FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 9664/02 by Sergey Yuriyevich PLOTNIKOV against Russia

The European Court of Human Rights ( First Section), sitting on 3 May 2007 as a Chamber composed of:

Mr C.L. Rozakis , President, Mr L. Loucaides , Mr A. Kovler , Mr K. Hajiyev , Mr D. Spielmann , Mr S.E. Jebens , Mr G. Malinverni , judges, and Mr S. Nielsen , Section Registrar ,

Having regard to the above application lodged on 14 February 2002,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together ,

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 Yuriyevich Plotnikov , is a Russian national who was born in 1972 and lives in the town of Chelyabinsk . He wa s represented before the Court by Mrs O. P reobrazhenskaya , a lawyer practising in Moscow . The Russian Government (“the Government”) 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.

On 9 August 1999 the applicant was arrested on charges of murder, theft and deliberate destruction of property. From the very outset of the investigation he refused to testify or cooperate with the authorities.

On 4 September 2000 the Chelyabinsk Regional Court held its first hearing on this case. The bench was composed of Judge Zh . and two lay assessors, T. and Ch.

The applicant submitted that at one of the hearings his counsel had failed to appear, but the trial court had refused his request to adjourn the hearing. He also submitted that oral evidence given by some prosecution witnesses during the trial had not been properly recorded in the minutes and that he unsuccessfully requested the Regional Court to accept his mother as his counsel.

By judgment of 15 September 2000 the court convicted the applicant of aggravated murder and theft and sentenced him to nineteen years ’ imprisonment. The applicant submitted that the court had used his refusal to testify to support the findings about his guilt.

The applicant appealed against the judgment to the Supreme Court. In his appeal, he complained, among other things, that lay assessor T. had not complied with the domestic rules in respect of lay assessors.

On 20 August 2001 the Supreme Court applied an amnesty law as regards some of the charges and reduced the applicant ’ s sentence to eighteen years of imprisonment. It appears that the court did not examine the applicant ’ s complaint about the lay assessors and the allegedly unlawful composition of the bench.

The Supreme Court decision was serve d on the applicant on 8 October 2001.

On 10 January 2002 the applicant requested the Regional Court to provide him with information about the composition of the court that had tried his case, and in particular, the list of lay judges and the record of their participation in the trials at the material time. However, he received no response.

On 2 November 2001 and 7 May 2002 the applicant lodged a complaint with the Constitutional Court . In this complaint he alleged that the court composition in his case had been unlawful.

By decision of 10 October 2002 the Constitutional Court rejected the complaint.

On 25 September 2005 the applicant lodged a request for supervisory review with the Supreme Court of Russia. He maintained, among other things, that the court composition in his criminal case had been unlawful.

On 12 January 2006 a judge of the Supreme Court of Russia examined the applicant ’ s request and took a decision to initiate supervisory review proceedings in the case.

By a decision of 22 February 2006 the Presidium of the Supreme Court examined the arguments of the applicant ’ s appeal. It found that the participation of lay assessor T. in the proceedings was unlawful. Accordingly, the court quashed the applicant ’ s conviction and remitted the case for a fresh examination in the first instance.

By judgment of 24 July 2006 the Regional Court , sitting in a new composition, freshly examined the applicant ’ s criminal case and convicted him of aggravated murder. The applicant was sentenced to thirteen years and four months of imprisonment.

B. Relevant domestic law

For a summary of the relevant domestic law provisions, see Posokhov v. Russia , no. 63486/00, ECHR 2003 ‑ IV , and Fedotova v. Russia ( dec .), no. 73225/01, 1 April 2004 .

COMPLAINTS

1. Under Article 6 of the Convention the applicant complained about the first set of criminal proceedings in his case. In particular, he maintained that the first instance court had not been established by law and that the criminal proceedings against him had been unfair as the court had failed to adjourn the hearings when his counsel had failed to appear. In addition, he argued that his refusal to testify had been used to support the findings about his guilt, that the testimony of some prosecution witnesses had not been properly recorded in the minutes of the hearing and that the presumption of innocence and equality of arms had not been respected. The applicant also complained under the same Convention provision that the Regional Court had failed to respond to his requests for information and also had failed to grant his mother a status of counsel. The applicant also complained about the outcome of proceedings before the Constitutional Court . Finally, the applicant contended that the Supreme Court had failed to examine most of the arguments of his appeal.

2. The applicant further believed that his initial conviction by the domestic courts at two instances had unjustifiably restricted his rights under Article 8 of the Convention.

THE LAW

1. The applicant complained that the trial court composition in the initial set of criminal proceedings against him had been in breach of the domestic law and that various alleged deficiencies in that set of proceedings had rendered his conviction unfair within the meaning of Article 6. This Convention provision provides, in so far as relevant, as follows:

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

The Government submitted that simultaneously to bringing the proceedings before the Court the applicant had also successfully pursued the supervisory review proceedings in his case which had lead to quashing of the judgment in his case precisely on the ground of unlawfulness of the court composition. The domestic courts accepted the applicant ’ s arguments and remitted the case for a fresh examination at the first instance. Accordingly, the Government argued that the applicant had lost his victim status.

The applicant disagreed and argued that even though the quashing of his conviction may indeed be regarded as an acknowledgement of a violation of the Convention, no appropriate redress has been offered by the Government. In particular, the applicant insisted that the Supreme Court should have acquitted him on all charges instead of remitting the case for a fresh examination at the first instance.

At the outset the Court notes the applicant ’ s final conviction by the domestic courts at two instances was quashed on 22 February 2006 by the Presidium of the Supreme Court of Russia with reference to the unlawful composition of the trial court. The case was sent to the first instance for a fresh examination. The question arises whether, in accordance with Article 34 of the Convention, the applicant can still be regarded as a “victim” of the alleged violation of Article 6.

The Court recalls that, where criminal proceedings are re-opened after a conviction had become final, a decision quashing the conviction is, in itself, not sufficient to deprive an individual of his status as a “victim” unless the national authorities have acknowledged, either expressly or in substance, and afforded redress for, the breach of the Convention (see, among many other authorities, Dalban v. Romania , judgment of 28 September 1999, Reports of Judgments and Decisions 1999-VI, § 44).

In the present case, on 22 February 2006 the Presidium of the Supreme Court quashed the applicant ’ s conviction on the ground that during the trial lay assessor T. of the Chelyabinsk Regional Court had held his position in breach of the domestic law. The Court is of the opinion that the fact that the applicant had been tried by a tribunal not established in accordance with law could have adversely affected the fairness of the proceedings as a whole. It can therefore be assumed that by annulling the applicant ’ s conviction for the aforementioned reason, the Presidium of the Supreme Court acknowledged, in substance, that the applicants ’ right to a fair trial had been breached.

The Court next has regard to the fact that 22 February 2006 the Presidium of the Supreme Court not only set aside the applicant ’ s conviction, but further remitted his case to the first instance for a new examination, i.e. afforded the applicant the opportunity to have the charges against him determined afresh. In such circumstances the Court finds that the Supreme Court ’ s decision of 22 February 2006, taken together with the subsequent proceedings, can be regarded as sufficient redress for the alleged procedural unfairness of the original set of proceedings. The applicant has thus ceased to be a victim of the alleged violation of his rights under Article 6 of the Convention (see Popov and Vorobyev v. Russia ( dec .), no. 1606/02, 2 March 2006, and Zaytsev v. Russia , no. 22644/02, § § 18-24 , 16 November 2006 ).

It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

2. The applicant also complained about his initial conviction under Article 8 of the Convention, which provides as follows:

“1. Everyone has the right to respect for his private and family life , his home and his correspondence .

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

Leaving aside the question of the applicant ’ s compliance with the requirements set out in Article 35 § 1 of the Convention, the Court finds that this complaint does not disclose any appearance of a violation of Article 8 of the Convention.

It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to discontinue the application of Article 29 § 3 of the Convention ;

D eclares the application i nadmissible .

Søren Nielsen Christos R ozakis Registrar President