FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 75469/01 by Bogdan Aleksandrovich KISELEV against Russia

The European Court of Human Rights (Fifth Section), sitting on 5 February 2007 as a Chamber composed of:

Mr P. Lorenzen , President , Mrs S. Botoucharova , Mr K. Jungwiert , Mr R. Maruste , Mr A. Kovler , Mr J. Borrego Borrego , Mrs R. Jaeger, judges , and Mrs C. Westerdiek , Section Registrar ,

Having regard to the above application lodged on 17 April 2001,

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 Bogdan Aleksandrovich Kiselev, is a Russian national who was born in 1973 and lives in Vyatskiye Polyany. 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 7 February 2000 the applicant was detained on remand on suspicion of having committed a rape. He remained in custody throughout the investigation.

On 3 May 2000 the Vyatsko-Polyanskiy District Court of the Kirov Region ( Вятско - Полянский районный суд Кировской области ) found the applicant guilty of an aggravated rape and a violent sexual assault and sentenced him to two years and two months of imprisonment. In deciding on the sentence the court applied Section 64 of the Criminal Code which allowed imposing a penalty below the statutory minimum (which was four years ’ imprisonment) with regard to the voluntary compensation paid to the victim, her request to terminate the applicant ’ s prosecution, the absence of the previous criminal record and the fact that the applicant had a child.

On 10 May 2000 the Vyatsko-Polyanskaya District Prosecutor ’ s Office filed an appeal against the judgment on the grounds of too a lenient sentence resulting from an unjustified application of Section 64 of the Criminal Code. On unidentified date the applicant also filed an appeal pleading not guilty and requesting to reduce his sentence and to release him on parole.

On 26 May 2000 the Amnesty Act entered into force.

On 8 August 2000 the Kirov Regional Court ( Кировский областной суд ) dismissed the appeals of both parties and upheld the judgment of the District Court in the final instance. It held, in particular, that the applicant ’ s participation in the rape was “secondary” and that this in combination with other circumstances referred to by the first instance justified application of the sanction below the statutory minimum. The court expressly refused to apply the Amnesty Act.

On 18 August 2000 the Vyatsko-Polyanskiy District Court of the Kirov Region, in a separate decision, discharged the applicant from the punishment by virtue of the Amnesty Act.

On 31 October 2000 the Kirov Regional Prosecutor ( прокурор Кировской области ) lodged an application for supervisory review seeking to have the judgments of 3 May and 8 August 2000 quashed on the grounds that the sentence imposed was too lenient, specifically challenging the application of Section 64 of the Criminal Code.

On 15 November 2000 the Presidium of the Kirov Regional Court ( президиум Кировского областного суда ) granted the application and remitted the case for a new examination at first instance. The Presidium also quashed the decision of 18 August 2000 .

On 27 December 2000 the Vyatsko-Polyanskiy District Court of the Kirov Region found the applicant guilty on the same counts and sentenced him to four years and six months of imprisonment. It found that there had been no “exceptional circumstances” justifying the application of Section 64 of the Criminal Code. Pursuant to this judgment the applicant was t ak en into custody following the court hearing.

The applicant lodged an appeal against this judgment claiming, inter alia , that he had been tried and punished twice for the same offence.

On 3 April 2001 the Kirov Regional Court dismissed the applicant ’ s appeal and upheld the judgment of the District Court in the final instance.

On 28 November 2002 the Kirovo-Chepetskiy District Court of the Kirov Region ( Кирово - Чепецкий районный суд Кировской области ) released the applicant on parole.

B. Rele vant domestic law

1. Criminal liability

Section 131 § 2 (b) of the 1996 Criminal Code provides that a rape committed by a group of persons is punishable by a prison term of four to ten years. Section 132 § 2 (b) provides for the same sanction for a violent sexual assault committed by a group of persons.

Section 64 of the Code provides that the court may impose a sanction below the minimum punishment provided for in respect of a particular criminal offence if it finds exceptional circumstances mitigating the public danger of the committed crime. The following circumstances, or their combination, may be considered for the purposes of this provision: the aim or the cause of the crime, the extent of participation, the culprit ’ s behaviour during or after committing the crime and other circumstances.

Section 1 of the Amnesty Act of 26 May 2000 absolved all persons convicted for the first time and whose sentence did not exceed three years from serving their sentence.

2. Supervisory review in criminal proceedings

Section VI, Chapter 30, of the 1960 Code of Criminal Procedure ( Уголовно-процессуальный кодекс РСФСÐ ), as applicable at the material time, allowed certain officials to challenge a judgment which had become final and to have the case reviewed on points of law and procedure. The supervisory review procedure (Articles 371-383) was distinct from proceedings in which a case was reviewed in the light of newly-established facts (Articles 384-390). However, similar rules applied to both procedures (Article 388).

(a) Date on which a judgment becomes final

Article 356 of the Code of Criminal Procedure provided that a judgment took effect and became enforceable from the date on which the appellate court delivered its judgment or, if it was not appealed against, once the time-limit for appeal had expired.

(b) Grounds for supervisory review and reopening of a case

Article 379 Grounds for setting aside judgments which have become final

“The grounds for quashing or varying a judgment [on supervisory review] are the same as [those for setting aside judgments (which have not become final) 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 investigation 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 convicted person ’ s personality.”

(c) Authorised officials

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 Procurator-General, the President of the Supreme Court of the Russian Federation or their respective deputies in relation to any judgment other than those of the Presidium of the Supreme Court, and by the presidents of the regional courts in respect of any judgment of a regional or subordinate court. A party to criminal or civil proceedings could seek the intervention of those officials to apply for such a review.

(d) Limitation period

Article 373 of the Code of Criminal Procedure set a limitation period of one year during which an application for a supervisory review that might be detrimental to a convicted person could be submitted by an authorised official. The period ran from the date on which the impugned judgment became enforceable.

(e) The effect of a supervisory review

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 the appropriate court. The court could examine the case on the merits, was not bound by the scope and grounds of the request for supervisory review and was obliged to conduct a full review of the evidence.

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

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 reconsideration.

COMPLAINTS

The applicant complained under Article 4 of Protocol No. 7 that he had been tried and punished twice. In particular, he submitted that the quashing of the final judgment of 8 August 2000 and the subsequent retrial had been in contravention of this Article.

He also complained under Article 5 § 1 (a) that he had been twice convicted by an incompetent court, and under Article 5 § 1 (c) that his detention on remand was effected in the absence of a reasonable suspicion.

He finally complained under Article 6 § 1 that the Vyatsko-Polyanskiy District Court was not a “tribunal established by law”, claiming that the lay assessors in the whole of the Kirov Region were not appointed in accordance with the law .

THE LAW

1. The applicant alleged a violation of guarantees provided for in Article 4 of Protocol No. 7 to the Convention and Article 6 of the Convention which provide in so far as relevant as follows:

Article 4 of Protocol No. 7

“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 reopening 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.”

Article 6 of the Convention

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

The applicant claimed that he had been tried and punished twice for the same criminal offence and invoked in particular the detrimental consequences entailed by his retrial following the supervisory review. He complained that the substantial increase of his prison term after his earlier release, when he regarded it as executed, deprived him of the benefit of the amnesty act and was disproportionate and unfair. He pointed out that the grounds for quashing the final judgment by the supervisory instance, notably the excessively lenient sentence imposed in accordance with Section 64 of the Criminal Code, were the same as those that had been raised before, and examined by, the appeal instance. The applicant therefore maintained that the proceedings as a whole were unfair and ran contrary to the principle of legal certainty.

The Government accepted the applicant ’ s version of events but denied that the criminal proceedings at issue involved a violation of the domestic law, or of the Convention principles. They relied on Article 4 § 2 of Protocol No. 7, which expressly permitted the reopening of a criminal case if there had been a fundamental defect in the previous proceedings that might affect the outcome of the case. They claimed that the supervisory review in the present case fell within the scope of that provision. They furthermore contended that the retrial, as well as the increase of the sentence, was absolutely necessary in the circumstances where a serious violent crime such as the one of which the applicant had been found guilty went virtually unpunished. They relied on the Code of Criminal Procedure then in force and stated that the prosecutor ’ s request for supervisory review was filed within the prescribed time limit and the retrial by the courts of two instances had been afforded all guarantees of a fair trial.

In so far as the applicant ’ s complaints concern the conduct of supervisory review in the criminal proceedings against him, the Court considers, in the light of the parties ’ submissions, that this part of application raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. It cannot therefore be regarded as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

2. The Court has examined the remainder of the applicant ’ s complaints as submitted by him. However, having regard to all material in its possession, the Court 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.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicant ’ s complaints concernin g the supervisory review conducted in the criminal proceedings against him.

Declares inadmissible the remainder of the application.

Claudia Westerdiek Peer Lorenzen Registrar President