GONCHAROVY v. RUSSIA
Inadmissible
Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
The applicants, Mr Nikolay Stepanovich Goncharov and Mr Ivan Stepanovich Goncharov are Russian nationals who were born in 1947 and 1955 respectively and live in the Smolensk Region. The Russian Government (“the Government”) were represented by Mr P. Laptev and Ms V. Milinchuk, former Representatives of the Russian Federation at the European Court of Human Rights. The facts of the case, as submitted by the parties, may be summarised as follows. On 19 February 1981 the applicants were arrested on suspicion of having committed several crimes. They were detained pending investigation. On 26 May 1982 the Kaluga Regional Court convicted the first applicant of unlawful carriage of firearms, forgery, death threats and misappropriation (Articles 218, 196, 175, 96 and 207 of the Russian Soviet Federative Socialist Republic (“RSFSR”) Criminal Code, hereinafter the “Criminal Code”) and the second applicant of forgery and misappropriation (Articles 196 and 96 of the Criminal Code). The Regional Court further acquitted the applicants of several other crimes. The applicants were sentenced to one year and three months’ imprisonment and one year’s imprisonment respectively. The applicants were released in the courtroom. On 28 July 1982 the Supreme Court of the RSFSR upheld the above judgment on appeal. On 1 April 1991 the first applicant applied to the Supreme Court of the RSFSR requesting the court to initiate a supervisory review of his criminal case, to quash the judgment of 26 May 1982, as upheld on 28 July 1982, and to terminate the criminal proceedings against him owing to the absence of corpus delicti in his actions. On an unspecified date the President of the Supreme Court of the RSFSR lodged an application for supervisory review of the judgment of 26 May 1982, as upheld on 28 July 1982. On 25 September 1991 the Presidium of the Supreme Court of the RSFSR quashed the judgment of 26 May 1982, as upheld on 28 July 1982, by way of supervisory review. The Supreme Court found that the above judgment could not be considered lawful and well-founded At the same time, the Presidium left the remainder of the judgment, that is the acquittal part, in force. On 25 November 1991 the Prosecutor of the Smolensk Region discontinued the criminal proceedings in respect of the first applicant partly for want of proof of a crime and partly on the ground that further prosecution was time-barred. The criminal proceedings against the second applicant were discontinued partly because of the lack of corpus delicti in his actions and partly because further prosecution was time-barred. The applicants appealed against the above decision. In their appeal they expressed discontent with the grounds given for termination of the criminal proceedings against them and insisted on the remittal of their case to the court for its examination on the merits. As a result, on 10 January 1992 the Prosecutor of the Smolensk Region quashed the decision of 25 November 1991. The preliminary investigation into the case was assigned to the Bryansk Transport Prosecutor’s Office. On 25 August 1992 and 15 May 1993 the Bryansk Transport Prosecutor’s Office again terminated the criminal proceedings against the applicants on the same grounds as previously. However, on 4 September 1992 and 23 October 1998 respectively the Moscow Transport Prosecutor’s Office quashed the above decisions on appeal and resumed the preliminary investigation. The Moscow Transport Prosecutor’s Office noted on both occasions that a criminal case could be terminated on nonexonerative grounds, such as a time-bar on further prosecution, only with the consent of the prosecuted person. As the applicants had never agreed to the termination of the case on this ground the investigation would have to be continued. On 18 February 1999 the investigator made the applicants sign a written undertaking not to leave the town. After the completion of the preliminary investigation, on 30 August 1999 the case was remitted to the Monastyrshinskiy District Court of the Smolensk Region for examination on the merits. Since the applicants refused to attend the preparatory hearing, the Monastyrshinskiy District Court decided on 15 November 1999 to change the above preventive measure to detention on remand. The second applicant was remanded in custody on 17 November 1999; however, on the same day the District Court ordered his release subject to an undertaking not to leave the town. On 7 December 1999 the Smolensk Regional Court upheld on appeal the decision of 15 November 1999 in respect of the first applicant. On 3 March 2000 the first applicant was detained. On 7 March 2000 the applicants consented to termination of the criminal proceedings against them owing to the expiry of the statutory limitation period for their criminal prosecution. On the same day the Monastyrshinskiy District Court of the Smolensk Region in compliance with Article 5 § 1 (3) of the Code of Criminal Procedure of the RSFSR discontinued the criminal proceedings against the applicants for being time-barred. The first applicant was released from detention. On 4 July 2000 the Smolensk Regional Court upheld the above decision on appeal. The first applicant challenged the lawfulness of the decision of 15 November 1999, as upheld on 7 December 1999, before the Presidium of the Smolensk Regional Court. On 15 June 2005 the Presidium of the Smolensk Regional Court acknowledged that the decisions in question had been unlawful and accordingly quashed them by way of supervisory review. Section VI, Chapter 30, of the 1960 Code of Criminal Procedure (Уголовно-процессуальный кодекс РСФСР), as in force at the material time, allowed certain officials to challenge a judgment which had become effective and to have the case reviewed on points of law and procedure. The supervisory review procedure (Articles 371-83 of the Code) is distinct from proceedings in which a case is reviewed in the light of newly established facts (Articles 384-90). However, similar rules apply to both procedures (Article 388). Under the terms of Article 356 of the Code of Criminal Procedure, a judgment takes effect and is enforceable from the date on which the appeal court renders its decision or, if no appeal has been lodged, once the timelimit for appeal has expired. “The grounds for quashing or varying a judgment [on supervisory review] are the same as [those for setting aside judgments (which have not taken effect) on appeal] ...” “The grounds for quashing or varying a judgment on appeal are as follows: (i) prejudicial or incomplete investigation or pre-trial 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) misapplication of [substantive] law; (v) discrepancy between the sentence and the seriousness of the offence or the convicted person’s personality.” 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 or 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 those officials for a review. Article 373 of the Code of Criminal Procedure did not set a limitation period for lodging an application for a supervisory review that might be beneficial to a convicted person. Under Articles 374, 378 and 380 of the Code of Criminal Procedure, a request for supervisory review was to be considered by the judicial board (the Presidium) of the competent court. The court could examine the case on the merits and was not bound by the scope and grounds of the request for supervisory review. The Presidium could dismiss or grant the request. If it dismissed the request, the earlier judgment remained in force. If it granted the request, the Presidium could decide to quash the judgment and terminate the criminal proceedings, to remit the case for a new investigation, to order a fresh court examination at any instance, to uphold a first-instance judgment reversed on appeal, or to vary or uphold any of the earlier judgments. Article 380 §§ 2 and 3 provided that the Presidium could, in the same proceedings, reduce a sentence or amend the legal classification of a conviction or sentence to the defendant’s advantage. If it found a sentence or legal classification to be too lenient, it was obliged to remit the case for a new examination. Under Article 331 of the Code of Criminal Procedure an appeal against a decision of a first-instance court (including an order authorising or extending pre-trial detention) lay to a higher court. It had to be lodged within ten days and examined within the same time-limit as an appeal against a judgment on the merits. The State or regional treasury is liable – irrespective of any fault by State officials – for the damage sustained by an individual on account of unlawful criminal prosecution, unlawful application of a preventive measure in the form of placement in custody or an undertaking not to leave the place of residence, or an unlawful administrative penalty in the form of detention or community work (Article 1070 § 1 of the Civil Code). A court may hold the tortfeasor liable for non-pecuniary damage incurred by an individual through actions impairing his or her personal non-property rights, such as the right to personal integrity and the right to liberty of movement (Articles 150 and 151). Non-pecuniary damage must be compensated for irrespective of the tortfeasor’s fault in the event of unlawful conviction or prosecution, unlawful application of a preventive measure in the form of placement in custody or an undertaking not to leave the place of residence, or an unlawful administrative penalty in the form of detention or community service (Article 1100 § 2).