ПОСТАНОВЛЕНИЕ Европейского суда по правам человека от 20.07.2004<ДЕЛО НИКИТИН (nikitin) ПРОТИВ РОССИИ> [англ.]
EUROPEAN COURT OF HUMAN RIGHTS
SECOND SECTION
CASE OF NIKITIN v.
RUSSIA
(Application No. 50178/99)
JUDGMENT <*>
(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:
PROCEDURE
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.
THE FACTS
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
