... Regional Court...;

2. [judgments] listed in paragraph 1 of the present Article which have already been appealed against under the supervisory-review procedure in the Presidium of ... a Regional Court; a judgment ... of a Regional Court ... which has not been appealed against under the cassation procedure in the Supreme Court; a ruling of a Presidium of a ... Regional Court may be brought before the Supreme Court;...”

Article 404. Procedure for lodging supervisory-review complaints or applications

“1. A supervisory-review complaint or application ... shall be lodged directly with the [competent] supervisory-review court...”

Article 405. No prejudice to the defendant in supervisory-review proceedings

“There shall be no supervisory review of [convictions] where the review is requested on the ground that a more serious charge should be applied, that the sentence is too lenient or on other grounds unfavourable to the convicted person. There shall be no supervisory review of acquittals or of decisions to discontinue criminal cases.”

Article 406. Examination of supervisory-review complaints or applications

“1. A supervisory-review complaint or application shall be examined by a supervisory-review court within 30 days of being lodged.

2. The judge who examines the supervisory-review complaint or application may, where necessary, obtain ... any criminal case-file...

3. After examining the supervisory-review complaint or application, the judge shall decide as follows: either

i ) to dismiss the supervisory-review complaint or application; or,

ii) to institute supervisory-review proceedings and to pass the supervisory-review complaint or application for consideration by the supervisory-review court...

4. The President of the [competent] court may decline to accept the judge ’ s decision to dismiss the supervisory-review complaint or application. In this case he shall set aside this decision and give a decision according to paragraph 3 ii) [above].”

Article 407. Examination of criminal cases by supervisory-review courts

“1. The supervisory-review court ... shall examine the supervisory-review complaint or application within 15 days of the interim decision... The court shall inform [the parties] about the day, time and place of the hearing...

2. The public prosecutor shall participate in the hearing; the defendant, whether convicted or acquitted, his [counsel], and other persons whose interests are affected by the complaint or application, may participate in the hearing at their request. The said persons shall have an opportunity to examine the supervisory-review complaint or application.

3. A report on the case shall be presented by a member of the presidium of the [competent] court or by another judge who has not previously been involved in examining the case.

4. The rapporteur shall give an account of the facts of the case; he is to report on the content of the judgment, decision or ruling, present the grounds of the supervisory-review complaint or application and the grounds for instigating the supervisory-review proceedings.

5. The prosecutor shall then be called on to support his supervisory-review application or to comment on the supervisory-review complaint.

6. Where the defendant, whether convicted or acquitted, his [counsel], the victim or his counsel are participating in the hearing, they may make oral submissions after the prosecutor.

7. The parties shall then leave the court room.

8. Once the parties have left the court room, the [court] shall give its [decision]...”

Article 408. Decision of the supervisory-review court

“1. After examining the criminal case, the supervisory-review court may:

i ) dismiss the supervisory-review complaint or application and uphold the decisions complained of;

ii) quash the judgment, decision or ruling together with all subsequent judicial acts, and close the proceedings;

iii) quash the judgment, decision or ruling together with all subsequent judicial acts, and remit the case for a fresh examination;

iv) quash the judgment of the court of appeal together with all subsequent judicial acts, and remit the case for a fresh examination on appeal;

v) quash the decision of the court of cassation together with all subsequent judicial acts and remit the case for fresh cassation proceedings;

vi) vary the judgment, decision or ruling...”

Article 409. Grounds for quashing or varying final judicial acts

“1. Judgments, decisions or rulings may be quashed or varied in the course of the supervisory-review procedure on the grounds set out in Article 379 §§ 2–4 of the present Code.

2. A decision or ruling of a court of first instance, a ruling of the court of cassation or a ruling or decision of a supervisory-review court shall be quashed or modified where the supervisory-review court finds that:

i ) the decision or ruling of a court of first instance is unlawful or unfounded;

ii) the decision or ruling of a higher court has upheld, quashed or varied an existing judgment, decision or ruling without sufficient grounds;

iii) the decision or ruling has been delivered in breach of the requirements of the present Code, and that this fact has or may have affected the correctness of that decision or ruling.”

Article 410. Scope of the authority of a supervisory-review court

“1. When examining a criminal case under the supervisory-review procedure the court is not bound by the grounds of the supervisory-review complaint or application and may review the proceedings as a whole.

2. If in a criminal case several persons have been convicted, but the supervisory-review complaint or application is lodged only by or on behalf of one of them, the supervisory-review court may examine the case in respect of all the convicted persons.

3. A supervisory-review court ... may reduce the sentence or apply the criminal law concerning a less serious offence...

6. A supervisory-review court ’ s instructions shall be binding on the lower court which will re-examine the case.

7. When examining a criminal case, a supervisory-review court may not:

i ) establish or deem proven facts which have not been established in the judgment or have been rejected in it;

ii) pre-judge questions of guilt, of the credibility of evidence or the probative value of given pieces of evidence;

iii) take a decision as to what particular criminal law should be applied by trial and appeal courts, or about what the appropriate penalty should be.

8. Equally, when a supervisory-review court quashes the decision of a court of cassation, it may not pre-determine the conclusions which the court of cassation may reach during a fresh examination of the case.”

Article 412. Lodging of new supervisory-review complaints or applications

“1. It is forbidden to lodge new supervisory-review complaints or applications to a court which has already dismissed such complaints or applications.

2. Where an earlier judgment, decision or ruling has been quashed on cassation or under the supervisory-review procedure, it is possible to lodge a supervisory-review complaint or application against it according to the rules of the present Chapter, irrespective of the reasons why the original judgment, decision or ruling was quashed.”

4. The next Chapter (Chapter 49) specifies when proceedings may be re-opened owing to new or newly-discovered circumstances:

Article 413. Grounds for re-opening criminal proceedings owing to new or newly-discovered circumstances

“1. A court judgment, decision or ruling which has come into force may be quashed and the criminal proceedings re-opened in view of new or newly-discovered circumstances.

2. The grounds for re-opening of the criminal proceedings pursuant to the present Chapter are:

i ) newly-discovered circumstances as defined in part 3 of the present Article, which existed when the judgment ... came into force but of which the court was unaware;

ii) new circumstances as defined in part 4 of the present Article which remove the criminality and punishability of the act.

3. The following shall be recognised as newly-discovered circumstances:

i ) perjury which has been established by a court, committed by a victim, witness or expert; forgery of exhibits and transcripts of investigative and court proceedings or obvious irregularity in interpretation which has resulted in an unlawful, invalid or unjust sentence...;

ii) [conviction] of an [investigating officer] or a public prosecutor for offences which resulted in an unlawful, invalid or unjust sentence...;

iii) [conviction] of a judge for offences committed in the course of examination of the criminal case.

4. The following shall be recognised as new circumstances:

i ) a ruling of the Constitutional Court which declares unconstitutional a law relied on in the criminal proceedings;

ii) a ruling of the European Court of Human Rights which finds a violation of the Convention for the Protection of Human Rights and Fundamental Freedoms by a Russian court during the criminal proceedings, where the violation flows from:

a) the application of a federal law that is incompatible with the [Convention];

b) other breaches of the [Convention];

iii) other new circumstances...”

Article 414. Time-limits for re-opening proceedings

“1. There shall be no time-limit for review of a conviction on the ground of new or newly-discovered circumstances where the review would be to the defendant ’ s benefit...

3. Where an acquittal, a [decision] to discontinue a case or a conviction must be reviewed because the punishment is too lenient ..., the review may only be initiated within the limitation periods for instituting criminal proceedings ... but no later than one year after the discovery of new circumstances.”

COMPLAINT

The applicant complained under Article 14 of the Convention that the sentence of the Moscow City Court discriminated against him on the ground of his ethnic origin. He claimed that, although B. and T. were at least equally guilty, the punishment they had received was more lenient. In the applicant ’ s opinion, the court was prepared to be more indulgent with Russians than with a person of Georgian ethnic origin.

THE LAW

The applicant complained under Article 14 of the Convention that the sentence had been discriminatory.

The Court considers it appropriate first to determine whether the applicant has complied with the admissibility requirements defined in Article 35 § 1 of the Convention, which stipulates:

“1. The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken.”

The Court points out that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges those seeking to bring their case against the State before an international judicial or arbitral organ to use first the remedies provided by the national legal system. Consequently, States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system (see Akdivar and Others v. Turkey , judgment of 16 September 1996, Reports of Judgments and Decisions 1996-IV, § 65).

The Court observes that the requirements contained in Article 35 § 1 concerning the exhaustion of domestic remedies and the six-month period are closely interrelated, since not only are they combined in the same Article, but they are also expressed in a single sentence whose grammatical construction implies such correlation (see Hatjianastasiou v. Greece , no. 12945/87, Commission decision of 4 April 1990).

Lastly, the Court observes that the purpose of the six-month rule is to promote security of the law and to ensure that cases raising issues under the Convention are dealt with within a reasonable time. Furthermore, it ought also to protect the authorities and other persons concerned from being under any uncertainty for a prolonged period of time. Finally, it should ensure the possibility of ascertaining the facts of the case before that possibility fades away, making a fair examination of the question at issue next to impossible (see Kelly v. the United Kingdom , no. 10626/83, Commission decision of 7 May 1985, Decisions and Reports (DR) 42, p. 205; Baybora and Others v. Cyprus ( dec. ), no. 77116/01, 22 October 2002).

In the present case the Court notes that the applicant ’ s conviction was upheld by the Supreme Court on 18 September 2002. Subsequently, on 12 March 2003, the applicant submitted a complaint seeking supervisory review of the judgment, pursuant to the rules set out in Chapters 48 and 49 of the CCrP. This complaint was rejected on 10 June 2003 by a judge of the Supreme Court.

The application to the Court was introduced on 17 September 2003, i.e. less than six months from the date of the decision to refuse the supervisory-review complaint, but more than six months after the date of the Supreme Court ’ s judgment. It follows that the Court may only deal with the application if supervisory review is considered a remedy within the meaning of Article 35 § 1 of the Convention, in which case the six-month period provided for in that Article should be calculated from the date of the decision to refuse the supervisory-review complaint.

The Court notes that it has jurisdiction in every case to assess in the light of the particular facts whether any given remedy appears to offer the possibility of effective and sufficient redress within the meaning of the generally recognised rules of international law concerning the exhaustion of domestic remedies and, if not, to exclude it from consideration in applying the six-month time-limit.

The Court refers, further, to the extensive case-law to the effect that an application for retrial or similar extraordinary remedies cannot, as a general rule, be taken into account for the purpose of applying Article 35 of the Convention (see, for example, R. v. Denmark , no. 10326/83, Commission decision of 6 October 1983, DR 35, p. 218; Tumilovich v. Russia ( dec. ), no. 47033/99, 22 June 1999).

In the present case the Court notes that, under the CCrP, supervisory-review complaints may be brought at any time after a judgment becomes enforceable, even years later.

Furthermore, pursuant to Article 403 of the CCrP, if the Presidium of a Regional Court dismisses a supervisory-review complaint, it may be re-submitted to the Supreme Court. Pursuant to Article 406-4 of the CCrP, where a judge refuses to transfer a supervisory-review complaint to a supervisory-review court, the President of the court may overrule the judge ’ s decision. Exercise of these rights is also not subject to a time-limit.

The Court considers that if the supervisory-review procedure under the CCrP were considered a remedy to be exhausted, the uncertainty thereby created would render nugatory the six-month rule.

In these circumstances the Court finds that a supervisory-review complaint is akin to an application for retrial and similar remedies which should not normally be taken into consideration as a remedy under Article 35 § 1 of the Convention. The Court finds no special circumstances which could justify a different conclusion.

The Court therefore considers that the “final” decision in the present case was the judgment of the court of cassation, that is the judgment of the Supreme Court of 18 September 2002. Furthermore, the applicant ’ s attempts to obtain a supervisory review cannot bring the application within the six-month time-limit laid down in Article 35 § 1.

Since the judgment of the court of cassation was delivered more than six months before the date on which the application was lodged with the Court, it follows that the application has been introduced out of time and must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Søren Nielsen Christos Rozakis Registrar President

[1] 1 . Came into force on 1 January 2003.