THIRD SECTION

DECISION

Application no. 6207/16 Anatoliy Stepanovich SENOTRUSOV and Nataliya Ivanovna SENOTRUSOVA against Russia

The European Court of Human Rights (Third Section), sitting on 17 May 2022 as a Committee composed of:

Darian Pavli, President, Peeter Roosma, Mikhail Lobov, judges, and Olga Chernishova, Deputy Section Registrar,

Having regard to:

the application (no. 6207/16) against Russia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Russian nationals, Mr Anatoliy Stepanovich Senotrusov who was born in 1957 (“the first applicant”) and Ms Natalya Ivanovna Senotrusova who was born on 1961 (“the second applicant”), both living in Vanino, both represented by Ms Y.B. Belova (a lawyer practising in Moscow), on 14 January 2016 and 17 April 2019 respectively;

the decision to give notice of the complaint concerning the respect of presumption of innocence to the Russian Government (“the Government”), initially represented by Mr M. Galperin, former Representative of the Russian Federation to the European Court of Human Rights, and later by his successor in that office, Mr M. Vinogradov, and to declare inadmissible the remainder of the application;

the parties’ observations;

Having deliberated, decides as follows:

SUBJECT-MATTER OF THE CASE

1. The case concerns an alleged violation of the presumption of innocence.

2. The first applicant is a brother-in-law, and the second applicant is a sister of Mr V.

3. Mr V. committed suicide while criminal proceedings against him, brought on charges of having paid a juvenile under the age of 18 years for sex, were still pending. The proceedings were discontinued on account of his death. The second applicant asked for the reopening of proceedings in V.’s case, with a view to his exoneration and subsequent rehabilitation. An investigator reopened the case and reclassified the initial charges against V. to the charge of engaging in sexual intercourse with a juvenile under the age of 16 years. At some point V.’s mother joined the proceedings. The first applicant acted as her representative.

4. When dismissing the family’s request to exonerate the deceased, the first instance and the appellate courts imputed criminal liability to him.

5. Pursuant to a cassation appeal of V.’s mother, on 18 April 2016 the Presidium of the Khabarovsk Regional Court quashed the appeal judgment and remitted the matter for fresh consideration to the appellate court, on account of the breach of the presumption of innocence, notably because the first-instance court had indicated in its decision that V. “had been guilty of committing [four criminal offences]”, and the appellate court had not made good of the violation.

6. On 19 May 2016 the Khabarovsk Regional Court quashed the judgment of the first-instance court noting that, in contravention of the applicable laws, it contained a reference to V.’s guilt. Having examined the evidence submitted, including the witness statements and forensic medical expert reports, the appellate court concluded that on several occasions “V. had wilfully engaged in sexual intercourse with [a juvenile]”. The court dismissed the arguments made by V.’s family that it had not been proved that V. had committed the acts imputed to him. Discerning no grounds to grant the request of V.’s relatives to have him exonerated, the court discontinued the proceedings on account of his death. Lastly, the court considered that the reclassification of the charges against V. had been in compliance with the law.

7. After the communication of the case to the respondent Government, on 12 April 2019 the second applicant expressed her wish to join the proceedings before the Court.

8. Under Russian law an instituted criminal case should be discontinued on the ground of death of an accused or a suspect, except for cases where it is necessary to continue proceedings for the rehabilitation of the deceased person (Article 24 § 1(4) of the Criminal Code). If such proceedings end up with a deceased person’s exoneration, a prosecutor apologises on behalf of the State; decisions acquitting that person are sent to his or her employer, educational institution, place of residence; and relatives can institute civil proceedings for compensation of damage in connection with unlawful criminal prosecution of their deceased relative (Articles 134-136 of the Code of Criminal Procedure in so far as relevant).

9. The applicants complained that the national judicial authorities had, in breach of Article 6 § 2 of the Convention, pronounced their relative guilty. In particular, the first applicant initially argued that V. had been expressly found guilty in the first round of the proceedings, despite incorrect reclassification of the charges and insufficient evidence. Both applicants submitted in their observations that the appellate court’s findings in the latest round of the proceedings had still amounted to a finding of V.’s guilt.

THE COURT’S ASSESSMENT

10. The second applicant’s complaint was lodged more than six months after the final decision in the case had been adopted on 19 May 2016. Therefore, this part of the application has been lodged out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

11. As regards the first applicant, he was not a party to the above proceedings, acting as a representative of his mother-in-law. Nor did he institute any similar proceedings on his own. Assuming that he complied with the exhaustion requirements (compare Vasilkoski and Others v. the former Yugoslav Republic of Macedonia , no. 28169/08, §§ 42-46, 28 October 2010), and that the application is not incompatible ratione personae , it is inadmissible as follows.

12. The Court notes that the first applicant does not raise an issue of compatibility with Article 6 § 2 of the Convention of the domestic legal regime of reopening of proceedings on request of family members for rehabilitation of their deceased relative, as such. Accordingly, the Court sees no reason to address that issue in the present case. Indeed, the applicant is rather dissatisfied with the findings the domestic courts reached in in the proceedings at hand, brought at the request of V.’s family.

13. It is a fundamental rule of criminal law that criminal liability does not survive the person who has committed the criminal act and that this rule is a guarantee for the presumption of innocence enshrined in Article 6 § 2 of the Convention (see Magnitskiy and Others v. Russia , nos. 32631/09 and 53799/12, § 284, 27 August 2019). In the present case, following V.’s death, the investigator discontinued the criminal proceedings against him, and he was no longer regarded as facing a criminal charge. By contrast to the Magnitskiy and Others case (cited above, § 282), the proceedings were then reopened in response to an express request lodged by V.’s family who sought to have him exonerated, and the purpose of the reopening was to protect his and his family’s good name and reputation.

14. The cassation court and subsequently the appellate court in the second set of the court proceedings unequivocally acknowledged a violation of the presumption of innocence in respect of V. The judgments given in the initial set of proceedings were quashed on that account.

15. In examining whether the new appeal proceedings of 19 May 2016 constituted sufficient redress in respect of the first applicant’s grievances (see Sakhnovskiy v. Russia [GC], no. 21272/03, §§ 67, 70 and 83, 2 November 2010), the Court must take note of the nature and the context of the proceedings as a whole and their special features (see Fleischner v. Germany , no. 61985/12, § 65, 3 October 2019, and Pasquini v. San Marino (no. 2) , no. 23349/17, § 51, 20 October 2020). The impugned statements must be read as a whole and in their proper context (see Böhmer v. Germany , no. 37568/97, § 60, 3 October 2002).

16. Mr V.’s case was examined upon his family’s request. His relatives argued that V. had not committed the acts he had been accused of, and that he should be acquitted of the offences he had been charged with. Thus, in order to respond to the arguments advanced by V.’s family, it was incumbent on the domestic courts to establish the facts of the case and, in particular, to answer the question whether V. had committed the acts imputed to him by the investigator. The appellate court in the latest round of proceedings arrived at the conclusion that V. had had sexual intercourse with a juvenile, as stated by the investigator. The Court considers that the appellate court limited its analysis to the establishment of facts (see Fleischner, cited above, § 63; and contrast Lagardère v. France , no. 18851/07, §§ 84-87, 12 April 2012). Read in context of the judgment as a whole, and given the specific context of the proceedings, the use of the expressions chosen by the appellate court cannot reasonably be read as an affirmation imputing criminal liability on the part of V. (see Fleischner , cited above, § 64; N.A. v. Norway , no. 27473/11, § 48, 18 December 2014; and, in so far as relevant, Ilias Papageorgiou v. Greece , no. 44101/13, § 54, 10 December 2020). Accordingly, it cannot be said that the first applicant’s relative was treated in the latest round of the appeal proceedings in a manner inconsistent with the presumption of innocence.

17. Therefore, the rehearing of the case was an adequate redress for the breach of the presumption of innocence in the initial round of the proceedings, capable of depriving the first applicant of victim status.

18. It follows that the first applicant can no longer claim to be a “victim” of the alleged violation of Article 6 § 2 of the Convention within the meaning of Article 34 of the Convention, and that this part of the application must be rejected pursuant to Articles 34 and 35 §§ 3 (a) and 4.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 9 June 2022.

Olga Chernishova Darian Pavli Deputy Registrar President