THIRD SECTION

DECISION

Application no. 2606/11 Abdyrakhim Bolkarayevich BOLKARAYEV against Russia

The European Court of Human Righ ts (Third Section), sitting on 9 June 2020 as a Committee composed of:

Georgios A. Serghides, President, Erik Wennerström , Lorraine Schembri Orland, judges, and Olga Chernishova, Deputy Section Registrar ,

Having regard to the above application lodged on 17 December 2010,

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 Abdyrakhim Bolkarayevich Bolkarayev , is a Russian national who was born in 1968 and is detained in Kursk. He was represented before the Court by Ms R.K. Nazarova , a lawyer practising in Astrakhan.

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

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

The applicant was accused of violating traffic regulations, causing bodily harm to Mr A.V.A. and leaving him in a state of vulnerability. The applicant pleaded guilty. The applicant gave his consent for the case against him to be examined by way of a summary procedure, based on a guilty plea. The prosecutor, the victim (Mr A.V.A.) and his representative (apparently, Mr V.M.A., the victim ’ s father) also agreed to the summary procedure. By a judgment of 14 January 2008 the Privolzhskiy District Court of the Astrakhan Region convicted the applicant under Articles 125 and 264 § 1 of the Criminal Code.

The prosecutor appealed against the trial judgment. The appeal court quashed the trial judgment and ordered a retrial.

At the retrial the applicant pleaded guilty to the charges under Articles 125 and 264 § 1 of the Criminal Code. By a judgment of 28 May 2008 the District Court convicted the applicant and sentenced him to eighteen months ’ imprisonment. The court acquitted the applicant under Article 125 of the Criminal Code. The parties appealed. On 17 July 2008 the Astrakhan Regional Court upheld the judgment of 28 May 2008. On 29 August 2008 a judge of the Regional Court dismissed V.M.A. ’ s application for supervisory review. The applicant served his eighteen-month sentence and was released on an unspecified date.

In December 2008 V.M.A. wrote to the Astrakhan regional prosecutor ’ s office. According to the Government, V.M.A. had received some information from unspecified police officers who had been present at the race on 16 September 2007. Furthermore, according to the Government ’ s submission, V.M.A. had received that information “only after the applicant ’ s conviction”. This information prompted the prosecutor to seek the resumption of the proceedings.

On 26 December 2008 the Astrakhan regional prosecutor ’ s office initiated “proceedings on account of new circumstances” and demanded that the regional investigating authority investigate those circumstances. On 25 March 2009 the regional prosecutor ’ s office lodged an application with the Presidium of the Regional Court seeking the reopening of the criminal proceedings on account of new circumstances. By a ruling of 7 April 2009 the Presidium of the Regional Court allowed the application lodged by the prosecutor for the reopening of the proceedings. The Presidium decided to resume the criminal proceedings in the light of the new circumstances, and remitted the case to the prosecutor for a fresh investigation.

The applicant lodged an application for supervisory review of the ruling of 7 April 2009 with the Supreme Court of Russia (see below).

On 13 May 2009 an investigator resumed the investigation in the case. The applicant was then arrested and remanded in custody. On 30 May 2009 the applicant was charged with offences under Article 105 § 2 of the Criminal Code, in conjunction with Article 30 § 3 (e), on account of an attempted murder. On 27 November 2009 the applicant was charged under Article 317 of the Criminal Code and Article 105 § 2, in conjunction with Article 30 § 3 (a) and (b).

On 31 December 2009 the criminal case against the applicant was submitted for trial before the Regional Court. On 19 January 2010 the applicant opted for trial by jury. He was assisted at the trial by two lawyers.

The applicant ’ s lawyer cross-examined Ku., asking him, inter alia , about the location of the damage on To. ’ s vehicle, and why Ku. ’ s pre-trial statement indicated that during the pursuit the applicant ’ s vehicle had hit the back part of To. ’ s vehicle, rather than the front side, as Ku. had stated during the trial, and why it had not indicated – unlike Ku. ’ s statement at the trial – that the applicant ’ s vehicle had made a move backwards before heading towards Ku., To . and A.V.A.

The applicant ’ s lawyers also cross-examined To .

At the defence ’ s request, a Mr Sh. attended one of the hearings on 3 March 2010. As can be seen from the trial record, when lodging the request that Mr Sh. be allowed to attend the hearing in question, the applicant ’ s lawyer pointed out that no technical or other expert report had been ordered during the preliminary investigation, and explained that as an “automobile expert” Sh. could testify before the jury as to the damage sustained by the vehicle because the victims ’ statements in that respect had been contradictory.

The prosecutor objected, indicating that Sh. could not be considered an “expert” under the Code of Criminal Procedure (“ CCrP ”) because no expert report had been ordered; an expert would be authorised to testify in relation to his or her expert report; Sh. had not studied the case file and was not in a position to make any relevant statement.

The court dismissed the above-mentioned request, indicating that Sh. could not be examined as an automobile expert because he was “not in a position to testify about the factual circumstances of the case”.

On 9 March 2010 the jury convicted the applicant. By a judgment of 10 March 2010 the presiding judge sentenced the applicant to fourteen years ’ imprisonment. This sentence was to include the period of the applicant ’ s deprivation of liberty after 28 May 2008, namely the prison term he had served thereafter under the judgment of 28 May 2008 (see above). The applicant appealed, arguing that the jury had been influenced by an article published in a newspaper; there had been insufficient evidence that the applicant had had intent to commit a murder; that the trial judge had relied on inadmissible evidence and had rejected the motions submitted by the defence, in particular as regards Sh.

In the meantime, on 4 March 2010 the applicant lodged a supervisory ‑ review application challenging the ruling of 7 April 2009 by which the Regional Court had reopened the criminal proceedings. The Supreme Court of Russia received this application on 12 March 2010. By a letter of 9 April 2010 a judge of the Supreme Court of Russia declined to deal with the applicant ’ s application for supervisory review, indicating that the applicant had already been convicted by a trial court on 10 March 2010 (see above) and that he could raise his arguments against that conviction during the upcoming appeal proceedings.

On 6 July 2010 the Supreme Court of Russia, acting as a court of appeal, upheld the judgment of 10 March 2010. The Supreme Court indicated that the defence ’ s request for Sh. to be examined had been rightly dismissed as not being related to the substance of the charges against the defendant.

The Code of Criminal Procedure defined a “specialist” as a person having special knowledge and being involved in procedural actions in order, inter alia , to clarify to the parties and the court matters within his or her professional area of expertise (Article 58). A court could not refuse a request for a specialist to be heard during a hearing at which that specialist was present (Article 271).

COMPLAINTS

The applicant complained under Article 6 of the Convention that the reopening of the criminal proceedings in April 2009 had violated the requirement of legal certainty and that he had not received a fair trial thereafter, namely on account of the trial court ’ s refusal to examine Sh..

The applicant also complained that the reopening of the proceedings in April 2009 and his ensuing prosecution and conviction on more serious charges had violated Article 4 of Protocol No. 7 to the Convention.

THE LAW

The applicant complained that the reopening of the criminal proceedings in April 2009 had violated the requirement of legal certainty and that he had not received a fair trial thereafter, namely on account of the court ’ s refusal to examine Sh. and erroneous findings of fact and law.

Article 6 of the Convention reads as follows:

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing ...

3. Everyone charged with a criminal offence has the following minimum rights:

...

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; ...”

The Government argued that the applicant should have lodged his complaints within six months of the ruling of 7 April 2009 by which the judgments of 28 May and 17 July 2008 had been quashed and a retrial had been ordered. The Government stated that Sh. had not issued any expert report in relation to the charge against the applicant and thus could not be legitimately interviewed in relation to any such piece of evidence; moreover, he had not studied the case and thus could not be examined before a jury in relation to the factual circumstances underlying the charge against the applicant, bearing in mind the legal requirement that a jury deals with questions of fact rather than questions of law. Thus, the Government concluded that Sh. could not be classified as a “witness” within the meaning of Article 6 § 3 (d) of the Convention. The Government conceded that under the CCrP , Sh. could have been interviewed as a “specialist” about circumstances requiring assessment on the basis of some particular technical expertise. However, the defence had not made any such specific request at the third trial. At the same time, the defence had been afforded an adequate opportunity to contest adverse evidence and to put forward a defence. For instance, the court had granted the defence ’ s request to have certain pre-trial statements from witnesses read out at the hearing.

The applicant maintained his complaints, indicating that he had exhausted all available domestic remedies, including a supervisory-review application before the Supreme Court of Russia in respect of the ruling of 7 April 2009.

(a) Legal certainty

Under Article 35 § 1 of the Convention, the Court may only examine complaints in respect of which domestic remedies have been exhausted and which have been submitted within six months of the date of the “final” domestic decision. If there is no such remedy against a particular act that is alleged to be in breach of the Convention, the six-month period is normally calculated with reference to the date on which that act takes place (see, for instance, Podrugina and Yedinov ( dec. ), no. 39654/07, 17 February 2009). The Court reiterates that, as regards Article 6 of the Convention, the quashing of a final judgment is an instantaneous act, which does not create a continuing situation – even if it entails a reopening of the proceedings, as in the present case (see Sardin v. Russia ( dec. ), no. 69582/01, 12 February 2004, and Khanyan v. Armenia ( dec. ), no. 19065/05, 5 July 2007).

The Court considers that it was the very act of quashing the judgments of 28 May and 17 July 2008 that triggered the start of the six ‑ month time-limit for lodging this part of the application to the Court. The Presidium of the Regional Court quashed those judgments on 7 April 2009, whereas the application was lodged on 17 December 2010 – that is to say more than six months after the defence had become aware of the alleged violation of the requirement of legal certainty (the applicant ’ s counsel having been present at the hearing before the Presidium).

It is furthermore noted that the applicant challenged the ruling of 7 April 2009 before the Supreme Court – by way of lodging an application for supervisory review – but only lodged that application on 4 March 2010, shortly before the end of his new trial and shortly before the expiry of the statutory one-year period. As the Supreme Court indicated, the delivery of the trial judgment of 10 March 2010 constituted a legal obstacle to examining such an application for review in respect of the earlier related decision to reopen the proceedings in question. There is no indication that that interpretation of Russian law was wrong or unforeseeable. Neither did the applicant complain that his access to a court had been violated in that connection. Thus, at latest in March 2010 the applicant should have realised that the Supreme Court would not deal with his application for supervisory review and that the remedy in question did not offer a reasonable prospect of success. Be that as it may, it appears that the applicant received the Supreme Court ’ s letter of 9 April 2010 shortly thereafter; so, under Article 35 § 1 of the Convention that fact does not bring his complaint lodged on 17 December 2010 within the six-month period either.

It follows that this part of the application was introduced out of time and must be rejected, in accordance with Article 35 §§ 1 and 4 of the Convention.

(b) Refusal to examine Sh. and the overall fairness of the proceedings

The applicant also complained about the fact that the court had declined to hear Sh. give testimony as a “witness” for the defence during the third round of the proceedings which ended with the appeal decision of 6 July 2010.

The general principles concerning the right of an accused to examine witnesses against him and obtain the attendance and examination of witnesses on his or her behalf are well established in the Court ’ s case law (see Murtazaliyeva v. Russia [GC] , no. 36658/05, §§ 139 and 158-68, 18 December 2018 ).

When presenting the related motion at the trial, the applicant ’ s lawyer explained that as an “automobile expert” Sh. could testify before the jury in respect of the damage sustained by “the vehicle” because To. ’ s and Ku. ’ s statements in that respect had contradicted each other. It is not contested that Sh. did not issue any expert or specialist report and, more importantly, that he did not study the case file. The Court is not convinced that he could have provided the jury with any proper assessment regarding the circumstances underlying the charges against the defendant.

Also, as indicated by the Government, Sh. could have been examined at the hearing as a “specialist” on matters within his area of professional expertise . It appears that the defence could have amended its motion in that regard, but chose not to do so. In its appeal against the conviction the defence limited its grounds of appeal in respect of Sh. to the alleged illegality of the conviction on account of the fact that it had contravened Article 271 of the CCrP .

Against this background, the trial and appeal courts ’ findings concerning Sh. – while being rather concise – do not appear unreasonable or otherwise insufficient.

Therefore, in the present case the Court considers that the refusal to hear Sh. did not adversely affect the overall fairness of the criminal proceedings in respect of the applicant under Article 6 § 1 of the Convention.

Accordingly, this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

The applicant also complained that the reopening of the proceedings on spurious grounds in April 2009 and his ensuing prosecution and conviction on more serious charges had violated Article 4 of Protocol No. 7 to the Convention. It reads as follows:

“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. ...”

The Government argued that the applicant should have lodged his complaint within six months of the ruling of 7 April 2009 by which the judgments of 28 May and 17 July 2008 had been quashed and a retrial had been ordered.

The applicant argued that the circumstances underlying the ruling of 7 April 2009 had not been established by the Presidium and, in any event, could not be classified as “new” circumstances. In particular, the absence of an additional interview with officer Ku. could not be classified as a “circumstance” ( обстоятельств о ) and, a fortiori , as a “new circumstance” ( новое обстоятельств о ) , within the meaning of the CCrP . The Presidium ’ s ruling had been based on spurious grounds and, in substance, afforded the investigating authority a chance to remedy the shortcomings of its own work. So in substance the reopening of the proceedings had not been based on what might be classified as a “fundamental defect”.

The Court reiterates that Article 4 of Protocol No. 7 to the Convention enshrines a fundamental right guaranteeing that no one is to be tried or punished in criminal proceedings for an offence of which he or she has already been finally convicted or acquitted (see Miha lache v. Romania [GC], no. 54012/10, § 48, 8 July 2019 ). At the same time, it expressly envisages the possibility that an individual may have to accept prosecution on the same charges, in accordance with domestic law, where a case is reopened following the emergence of new evidence or the discovery of a fundamental defect in the previous proceedings (ibid., §§ 127-33). However, in the present case the Court considers that it is not necessary to examine whether the reopening of a case was permitted within the meaning of the exception set out in Article 4 § 2 of Protocol No. 7, as the complaint is anyway inadmissible for the reasons outlined below.

The appeal decision in the final round of criminal proceedings was issued on 6 July 2010, while the related complaint was lodged before the Court on 17 December 2010. However, whether it had been a continuation of the same “case” after its “reopening” within the meaning of paragraph 2 of Article 4 of the Protocol (compare Nikitin v. Russia , no. 50178/99, § 46, ECHR 2004 ‑ VIII) or separate new proceedings for the same or another ” offence ” within the meaning of paragraph 1 of that Article , the fact remains that there is no indication that in those proceedings (namely, on appeal as suggested by the Supreme Court in April 2010) the applicant or his lawyers raised, at least in substance, the matters pertaining to Article 4 of Protocol No. 7. Indeed, it appears that neither the applicant nor the Government before the Court considered that a court of appeal could provide redress on account of the allegation that the “reopening” had been based on spurious grounds or that the applicant was “punished again” by the trial court in March 2010 for the same “offence” (contrast with Mihalache , cited above , §§ 1, 24-25 and 46; Korneyeva v. Russia , no. 72051/17, §§ 18 ‑ 19 and 51, 8 October 2019; and Pecoraro v. Switzerland ( dec. ), no. 27124/95, 24 August 1999). The appeal court was not afforded an opportunity to deal with the substance of the complaint and made no relevant findings. Thus, in the particular circumstances of the present case, the Court concludes that the date to be taken into account for the purposes of calculating the six-months limit for the complaint under Article 4 of Protocol No. 7 in the present case is when the applicant received, presumably in April 2010, the decision of 9 April 2010 by which the Supreme Court had rejected his application for review in respect of the ruling of 7 April 2009. It follows that this complaint, too, was introduced out of time and must therefore 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 2 July 2020 .

Olga Chernishova Georgios A. Serghides Deputy Registrar President