Communicated on 7 January 2014
FIRST SECTION
Application no. 65485/11
Viktor Borisovich KRYUCHKOV
against Russia
lodged on 27 September 2011
STATEMENT OF FACTS
The applicant, Mr Viktor Borisovich Kryuchkov, is a Russian national, who was born in 1976 and lives in Moscow.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant was charged under Article 160 § 3 of the Criminal Code, which at the time for a sentence ranging between two and six years of imprisonment.
By a judgment of 14 December 2010 the Basmanniy District Court of Moscow convicted the applicant of misappropriation under Article 160 § 3 of the Criminal Code. The court sentenced him to three years of imprisonment, taking note of the nature and degree of the offence’s danger, the applicant’s personality, his age, state of health, family situation, employment record and that he was taking care of his disabled mother. The court dismissed a possibility to reduce the prison term below the minimum statutory limit of two years, as authorised in exceptional circumstances under Article 64 of the Code.
By a federal law of 7 March 2011 Article 160 § 3 of the Criminal Code was amended by way of removing the minimum statutory sentence of two years’ imprisonment; the possible sentence became “up to six years”.
On 4 April 2011 the Moscow City Court examined the applicant’s appeal against the trial judgment. The appeal court upheld the conviction and the sentence of three years’ imprisonment. As to the sentence, the appeal court held as follows:
“...The trial judgment should be amended because, during the appeal proceedings, the law [of 7 March 2011] entered into force... Applying Article 10 of the Criminal Code, the appeal court classifies the charges under Article 160 § 3 of the Criminal Code as amended.
The appeal court imposes a sentence in the present case, taking into account the nature and danger of the offence, the defendant’s personality, his age, health, family situation, his mother’s state of health and other specific circumstances of the case.”
In 2011 the applicant brought proceedings before a district court in Yaroslavl, seeking amendment of his sentence. This court declined jurisdiction in favour of the courts in Moscow.
In 2012 the applicant’s requests for supervisory review were dismissed by the Moscow City Court.
B. Relevant domestic law and practice
Article 10 of the Russian Criminal Code provides for retroactive application of a criminal law removing criminal liability for an act, mitigating a sentence or otherwise improving the legal situation of the person who had committed a criminal offence.
The more favourable legislation must be applied, irrespective of the nature of the favourable change (the lowering of the lower or upper limit of the statutory penalty or otherwise) (see, among others, ruling no. 4-P of 20 April 2006 by the Constitutional Court). It appears that it means that, following the favourable amendment of the relevant legislation, the reviewing court must reduce the prison term (see also the clarifications made by the Presidium of the Supreme Court on 27 June 2012 and in its decision no. 89-D12-14 of 4 September 2012; no. 51-D12-19 of 11 September 2012).
COMPLAINT
The applicant argues under Articles 6 and 7 of the Convention that under Russian law (as interpreted by the Constitutional Court and the Supreme Court of Russia) he was entitled to the reduction of his prison term following the law of 7 March 2011.
QUESTION TO THE PARTIES
Having regard the requirements of Russian law (as interpreted by the Constitutional Court and the Supreme Court of Russia), was there a violation of Article 7 of the Convention, on account of the refusal to reduce the applicant’s sentence of imprisonment (see by way of comparison, Scoppola v. Italy (no. 2) [GC], no. 10249/03, §§ 108-109, 17 September 2009, and Fruni v. Slovakia, no. 8014/07, §§ 216-217, 21 June 2011)?
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