THIRD SECTION
DECISION
Application no. 60189/15
Timur Ivanovich KASHLAN
against Russia
The European Court of Human Rights (Third Section), sitting on 19 April 2016 as a Chamber composed of:
Luis López Guerra, President,
Helena Jäderblom,
Helen Keller,
Johannes Silvis,
Dmitry Dedov,
Pere Pastor Vilanova,
Alena Poláčková, judges,
and Stephen Phillips, Section Registrar,
Having regard to the above application lodged on 26 November 2015,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Timur Ivanovich Kashlan, is a Russian national who was born in 1966. He is currently detained in Vyazniki, Vladimir Region.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. On 29 December 2014 the Leninskiy District Court of Vladimir convicted the applicant of hooliganism and sentenced him to three years and six months’ imprisonment. The applicant appealed, challenging the assessment of the evidence and raising points of law.
4. On 12 March 2015 the Vladimir Regional Court upheld the lower court’s judgment in full, save that it amended the type of penal colony where the sentence was to be served. The applicant lodged a cassation appeal challenging the assessment of the evidence and raising points of law.
5. On 16 April 2015 a single judge of the Vladimir Regional Court ruled the cassation appeal inadmissible and refused to accept it for consideration in cassation. The applicant lodged a second cassation appeal.
6. On 21 July 2015 a single judge of the Supreme Court of the Russian Federation ruled the cassation appeal inadmissible and refused to accept it for consideration in cassation.
7. It appears that no further appeal was lodged by the applicant.
B. Relevant domestic law and practice
8. Title 3, Section XIII of the Code of Criminal Procedure of 2002 (“Procedure for review at second instance”) (Часть 3, Раздел XIII “Производство в суде второй инстанции”) stipulated in Article 390 § 2 that the decisions taken by the second-instance courts on appeal acquire binding force immediately.
9. On 29 December 2010 Federal Law no. 433-FZ, which entered into force on 1 January 2013, amended the Code by introducing a new Chapter 47.1 (“Cassation procedure”) (“Производство в суде кассационной инстанции”).
10. Article 401.2 (“Right to lodge a cassation appeal”) of the Code prescribed a list of persons who were entitled to lodge a cassation appeal against any judicial act. Paragraph 3 of the same Article introduced a one‑year time-limit for lodging a cassation appeal against a judicial act which had become final and provided for a possibility to reset that time‑limit on certain grounds.
11. The new Article 401.6 provided safeguards against cassation revision of final judgments and decisions where revision could aggravate the situation of a convicted person, an acquitted person, or a person in respect of whom a criminal prosecution had been terminated. First, such revision was possible only within one year after these judgments or decisions had become final. Second, the cassation appeals were further restricted by the substantive criterion allowing a review only if a judgment breached the law “to an extent which distorted the essence and meaning of a judicial decision as an act of administration of justice”.
12. On 19 December 2014 the State Duma adopted Federal Law no. 518-FZ, approved by the Council of the Federation on 25 December 2014, and signed by the President on 31 December 2014. The Law amended Article 401.2 of the Code by removing any time bars for lodging cassation appeals. The provisions of Article 401.6 remained in force.
13. In its judgments N 13-P of 17 July 2002 and N 5-P of 11 May 2005 the Constitutional Court of the Russian Federation stated that the possibility of reviewing a final judgment needed to be restricted by a relatively short time-limit which excluded revision of a final judgment in the long term. Furthermore, the judgments stressed that the need to set a time-limit for revision of a final judicial decision was essential for the principle of legal certainty, and that this approach was consistent with the Convention system. In the judgment of 11 May 2005 the Constitutional Court expressly referred to this Court’s judgment Nikitin v. Russia (no. 50178/99, §§ 39, 55‑56, 20 July 2004) in concluding that the possibility of review of a final judgment of acquittal within one year after its adoption was compliant with the legal certainty requirements under the Convention.
COMPLAINTS
14. The applicant complained under Article 6 of the Convention that the trial in his case had not been fair. In particular, the witnesses testifying against him had not been examined at trial and the domestic courts had erred in the assessment of evidence.
THE LAW
15. Before considering the merits of an applicant’s case the Court must first determine whether the applicant complied with Article 35 of the Convention, and specifically with the six-month time-limit established by Article 35 § 1 of the Convention.
16. The six-month rule, while technical in nature, has an important role in the Convention system, establishing the time-limit after which European supervision of a complaint is no longer possible. The fundamental purpose of this rule is to ensure legal certainty, avoid stale complaints, and provide for examination of Convention issues within a reasonable time (see P.M. v. the United Kingdom (dec.), no. 6638/03, 24 August 2004, and Ipek v. Turkey (dec.), no. 39706/98, 17 November 2000).
17. The applicant lodged his application with the Court on 26 November 2015, that is to say, more than six months after the dismissal of his appeal on 12 March 2015 and less than six months after dismissal of his cassation appeals as inadmissible by a single judge of the Vladimir Regional Court on 16 April 2015 and by a single judge of the Supreme Court of the Russian Federation on 21 July 2015 respectively (see paragraphs 4-6 above). The Court must thus examine whether the application was lodged in time.
18. The Court has previously held that a decision taken by a second-instance criminal court at the regional level under the former cassation procedure in Russia is a final national decision for the purposes of Article 35 of the Convention. Accordingly, that decision has so far been considered as the starting-point for calculation of the six-month time-limit laid down by that Article. Supervisory-review applications to higher courts of general jurisdiction and decisions taken by them on supervisory review have not been considered relevant for the purposes of calculation of that time-limit (see, in particular, Berdzenishvili v. Russia (dec.), no. 31697/03, 29 January 2004).
19. The Court notes, however, that the system of review of domestic judgments in criminal proceedings in Russia was modified by Federal Law no. 433-FZ, which entered into force on 1 January 2013 (see paragraph 9 above). That Law introduced an appeal instance at the regional level, and converted the first two levels of supervisory review under the former system into two levels of cassation proceedings. At that time, the criminal appeals system was broadly similar to the civil appeals system, although the time-limits for appealing were somewhat longer.
20. On 31 December 2014 Federal Law no. 518-FZ abolished the one-year time-limit for lodging cassation appeals after a judicial act had become final, as prescribed by Article 401.2 § 3 of the Code. Thus any time-limits for lodging those appeals were removed (see paragraph 12 above).
21. In the present case the cassation appeals were lodged under the new provisions of the Code resulting from the aforementioned laws. The Court thus has to assess whether the cassation procedure so amended constitutes a remedy under Article 35 § 1 of the Convention and is therefore relevant for the calculation of the six-month time-limit.
22. In this regard the Court reiterates that the requirement of exhaustion of domestic remedies is closely interrelated with the six-month rule, which constitutes an element of legal stability (see De Wilde, Ooms and Versyp v. Belgium, 18 June 1971, § 50, Series A no. 12). Furthermore, it must be stressed that the purpose of Article 35 § 1 of the Convention is to afford the Contracting States the opportunity of preventing or putting right – usually through the courts – the violations alleged against them before those allegations are submitted to the Court (see Fressoz and Roire v. France [GC], no. 29183/95, § 37, ECHR 1999‑I). Effective and available remedies are those which are accessible, capable of providing redress in respect of the applicant’s complaints, and offer reasonable prospects of success (see Akdivar and Others v. Turkey, 16 September 1996, § 68, Reports of Judgments and Decisions 1996‑IV).
23. According to the Court’s established case-law, an application for supervisory review in criminal proceedings has not been considered a remedy to be exhausted under Article 35 § 1 of the Convention. In Berdzenishvili, (cited above) the Court found in particular that a procedure introducing the possibility to challenge a final and binding judgment for an indefinite time was an extraordinary remedy which generated unacceptable uncertainty and rendered the six-month rule nugatory.
24. In civil proceedings the Court consistently found supervisory review not to provide a remedy which needed exhausting (see Tumilovich v. Russia (dec.), no. 47033/99, 22 June 1999; Denisov v. Russia (dec.), no. 33408/03, 6 May 2004; and Martynets v. Russia (dec.), no. 29612/09, 5 November 2009). However, in respect of the civil procedure reform, which introduced appeal, cassation, and supervisory-review instances, the Court found, in Abramyan and Others v. Russia ((dec.), nos. 38951/13 and 59611/13, §§ 76-86, 12 May 2015), that the new cassation review procedure at two separate levels of jurisdiction within six months did not give rise to the uncertainty of the previous supervisory-review procedure. Accordingly, it concluded that the reformed cassation review procedure in civil cases constituted an ordinary remedy to be exhausted prior to lodging an application with it (see Abramyan and Others, cited above, § 93).
25. Turning to the present case, the Court will proceed to examine whether the same approach may be adopted in respect of the new cassation procedure in criminal proceedings.
26. It should be highlighted at the outset that while the 2010 amendments introducing the new system of judicial instances for criminal cases were similar to those altering the civil proceedings, they were not identical. Most significantly, the period for lodging cassation appeals was set at one year after a judicial act had become final, with a possibility of resetting the time-limit if there were justified grounds (Article 401.2 of the Code). This period set for review of final judgments was consistent with the conclusions reached by the Constitutional Court in its judgments N 13-P of 17 July 2002 and N 5-P of 11 May 2005 (see paragraph 13 above) and the Court’s judgment in the case Nikitin (cited above). However, the time-limit for lodging a cassation appeal in criminal cases was twice as long as in civil cases.
27. However, even if the length of the new time-limits in the criminal cassation system in criminal proceedings could have been reconciled with the Convention requirements for an effective remedy through the interpretation and practice of the Russian courts, the amendments introduced to the Code on 31 December 2014 by Federal Law no. 518-FZ make this impossible. By abolishing the time-limit for lodging cassation appeals, final and binding judicial acts will in practice be amenable to appeal for an indefinite time, thus putting the new system in the same situation as the previous supervisory review system, which was found to generate an unacceptable uncertainty in respect of the application of the six‑month rule (see Berdzenishvili, cited above).
28. It is true that, in the light of the provisions of Article 401.6 of the Code (see paragraph 11 above) any cassation appeal lodged with and considered by the domestic courts more than one year after a judgment had become final and binding is likely to have been lodged only to the benefit of a convicted person. However, any potentially advantageous effect this legal regime may have for a given individual does not mitigate the negative effect created by the temporal uncertainty mentioned above.
29. In view of the considerations above, the Court comes to the conclusion that the new cassation review procedure under the Code of Criminal Procedure, as amended in 2014 and as applied in the present case, does not constitute an ordinary remedy within the meaning of Article 35 § 1 of the Convention and therefore does not have to be exhausted by the applicants before lodging a complaint with this Court.
30. Accordingly, there were no further remedies for the applicant to exhaust after the Vladimir Regional Court’s appeal judgment of 12 March 2015, whereas he did so on 26 November 2015, that is, more than six months later. It follows that this application is inadmissible for non‑compliance with the six-month rule set out in Article 35 § 1 of the Convention, and must be rejected pursuant to Article 35 § 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Done in English and notified in writing on 12 May 2016.
Stephen PhillipsLuis López Guerra
RegistrarPresident
Full & Egal Universal Law Academy