FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 65582/01 by Valeriy Grigoryevich RADCHIKOV against Russia

The European Court of Human Rights ( Fourth Section), sitting on 4 October 2005 as a Chamber composed of:

Mr J. Casadevall , President , Mr M. Pellonpää , Mr R. Maruste , Mr K. Traja , Mr A. Kovler , Ms L. Mijović , Mr J. Šikuta , judges , and Mr M. O ’ Boyle, Section Registrar,

Having regard to the above application lodged on 23 January 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 Valeriy Grigoryevich Radchikov, a Russian national, who was born in 1956. He is represented before the Court by Ms K. Moskalenko and Ms G. Orozaliyeva, lawyers practising in Moscow. The respondent Government are represented by Mr P. Laptev, the Representative of the Rus ­ sian Federation at the European Court of Human Rights. The applicant died after he had introduced the application, but his surviving daughters, Natalia and Maria, adopted the application.

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as fo l lows.

The applicant, a retired colonel, engaged in commerce. In April 1997, the police accused him of several crimes, including masterminding an assassin a tion of business rivals.

During the investigation, the applicant was detained on remand. On 15 O c tober 1998, the police asked the Moscow City Court to extend the dete n tion by two months to let the applicant study prosec u tion files . On 20 October 1998, the court extended the detention, but neither the appl i cant nor his lawyer had been called to the hearing. On 26 November 1998 , the Supreme Court r e jected the applicant ’ s appeal against this extension, but neither the applicant nor his la w yer had been called to the hearing.

At the end of the trial, on 21 January 2000, the Military Court of the Mo s cow Command acquitted the applicant. On 26 January 2000, the prosecution appealed against the acquittal to the Supreme Court, but on 25 July 2000 the court upheld the acquittal, and the applicant was freed.

On 25 August 2000, the prosecution applied for superv i sory review of the judgments because the investigation and trial had not been thorough.

On 13 December 2000, the Presidium of the Supreme Court agreed with the prosecution and quashed the judgments. In particular, the presidium found that the investigating authorities had included certain evidence in the file unla w fully, that they had failed to verify whether the defe n dants had been forced to confess, that the investigating authorities had failed to simulate the assassin a tion, that they had appointed experts unlawfully, that they had failed to interr o gate witnesses, that the experts had erred in their opi n ions, and that there had remained contradictions between the defendants ’ pr e trial and trial testimony. The presidium remitted the case for a reinvestig a tion.

On 15 December 2000, the Chief Military Prosecutor said in a press-conference that the applicant may be detained anew.

On 31 January 2001, the applicant was killed in a car accident. On 2 April 2001 , the prosecution closed the case because of the applicant ’ s death.

Nevertheless, the prosecution continued the case against S., the person who had s tood trial and had been acquitted together with the applicant. On 28 May 2003 , S. was found guilty and sentenced to 14 years ’ imprisonment.

B. Relevant domestic law

According to the Constitutional Court ’ s decision of 3 July 1997 , a final judgment may be reopened only to correct miscarriages of justice. According to the Constitutional Court ’ s judgment of 11 May 2005, reopening of final judgments is an accessory means of ensuring the judgments ’ rightfu l ness (§ 3.1).

COMPLAINTS

1 . The applicant complained under Article 6 § 1 of the Convention and u n der Article 4 of Protocol no. 7 to the Convention that his acquittal had been quashed. He asserted that, once acquitted, he should not have been retried, and that the supervisory review had unjustly enabled the prosecution to replay the lost process.

2 . The applicant complained under Article 6 of the Convention that the pr o ceedings might last forever because the acquittal had been quashed.

3 . The applicant complained under Article 6 § 2 of the Convention that the Chief Military Prosecutor had incited the public against him.

4 . The applicant complained under Article 5 § 1 (c) of the Conve n tion that the extension of his pretrial detention had been unla w ful.

5 . The applicant complained under Article 5 § 3 of the Convention that ne i ther he nor his lawyer had been called to the hearing concerning the exte n sion of his pretrial detention.

6 . The applicant complained under Articles 5 § 4 and 13 of the Conve n tion that neither he nor his lawyer had been called to the appeal hearing concerning the extension of his pretrial detention.

THE LAW

1. The Government submitted that since the applicant had died, the Court ought to decide whether it was possible to continue with the application at all.

The applicant ’ s daughters asked the Court to continue with the application. They submitted that because their father ’ s acquittal had been quashed, he had died as a criminal suspect. The father ’ s good name was undeservedly ta r nished; the daughters ’ lives were devastated.

The Court repeats that it may continue to examine a late person ’ s applic a tion if a close relative with own legitimate interest in the appl i cation adopts it (see Deweer v. Belgium , judgment of 27 February 1980 , Series A no. 35, §§ 37–38). This condition has been satisfied . The Court will continue with this complaint despite the appl i cant ’ s death.

2. The applicant complained under Article 6 § 1 of the Convention and u n der Article 4 of Protocol No. 7 to the Convention that supervisory review had quashed his acquittal.

As far as relevant, Article 6 § 1 of the Convention reads:

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

As far as relevant, Article 4 of Protocol No. 7 reads:

“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 a c quitted 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.”

The Government submitted that the complaint was manifestly ill-founded. First, the supervisory review of the applicant ’ s acquittal was la w ful because the domestic procedure had been respected. Second, the supervisory review pr e served legal certainty because it strived to do justice. Third, the s u pervisory review did not prejudge later jud g ments. Fourth, as the Court said in Nikitin ( Nikitin v. Russia , no. 50178/99, ECHR 2004 ‑ ...), the principle of legal ce r tainty was relative and might be deviated from.

The applicant ’ s lawyers submitted that the complaint was well-founded. First, the acquittal was quashed neither because of a fundamental defect in the procee d ings nor because of new facts. Second, the quashing was unlawful even under d o mestic law because the Constitutional Court permitted it only if there was a fundamental defect in the proceedings or new facts. Third, the Gover n ment r e ferred to Nikitin by mistake because the facts of the present case were different. Fourth, the present case was similar to Ryabykh ( Ryabykh v. Ru s sia , no. 52854/99, ECHR 2003 ‑ IX), where the Court had found a violation of Art i cle 6.

The Court considers, in the light of the parties ’ submissions, that it raises s e rious issues of fact and law under the Convention, the determ i nation of which requires an examination of the merits. The Court 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 esta b lished.

3. The applicant made a number of other complaints under Articles 5, 6, and 13 of the Convention.

However, in the light of all the material in its possession, and in so far as the matters complained are within its competence, the Court finds that these co m plaints do not disclose any appearance of a violation of the rights and fre e doms set out in the Convention or its Protocols.

It follows that these complaints are manifestly ill-founded and must be r e jected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicant ’ s co m plaint concerning the quashing of his acquittal;

Declares the remainder of the application inadmissible.

Michael O ’ Boyle J. Casadevall Registrar President