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

the judicial board (the Presidium) of the competent court. The court could examine the case on the merits, and was not bound by the scope and grounds of the extraordinary appeal.
27. The Presidium could dismiss or uphold the request. If the request was dismissed, the earlier judgment remained in force. If it upheld the request, the Presidium could decide whether to quash the judgment and terminate the criminal proceedings, to remit the case for a new investigation, or for a fresh court examination at any instance, to uphold a first instance judgment reversed on appeal, or to amend and uphold any of the earlier judgments.
28. Article 380 §§ 2 and 3 provided that the Presidium could in the same proceedings reduce a sentence or amend the legal qualification of a conviction or sentence to the defendant"s benefit. If it found a sentence or legal qualification too lenient, it had to remit the case for a new examination.
29. On 1 July 2002 a new Code of Criminal Procedure entered into force. According to its Article 405, the application of supervisory review is limited to the cases where it does not involve changes to the detriment of the convicted person. The acquittals and decisions to terminate prosecution cannot be the subject of a supervisory review.
B. Relevant materials
30. On 19 January 2000 the Committee of Ministers at the 694th meeting of the Ministers" Deputies adopted Recommendation No. R (2000) 2 on the re-examination or re-opening of certain cases at domestic level following judgments of the European Court of Human Rights. The Recommendation encouraged the Contracting Parties to examine their national legal systems with a view to ensuring that there exist adequate possibilities to re-examine the case, including the re-opening of proceedings, in instances where the Court has found a violation of the Convention.
THE LAW
I. Alleged violation of Article 4
of Protocol No. 7 to the Convention
31. The applicant contends that the supervisory review proceedings which took place after his final acquittal constituted a violation of his right not to be tried again in criminal proceedings for an offence of which he had been finally acquitted. He alleges that he was at least liable to be tried again on the same counts, as the very fact of lodging a supervisory request by the Prosecutor General created the potential for a new round of prosecution. He invokes Article 4 of Protocol No. 7 to the Convention which, in so far as relevant, provides:
"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 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."
A. The parties" submissions
32. The Government consider that, for the purposes of Article 4 of Protocol No. 7, the supervisory review proceedings did not constitute a second trial. They contend that the domestic law at the material time did not permit the supervisory instance to convict the applicant, but only to quash the previous judgments and to remit the case for fresh examination in adversarial proceedings. In support of their position they invoke the Constitutional Court"s ruling of 17 July 2002 in the applicant"s case. The Government submit that the applicant"s acquittal cannot be said to have been invalidated or suspended at any time, given that the prosecutor"s request was dismissed by the Presidium.
33. The Government further point out that, following the recent change in the legislation, final acquittals can no longer be challenged by way of supervisory review, and other judgments cannot be challenged by way of supervisory review to the detriment of a convicted person.
34. The applicant contests the Government"s position and submits that, contrary to the ne bis in idem principle, the prosecutor"s request made him liable to be tried again for an offence of which he had been finally acquitted. Although the outcome remained unchanged, he was effectively prosecuted twice for the same offence. He claims that the supervisory review was not justified as an exceptional re-opening permitted by the second paragraph of Article 4 of Protocol No. 7, because the Presidium had established no fundamental defect in previous proceedings which would call for a reassessment of the case.
B. The Court"s assessment
35. The Court notes that the protection against duplication of criminal proceedings is one of the specific safeguards associated with the general guarantee of a fair hearing in criminal proceedings. It recalls that the aim of Article 4 of Protocol No. 7 is to prohibit the repetition of criminal proceedings that have been concluded by a final decision (see, among other authorities, Gradinger v. Austria, judgment of 23 October 1995, Series A No. 328-C, p. 65, § 53). The Court further notes that the repetitive aspect of trial or punishment is central to the legal problem addressed by Article 4 of Protocol No. 7. In Oliveira v. Switzerland, (judgment of 30 July 1998, Reports of Judgments and Decisions 1998-V), the fact that the penalties in the two sets of proceedings were not cumulative was relevant to the finding that there was no violation of the provision where two sets of proceedings were brought in respect of a single act (p. 1998, § 27).
36. Turning to the supervisory review of an acquittal conducted in circumstances such as the present case, the Court will first determine what elements, if any, of Article 4 of Protocol No. 7 are to be found in such proceedings. For this purpose, it will have regard to the following aspects:
- whether there had been a "final" decision before the supervisory instance intervened, or whether the supervisory review was an integral part of the ordinary procedure and itself provided a final decision;
- whether the applicant was "tried again" in the proceedings before the Presidium; and
- whether the applicant became "liable to be tried again" by virtue of the Prosecutor General"s request.
Finally, the Court will consider whether, on the basis of this case, the supervisory review could in principle have given rise to any form of duplication of the criminal proceedings, contrary to the protection afforded by Article 4 of Protocol No. 7.
1. Whether the applicant had been "finally acquitted"
prior to the supervisory review
37. According to the Explanatory Report to Protocol No. 7 to the Convention, which itself refers back to the European Convention on the International Validity of Criminal Judgments, a "decision is final "if, according to the traditional expression, it has acquired the force of res judicata. This is the case when it is irrevocable, that is to say when no further ordinary remedies are available or when the parties have exhausted such remedies or have permitted the time-limit to expire without availing themselves of them"".
38. The Court notes that the procedural law at the time allowed certain officials to challenge a judgment which had entered into force. The grounds for supervisory review were the same as for bringing an ordinary appeal. As far as acquittals were concerned, the request for supervisory review could be brought within one year after entry into force of the judgment. Assuming that the Presidium had granted the prosecutor"s request and the proceedings had been launched anew, the ensuing ruling would still constitute the only decision in the applicant"s criminal case, with no other decision remaining concurrently in force, and that decision would be "final". It appears, thus, that the domestic legal regime in Russia at the time did not regard decisions such as the acquittal in the present case as "final" until the time-limit for making an application for supervisory review had expired. On that basis, the decision of the Presidium of the Supreme Court of 30 May 2000 not to accept the case for supervisory review would be the "final" decision in the case. On such an interpretation, Article 4 of Protocol No. 7 would have no application whatever in the present case, as all the decisions before the Court related to the same, single set of proceedings.
39. However, the Court recalls that a supervisory request for annulment of a final judgment is a form of extraordinary appeal as it is not accessible to the defendant in a criminal case directly, and its application depends on the discretion of authorised officials. The Court has, for example, not accepted that supervisory review is an effective domestic remedy in either the civil or the criminal contexts (see Tumilovich v. Russia (dec.), No. 47033/99, 22 June 1999; Berdzenishvili v. Russia (dec.), No. 31697/03, 29 January 2004), and it has found that the quashing of a judgment on supervisory review can create problems as to the legal certainty to be afforded to the initial judgment (see {Brumarescu} v. Romania [GC], No. 28342/95, § 62, ECHR 1999-VII; Ryabykh v. Russia, No. 52854/99, §§ 56-58, 24 July 2003). The Court will therefore assume in the following paragraphs that the appeal judgment of 17 April 2000, by which the applicant"s acquittal acquired final force on that day, was the "final decision" referred to in Article 4 of Protocol No. 7.
2. Whether the applicant was "tried again"
in the proceedings before the Presidium
40. The Court observes that the Prosecutor General"s request for supervisory review of the acquittal was examined by the Presidium. Its determination was limited, at that stage, to the question of whether to grant the request for supervisory review. In the circumstances of the present case, the Presidium did not accept the application for review, and the final decision remained that of 17 April 2000.
41. It follows that the applicant was not "tried again" within the meaning of Article 4 § 1 of Protocol No. 7 of the Convention in the proceedings by which the Presidium of the Supreme Court rejected the Prosecutor General"s request for supervisory review of the applicant"s acquittal.
3. Whether the applicant was "liable to be tried again"
42. The Court has next considered whether the applicant was "liable to be tried again", as he alleges. The Court notes that had the request been upheld, the Presidium would have been required, by the then Article 380 of the Code of Criminal Procedure, to choose one of the options set out at paragraph 27 above. Importantly, the Presidium was not empowered to make a new determination on the merits in the same proceedings, but merely to decide whether to grant the Prosecutor General"s request or not.
43. It appears therefore that the potential for a resumption of proceedings in this case would have been too remote or indirect to constitute a "liability" within the meaning of Article 4 § 1 of Protocol No. 7.
44. Although the elements discussed in the preceding paragraphs 40 - 43 are in themselves sufficient to demonstrate that supervisory review in this case did not lead to a violation of Article 4 of Protocol No. 7, the Court notes that there exists a substantive, thus more important, reason to reach the same conclusion. It considers that the crucial point in this case is that supervisory review could not in any event have given rise to a duplication of criminal proceedings, within the meaning of Article 4 § 1 of Protocol No. 7, for the following reasons.
45. The Court observes that Article 4 of Protocol No. 7 draws a clear distinction between a second prosecution or trial which is prohibited by the first paragraph of this Article, and the resumption of a trial in exceptional circumstances, which is provided for in its second paragraph. Article 4 § 2 of Protocol No. 7 expressly envisages the possibility that an individual may have to accept, in accordance with domestic law, prosecution on the same counts where a case is re-opened following the emergence of new evidence or the discovery of a fundamental defect in the previous proceedings.
46. The Court notes that the Russian legislation in force at the material time permitted a finally decided criminal case to be re-opened on the grounds of new or newly discovered evidence or a fundamental defect (Articles 384 - 390 of the Code of Criminal Procedure). This procedure obviously falls within the scope of Article 4 § 2 of Protocol No. 7. The Court, however, notes that, in addition, a system also existed which allowed the review of a case on the grounds of a judicial error on points of law and procedure (supervisory review, Articles 371 - 383 of the Code of Criminal Procedure). The subject matter of such proceedings remains the same criminal charge, and the validity of its previous determination. If the request is granted and the proceedings are resumed for further consideration, the ultimate effect of supervisory review would be to annul all decisions previously taken by courts and to determine a criminal charge in a new decision. To this extent, the effect of supervisory review is the same as a re-opening, because both constitute a form of continuation of the previous proceedings. The Court therefore concludes that for the purposes of the ne bis in idem the supervisory review may be regarded as a special type of re-opening falling within the scope of Article 4 § 2 of Protocol No. 7.
47. The applicant"s argument that the supervisory review was unnecessary and amounted to an abuse, is not relevant to the question of compliance with Article 4 of Protocol No. 7: the manner in which the power was exercised is relative to the overall fairness of criminal proceedings, but cannot be decisive for the purpose of identifying the procedure as a "re-opening" as opposed to a "second trial". On the facts of the present case, the proceedings aimed at bringing about a supervisory review were an attempt to have the proceedings re-opened, and not an attempted "second trial".
48. Finally, the Court notes that the conformity with the requirement of lawfulness under Article 4 § 2 of Protocol No. 7 in the present case is undisputed.
49. The Court concludes that the applicant was not liable to be tried or punished again within the meaning of Article 4 § 1 of Protocol No. 7 to the Convention, and accordingly there has been no violation of that provision.
II. Alleged violation of Article 6 § 1 of the Convention
50. The applicant maintains that the supervisory review proceedings conducted after his final acquittal constituted a violation of his right to

<СОГЛАШЕНИЕ В ФОРМЕ ОБМЕНА НОТАМИ МЕЖДУ МИНИСТЕРСТВОМ ИНОСТРАННЫХ ДЕЛ СССР И ПОСОЛЬСТВОМ ФРАНЦИИ В СССР О ВЫДАЧЕ ДИПЛОМАТИЧЕСКИМ СОТРУДНИКАМ ПОСОЛЬСТВ И КОНСУЛЬСТВ И ЧЛЕНАМ ИХ СЕМЕЙ МНОГОКРАТНЫХ ВИЗ>(Заключено в г. Москве 10.02.1979 - 12.02.1979)  »
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