CEDH · CASELAW;COMMUNICATEDCASES;ENG — 19 mars 2019

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .sA36B60A1 { font-family:Arial; font-style:italic } .sA20670C4 { margin-top:12pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt }   Communicated on 19 March 2019   THIRD SECTION Application no. 39187/06 S.A. against Russia lodged on 25 September 2006 STATEMENT OF FACTS The applicant, Mr S.A., is a Russian national. He is represented before the Court by Mr D. Agranovskiy and Ms A. Stavitskaya, lawyers practising in the Moscow region and Moscow respectively. A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. At the material time the applicant was a lieutenant in the Russian army and served in a military unit based in the Moscow Region. In 2002 the applicant’s unit went on mission to the Chechen Republic. 1.     Pre-trial proceedings On 16 January 2003 the Groznyy City Prosecutor’s Office initiated criminal proceedings into the discovery of the bodies of three men in the Groznenskiy District, Chechen Republic. On 19 January 2003 the case was referred to the military prosecutor’s office. On 22 April 2003 the applicant was questioned on suspicion of triple murder, in the presence of counsel A. On 3 November 2003 a final version of the indictment was filed against the applicant. He was charged with the murder of three men, robbery and abuse of office associated with the use of violence, committed in conspiracy with Kh. On 5 November 2003 the applicant familiarised himself with the charges against him. In particular, the bill of indictment stated that on 15   January 2003 the applicant was attached, in the quality of a de-mining engineer, to the crew of the armoured vehicle A-226 under the command of Kh. On their way in the direction of an airport Kh. and the applicant stopped a truck, ordered the driver and two passengers to get out and then killed them. Then, the applicant exploded the truck. Kh. ordred to the members of the crew to take the bodies away from the road and to gather all the cartridges. The applicant denied all the charges against him. He submitted that at the time of the alleged criminal activities he had been at a different place with the crew of the armoured vehicle A-208. The applicant’s co-accused Kh. also denied all the charges. On 22 November 2003 the prosecution referred the case of the applicant and his co-defendant to the Military Court of the North Caucasus Circuit, (“the Military Court”), Rostov-on-Don, for trial. 2.     First set of proceedings (a)     First jury trial and the applicant’s acquittal At a preliminary hearing on 25 December 2003 the Military Court allowed a request by the applicant and his co-defendant to have their case heard by a jury. On 28 June 2004 the jury found that the applicant and his co-defendant were not guilty of the impugned crimes. On 29 June 2004 the Military Court, on the basis of the jury’s verdict, acquitted the applicant and his co-defendant of all charges. (b)     Quashing of the applicant’s acquittal on appeal The prosecutor and the relatives of the killed men appealed against the applicant’s and his co-defendant’s acquittal to the Military Section of the Supreme Court of the Russian Federation (“the Supreme Court”). On 11 November 2004 the Supreme Court quashed the judgment of 29   June 2004 on appeal, having found that ten out of twelve members of the jury had been selected from the list of jurors of 2003, instead of that of 2004. The Supreme Court referred the case for a fresh examination to the court of first instance. 3.     Second set of proceedings (a)     Second jury trial and the applicant’s acquittal On 29 December 2004 the Military Court scheduled a preliminary hearing of the case for 12 January 2005. The applicant and his co-defendant again asked to be tried by a jury. The victims and their representatives objected to a jury trial; the prosecutor did not object to a jury trial. On 1 March 2005 the Military Court held a preliminary hearing. On 2 March 2005 the Military Court set the date for examination of the case and allowed the applicant’s request to have his case heard by a jury. In particular, the Military Court held as follows: “... Kh. [the applicant’s co-defendant] and S.A. are charged with particularly serious offences committed on the territory of the Chechen Republic, where, in accordance with Federal Law No. 181-FZ on the entry into force of the Code of Criminal Procedure of the Russian Federation, the provisions of Article 30 §   2 subparagraph 2 of the Code of Criminal Procedure, which provide for the possibility to examine such cases with the participation of a jury, will come into force on 1 January 2007. However, taking into account Articles 19 and 47 of the Constitution of the Russian Federation and Articles 30, 31 and 32, 325 § 2 of the UPK RF [Code of Criminal Procedure], the court relies on the inherent right of a person charged with a particularly serious criminal offence to such form of justice, which has been established by the federal law and which guarantees to that person the right to choose the composition of the court which, in his view, will provide him with the highest degree of guarantees of defence against the charges brought against him. Having regard to the above, the right to have his case examined with the participation of a jury, provided for by the criminal procedure law, cannot be seen as a form of justice which does not correspond to the interests of taking a lawful, well ‑ reasoned and fair decision in the case. The defendants have made use of this right and such a wish is mandatory for the court in accordance with Article 325 § 2 of the UPK, whereas the domestic law provides that the decision on the matter does not depend on the opinion of the victims and their representatives. Therefore, the requests by Mr Kh. and Mr S.A. to have their case heard with the participation of a jury should be granted unconditionally. In addition, the right of the defendants Kh. and S.A., who are military officers in the Army of the RF [Russian Federation], to a jury trial, cannot be made dependent upon the date of entry into force of such form of justice on the territory of one or another constituent entity of the Russian Federation, where those military officers had been undergoing their service at the time the impugned offences were committed ..." The selection of the jury took place on 4 April 2005 and on the same date the newly selected jury took the oath and started the examination of the case. None of the parties objected to the composition of the jury or raised before the Military Court any objection which would prevent the jury from examining the case. Before the jury the applicant and his co-defendant denied all the charges against them. They submitted that on 15 January 2003 they had been at a different place. On 6 October 2005 the jury found the applicant and his co-defendant not guilty of the impugned crimes. On 12 October 2005 the Military Court, on the basis of the jury’s not ‑ guilty verdict, acquitted the applicant and his co-defendant of all charges. In particular, the Military Court established, on the basis of the jury’s non-guilty verdict, that the applicant and his co-defendant had not been present at the place where the impugned crimes had been committed. The relatives of the killed men, but not the prosecutor, appealed against the acquittal of the applicant and his co-defendant. (b)     Proceedings in the Constitutional Court of the Russian Federation On an unspecified date the Military Court, in the framework of unrelated criminal proceedings, challenged before the Constitutional Court the compatibility with the Constitution of the provisions of laws governing trial by jury. In particular: (a)     section 8(1)(5) of the Federal Law governing the entry into force of the Code of Criminal Procedure; (b)     Article 32 of the Code of Criminal Procedure of the Russian Federation; and (c)     section 4(4) of the Federal Law on jurors of the federal courts of general jurisdiction in the Russian Federation. On 6 April 2006 the Constitutional Court of the Russian Federation adopted Ruling no. 3-П. The Constitutional Court held that the challenged provisions were compatible with the Constitution. In particular, it found that those provisions meant that for examination by the circuit military court of a criminal case concerning a particularly serious crime against life, the jury would be composed of citizens who lived on a permanent basis on the territory of the subject of the Russian Federation where the crime had been committed. If it was impossible to compose a jury on such a basis, the criminal case had to be examined by a circuit military court in a different composition, established in accordance with the law, without the participation of a jury. The Constitutional Court further held that the constitutional interpretation of the above provisions in its ruling of 6 April 2006 applied to all cases and excluded any other interpretation of those provisions. The Constitutional Court also held that its ruling was final and entered into force immediately after its pronouncement. (c)     Quashing of the applicant’s acquittal on appeal On 27 December 2005 the Supreme Court postponed its examination of the appeal until 31 January 2006 because the relatives of the killed men were sick and had failed to appear. Subsequently, the case was again adjourned on 31 January and 28 March 2006 until 28 March and 25   April 2006 respectively, on the grounds that one of the relatives of the killed men had not been duly notified of the date and venue of the appeal hearing. The applicant submitted that the proceedings before the appeal court had been postponed artificially in order to wait for the outcome of the proceedings in the Constitutional Court. On 25 April 2006 the Supreme Court quashed the judgment of 12   October 2005 and held that the case had to be sent for a fresh examination from the stage of the preliminary hearing. In particular, the Supreme Court stated that in its ruling of 6 April 2006 the Constitutional Court had held that section 8(1)(5) of the Federal Law on the entry into force of the Code of Criminal Procedure was compatible with the Constitution. The Supreme Court cited the ruling of 6 April 2006, and held as follows: “... Therefore, the content of Article 32 of the UPK RF [Code of Criminal Procedure of the Russian Federation] testifies to the impossibility of the military court examining the present case with the participation of a jury which was not composed of citizens who permanently lived on the territory of the Chechen Republic – the place where the crime with which Kh. and S.A. are charged was committed. In accordance with the above-mentioned ruling of the Constitutional Court of the Russian Federation, the present criminal case had to be examined by a circuit military court in a different composition provided for by law, without the participation of a jury. In such circumstances, the criminal case concerning the charges against Kh. and S.A. was examined by a court in an unlawful composition, which is, in any event, grounds for quashing the court decision in accordance with Article 381 § 2 subparagraph 2 of the Code of Criminal Procedure ...” 4.     Third set of proceedings In the third set of proceedings the applicant’s case was heard by the Military Court in a single-judge formation. The applicant denied all charges against him. On 27 December 2007 the Military Court, presided by Judge Ts., found the applicant guilty of triple murder committed in conspiracy with Kh. and sentenced him to fifteen years’ imprisonment. The court acquitted the applicant of the remaining charges. On 28 August 2008 the Supreme Court, presided by Judge K., upheld the applicant’s conviction. The applicant alleges that prior to his appointment to the Supreme Court on 17 October 2007, and during the major part of the examination of the applicant’s case by the Military Court, Judge K. had been the Deputy President of the Military Court. B.     Relevant domestic law and practice 1.     Constitution of the Russian Federation Article 18 provides that human and civil rights shall have direct force. They shall determine the meaning, content and implementation of laws, the functioning of legislative and executive authority and of local self ‑ government, and shall be guaranteed by law. Article 19 § 1 provides that all persons shall be equal before the law and the court. Article 20 § 2 provides that capital punishment until its complete abolition may be established by federal law as an exclusive form of punishment of particularly grave crimes against life, and the accused shall be granted the right to have his case examined by a court with the participation of a jury. Article 47 § 2 provides that anyone accused of committing a crime has the right to have his or her case examined by a court with the participation of a jury in the cases as provided for by federal law. 2.     Code of Criminal Procedure of the Russian Federation (as in force at the material time) Section 8(5) of the Federal Law governing the entry into force of the Code of Criminal Procedure of the Russian Federation, in force at the material time, provided that trial by jury would be introduced in the Chechen Republic by 1 January 2007. Article 4 of the Code provided that the criminal procedure statute in effect at the time of the performance of the procedural action or the making of a procedural decision shall apply in proceedings in a criminal case, unless otherwise stipulated by this Code. Article 30 of the Code of Criminal Procedure provided that criminal cases were tried by a court collegially or in accordance with the single judge procedure. Criminal cases concerning offences specified in Article 31 § 3 of this Code were tried by a federal judge and a panel of twelve jurors at the request of the defendant. Article 31 provided that military circuit courts had jurisdiction over cases referred to in paragraph 3 of that Article in respect of servicemen. Article 32 § 1 provided that criminal cases were tried by the court at the place where the offence had been committed, except for the instances specified in Article 35 of the Code. Where there was more than one defendant in a criminal case, if at least one of the defendants applied for a trial by jury, the case had to be tried by a jury with regard to all the defendants (Article 325 § 2). A judge’s ruling ordering that a criminal case be tried by a jury was final (Article 325 § 5). The following circumstances constituted grounds for a judgment to be reversed or changed on appeal: where the court’s findings, as stated in the judgment, were not consistent with the facts of the criminal case; where criminal-procedure law had been violated; where criminal law had been applied erroneously; and where the judgment had been unfair (Article 379). In any event, the rendering of a judgment by an illegitimately constituted court, or the rendering of a verdict by an illegitimate jury panel constituted grounds for changing or quashing the judgment on appeal (Article 381 § 2). COMPLAINTS 1.     The applicant complains under Article 6 § 1 of the Convention that the way in which the Supreme Court interpreted and retrospectively applied in his case the Constitutional Court’s ruling of 6 April 2006 and quashed his acquittal on 25 April 2006 resulted in the breach of legal certainty. In particular, the Constitutional Court provided a new interpretation of the law governing jury trials, which had not existed on 2 March 2005, when the Military Court had granted his request to be tried by a jury. 2.     The applicant complains that the appeal court which upheld his conviction on 28 August 2008 was not impartial and independent since presiding judge K. had been the Deputy President of the Military Court until 17 October 2007, i.e. during the major part of the examination of the applicant’s case by the Military Court and was the superior of judge Ts. QUESTIONS TO THE PARTIES 1.     Did the applicant have a fair hearing in the determination of the criminal charges against him, in accordance with Article 6 §   1 of the Convention? In particular, after the applicant’s choice to be tried by a jury had been allowed by the Military Court on 2 March 2005 and he had been tried and found not guilty, was the quashing of the applicant’s acquittal with reference to the Ruling of the Constitutional Court of 6 April 2006 in breach of the principle of legal certainty (see, for instance, Scoppola v. Italy (no. 2) [GC], no.   10249/03, §§ 132-45, 17 September 2009)? The Government are requested to indicate on which date the Military Court challenged before the Constitutional Court the compatibility with the Constitution of the provisions of laws governing trial by jury and provide a copy of its request. They are also requested to provide a copy of the victims’ representatives’ appeal against the judgment of 12 October 2005.   2.     Was the appeal court which examined the applicant’s appeal against his conviction on 28 August 2008 independent and impartial, as required by Article   6 §   1 of the Convention? In particular, what position occupied judge K. between April 2006 and December 2007, prior to his appointment to the Supreme Court of the Russian Federation?