SMADIKOV v. RUSSIA
Inadmissible
Alena Poláčková;Branko Lubarda;Dmitry Dedov;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova
1. The applicant, Mr Grigoriy Vladimirovich Smadikov, is a Russian national who was born in 1964 and lives in Khabarovsk. 2. In 2012 the applicant was accused of an administrative offence under Article 12.28 of the Federal Code of Administrative Offences (CAO). According to the applicant, he was unaware of the charge. 3. A hearing was listed for 18 June 2012. Since the hearing notification was returned to the court as “after expiry of the storage term”, the judge rescheduled to 16 July 2012 and issued a new notification. This notification was also returned to the court with the same note. 4. According to the applicant, he remained unaware of the charge and did not receive the above notifications. 5. By a judgment of 16 July 2012 a justice of the peace convicted the applicant; his driving licence was suspended for one year and six months. The applicant allegedly first learned about this judgment on 19 May 2014, when he was involved in a traffic accident. 6. The applicant appealed against the judgment. On 21 July 2014 the Khabarovskiy District Court of Khabarovsk held a hearing; heard the applicant’s representative (the applicant waiving his right to be present); examined evidence; and upheld the judgment. 7. On 27 August and 3 December 2014 the Khabarovsk Regional Court and the Supreme Court of Russia respectively rejected the applicant’s applications for review under Article 30.12 of the CAO (see paragraphs 1721 below as regards the applicable procedure). 8. Under Article 25.11 and 28.4 of the CAO a prosecutor institutes administrative-offence proceedings for a number of offences, but also has the right to institute administrative-offence proceedings in any other case. He can participate in the examination of the case, lodge various applications, and issue a report on issues arising in the case. He can also appeal against the decision in the case, irrespective of whether he previously participated in the proceedings. 9. Under the CAO, depending on the subject matter decisions concerning administrative offences can be issued either by a non-judicial authority or by a court (Chapter 23 of the CAO). 10. At the relevant time, Chapter 30 of the CAO contained provisions concerning review of such decisions. 11. Review could be sought by the person or legal entity accused of the administrative offence, the victim of the offence, or their representative (Article 30.1). If the decision on the administrative offence concerned a legal entity or a person engaged in entrepreneurial activities it was reviewed by a commercial court in accordance with the rules of commercial procedure (Article 30.1). 12. An ordinary appeal against a ruling on an administrative offence could be lodged within ten days (or fifteen days for some offences) following receipt of the copy of the decision (Article 30.3). The appeal should be examined within ten days (or less for some offences) following receipt of the case file by the reviewing court or authority (Article 30.5). The reviewing authority or court is not bound by the scope of arguments, and reviews the case in its entirety (Article 30.6). 13. Article 30.10 gave prosecutors the right to seek review of decisions on administrative offences within the procedure and time-limits set out in Articles 30.1-30.3 of the CAO. 14. Article 30.11 provided for further review of final court decisions on administrative offences. A regional prosecutor or deputy or the Prosecutor General of the Russian Federation or deputy had the right to apply for such a further review. According to the ruling no. 5 of 24 March 2005 by the Plenary Supreme Court of Russia, individuals prosecuted in an administrative-offences case also had a right to lodge an application for supervisory review (paragraph 34). 15. If the judge in the supervisory review had doubts about the lawfulness of the impugned court decisions he or she could request the case file and then examine the case in its entirety, going beyond the grounds for review raised by the author of the supervisory-review application (paragraph 34 of the ruling of 24 March 2005). 16. Supervisory review was to be carried out by the presidents of the regional courts or their deputies, or by the President of the Supreme Court of Russia or her deputies. Reviewing this provision, the Constitutional Court of Russia (decision no. 113-O of 4 April 2006 concerning the constitutional interpretation of Article 30.11 of the CAO; this decision was officially published in July 2006) stated that the reviewing court was to inform the person affected by the administrative offence proceedings about the application for review lodged by the victim. The Constitutional Court also stated that until legislative amendment of the CAO concerning the scope of review, grounds for review, the reviewing courts’ powers, timelimits for seeking review, and the procedure for such a review, the reviewing courts were to be guided by the relevant provisions of Chapter 36 of the Code of Commercial Procedure (see paragraphs 24-29 below). 17. Article 30.11 of the CAO was deleted. Article 30.12 provides that the first-instance and appeal judgments, which became final, can be challenged by way of review by the defendant or his counsel, the victim, legal representative of a minor or another vulnerable person, or legal representatives of a legal entity. Review can be sought by a regional prosecutor or deputy or the Prosecutor General or deputy. Since October 2014 the public official who submitted the administrative offence case for judicial examination is also entitled to seek review. 18. Requests for review should be lodged before regional courts or the Supreme Court of Russia. Such requests are to be examined by the presidents of such courts or their deputies. The Supreme Court is empowered to deal with appeals against decisions taken on review at the regional level. In other cases, the Supreme Commercial Court should have similar competence (Article 30.13). 19. Requests for review should indicate the grounds for the review (Article 30.14). The scope of the review should be limited to the grounds indicated in the request and observations in reply. If the interests of legality so require, the review judge can review the case in its entirety. Renewed requests for review on the same grounds before the same court are not allowed (Article 30.16). 20. The reviewing court should issue a decision within two months of receipt of the application or within one month of receipt of the case file, if so requested by the reviewing court (Article 30.16). 21. The Constitutional Court held that the review procedure in respect of final court decisions under the CAO is aimed at the correction of fundamental errors in such decisions, in line with the requirements of Article 4 § 2 of Protocol No. 7 to the Convention (decision no. 1788-O of 16 July 2015). 22. Apparently, the decision of 113-O of 4 April 2006 was not applied by some regional courts (see decision no. 4a10-790 of 31 August 2010 by the Chelyabinsk Regional Court, and, a contrario, decision no. 4-a-854 of 24 November 2010 by the Rostov Regional Court); some regional courts stated that this decision was no longer applicable following the deletion of Article 30.11 of the CAO during the legislative reform in December 2008 (see decision no. 4a10-1227 of 28 December 2010 by the Chelyabinsk Regional Court). It appears that a number of regional courts have recently maintained the position that there is no time-limit for seeking review proceedings under the CAO: - Moscow City Court: decisions no. 4a-1328/15 of 1 June 2015, no. 4a3046/2015 of 8 September 2015, no. 4a-2641/2015 of 2 October 2015, no. 4a-3465/2015 of 5 October 2015, no. 4a-4770/2015, no. 4a123/16 of 15 March 2016; - Novosibirsk Regional Court: decisions no. 4a-214/2016 of 2 March 2016, no. 4a-252/2016 of 14 March 2016, no. 4a-260-2016 of 6 April 2016, no. 4a-376-2016 of 12 May 2016; - Krasnoyarsk Regional Court: decisions no. 4a-606/2015 of 6 August 2015, no. 4a-624/2015 of 7 August 2015; - Primoskiy Regional Court: decisions no. 7-21-958 of 19 August 2015, no. 7-21-1034 of 14 September 2015; - Ivanovo Regional Court: decision no. 4a-284/2015 of 8 October 2015; - Pskov Regional Court: decision no. 7-78/2015 of 9 June 2015; - Chelyabinsk Regional Court: decision no. 4a16-157 of 1 March 2016; - Supreme Court of the Tatarstan Republic: decision no. 4a-299 of 14 April 2016. 23. Cases concerning the charges under the CAO in respect of legal entities and entrepreneurs are examined according to the procedures prescribed by the Code of Commercial Procedure (CCOmP). 24. Prior to the changes which entered into force on 6 August 2014 (Federal Law no. 186-FZ of 28 June 2014), supervisory review of final judgments issued by commercial courts was regulated under Chapter 36 of the CComP. 25. Article 292 of the CComP provided that supervisory review of final judgments was carried out by the Supreme Commercial Court of Russia. This review could be sought by the parties to the proceedings and, in some cases, by a prosecutor (see also Articles 42 and 52 of the CComP). 26. The grounds for review included “substantial violations of rights and legitimate interests relating to entrepreneurial or another economic activity as a result of a violation or wrong application of material or procedural law” (Article 292 of the CComP). The application for review was to be lodged within three months of the date the last impugned judgment entered into force, provided that the other review remedies had been exhausted (ibid.). 27. Article 293 provided that the application was to be examined by a panel of judges, who had to decide whether the case was to be transferred for examination by the Presidium of the Supreme Commercial Court (see also Article 299 of the CComP). 28. Article 304 of the Code contained the grounds for varying or overturning lower courts’ decisions: violation of consistency in interpretation and application of the law by commercial courts; violation of human rights and freedoms, as protected by the well-recognised principles and rules of international law or by an international treaty of the Russian Federation; and violation of the public interest. 29. On this Court’s position concerning the supervisory review procedure under the CComP prior to the amendments in 2014, see Kovaleva and Others v. Russia (dec.), no. 6025/09, 25 June 2009. 30. For a summary of the amended provisions of the CComP in force since August 2014, see Sakhanov v. Russia (dec.), no. 16559/16, §§ 13-30, 28 October 2016.