CASE OF KISELEV v. RUSSIA
(Application no. 75469/01)
29 January 2009
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Kiselev v. Russia,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
Zdravka Kalaydjieva, judges,
and Claudia Westerdiek, Section Registrar,
Having deliberated in private on 6 January 2009,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
II. RELEVANT DOMESTIC LAW
A. Criminal liability
B. Supervisory review in criminal proceedings
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION AND OF ARTICLE 4 OF PROTOCOL No. 7 TO THE CONVENTION
Article 6 of the Convention
“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
Article 4 of Protocol No. 7
“1. No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.
2. The provisions of the preceding paragraph shall not prevent the reopening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case.”
A. The parties' submissions
B. The Court's assessment
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 2,000 (two thousand euros) in respect of non-pecuniary damage, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable on that amount;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 29 January 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the dissenting opinion of Judge Kalaydjieva is annexed to this judgment.
DISSENTING OPINION OF JUDGE KALAYDJIEVA
In the present case the majority found a violation of Article 6 § 1 of the Convention and agreed that the applicant's complaints under Article 4 of Protocol No. 7 raised no separate issue. I fail to subscribe to this opinion for the following reasons.
In my view the facts of the case clearly disclose a duplication of finalised criminal proceedings which resulted in a new punishment contrary to the ne bis in idem principle. There is no dispute that the accusations against the applicant were determined by a final and enforceable decision of the courts and that the subsequent review of that decision and the resulting new set of proceedings were not a part of the regular appeal procedure.
In such circumstances the Court should determine the compatibility of those proceedings with Article 4 of Protocol No. 7 before proceeding to consider their fairness or their compliance with the principle of legal certainty envisaged under Article 6 of the Convention. In my view this distinction is important because of the different effect of the two provisions on the situation of the person concerned. Where a retrial is prohibited per se, its outcome cannot be seen as compatible with the Convention.
In the instant case both the request and the decision to perform a new trial were based exclusively on the dissatisfaction of the prosecution authorities and the supervising court with the leniency of the final penalty. No new facts or fundamental defects of the regular proceedings were adduced. This situation is clearly distinguishable from the one considered in the earlier cases of Nikitin1, Bratyakin2, and others. Before considering the supervisory review proceedings in those cases under Article 6 § 1 of the Convention, the Court first looked at their compatibility with the ne bis in idem principle enshrined in Article 4 of Protocol No. 7 and distinguished whether they amounted to a retrial – prohibited by the first paragraph – or to a reopening, justified in exceptional circumstances under the second paragraph. Based on the specific facts in those cases, the Court was satisfied that the review proceedings either did not lead to any rehearing, or were justified under Article 4 § 2 of Protocol No. 7 as necessary to correct a fundamental defect of the regular proceedings, or as solicited by the applicants and leading to no deterioration in their situation.
I agree with the majority's conclusion that the supervisory review in the present case “allowed a rehearing of precisely the same legal point, which in the light of the above case-law cannot be considered sufficient to outweigh the binding force of a final judgment” (§ 29). This conclusion should exclude any further consideration of the proceedings under Article 6. A retrial may not be justified by the fact that the applicant was not required to serve his penalty – an issue which was determined by the competent courts pursuant to a law on amnesty. A reopening on that ground would question the very aim of that law, which was to absolve certain categories of convicted persons from serving their penalties. I also fail to see anything extraordinary in the dissatisfaction of the accusatory party with the leniency of the penalty pronounced – a complaint which was raised and considered by the courts within the regular appeal proceedings. To see this dissatisfaction as justifying a rehearing would render the principle of legal certainty devoid of its substance.
In the absence of any justification, the reopening of the criminal proceedings constituted a retrial within the meaning of the first paragraph of Article 4 of Protocol No. 7, which cannot be considered in the light of Article 6 of the Convention. While both these provisions promote finality in criminal proceedings, Article 4 § 1 of the Protocol should be interpreted as a lex specialis to the principle of legal certainty envisaged by Article 6. More importantly, the effect of a finding of a violation of Article 6 § 1 does not equate to that of a finding of a breach of the ne bis in idem principle.1 Turning to the straightforward fact of the retrial in the present case, I realise that a separate finding of a violation of Article 4 § 1 of Protocol No. 7 would perhaps be of questionable theoretical contribution to its interpretation. Yet, this provision also protects individuals from being punished twice. Following an amnesty, the effect of which is comparable to an acquittal, the applicant's retrial resulted in his effective imprisonment. In my view this detrimental outcome should be considered automatically contrary to the Convention. This conclusion involves different consequences and requires a different redress. The applicant's effective imprisonment cannot be seen as warranted by Article 5 § 1 (a) and this conclusion should automatically require his immediate release. The Court has declared this complaint inadmissible and has limited the scope of the case to the proceedings per se, thus leaving their result outside the focus of its scrutiny. The majority's finding that a prohibited retrial “did not satisfy the 'fair balance' required by Article 6” (§ 30) neither requires the applicant's immediate release, nor calls for any additional compensation for the resulting deprivation of liberty prohibited by the Convention. In these circumstances one may only hope that the individual measures taken to correct the absence of “fair balance” found by the Court do not involve yet another reopening of the proceedings.
The provision of Article 4 § 1 of Protocol No. 7 functions also to preserve the authority of the courts2 by protecting their independence and impartiality from any pressure to change their final conclusions. Contrary to this legitimate aim, the very purpose of the retrial in the present case was to require the lower courts to impose a harsher penalty than the initial “final” one. This was the legal ground for the requested supervisory review, and the single issue discussed in the resulting decision to order a rehearing of the case. It must not be overlooked that the reasoning given for this decision was binding and served as a mandatory instruction for the lower courts. In Daktaras v. Lithuania1 (§§ 35 et seq.) the Court considered that “[the binding] opinion cannot be regarded as neutral from the parties' point of view. By recommending that a particular decision be adopted or quashed, the President necessarily becomes the defendant's ally or opponent (see, mutatis mutandis, Borgers v. Belgium, 30 October 1991, § 26, Series A no. 214-B).” In Daktaras the Court found that “the applicant's doubts as to the impartiality of the Supreme Court may be said to have been objectively justified. Consequently, there has been a breach of Article 6 § 1 of the Convention.”
In the present case the similarly binding opinion had the effect of instructing the lower courts to come to certain conclusions and to a predefined result. Moreover, once the Presidium of the upper court agreed with the prosecutor's view that the penalty was inappropriately lenient, the applicant's case was destined to as many quashings, remittals and reviews as necessary to achieve the harsher penalty sought. Any different outcome was vulnerable to further supervisory review proceedings and there was nothing in the law to stop the subsequent quashing of decisions which failed to comply with the instructions given. Since the initiation of the supervisory review mechanism was a privilege of the prosecution with the consent of the upper courts, it allowed the perpetuation of the criminal proceedings until that party was satisfied with the result.
1. Application no. 50178/99, judgment of 20 July 2004.
2. Application no. 72776/01, decision of 9 March 2006.
1. See Stefan Trechsel, “Human Rights in Criminal Proceedings”.
2. Ibidem, p.383 – in regard of the French text of the provision.
1. Application no. 42095/98, judgment of 10 October 2000.