BRATYAKIN v. RUSSIA
Inadmissible
The applicant, Mr Afanasiy Semenovich Bratyakin, is a Russian national who was born in 1950 and lives in Kolomna. He is represented before the Court by Mr A. Volkov, a lawyer practising in Kolomna. The Russian Government (“the Government”) are represented by Mr P. Laptev, Representative 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 11 December 1998 the Kolomenskiy Town Court of the Moscow Region convicted the applicant of tax evasion. The applicant was sentenced to five years’ imprisonment. He started serving his sentence that same day. On 9 April 1999 the Moscow Regional Court, on appeal, upheld in part the first-instance judgment and reduced the applicant’s prison sentence to one year and six months. On 20 June 1999 the applicant filed a petition with the President of the Moscow Regional Court in which he requested a supervisory review of his case. He alleged that the courts had not determined the specific amount of tax evaded and that they had not therefore established that any criminal offence had been committed. He pleaded not guilty and requested that both the judgment of 11 December 1998 and the decision of the appellate court of 9 April 1999 should be quashed. On 15 July 1999, following the Amnesty Act of 18 June 1999, the applicant was discharged from serving the remaining term of his sentence and was released from prison. On 16 November 1999 the Presidium of the Moscow Regional Court, upon its President’s request to uphold the applicant’s petition, quashed the decision of 9 April 1999. In its ruling the Presidium stated, inter alia, that the judgment against the applicant did not specify what constituted the criminal conduct under each particular head of the criminal charge. It also found that the cassation instance had exceeded its jurisdiction when it had reclassified one episode and convicted the applicant of an offence that was not part of the original criminal charge. Furthermore, the Presidium established that the cassation instance had not addressed certain substantive points of the applicant’s appeal. The Presidium remitted the case for a fresh examination by the cassation instance. On 13 March 2000 the Moscow Regional Court re-examined the case in the light of the finding by the supervisory instance. It remitted the case for reconsideration to the first-instance court. On 24 January 2001 the Kolomenskiy Town Court of the Moscow Region convicted the applicant of tax evasion and sentenced him to one year and six months’ imprisonment. The same judgment discharged the applicant from the punishment by virtue of the Amnesty Act of 26 May 2000. The applicant lodged an appeal against his conviction on the grounds, inter alia, that he had already been convicted of the same offence in the first set of proceedings. On 27 February 2001 the Moscow Regional Court upheld the first-instance judgment on appeal. Addressing the applicant’s claim that he had been tried twice for the same offence, the court stated that the first conviction had been quashed and that the reopening of proceedings did not constitute a second trial. After the judgment became final, the applicant attempted to initiate supervisory review proceedings by filing petitions with the President of the Moscow Regional Court and with the Supreme Court of the Russian Federation. His petitions were rejected on 14 May 2001 and 29 January 2002 respectively. 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 appeal 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. The Code of Criminal Procedure of 1960, as applicable at the relevant time, provided as follows: “Criminal prosecution cannot be started, or, if already started, shall be discontinued if... 1) the absence of a criminal act has been established; 2) the absence of corpus delicti has been established; 3) a limitation period applies; 4) a Law providing for amnesty has been enacted and [the person concerned] is thereby absolved from punishment...; ... If the circumstances indicated in subparagraphs 1, 2, 3 and 4 are discovered at the stage of examination by a court, the court must continue its examination of the case until it is complete and pronounce an acquittal if grounds 1 or 2 apply, or a conviction if grounds 3 or 4 apply and discharge the convicted person from the sentence. ...” Section 5 of the Amnesty Act of 18 June 1999 absolved all persons convicted for the first time whose sentence did not exceed five years, and who had already served at least one third of their sentence, from serving the remaining term. Section 1 of the Amnesty Act of 26 May 2000 absolved all persons convicted for the first time and whose sentence did not exceed three years from serving their sentence.