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

a fair trial. He invokes Article 6 § 1 of the Convention which, in so far as relevant, provides:
"In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal..."
A. The parties" submissions
51. In their post-admissibility submissions, the Government state that the supervisory review proceedings did not constitute a new examination of the applicant"s criminal charge because the request to quash the acquittal lodged by the Prosecutor General was dismissed by the Presidium of the Supreme Court without entering into the merits. They inform the Court that, as Article 380 § 2 prohibited the Presidium from increasing a sentence or changing a legal qualification for a more serious one without remitting the case for new examination, the Presidium itself was unable to replace an acquittal with a conviction at the same time as granting the request for re-opening. They also claim that, since the supervisory review proceedings had no negative impact on the applicant"s final acquittal, they cannot constitute a violation of the applicant"s right to a fair hearing within the meaning of Article 6 § 1.
52. The Government point out that the supervisory review in the present case was conducted in accordance with the procedure prescribed by law. In particular, the prosecutor"s request was lodged within one year of the entry into force of the acquittal.
53. The applicant, on the contrary, maintains that the very possibility to challenge the final and enforceable acquittal violates his right to a fair trial. He states that, although the supervisory review complied with the formal requirements imposed by law at the material time, it was not necessary. He claims that, in the circumstances of the case, the prosecutor"s call for supervisory review proceedings was clearly abusive and incompatible with the Convention principles.
B. The Court"s assessment
54. The Court has found above that supervisory review in this case was compatible with the ne bis in idem principle enshrined in Article 4 of Protocol No. 7, which is itself one aspect of a fair trial. The mere fact that the institution of supervisory review as applied in the present case was compatible with Article 4 of Protocol No. 7 is not, however, sufficient to establish compliance with Article 6. The Court must determine its compatibility with Article 6 independently of its conclusion under Article 4 of Protocol No. 7.
55. In particular, the Court recalls that it has previously held that the institution of supervisory review can give rise to problems of legal certainty, as judgments in civil cases remained open to review indefinitely, on relatively minor grounds (see {Brumarescu} and Ryabykh, both cited above). The position for criminal cases is somewhat different, at least in so far as acquittals are concerned, as the review could only be requested during a period of one year following the date of the acquittal in question.
56. The Court, moreover, observes that the requirements of legal certainty are not absolute. In criminal cases, they must be read in conjunction with, for example, Article 4 § 2 of Protocol No. 7 which expressly permits a State to re-open a case due to the emergence of new facts, or where a fundamental defect is detected in the previous proceedings, which could affect the outcome of the case. A possibility to re-examine or to re-open cases was also considered by the Committee of Ministers as a guarantee of restitution, particularly in the context of the execution of the Court"s judgments. In its Recommendation No. R (2000) 2 on the re-examination or re-opening of certain cases at the domestic level following judgments of the European Court of Human Rights, it urged Member States to ensure that their domestic legal systems provided for a procedure by which a case could be re-examined or re-opened.
57. A mere possibility to re-open a criminal case is therefore prima facie compatible with the Convention, including the guarantees of Article 6. However, certain special circumstances of the case may reveal that the actual manner in which it was used impaired the very essence of a fair trial. In particular, the Court has to assess whether, in a given case, the power to launch and conduct supervisory review was exercised by the authorities so as to strike, to the maximum extent possible, a fair balance between the interests of the individual and the need to ensure the effectiveness of the system of criminal justice.
58. The Court gives particular weight to the argument that, in the applicant"s case, the Presidium was indeed only deciding the question whether the case was to be re-opened or not. Had it quashed the acquittal, this would necessarily have entailed a separate set of adversarial proceedings on the merits before competent courts. The decision by the Presidium thus marked a procedural step which was no more than a precondition to a new determination of the criminal charge. The Court notes that the Presidium of the Supreme Court dismissed the prosecutor"s request, having found that it invoked defects which had been entirely within the prosecutor"s control to redress before, not after, the final judgment. The prosecutor"s request could itself be criticised as being arbitrary and abusive. However, it had no decisive impact on the fairness of the procedure for re-opening as a whole, which was primarily a matter for the Presidium"s deliberation (see, mutatis mutandis, Voloshchuk v. Ukraine (dec.), No. 51394/99, 14 October 2003, and Sardin v. Russia (dec.), No. 69582/01, 12 February 2004). Accordingly, the arbitrariness of the Prosecutor General"s request for re-opening could not be, and was not, prejudicial for the determination of the criminal charges in the present case.
59. The Court concludes that the authorities conducting supervisory review in the present case did not fail to strike a fair balance between the interests of the applicant and the need to ensure the proper administration of justice.
60. As for the proceedings before the Presidium of the Supreme Court, their outcome was favourable for the applicant and therefore, in respect of these proceedings, he cannot claim to be a victim of violation of his right to fair hearing. Moreover, according to the established case-law of the Convention organs, Article 6 does not apply to proceedings concerning a failed request to re-open a case. Only the new proceedings, after the re-opening has been granted, can be regarded as concerning the determination of a criminal charge (see, inter alia, X. v. Austria, No. 7761/77, Commission decision of 8 May 1978, Decisions and Reports (DR) 14, pp. 171, 174; {Jose} Maria Ruiz Mateos and Others v. Spain, No. 24469/94, Commission decision of 2 December 1994, DR 79, p. 141).
61. Accordingly, the Court finds no violation of Article 6 § 1 of the Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds that there has been no violation of Article 4 of Protocol No. 7 to the Convention;
2. Holds that there has been no violation of Article 6 § 1 of the Convention.
Done in English, and notified in writing on 20 July 2004, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
J.-P. COSTA
President
{S. DOLLE}
Registrar



In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the concurring opinion of Mr Loucaides is annexed to this judgment.
J.-P.C.
S.D.
CONCURRING OPINION
OF JUDGE LOUCAIDES
I have voted with the majority that there has been no violation of Article 4 of Protocol No. 7 and Article 6 § 1 of the Convention in this case. However, the reasons for my finding as regards the applicant"s complaint under Article 4 of Protocol No. 7 of the Convention are different from those of the majority. In my opinion, the applicant was not a victim in respect of this complaint.
In order to examine the merits of the complaints in question, we should first be satisfied that the applicant was either tried or prosecuted (see Zigarella v. Italy, application No. 48154/99, Reports 2002-IX) through, or as a result of, the request by the Prosecutor General to the Presidium of the Supreme Court that the case be reviewed in supervisory proceedings.
However, the Presidium of the Supreme Court dismissed the prosecutor"s request, with the result that no supervisory proceedings against the applicant have ever taken place. In the circumstances, I do not see how the applicant can be considered a victim as regards his complaint that supervisory review proceedings took place after his final acquittal, and that such proceedings constituted a violation of his right not to be tried again in a criminal procedure for an offence of which he had been finally acquitted.
In other words, the Prosecutor General"s request for a review of the case having been dismissed, one cannot speak of any commencement or recommencement of a prosecution or trial of the applicant.
It is true that Article 4 of Protocol No. 7 to the Convention speaks of the right not to be "liable to be tried or punished again for an offence..." (emphasis added). However, in my opinion, no one can be considered "liable" to be tried or prosecuted, in any real sense, for an offence unless all the necessary legal prerequisites for that trial or prosecution, according to the relevant national legal system, are satisfied. In this case, one of the essential prerequisites for the further trial or prosecution of the applicant, at the material time, was the approval of the request of the Prosecutor General for the revision of the case, a condition that was not satisfied.
Moreover, after his acquittal, the applicant has never faced a charge, in one form or another. In the absence of such measures, I do not see how he could be considered as having been "liable" to prosecution for the purposes of Article 4 of Protocol No. 7 of the Convention, unless we stretch the concept of "prosecution" beyond its normal or established meaning.

<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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