SECOND SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 65106/01
by Valentin Anatolyevich KARPOV
against Russia
The European Court of Human Rights (Second Section), sitting on
19 October 2004 as a Chamber composed of:
MrJ.-P. Costa, President,
MrA.B. Baka,
MrL. Loucaides,
MrC. Bîrsan,
MrM. Ugrekhelidze,
MrA. Kovler,
MrsA. Mularoni, judges,
and Mr T.L. Early, Deputy Section Registrar,
Having regard to the above application lodged on 17 October 2000,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Valentin Anatolyevich Karpov, is a Russian national who was born in 1954 and lives in Ramenskoye in the Moscow Region. He was represented before the Court by Mr E. I. Ezrokhi and Mrs Yu. E. Ezrokhi, lawyers practising in Lyubertsy in the Moscow Region. The respondent Government were represented by Mr P. A. Laptev, the representative of the Russian Federation at the European Court of Human Rights.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
On 25 February 1999 the Moscow City Court found the applicant guilty of murder and affray and sentenced him to eleven years' imprisonment.
On 30 June 1999, upon the applicant's appeal, the Supreme Court of the Russian Federation acquitted him of affray and reclassified the charge of murder to one of manslaughter. The applicant was convicted of manslaughter and sentenced to two years' imprisonment. The court further applied an amnesty law and released the applicant from serving his sentence.
On an unspecified date the Deputy Prosecutor General lodged with the Presidium of the Supreme Court of the Russian Federation an application for supervisory review of the case, requesting it to quash the decisions of 25 February and 30 June 1999.
On 27 October 1999 the Presidium of the Supreme Court granted the application, quashed the decisions and remitted the case to the Moscow City Court for a fresh examination. The Presidium of the Supreme Court found, inter alia, that the courts in the previous proceedings had wrongly assessed the evidence, incorrectly applied the law and denied the procedural right of the victims to participate in the hearing before the Supreme Court on 30 June 1999. Neither the applicant nor his counsel was aware of the examination of the case by way of supervisory review on 27 October 1999.
On 1 March 2000 the Moscow City Court held a hearing in the presence of the applicant and his counsel. The court found the applicant guilty of murder and affray and sentenced him to eleven years' imprisonment.
On 31 May 2000, on the applicant's appeal, the Supreme Court of the Russian Federation reduced the sentence to eight years' imprisonment.
B. Relevant domestic law
Under Article 374 of the Code of Criminal Procedure of 1960 in force at the material time applications for supervisory review of decisions of the Supreme Court of the Russian Federation were to be considered by the Presidium of the Supreme Court of the Russian Federation. No appeal was allowed against a decision of the Presidium of the Supreme Court of the Russian Federation taken on the supervisory review.
A review of the domestic law concerning supervisory review proceedings is set out in Nikitin v. Russia, no. 50178/99, 20 July 2004.
COMPLAINTS
1. The applicant complained under Article 6 of the Convention that the supervisory review proceedings before the Supreme Court on 27 October 1999 were unfair as neither he nor his counsel was informed of the hearing and could not, therefore, present the case.
2. The applicant also complained under the same Article of the Convention that he was denied legal assistance during the preliminary investigation, that he was refused trial by jury and that the courts wrongly assessed the evidence in the case.
THE LAW
1. The applicant complained that the supervisory review proceedings before the Supreme Court on 27 October 1999 were unfair. He relied on Article 6 of the Convention, which, in so far as relevant, provides as follows:
“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”
The Government first submitted that the reopening of the proceedings in the applicant's case by way of supervisory review was compatible with Article 6 § 1 of the Convention and Article 4 of Protocol No. 7 as there had been a fundamental defect in the previous proceedings in that the victims' right to adversarial proceedings had been violated. The Government further submitted that the failure of the Supreme Court to inform the applicant or his counsel of the hearing of 27 October 1999 complied with the procedural law in force at the material time and that the applicant had ample opportunities to state his case in the course of the subsequent new trial.
The applicant contested the Government's arguments. He asserted that the victims' right to adversarial proceedings had not been violated in the previous proceedings as the victims had failed to appear at the hearing even though they had been notified of it. The reopening of the case was not, therefore, justified. The applicant also submitted that the failure of the Supreme Court to inform him of the supervisory review hearing was unlawful as being incompatible with the Constitution of the Russian Federation, as was confirmed by the Constitutional Court's decision of 14 February 2000.
The Court recalls that in accordance with Article 35 § 1 of the Convention an application must be introduced within six months of the date of the “final decision” in the chain of domestic remedies which have to be exhausted, or where there are no such remedies, from the date of the act complained of, or knowledge thereof. An exception may be made to the six‑months rule only in the event of a continuing situation giving rise to a violation (see Hilton v. the United Kingdom, no. 12015/86, Commission decision of 6 July 1988, Decisions and Reports (DR) 57, pp. 113-115).
The Court notes that the applicant's complaint concerned the fairness of the supervisory review proceedings before the Presidium of the Supreme Court of the Russian Federation which resulted in its decision of 27 October 1999. The applicant learned of that decision some time later. It observes that the domestic law of criminal procedure in force at the material time allowed no appeal against a decision of the Presidium of the Supreme Court of the Russian Federation taken on supervisory review. Further, it does not consider that the applicant was a victim of a continuing situation. The Court can accept that the quashing of the applicant's acquittal and ordering of a new examination of his case had consequential effects. However, the concept of a “continuing situation” refers to a state of affairs which operates by virtue of continuous activities by or on the part of the State to render the applicant a victim of a violation of the Convention (see Camberrow MM5 AD v. Bulgaria (dec.), no. 50357/99, 1 April 2004). The applicant's complaint originated in the proceedings which took place on a specific date and resulted in a specific decision and cannot therefore be regarded as a continuing situation. The Court thus finds that in the present case the six‑month period was set in motion on the date of the applicant's first having knowledge of the decision of 27 October 1999 (see, mutatis mutandis, Sardin v. Russia (dec.), no. 69582/01, 12 February 2004). Even assuming that this was on 1 March 2000, when the new proceedings in the presence of the applicant and his counsel took place in pursuance of the supervisory review decision of 27 October 1999, more than six months had elapsed before the application was introduced on 17 October 2000.
It follows that this complaint has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
2. The Court has examined the remainder of the applicant's complaints as submitted by him. However, having regard to all the material in its possession, the Court finds that these complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
3. Having regard to the above considerations, the application to the case of Article 29 § 3 of the Convention should be discontinued.
For these reasons, the Court unanimously
Declares the application inadmissible.
T.L. EarlyJ.-P. Costa
Deputy RegistrarPresident
Full & Egal Universal Law Academy