CASE OF SELIVERSTOV v. RUSSIA
Violation of Article 6 - Right to a fair trial
Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens
5. The applicant was born in 1957 and lives in the town of Sarapul in the Udmurtiya Republic. 6. On 23 April 2001 the Supreme Court of the Udmurtiya Republic delivered a judgment in a criminal case against the applicant and his co-defendants, Mr T. and Mr Z. The court established that in February-March 2000 the applicant, the then Head of the Sarapul Town Property Management Committee, had detected certain irregularities in the privatisation of a local brewery which, in his assessment, might have rendered the privatisation void. The applicant had conspired with T. and Z. to approach the director of the brewery to extort 350,000 Russian roubles (RUB) from the head of the brewery in exchange for covering up those irregularities. The head had agreed to pay RUB 200,000. On the day of payment the applicant prepared an amended assessment report on the brewery’s immovable property, signed it in his office and affixed the seal of the Property Management Committee. Z. and T. delivered the report to the brewery head and received the stipulated amount. On leaving the head’s office they were apprehended by the police. 7. The trial court found the applicant guilty of having attempted to solicit, through an intermediary, a large sum of money for performing acts in the interests of the bribe-giver that were within the applicant’s official competence. The court established that those acts were punishable under Article 290 § 4 (c) and (d) of the Criminal Code (“Bribery”) in conjunction with Article 30 § 3 (“Preparation of a criminal offence and an attempted criminal offence”). The applicant was sentenced to three years and six months’ imprisonment in a high-security colony. 8. The applicant, but not the prosecution, appealed against the first-instance judgment. 9. On 17 October 2001 the Supreme Court of the Russian Federation held an appeal hearing in the presence of the applicant’s lawyer and a prosecutor. The applicant did not attend the hearing. In his oral submissions the prosecutor asked the court to recharacterise the applicant’s acts as attempted large-scale fraud committed by an organised group (Article 159 § 3 (b) of the Criminal Code in conjunction with Article 30 § 3), without reducing the sentence. Pursuant to Article 338 of the 1960 Code of Criminal Procedure, the court then asked the applicant’s lawyer to submit “additional explanations”. The lawyer contended that the granting of the prosecutor’s request would violate the applicant’s right to prepare his defence because neither the applicant nor the lawyer himself had been informed in advance of the nature and grounds of the new charge and they had not had adequate time to prepare their position. The lawyer relied, in particular, on Article 6 § 3 (a) and (b) and Article 13 of the Convention. 10. The court then withdrew for deliberations and delivered its judgment by which it recharacterised the applicant’s acts as attempted large-scale fraud within the meaning of Article 159 § 3 (b) of the Criminal Code in conjunction with Article 30 § 3 and upheld the applicant’s imprisonment term. It reasoned as follows: “Having correctly established the facts of the case, the [trial] court, however, groundlessly characterised [the applicant’s] acts as an attempt to solicit a bribe in conspiracy with T. and Z. As the court acknowledged in the judgment, the brewery privatisation documents had contained ‘defects’ that had been too insignificant to entail annulment of the privatisation, and [the applicant], as the court established, had been perfectly aware of it. By setting up a deception scheme designed to get hold of a large amount of money because of the defects in the documents, [the applicant], acting in collusion with T. and Z., attempted to steal another person’s property on a large scale using his official position. These acts of [the applicant] are to be characterised under Articles 30 and 159 § 3 (b) of the Criminal Code... Notwithstanding the change in the legal characterisation of the defendants’ acts, it must be recognised that the sentence imposed by the [trial] court corresponds to [the gravity of] the offence and the information on their personalities.” “1. Obtaining a bribe in form of money, securities, other property ... by an official -personally or through an intermediary – for acts (omissions) in the interests of the bribe-giver ... , provided such acts (omissions) are within the competence of the official or he can facilitate the performance of such acts (omissions) by virtue of his position...shall be punishable by a fine ...or up to five years’ imprisonment ... ... 4. The acts enumerated in parts one, two and three of the present Article, if they are committed... ... c) with a solicitation of a bribe; d) on a large scale, shall be punishable by seven to twelve years’ imprisonment, accompanied by a confiscation of property or without such.” “1. Fraud, notably theft of other’s property or acquisition of the right to other’s property by way of deception or abuse of confidence, shall be punishable by a fine ... or up to three years’ imprisonment... ... 3 Fraud committed: a) by an organised group; b) on a large scale... ... shall be punishable by five to ten years’ imprisonment, accompanied by a confiscation of property or without such.” “... 3. An attempted criminal offence is an intentional act (omission) of a person, directly aimed at committing an offence, if however the offence had not been completed due to circumstances beyond the will of that person.” 11. Article 254 of the 1960 Code of Criminal Procedure required the court to examine the case within the scope of the charge against the defendant(s). The charge could be amended by the court, provided that such an 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 was to remit the case for an additional investigation. It was prohibited to prefer a more serious charge or a charge based on substantially different factual circumstances. The court could continue the trial if the amendment only concerned abandonment of certain counts or aggravating circumstances. 12. Articles 339 and 342 provided that the appeal court could decide to dismiss the appeal and uphold the judgment; to quash the judgment and remit the case for an additional investigation or a fresh examination by a trial court; to discontinue the criminal proceedings or to vary the judgment, in particular, if the trial court had incorrectly applied the law. 13. Article 338 described the procedure for the examination of cases before the appeal court. A judge rapporteur opened the hearing and gave a summary of the facts of the case and the grounds of appeal. The defendant first gave explanations, after which the prosecutor made oral submissions. The defendant then made additional observations and the court withdrew for deliberations and delivery of the judgment.