European Court of Human Rights

FIRST SECTION

DECISION

Application no. 19820/04
by Marsel FAIZOV
against Russia

The European Court of Human Rights (First Section), sitting on 15 January 2009 as a Chamber composed of:

Christos Rozakis, President,
Anatoly Kovler,
Elisabeth Steiner,
Dean Spielmann,
Sverre Erik Jebens,
Giorgio Malinverni,
George Nicolaou, judges,
and Søren Nielsen, Section Registrar,

Having regard to the above application lodged on 20 May 2004,

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 FACTS

The applicant, Mr Marsel Maratovich Faizov, is a Russian national who was born in 1983 and lives in Meleuz in the Bashkortostan Republic of the Russian Federation. He was represented before the Court by Mr R. Cook and Mr J. Burns. The respondent Government were represented by Mr P. Laptev, former 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 29 October 2001 the applicant reported to the draft commission of the Meleuz Town Military Commissariat. The applicant requested alternative civilian service on the grounds that he was a Jehovah’s Witness. The draft commission assigned the applicant to the Ministry of Emergency Situations. The applicant declined the assignment because the service was under military control rather than civilian. The commission ordered him to report on 12 April 2002 to complete further preparation for military service.

On 12 and 30 April 2002 the applicant did not report to the Commissariat and received further summonses to appear. The Meleuz prosecutor opened a criminal investigation into the applicant’s evasion of call-up to military service without legal grounds for exemption, an offence under Article 328 § 1 of the Russian Criminal Code.

On 1 October 2002 the Meleuz District Court of the Bashkortostan Republic acquitted the applicant of the charge of draft evasion. On 26 December 2002 the Bashkortostan Supreme Court quashed the acquittal.

On 12 May 2003 the Meleuz District Court convicted the applicant of the charge of draft evasion under Article 328 of the Criminal Code and sentenced him to one year’s imprisonment conditional on one year’s probation. On 20 November 2003 the Bashkortostan Supreme Court, on appeals by the applicant and his counsel, upheld the conviction.

On 14 May 2008 the Presidium of the Bashkortostan Supreme Court examined an application by a deputy Prosecutor General of the Russian Federation for supervisory review of the conviction. It granted the application and quashed the applicant’s conviction on the ground that the lower courts had failed to take into account the primordial nature of the constitutional right to alternative service. The Supreme Court discontinued the criminal proceedings against the applicant for the lack of corpus delicti and acknowledged his right to rehabilitation and compensation for damages incurred through the unlawful criminal prosecution and conviction.

COMPLAINTS

The applicant complained under Article 9 of the Convention that he was criminally convicted because of a legitimate exercise of his right to alternative civilian service.

The applicant complained under Article 14 of the Convention, read in conjunction with Article 6 § 1 and Article 9, that the domestic courts discriminated against him on account of his religious affiliation with Jehovah’s Witnesses.

THE LAW

By letter of 17 November 2008, the applicant invited the Court to strike the case out of its list of cases in view of the steps taken by the Government to restore his rights.

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.”

It follows from the applicant’s letter that he does not intend to pursue his application, within the meaning of Article 37 § 1 (a) of the Convention. The Court notes that the applicant was acquitted of all charges and that he has a right to compensation for the damage incurred through the criminal prosecution. It therefore considers that respect for human rights as defined in the Convention and its Protocols does not require it to continue the examination of their complaints. 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
Registrar President