ПОСТАНОВЛЕНИЕ Европейского суда по правам человека от 20.07.2004<ДЕЛО НИКИТИН (nikitin) ПРОТИВ РОССИИ> [англ.]

(Application No. 50178/99)
(Strasbourg, 20.VII.2004)
In the case of Nikitin v. Russia,
<*> This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
The European Court of Human Rights (Second Section), sitting as a Chamber composed of:
Mr J.-P. Costa, President,
Mr A.B. Baka,
Mr L. Loucaides,
Mr K. Jungwiert,
Mr V. Butkevych,
Mr M. Ugrekhelidze,
Mr A. Kovler, judges,
and Mrs {S. Dolle} <*>, Section Registrar,
<*> Здесь и далее по тексту слова на национальном языке набраны латинским шрифтом и выделены фигурными скобками.
Having deliberated in private on 13 November 2003 and 29 June 2004,
Delivers the following judgment, which was adopted on the last-mentioned date:
1. The case originated in an application (No. 50178/99) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") by a Russian national, Mr Aleksandr Konstantinovich Nikitin (the applicant) on 18 July 1999.
2. The Russian Government ("the Government") were represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights.
3. The applicant alleged that supervisory review conducted after his final acquittal constituted a violation of his right to a fair trial and a violation of his right not to be tried again in criminal proceedings for an offence of which he had been finally acquitted.
4. The application was allocated to the Second Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1.
5. By a decision of 13 November 2003, the Court declared the application partly admissible.
6. The applicant and the Government each filed observations on the merits (Rule 59 § 1). The Chamber having decided, after consulting the parties, that no hearing on the merits was required (Rule 59 § 3 in fine), the parties replied in writing to each other"s observations.
I. The circumstances of the case
7. The applicant was born in 1952 and lives in St. Petersburg.
8. In February 1995 applicant, a former navy officer, joined the environmental project of a Norwegian non-governmental organisation, "Bellona", to work on a report entitled "The Russian Northern Fleet. Sources of Radioactive Contamination" ("the report").
9. On 5 October 1995 the Murmansk office of Bellona was searched by the Federal Security Service (ФСБ РФ, "the FSB"). The FSB seized the draft report, interrogated the applicant and instituted criminal proceedings on suspicion of treason, as the draft report allegedly contained information about accidents on Russian nuclear submarines classified as officially secret.
10. On 20 October 1998 the applicant"s trial on a count of treason through espionage and a count of aggravated disclosure of an official secret began before the St. Petersburg City Court. After four days of hearing, on 29 October 1998, the case was remitted for further investigation. The court found that the indictment was vague, which hindered the applicant"s defence and prevented the court from carrying out an examination on the merits. It also found that the investigation file left open the question whether the report contained any official secrets as such, and that it did not contain a "proper and complete" expert evaluation of possible open sources of the information, or of the estimated damage. The court ordered the prosecution to conduct an additional expert examination concerning the possibility of the applicant having obtained the controversial information from an open source and to take other steps to complete the investigation.
11. On 3 November 1998 the prosecution appealed against this decision, claiming that the case was clear enough for a court determination and that there was no need for further investigation.
12. On 4 February 1999 the order for the further investigation was upheld by the Supreme Court of the Russian Federation (the Supreme Court).
13. On 23 November 1999 the St. Petersburg City Court resumed the applicant"s trial on the same counts.
14. On 29 December 1999 the St. Petersburg City Court acquitted the applicant of all the charges, having found that the applicant was prosecuted on the basis of secret and retroactive decrees.
15. The prosecution appealed.
16. On 17 April 2000 the Supreme Court of the Russian Federation upheld the acquittal. The court found the charges based on secret and retroactive acts incompatible with the Constitution. The acquittal thus acquired final force.
17. On 30 May 2000 the Prosecutor General lodged a request with the Presidium of the Supreme Court to review the case in supervisory proceedings (протест на приговор, вступивший в законную силу). He challenged the judgment on the grounds of the wrongful application of the law governing the domain of official secrets, the vagueness of the indictment entailing procedural prejudice against the applicant, and other defects in the criminal investigation, in particular the lack of an expert report as to whether the disputed information had originated from public sources. He called for a reassessment of the applicable law, of the facts and evidence on the case file, and for its remittal for fresh investigation.
18. On 13 September 2000 the Presidium of the Supreme Court dismissed the prosecutor"s request and upheld the acquittal. While it acknowledged that the investigation had been tainted with flaws and shortfalls, it found that the prosecution could not rely on them, as it had been entirely within the prosecution"s control to redress them at the earlier stages of proceedings. Moreover, the Presidium pointed out that the investigation authority had earlier been required to remedy exactly the same defects as that invoked in the request to quash the acquittal. It recalled that on 29 October 1998 the court had expressly instructed the investigating authority, inter alia, to conduct a study of information in the public domain to ascertain whether the applicant could have obtained the disputed data from open sources.
19. On 17 July 2002 the Constitutional Court of the Russian Federation examined the applicant"s challenge to the laws which allow supervisory review of a final acquittal.
20. In its ruling of the same date the Constitutional Court declared incompatible with the Constitution the legislative provisions permitting the re-examination and quashing of an acquittal on the grounds of a prejudicial or incomplete investigation or court hearing, or on the grounds of a wrong assessment of the facts of the case, save in cases where there had been new evidence or a fundamental defect in the previous proceedings.
21. The Constitutional Court"s reasoning included, inter alia, the following:
"... Article 4 of Protocol No. 7 to the Convention provides that the right not to be tried or punished twice does not prevent the re-opening 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.
It follows ... that the national legislation may provide, subject to the above requirements, for a system by which a case may be re-opened and a final judgment be quashed, and to specify where, depending on the case, a procedure for re-opening on the grounds of new or newly discovered evidence, or the supervisory review should apply.
Any exclusion from the general prohibition to resume proceedings to the detriment of the acquitted or convicted person may only be justified in exceptional circumstances where a failure to rectify a miscarriage of justice would undermine the very essence of justice and the purpose of a verdict as a judicial act, and which would upset the required balance between the protected values and interests involved, such as the rights of convicted persons and the interests of the victims of crime. In the absence of any possibility to reverse a final judgment resulting from proceedings tainted by a fundamental defect crucial for the outcome of the case, such an erroneous judgment would continue to have effect notwithstanding the principle of general fairness, ... and the principle of judicial protection of fundamental rights and freedoms.
3.2. According to the [Constitution and the Convention] any possibility to quash a final judgment and to review a criminal case provided for at the national level must be subject to strict conditions and criteria clearly defining the grounds of such review, given that the judgment concerned has already become binding and determinative of the individual"s guilt and sentence.
However the grounds for review of final judgments provided for in the Code of Criminal Procedure [of 1960] go beyond these limits. At the same time as establishing a procedure for review of final convictions and, especially, acquittals,... it is necessary to formulate definite grounds for its application with sufficient distinctness, precision and clarity, to exclude its arbitrary application by courts. Having failed to do so, [the legislature] misrepresented the conditions for the quashing of final judgments in criminal cases which follow from [the Constitution] and Article 4 of Protocol No. 7 to the Convention. ...
Furthermore, [the power] of a supervisory instance to remit a case for fresh investigation where it concludes, through its own assessment of evidence, that the previous investigation has been prejudicial or incomplete, is incompatible with the constitutional principles of criminal procedure and with the Constitutional Court"s jurisprudence, because it gives the prosecution an unfair advantage by enhancing its chance to prove guilt even after the relevant judgment has entered into force. It follows that a court of supervisory instance cannot quash a final acquittal only on the grounds of it being unfounded ... Accordingly, the prosecutor is not entitled to request the supervisory review of such a judgment on the grounds of it being unfounded ..."
II. Relevant domestic law
A. Applicable legislation
22. Section VI, Chapter 30, of the Code of Criminal Procedure 1960, (Уголовно-процессуальный кодекс РСФСР), in force at the material time, allowed certain officials to challenge a judgment which had entered into force and to have the case reviewed on points of law and procedure. The supervisory review procedure (Articles 371 - 383) is separate from proceedings in which a case is reviewed in the light of newly established facts (Articles 384 - 390). However, similar rules of procedure apply to them (Article 388).
1. Entry into force of a judgment
23. Pursuant to Article 356 of the Code of Criminal Procedure, a judgment enters into force and is subject to execution as of the day when the appeal (cassation) instance pronounces its judgment or, if it has not been appealed against, when the time-limit for appeal has expired.
2. Grounds for supervisory review and case re-opening
Article 379. Grounds for setting aside judgments which have entered into force
"The grounds for quashing or changing a judgment [on supervisory review] are the same as [those for setting aside judgments which have not entered into force on cassation appeals]. ..."
Article 342. Grounds for quashing or changing judgments [on cassation appeal]
"The grounds for quashing or changing a judgment on appeal are as follows:
(i) prejudicial or incomplete inquest, investigation or court examination;
(ii) inconsistency between the facts of the case and the conclusions reached by the court;
(iii) grave violation of procedural law;
(iv) misapplication of [substantive] law;
(v) inadequacy of the sentence to the gravity of offence and the convict"s personality."
Article 384. Grounds for re-opening case files due to new circumstances
"Judgments, decisions and rulings which entered into force may be set aside due to newly discovered circumstances.
The grounds for re-opening of a criminal case are as follows:
(i) the entry into force of a judgment by which a false witness testimony or an expert opinion, forgery of evidence, an investigation or court records or other documents, or a false translation, which entailed the pronouncement of an unfounded or unlawful judgment, is established;
(ii) the entry into force of a judgment by which criminal abuse of powers by judges performing their judicial function in connection with the case is established;
(iii) the entry into force of a judgment by which criminal abuse of powers by investigation officers dealing with the case is established, if it entailed the pronouncement of an unfounded or unlawful judgment, or a decision to terminate the prosecution;
(iv) other circumstances unknown to the court at the time when the case was examined, which alone or combined with other facts established earlier, prove innocence or the commission of a more or a less grave offence than the one of which an individual was convicted, or the guilt of a person who has been acquitted or whose prosecution was terminated."
3. Authorised officials
24. Article 371 of the Code of Criminal Procedure provided that the power to lodge a request for a supervisory review could be exercised by the Prosecutor General, the President of the Supreme Court of the Russian Federation and their respective Deputies in relation to any judgment other than those of the Presidium of the Supreme Court, and by the Presidents of the regional courts in respect of any judgment of a regional or subordinate court. A party to criminal or civil proceedings could solicit the intervention of such officials for a review.
4. Limitation period
25. Article 373 of the Code of Criminal Procedure set a limitation period of one year during which a request calling for the supervisory review of an acquittal could be brought by an authorised official. The period ran from the day when the acquittal entered into force.
5. The effect of a supervisory review on acquittal
26. According to Articles 374, 378 and 380 of the Code of Criminal Procedure, the request for supervisory review was to be considered by

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