FIRST SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 26601/02 by Sergey MATVEYEV against Russia

The European Court of Human Rights (First Section), sitting on 1 February 2007 as a Chamber composed of:

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

Having regard to the above application lodged on 15 June 2002 ,

Having regard to the partial decision as to admissibility of 14 December 2004,

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. Sergey Matveyev, is a Russian national who was born in 1949 and live s in Arkhangelsk . The respondent G overnment were 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.

Proceedings against the applicants

In the 1980s the applicant together with his spouse , Mrs Matveyeva , organised short-wave radio broadcast s from their home .

On 1 May 1981 their broadcasting was terminated by the authorities. A number of searches were conducted in the ir flat.

On 12 May 1981 criminal proceedings were instituted against Mr Matveyev.

On 11 August 1981 the Lomonosovskiy District Court of the Arkhangelsk Region convicted Mr Matveyev of forge ry of a postal stamp and of having used it for sending personal correspondence free of charge, and sentenced him to two years ’ imprisonment.

On 25 September 1981 the Arkhangelsk Regional Court upheld the judgment. The applicant served the sentence and was dismissed from his job with a State enterprise .

Proceedings seeking compensation for non-pecuniary damage

On 6 October 1999 , in supervisory review proceedings, the Presidium of the Arkhangelsk Regional Court reversed Mr Matveyev ’ s conviction for forgery of a stamp, finding that it had been wrongful as there was no indication that a crime had been committed. The Presidium held:

“The letter of the Head [of the Arkhangelsk postal service] of 10 July 1981 contained in the case file makes clear that the stamp “To be sent free of charge” was used by the postal enterprises for correspondence between radio associations until 1980. [After] 1 October 1980 correspondence free of charge between short-wave radio broadcasters was permitted only on the basis of postal receipt cards... [T]herefore, the stamp was no longer valid.

Having regard to the fact that ... the stamp [could not be used to obtain profit unlawfully], the criminal case should be closed.”

In 2001 Mr Matveyev brought proceedings seeking compensation f or non-pecuniary damage sustained as a result of his wrongful conviction.

On 20 December 2001 the Lomonosovskiy District Court of Arkhangelsk dismissed the claim on the ground that at the time of the wrongful conviction there had been no provision in domestic law for claiming such damages.

O n 21 January 2002 the Arkhangelsk Regional Court upheld the judgment on appeal.

On an unspecified date the applicant applied for the proceedings to be reopened on account of newly discovered evidence.

On 24 December 2002 the Lomonosovskiy District Court of Arkhangelsk dismissed the application.

On an unspecified date the applicant applied for supervisory review of the judgment of 20 December 2001 and the ruling of 24 December 2002 .

On 4 and 17 February 2004 respectively the Arkhangelsk Regional Court dismissed the applications.

Proceedings seeking compensation for pecuniary damage

Following the delivery of the ruling of 6 October 1999 Mr Matveyev brought proceedings seeking compensation for pecuniary damage sustained as a result of his wrongful conviction within the framework of criminal proceedings.

On 27 September 2000 the Lomonosovskiy District Court of Arkhangelsk granted the claim and awarded damages in the amount of RUR 531,269.73 and costs in the amount of RUR 1,214.98. On an unspecified date a Chairman of the Arkhangelsk Regional Court lodged an application for supervisory review of the judgment.

On 7 February 2001 the Presidium of the Arkhangelsk Regional Court quashed the judgment of 27 September 2000 and remitted the case for a fresh examination by a different bench .

On 7 March 2001 the Lomonosovskiy District Court of Arkhangelsk reclassified the proceedings as civil proceedings . On 13 April 2001 the Arkhangelsk Regional Court quashed the ruling of 7 March 2001 and remitted the case for a fresh examination.

On 11 October 2001 the Lomonosovskiy District Court of Arkhangelsk awarded the applicant damages in the amount of RUR 124,583.57.

On 23 November 2001 the Arkhangelsk Regional Court quashed the judgment of 11 October 2001 and remitted the case for a fresh examination.

On 21 January 2002 the Lomonosovskiy District Court of Arkhangelsk awarded the applicant damages in the amount of RUR 2,225. Damages in the amount of RUR 393,574.87 were awarded on 7 February 2002 . Costs in the amount of RUR 1,481.18 were awarded on 28 February 2002 .

After the writs of execution were issued , the applicant transmitted them directly to the defendant , namely the Federal Treasury of the Ministry of Finance.

The judgments of 7 and 28 February 2002 were executed on 26 Novem ber 2003 . The judgment of 21 January 2002 was executed on 31 May 2004 .

On an unspecified date the applicant instituted proceedings against the Ministry of Finance seeking indexation of the amounts due under the judgments owing to the failure to execute them in due time. The proceedings are still pending.

B. Relevant domestic law

Civil Code of the Russian Federation , Part I , in force since 1 January 1995

Article 151. Compensation for non-pecuniary damage

“If a person has sustained non-pecuniary damage (physical or mental suffering) as a result of actions violating his personal non - p ecuniary rights or other non - material benefits enjoyed by citizen s , and also in other instances provided for by law, the court may require the perpetrator to afford monetary compensation for the said damage .”

Civil Code of the Russian Federation , Part II , in force since 1 March 1996

Article 1069. Liability for damage caused by State bodies, local self-government bodies and their officials

“Damage caused to an individual or a legal entity as a result of an unlawful act (failure to act) of State and local self-government bodies or of their officials, including as a result of the issuance of an act of a State or self-government body which is contrary to the law or any other legal act, shall be subject to compensation. The damage shall be compensated at the expense, respectively, of the treasury of the Russian Federation , the treasury of the subject of the Russian Federation or the treasury of the municipal authority.”

Article 1070. Liability for damage caused by unlawful actions of agencies of inquiry and preliminary investigation, prosecutor ’ s offices and the courts

“1. Damage caused to an individual as a result of his or her unlawful conviction, unlawful criminal prosecution, unlawful application, as a measure of restraint, of remand in custody or of a written undertaking not to leave a specified place and unlawful imposition of an administrative penalty in the form of arrest or corrective labour, shall be compensated in full at the expense of the treasury of the Russian Federation and in certain cases, stipulated by law, at the expense of the treasury of the subject of the Russian Federation or of the municipal authority, regardless of the fault of the officials of agencies of inquiry or preliminary investigation, prosecutor ’ s offices or courts in the procedure established by law. ...”

Article 1071. Agencies an d persons acting on behalf of the t reasury in awarding compensation for damage at its e xpense

“In instances where, in accordance with the present Code or other laws , the damage caused is subject to compensation at the expense of the treasury of the Russian Federation , the treasury of the subject of the Russian Federation or the treasury of the municipal authority , the respective financial agencies shall act on behalf of the treasury ... ”

Article 1099. General provisions

“1. The grounds and amount of compensation payable to a n individual for non-pecuniary damage shall be determine d by the rules laid down in the present Chapter and in Article 151 of the present Code.

2. ...

3. Compensation for non-pecuniary damage shall be awarded irrespective of any award for pecuniary damage .”

Article 1100. Grounds for c ompensation for non-pecuniary damage

“Compensation for non-pecuniary damage shall be awarded irrespective of the fault of the perpetrator, when:

... the damage is caused to a person as a result of his or her unlawful conviction, unlawful criminal prosecution , unlawful application , as a measure of restraint, of remand in custody or of a written undertaking not to leave a specified place , or unlawful imposition of an administrative penalty in the form of arrest or corrective labour .”

C . Relevant Council of Europe documents

Article 3

“22. This article provides that compensation shall be paid to a victim of a miscarriage of justice, on certain conditions.

First, the person concerned has to have been convicted of a criminal offence by a final decision and to have suffered punishment as a result of such conviction. According to the definition contained in the explanatory report of the European Convention on the International Validity of Criminal Judgments, a decision is final “if, according to the traditional expression, it has acquired the force of res judicata . This is the case when it is irrevocable, that is to say when no further ordinary remedies are available or when the parties have exhausted such remedies or have permitted the time-limit to expire without availing themselves of them”. It follows therefore that a judgment by default is not considered as final as long as the domestic law allows the proceedings to be taken up again. Likewise, this article does not apply in cases where the charge is dismissed or the accused person is acquitted either by the court of first instance or, on appeal, by a higher tribunal. If, however, in one of the States in which such a possibility is provided for, the person has been granted leave to appeal after the normal time of appealing has expired, and his conviction is then reversed on appeal, then subject to the other conditions of the article, in particular the conditions described in paragraph 24 below, the article may apply.

23. Secondly, the article applies only where the person ’ s conviction has been reversed or he has been pardoned, in either case on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice - that is, some serious failure in the judicial process involving grave prejudice to the convicted person. Therefore, there is no requirement under the article to pay compensation if the conviction has been reversed or a pardon has been granted on some other ground. Nor does the article seek to lay down any rules as to the nature of the procedure to be applied to establish a miscarriage of justice. This is a matter for the domestic law or practice of the State concerned. The words “or he has been pardoned” have been included because under some systems of law pardon, rather than legal proceedings leading to the reversal of a conviction, may in certain cases be the appropriate remedy after there has been a final decision.

24. Finally, there is no right to compensation under this provision if it can be shown that the non-disclosure of the unknown fact in time was wholly or partly attributable to the person convicted.

25. In all cases in which these preconditions are satisfied, compensation is payable “according to the law or the practice of the State concerned”. This does not mean that no compensation is payable if the law or practice makes no provision for such compensation. It means that the law or practice of the State should provide for the payment of compensation in all cases to which the article applies. The intention is that States would be obliged to compensate persons only in clear cases of miscarriage of justice, in the sense that there would be acknowledgement that the person concerned was clearly innocent. The article is not intended to give a right of compensation where all the preconditions are not satisfied, for example, where an appellate, court had quashed a conviction because it had discovered some fact which introduced a reasonable doubt as to the guilt of the accused and which had been overlooked by the trial judge.”

COMPLAINTS

The applicant complained under Article 3 of Protocol No. 7 about the dismissal of his claim for non-pecuniary damage sustained as a result of his wrongful conviction.

THE LAW

Relying on Article 3 of Protocol No. 7 , the applicant complained that his claim for non-pecuniary damage sustained as a result of his wrongful conviction had been dismissed .

Article 3 of Protocol No. 7 reads as follows:

“When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed, or he has been pardoned, on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to the law or the practice of the State concerned, unless it is proved that the non ‑ disclosure of the unknown fact in time is wholly or partly attributable to him.”

The Government submitted that the judgment of the Lomonosovskiy District Court of the Arkhangelsk Region of 11 August 1981 had been quashed by the Presidium of the Arkhangelsk Regional Court on 6 October 1999 on the ground that the postal stamp could not have been an instrument of the crimes of which the applicant had been accused because it had no longer been valid and therefore could not be used for those purposes. The judgment of the Lomonosovskiy District Court of 11 August 1981 and the appeal judgment of the Arkhangelsk Regional Court of 25 September 1981 had been quashed by the Presidium of the Arkhangelsk Regional Court on account of the incorrect assessment of evidence, which did not constitute a new or newly discovered fact. The applicant ’ s conviction had thus been reversed within the framework of the supervisory review procedure and not as a result of the reopening of the case due to newly discovered circumstances. Therefore, the grounds for reversal of the applicant ’ s conviction by the ruling of the Presidium of the Arkhangelsk Regional Court of 6 October 1999 did not satisfy the conditions set out in Article 3 of Protocol No. 7 . Accordingly, that provision was not applicable to the applicant ’ s complaint.

Furthermore, the applicant had been convicted in 1981, that is, before 1 August 1998, when Protocol No. 7 to the Convention entered into force in respect of Russia . Even though the applicant ’ s claim for non ‑ pecuniary damage had been dismissed after 1 August 1998, the circumstances on which the claim was based had taken place before that date. Divorcing the domestic courts ’ decisions from the events which gave rise to those proceedings would amount to giving retroactive effect to the Convention (see Litovchenko v. Russia (dec.), no. 69580/01, 18 April 2002). Accordingly, the Court had no jurisdiction ratione temporis to examine the complaint.

The applicant contested the Government ’ s submissions. He contended that at the time of his trial the relevant postal instructions concerning the use of the stamp and the receipt cards that replaced it had been available neither to the court nor to the parties. Accordingly, his conviction had eventually been reversed due to newly discovered evidence. He further argued that the consequences of his unlawful conviction in 1981 had lasted until its reversal in 2001. Therefore, the Court was competent ratione temporis to examine his complaint.

The Court finds it necessary to join the issues of applicability of Article 3 of Protocol No. 7 and its competence ratione temporis to the merits of the case.

Furthermore, t he Court considers, in the light of the parties ’ submissions, that the complaint made by the applicant under Article 3 of Protocol No. 7 raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. It concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

For these reasons, the Court unanimously

Joins to the merits the issues of applicability of Article 3 of Pro tocol No. 7 and its competence ratione temporis ;

Declares the application admissible, without prejudging the merits .

Søren Nielsen Christos Rozakis Registrar President