CASE OF FADIN v. RUSSIA
No violation of Art. 6;No violation of P7-4
David Thór Björgvinsson
7. The applicant was born in 1954 and lives in Tula. 8. On 7 May 1996 the applicant was arrested on suspicion of the attempted rape of his flatmate. He was subsequently also charged with attempted murder. 9. On 5 August 1996 the Tula Regional Court convicted the applicant of attempted rape and attempted murder (Articles 15, 103 and 117 of the Russian Soviet Federative Socialist Republic (“RSFSR”) Criminal Code). 10. On 31 October 1996, on appeal, the Supreme Court of Russia quashed the conviction and remitted the case for a fresh examination. The Supreme Court instructed the Tula Regional Court to examine certain evidence. 11. On 14 March 1997 the Tula Regional Court ordered a psychiatric expert examination of the applicant. 12. On 5 January 1998 the applicant was diagnosed with schizophrenia. 13. On 24 March 1998 the Tula Regional Court reclassified the charges as attempted rape and attempted murder with aggravating circumstances (Articles 15, 103 and 117 of the RSFSR Criminal Code). It held that, on account of his mental disorder, the applicant was not responsible for the acts he had committed and ordered his compulsory treatment in a psychiatric hospital. The applicant did not appeal. 14. The applicant remained in hospital from 20 April 1998 to 30 January 1999. After being discharged from hospital, he travelled to Belarus. 15. On 20 September 1999 the applicant applied to the Prosecutor-General requesting supervisory review of his criminal case. It appears that it was not his first request for supervisory review. The applicant stated, inter alia: “...I repeat my request to you: 1. That the case ... against me be fully re-examined by a court...”. 16. On 12 November 1999 the Deputy Prosecutor-General lodged an application for supervisory review of the Tula Regional Court’s decision of 24 March 1998. 17. On 7 December 1999 the Supreme Court of Russia quashed the decision of 24 March 1998 under the supervisory-review procedure and remitted the case for a fresh examination. The Supreme Court found that in the trial of 24 March 1998 the Tula Regional Court had failed to comply with the instructions the Supreme Court had given in its decision of 31 October 1996. Furthermore, it had unlawfully held that the applicant had committed more serious acts than those of which he had initially been convicted on 5 August 1996. 18. On an unspecified date the case was set down for a hearing on the merits on 13 July 2000. It appears that the applicant was duly summoned. However, in a telegram addressed to the court he stated that he could not attend the hearing since he had no money to pay for the journey from Belarus to Russia. 19. On 20 July 2000 the Tula Regional Court found the applicant’s failure to appear at the hearing unjustified as he had not appended any evidence of his alleged financial hardship to his telegram. It ordered his arrest. 20. On 26 April 2001 the applicant was arrested in Belarus pursuant to a request of the Russian investigative authorities. He was subsequently extradited to Russia. On 24 August 2001 he was placed in the Tula Remand Prison no. IZ-71/1. 21. On 4 September 2001 the Tula Regional Court ordered a psychiatric expert examination of the applicant. 22. According to the expert report, dated 27 September 2001, an in-patient psychiatric expert examination was required. The examination was ordered on 2 October 2001. 23. On 22 October 2001 a written obligation not to leave his place of residence without permission was imposed on the applicant as a preventive measure. 24. On 28 May 2002 the Tula Regional Court reclassified the charges of attempted rape as charges of disorderly behaviour (Article 213 of the RSFSR Criminal Code) and discontinued the criminal proceedings against the applicant on account of the expiry of the statutory time-limit. It acquitted the applicant of the murder charges. 25. On 2 October 2002 the Supreme Court of Russia upheld the judgment. 26. Section VI, Chapter 30, of the 1960 Code of Criminal Procedure (Уголовно-процессуальный кодекс РСФСР), as applicable at the material time, allowed certain officials to challenge a judgment which had become final and to have the case reviewed on points of law and procedure. The supervisory-review procedure (Articles 371-383) was distinct from proceedings in which a case was reviewed in the light of newly established facts (Articles 384-390). However, similar rules applied to both procedures (Article 388). Article 356 of the Code of Criminal Procedure provided that a judgment took effect and became enforceable from the date on which the appellate court delivered its judgment or, if it was not appealed against, once the time-limit for appealing had expired. “The grounds for quashing or varying a judgment [on supervisory review] are the same as [those for setting aside judgments (which have not become final) 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 Procurator-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 seek the intervention of those officials to apply for such a review. Article 373 of the Code of Criminal Procedure set a limitation period of one year during which an application for a supervisory review that might be detrimental to a convicted person could be submitted by an authorised official. The period ran from the date on which the impugned judgment became enforceable. 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 appropriate court. The court could examine the case on the merits, was not bound by the scope and grounds of the request for supervisory review and was obliged to conduct a full review of the evidence. The Presidium could dismiss or grant the request. If the request was dismissed, the earlier judgment remained operative. If it granted the request, the Presidium could decide to quash the judgment and terminate the criminal proceedings, remit the case for a new investigation, order reconsideration by a court at any instance, uphold a first-instance judgment reversed on appeal, or 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 reconsideration.