Information Note on the Court’s case-law 66

July 2004

Nikitin v. Russia - 50178/99

Judgment 20.7.2004 [Section II]

Article 4 of Protocol No. 7

Right not to be tried or punished twice

Supervisory review of a final acquittal: no violation

Facts : The applicant, a former navy officer, undertook work for a Norwegian non-governmental organisation to prepare a report on the Russian Northern Fleet and Sources of Radioac tive Contamination. In October 1995, the security services instituted criminal proceedings against the applicant on charges of treason through espionage for having disclosed information on accidents of Russian nuclear submarines. The trial commenced in the City Court in October 1998 but was shortly after remitted for further investigation. The applicant was acquitted by the City Court in December 1999, as it found that he had been prosecuted on the basis of secret and retroactive decrees. The Supreme Court upheld the acquittal in April 2000, which thus acquired final force. Despite this, the Prosecutor General lodged a request for a supervisory review of the acquittal with the Presidium of the Supreme Court, which rejected the request. The Presidium found th at the flaws in the investigation alleged by the Prosecutor General had been within his control to redress at earlier stages of the proceedings. The applicant challenged the laws permitting supervisory review of a final acquittal in the Constitutional Cour t. He then complained to the Court that the very possibility of challenging his acquittal, which had entered into force, violated his right to a fair hearing and his right not to be tried again in criminal proceedings.

Law : Article 4 of Protocol No. 7 – I n the event that supervisory review of the acquittal had been granted, a new decision that would have been “final” could have resulted. Nevertheless, given the extraordinary nature of a supervisory review appeal and the problems of legal certainty that a q uashing of a judgment in such proceedings could create, the Court assumed that the judgment of the Supreme Court upholding the applicant’s acquittal had been the “final decision” for the purposes of this provision. The applicant had not been “tried again” in the proceedings before the Presidium, nor had he been “liable to be tried again”, as these proceedings were limited to the question whether or not to grant the request for review. As the Presidium was not empowered to make a new determination on the mer its, it appeared that the potential for a resumption of the proceedings in this case was too remote or indirect to constitute a “liability” within the meaning of this Article. Moreover, and more importantly from a substantive point of view, had the request been granted and proceedings resumed, the ultimate effect of supervisory review would have been to annul all previous decisions and to determine a criminal charge in a new decision, which would not have represented a duplication of proceedings. Hence, sup ervisory review could be regarded as an attempt to reopen proceedings, which was permitted under the second paragraph of Article 4 of Protocol No. 7, and not an attempted “second trial”.

Conclusion : no violation (unanimously).

Article 6 § 1 – The mere poss ibility to reopen a criminal case was prima facie compatible with the Convention, including the guarantees of Article 6. Nevertheless, the manner in which such a possibility was used could impair the essence of a fair trial. Whilst the prosecutor’s request could be criticised as arbitrary and abusive for having invoked defects which he could have redressed before the final judgment, this had not been prejudicial for the determination of the criminal charges. A fair balance had been struck between the intere sts of the applicant and the need to ensure the proper administration of justice.

Conclusion : no violation (unanimously).

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

Click here for the Case-Law Information Notes