by Anatoliy MAKHANOV
The European Court of Human Rights (First Section), sitting on 26 November 2009 as a Chamber composed of:
George Nicolaou, judges,
and Søren Nielsen, Section Registrar,
Having regard to the above application lodged on 20 July 2005,
Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,
Having deliberated, decides as follows:
The applicant, Mr Anatoliy Sergeyevich Makhanov, is a Russian national who was born in 1954 and lives in Izhevsk. He is represented before the Court by Ms Varaksina, a lawyer practising in Izhevsk. The respondent Government are represented by Mr G. Matyushkin, 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 17 December 2002 a deputy prosecutor of Naberezhnye Chelny opened a criminal investigation into the allegedly fraudulent purchase of a promissory note. The applicant was accused of having stolen property of the State-owned company Tatelektromash by way of making a demand for payment under the promissory note.
On 22 September 2003 the Naberezhnye Chelny Town Court acquitted the applicant of the charges. It considered that the prosecution’s case was founded on suppositions rather than on hard evidence. Two other co-defendants were found guilty of fraud. On 21 October 2003 the Tatarstan Supreme Court rejected an appeal by the prosecution and upheld the judgment.
On 11 January 2005 a deputy prosecutor of Naberezhnye Chelny opened criminal proceedings against the applicant on suspicion of aggravated fraud. He was accused of misappropriation of Tatelektromash’s funds through use of the same promissory note which he had known to be a forgery.
On 8 April 2005 the Naberezhnye Chelny Town Court found the applicant guilty as charged and sentenced him to three years and six months’ imprisonment. On 13 May 2005 the Tatarstan Supreme Court confirmed the conviction on appeal.
Following communication of the application, it transpired from the Government’s submissions that on 10 August 2005 the Presidium of the Tatarstan Supreme Court had granted an application by the applicant’s counsel for institution of supervisory-review proceedings and quashed the first-instance and appeal judgments of 8 April and 13 May 2005 on the ground that the applicant had previously been acquitted of the same charges.
The applicant complained under Article 4 of Protocol No. 7 that on 8 April 2005 he was convicted of the offence for which he had been previously acquitted on 22 September 2003.
The applicant complained under Articles 5, 6 and 13 of the Convention that the courts made an incorrect assessment of evidence, misdirected themselves in law, and gave him a penalty heavier than the one provided for by law.
The Court recalls Article 37 of the Convention which, in the relevant part, reads as follows:
“1. The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that
(a) the applicant does not intend to pursue his application;
However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.”
The Court observes that, by letter of 5 June 2009, the Government’s observations were forwarded to the applicant who was requested to submit observations together with any claims for just satisfaction in reply by 7 August 2009. No response was received from the applicant.
By letter of 11 September 2009 sent by registered mail, the applicant was advised that the period allowed for submission of his observations had expired and that no extension of time had been requested. His attention was drawn to Article 37 § 1 (a) of the Convention, which provides that the Court would strike a case out of its list of cases where the circumstances lead to the conclusion that the applicant does not intend to pursue the application. It appears from the acknowledgment-of-receipt card that the Court’s letter was received by the applicant’s representative on 22 September 2009. Nevertheless, the applicant did not reply to the Court’s reminder.
The Court considers that, in these circumstances, the applicant may be considered as no longer wishing to pursue his application, within the meaning of Article 37 § 1 (a) of the Convention. The Court also notes that the judgment which had formed the basis for the applicant’s complaints was quashed, but the applicant failed to inform the Court of his own motion about that relevant development. In the Court’s view, that failure was incompatible with the requirement to participate effectively in the proceedings, as enshrined in Rule 44C of the Rules of Court. In view of the above, it is appropriate to discontinue the application of Article 29 § 3 of the Convention and to strike the case out of the list of cases.
For these reasons, the Court unanimously
Decides to strike the application out of its list of cases.
Søren Nielsen Christos Rozakis