CASE OF ABRAMYAN v. RUSSIA
Violations of Art. 6-1;Violation of Art. 6-3-a and 6-3-b;Non-pecuniary damage - award;Pecuniary damage - claim dismissed
Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
6. The applicant was born in 1974 and lives in Pyatigorsk, Stavropol region. 7. On 16 June 2000 criminal proceedings were brought against the applicant, a police investigator. The investigating authority charged him with taking a bribe involving a large sum of money, aggravated by extortion, under Article 290 § 4 (c) and (d) of the Criminal Code, together with a number of other offences. 8. The applicant and his lawyer were present at the hearings before the Stavropol Regional Court. 9. On 2 October 2000 the Stavropol Regional Court delivered a judgment. In respect of the legal characterisation of the acts the applicant was found to have committed, it held as follows: “... the court finds the classification of the acts of Abramyan E.N. by the preliminary investigation authorities to have been erroneous and classifies his acts under Articles 30 § 3 and 159 § 3 (b) of the UK RF [Criminal Code of the Russian Federation]. It was established that Abramyan, through the abuse of official authority and with a view to misappropriating another’s property, misled witness [L.], claiming that he would forward her case to a court. He then fraudulently obtained two thousand US dollars from [L.], via [D.], having kept from [D.] and [L.] the fact that the proceedings had already been terminated. Taking into account the amount that was stolen and the fact that Abramyan had no real opportunity to dispose of the money, having been arrested at the scene, the court regards his acts as attempted misappropriation, through the abuse of official authority, of another’s property, involving a large sum of money, since he committed all the acts necessary in order to misappropriate another’s property and failed to complete the crime due to circumstances beyond his control.” 10. The court convicted the applicant under Articles 30 § 3 and 159 § 3 (b) of the Criminal Code, acquitted him on the remaining charges and sentenced him to seven years’ imprisonment and imposed a confiscation order. 11. According to the record of the hearing, after pronouncing the judgment the presiding judge explained to the applicant the procedure and time-limit for appealing against the judgment. He explained that convicted persons could participate in the examination of their case by an appeal body. 12. The applicant appealed against the judgment. In particular, he complained that the court’s classification of his actions had been erroneous. In his appeal against the judgment the applicant did not request that he be summoned to the hearing before the appeal court or that he be informed of the date of the hearing. Nor did he or his lawyer lodge a separate request to that effect. 13. On 27 December 2000 the Supreme Court of the Russian Federation held an appeal hearing at which neither the applicant nor his counsel were present. The Supreme Court heard a prosecutor K. who argued that the judgment should be upheld. It examined the applicant’s points of appeal, reviewed the judgment and found that the trial court had correctly established the facts based on the evidence examined by it and had given the correct legal classification of the acts which the applicant had been found to have committed. The Supreme Court upheld the judgment. 14. On an unspecified date in 2003 the applicant was released on parole. 15. Under Article 335 of the Code of Criminal Procedure of 1960 (“the CCP”), in force at the material time, the public prosecutor would state his or her opinion at an appeal hearing as to whether a judgment was lawful and wellfounded. Defence counsel could participate in the hearing. A decision about the defendant’s participation at the hearing was taken by the appeal court. A defendant who appeared before the court was always entitled to give evidence. 16. In Decision no. 27-P of 10 December 1998, the Constitutional Court of the Russian Federation declared Article 335 § 2 of the CCP incompatible with the Constitution on the grounds that this provision enabled appeal courts to take a final decision where a defendant’s request to attend the appeal hearing had been rejected and where a defendant had not been given an opportunity to study the materials of the hearing and communicate in writing his or her opinion on the issues raised before the appeal court. 17. Article 336 of the CCP provided that persons who had submitted appeals were to be apprised of the appeal hearing if it was held before courts lower than the Supreme Court of Russia. If an appeal was to be examined by the Supreme Court, an appellant would be apprised of the appeal hearing if he or she had requested the court to do so in their appeal or observations on the appeal. Notification of the time of the hearing on appeal was to be displayed at the court not later than three days before the hearing. 18. In Decision no. 200-O of 17 October 2001, the Constitutional Court held that the provisions of Article 336 of the CCP could not serve as a basis for failing to inform persons entitled to appeal against judgments about the date of examination of their appeals by a court of any level. 19. Article 338 of the CCP required that, at the beginning of an appeal hearing, the presiding judge should verify who was present and the court should decide whether to proceed with the hearing. 20. The appeal courts considered, on the basis of the materials in the case file and newly submitted materials, whether a first-instance judgment was lawful and well-founded. They were not bound by the grounds of the appeal and exercised a full review of the case (Article 332 of the CCP). 21. Under Articles 339-341 of the CCP appeal courts could decide to dismiss the appeal and uphold the judgment, to quash the judgment and remit the case for a new investigation or for a fresh trial, to terminate the criminal proceedings or to vary the judgment. It could reduce the sentence or amend the legal classification to the defendant’s advantage. If it found the sentence or legal classification to be too lenient, it could quash the judgment only if an appeal on such grounds had been filed by the prosecutor or the victim. Acquittals could be quashed on appeal at the request of the prosecutor, the victim or the acquitted person. 22. Article 342 of the CCP Grounds for quashing or varying judgments [on appeal] “The grounds for quashing or varying a judgment on appeal shall be 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) a grave violation of procedural law; (iv) improper application of [substantive] law; (v) discrepancy between the sentence and the seriousness of the offence or the convicted person’s personality.” 23. Article 254 of the CCP required the court to examine the case on the basis of the charges brought against the defendant. The charge could be amended by the court provided that such amendment did not aggravate the situation of the defendant or violate his right to defend himself. If the amendment entailed a violation of the defence rights, the court had to remit the case for additional investigation. It did not have powers to prefer a more serious charge or a charge based on substantially different factual circumstances. The court could continue the trial if the amendment related only to the deletion of certain counts or aggravating circumstances. 24. An official who – personally or through an intermediary – receives a bribe in the form of money, shares or other property or benefits for acts (or omissions) in the interest of the bribe-giver, provided that such acts are within the competence of the official or the official can facilitate the performance of such acts by virtue of his position, commits a criminal offence (Article 290 § 1). The same acts, if they are aggravated by extortion (Article 290 § 4 (c)) or involve a large sum of money (Article 290 § 4 (d)), are punishable by seven to twelve years’ imprisonment, which may be accompanied by a confiscation order. 25. Article 159 § 1 provides that fraud, that is theft of others’ property or acquisition of rights to others’ property by way of deception or abuse of confidence, is a criminal offence. Article 159 § 3 (b) specifies that a fraud involving a large sum of money is punishable by five to ten years’ imprisonment, which may be accompanied by a confiscation order.