THIRD SECTION

DECISION

Application no. 45185/17 Edgar Gevorgovich MKRTCHYAN against Russia

The European Court of Human Rights (Third Section), sitting on 24 November 2020 as a Committee composed of:

Georgios A. Serghides, President, Georges Ravarani, María Elósegui , judges, and Olga Chernishova, Deputy Section Registrar ,

Having regard to the above application lodged on 12 June 2017,

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 Edgar Gevorgovich Mkrtchyan , is an Armenian national who was born in 1979 and is serving a prison sentence in Melekhovo , Vladimir Region. He was represented before the Court by Mr D. Durdusova , a lawyer admitted to practise in the Russian Federation.

The Russian Government (“the Government”) were represented by Mr M. Galperin, Representative of the Russian Federation to the European Court of Human Rights.

The Armenian Government, who had been notified of their right to intervene in the proceedings (Article 36 § 1 of the Convention and Rule 44 § 1 ) of the Rules of Court , did not indicate that they intended to do so.

The circumstances of the case

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

On 31 May 2016 the Leninskiy District Court of Vladimir found the applicant guilty of molestation of a juvenile and sentenced him to seven years and six months ’ imprisonment. No appeal was lodged against the judgment within the ten-day statutory time-limit and the judgment became final.

On 14 July 2016 the town prosecutor asked the District Court to reinstate the time-limit for an appeal. The prosecutor argued that his office had not received a copy of the judgment of 31 May 2016 until 4 July 2016.

On 15 July 2016 the District Court dismissed the prosecutor ’ s request. The judge called into question the prosecutor ’ s statements about the date on which his office had received the judgment. The District Court further noted that the case file contained a confirmation that the prosecutor ’ s office had received a copy of the judgment of 31 May 2016 on 2 June 2016. The prosecutor appealed.

On 29 September 2016 the Vladimir Regional Court quashed the decision of 15 July 2016. The court found that on 2 June 2016 a copy of the judgment of 31 May 2016 had been delivered to a different employee of the prosecutor ’ s office, and not to the prosecutor who had taken part in the proceedings. The court considered therefore that the prosecutor ’ s office had not received a copy of the judgment of 31 May 2016 until 4 July 2016, and reinstated the time-limit for the prosecutor ’ s appeal. The applicant chose not to attend the hearing. The court-appointed lawyer attended the hearing and made submissions to the court.

On 15 December 2016 the Regional Court upheld the applicant ’ s conviction, in substance, on appeal. However, unlike the trial court, the appellate court discerned no extenuating circumstances and increased the applicant ’ s sentence to twelve years and six months ’ imprisonment.

COMPLAINT

The applicant complained under Article 6 § 1 of the Convention that the reinstatement of the time-limit for the prosecutor ’ s appeal had been unjustified and had infringed the principle of legal certainty, resulting in the increase of his prison sentence.

THE LAW

The applicant complained that his criminal case had been reopened in contravention of the principle of legal certainty set out in Article 6 of the Convention, which, in so far as relevant, reads as follows:

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

The Government submitted that the applicant had not appealed against the Regional Court ’ s decision to reinstate the time-limit for the prosecutor ’ s appeal, and that his complaint should be dismissed for his failure to exhaust effective domestic remedies. In their opinion, it had been open to the applicant to apply for a cassation review of the Regional Court ’ s decision.

The applicant submitted that an application for a cassation review should not be regarded as an effective remedy in respect of his grievances, within the meaning of Article 35 § 1 of the Convention.

In response to the Government ’ s argument, the Court reiterates that an application for a cassation review in criminal proceedings has not been considered a remedy which an applicant has to make use of under Article 35 § 1 of the Convention (see Kashlan v. Russia ( dec. ), no. 60189/15 , § 29, 19 April 2016). Accordingly, it was not incumbent on the applicant to apply for a cassation review of the Regional Court ’ s decision in order to comply with the admissibility requirements set forth in Article 35 § 1. The Government ’ s objection is therefore dismissed.

The Court further reiterates that, pursuant to Article 35 § 1 of the Convention, it may only deal with a matter within a period of six months from the final decision in the process of exhaustion of domestic remedies. In contrast to an objection on the basis of the non-exhaustion of domestic remedies, which must be raised by the respondent Government, the Court cannot set aside the application of the six-month rule solely because the respondent Government have not made a preliminary objection to that effect (see, among numerous other authorities, Blečić v. Croatia [GC], no. 59532/00, § 68, ECHR 2006 ‑ III).

Turning to the circumstances of the present case, the Court notes that the thrust of the applicant ’ s complaint is the re-opening of the criminal case against him which, in his view, contravened the principle of legal certainty enshrined in Article 6 of the Convention. Accordingly, the Regional Court ’ s decision of 29 September 2016 to re-open the applicant ’ s case and to reinstate the time-limit for an appeal by the prosecutor should be considered as the final decision for the Convention purposes. It was the very act of such reopening that triggered the start of the six ‑ month time-limit in respect of the applicant ’ s grievances, independently of the timing of the subsequent hearings. As noted above, that decision was final and not amenable to further appeal for the purposes of Article 35 § 1. There is nothing in the applicant ’ s submissions to suggest that he was not aware of the decision of 29 September 2016 or that he was notified of it belatedly (see, mutatis mutandis , Sardin v. Russia ( dec. ), no. 69582/01, ECHR 2004-II). The application was lodged with the Court on 12 June 2017, that is, more than six months after the final domestic decision on the matter. Therefore, this complaint has been lodged out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 17 December 2020 .

Olga Chernishova Georgios A. Serghides Deputy Registrar President