NIKITIN v. RUSSIA

SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 50178/99
by Aleksandr Konstantinovich NIKITIN
against Russia

The European Court of Human Rights (Second Section), sitting on 13 November 2003 as a Chamber composed of:

MrJ.-P. Costa, President,
MrA.B. Baka,
MrGaukur Jörundsson,
MrK. Jungwiert,
MrV. Butkevych,
MrM. Ugrekhelidze,
MrA. Kovler, judges,
and Mrs S. Dollé, Section Registrar,

Having regard to the above application lodged on 18 July 1999,

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 Aleksandr Konstantinovich Nikitin, is a Russian national, who was born in 1952 and lives in St. Petersburg. He is represented before the Court by Mr Yuriy Shmidt and Mr Ivan Pavlov, lawyers practising in St. Petersburg, and Mr Jon Gauslaa, a lawyer practising in Oslo.

A.  The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

The applicant is a former navy officer. In February 1995 he joined the environmental project of a Norwegian non-governmental organisation, “Bellona”, to work on a report entitled “The Russian Northern Fleet. Sources of Radioactive Contamination” (“the report”).

1.  Pre-trial investigation

On 5 October 1995 the Murmansk office of Bellona was searched by the Federal Security Service (ФСБ РФ, “the FSB”). The FSB seized the draft report, interrogated the applicant and confiscated his passport. On the same day, according to the Government, or on 18 October 1995, according to the applicant, the FSB instituted criminal proceedings against the applicant, after finding that the draft report disclosed information about accidents on Russian nuclear submarines.

On 6 February 1996 the applicant was charged with treason, through espionage, for having transmitted official secrets to a foreign organisation. The indictment stated that the report contained information classified as officially secret, according to the Ministry of Defence’s unpublished Decrees Nos. 052:92 and 071:93 issued in 1992 and 1993, and also the Presidential Decree No. 1203 of 30 November 1995 applied retrospectively.

On 11 April 1996 the charges were extended. The applicant was charged with treason, through espionage, for having given secret information about submarine accidents to a foreign organisation (Article 64 of the Criminal Code), the disclosure of such official secrets having had serious consequences (Article 75 § 2 of the Criminal Code). He was also charged with fraud for having allegedly forged a pass to a restricted area (Article 196 § 1 of the Criminal Code).

On 24 June 1996 the FSB appointed three expert groups to conduct an expert examination of the report: experts from the General Headquarters’ 8th Department of the Ministry of Defence, from the Ministry of Nuclear Energy (Министерство по атомной энергии) and from the Ministry of Defence Industry (Министерство оборонной промышленности). The experts were asked whether the report contained official secrets and whether the controversial information could have been obtained from any open sources. The FSB further appointed two other groups of experts to evaluate the damage allegedly caused by the disclosure of official secrets in the report and to evaluate whether the controversial information related to environmental security.

As of 30 September 1996 the applicant had access to the file to prepare for the hearing.

On 27 January 1997 the Prosecutor General (Генеральный прокурор) reviewing the file withdrew the charges and remitted the case for a new investigation. He instructed the experts to apply the Federal Law on Official Secrets and Presidential Decree No. 1203:95, to the extent that the latter did not retrospectively impose stricter rules than the legislation in force at the time of the offence.

The deadline for the completion of the further investigation was set for 24 March 1997 and subsequently extended to 24 June 1997. A new expert group was appointed from the General Headquarters’ 8th Department of the Ministry of Defence.

On 17 June 1997 the indictment was brought into conformity with the new Criminal Code which had entered into force on 1 January 1997. Immediately upon presentation of the charges an extension of the investigation period was granted until 23 September 1997.

Another expert group was appointed with a view to studying the open sources.

On 17 September 1997 the FSB declared the investigation complete, and the applicant had access to the file.

On 24 February 1998 the charges were amended to reduce the number of submarines in relation to which the disclosure allegedly took place, and to restore the reference to Presidential Decree No. 071:93.

On 21 April 1998 the Deputy Prosecutor General (Заместитель Генерального прокурора) informed the applicant of a decision to withdraw the fraud charge, as the limitation period had expired, and stated that the reference to secret decrees was removed from the indictment, being contrary to the Constitution. The applicant submits that on 8 May 1998 the FSB amended the charges accordingly. The Government submit that the fraud charge was lifted at the preliminary hearing in the St. Petersburg City Court on 16 September 1998.

On 26 May 1998 the applicant finished examining the file.

On 29 June 1998 the St. Petersburg Prosecutor (Прокурор Санкт‑Петербурга) transmitted the case to the St. Petersburg City Court (Санкт-Петербургский городской суд).

2.  The proceedings before the courts

The trial began on 20 October 1998 in the St. Petersburg City Court. After four days of hearing, on 29 October 1998, the case was remitted for further investigation due to “a lack of clarity as to the scope and content of the charge which can only be remedied by further investigation”. The court found that the indictment “did not indicate the facts and particular circumstances [of the crime]” and “did not specify which information about the accidents [in the navy] was an official secret”. The court also found that the investigation file left open the question whether the report contained any official secrets as such. The court held that the vagueness of the indictment deprived the applicant of the right to defend himself by legal means and prevented the court from carrying out an examination on the merits. It further noted that the case file did not contain a “proper and complete” expert evaluation of the possible open sources of information, or of the estimated damage. The court therefore ordered the prosecution to conduct an additional expert examination concerning the possibility of obtaining the controversial information from an open source and to take other steps to complete the investigation.

On 3 November 1998 the prosecution appealed against this decision, claiming that the case was clear enough for a court determination and that there was no need for an additional investigation. The applicant also filed an appeal on 5 November 1998, supplemented on 11 January 1998. He alleged, inter alia, that the decision to remit the case for a new investigation was taken in violation of his right to trial within a reasonable time, guaranteed by Article 6 § 1 of the Convention, and of his right to an effective remedy against the length of the proceedings, guaranteed by Article 13 of the Convention.

On 4 February 1999 the order for a further investigation to be carried out was upheld by the Supreme Court of the Russian Federation (Верховный суд РФ).

On 1 March 1999 the applicant requested that the expert evaluation of the open sources and the assessment of whether the report contained official secrets be assigned to an agency outside the General Headquarters’ 8th Department of the Ministry of Defence.

On 11 March 1999 the investigation was extended until 11 April 1999.

On 12 April 1999 the applicant was informed that on 29 March 1999 the term of investigation had been extended until 11 July 1999.

On 19 April 1999 the applicant appealed to the St. Petersburg City Court against the extension of the time-limit for the investigation. The claim was remitted to the Dzerzhinskiy District Court of St. Petersburg (Дзержинский районный суд Санкт-Петербурга) which rejected it on 1 June 1999. The St. Petersburg City Court upheld that decision on 22 June 1999.

On 30 April 1999 the FSB rejected the applicant’s request for an independent expert report and assigned the expert evaluation to the General Headquarters’ 8th Department of the Ministry of Defence.

On 10 June 1999 the experts concluded that the report contained official secrets, with reference to the Law on Official Secrets, Presidential Decrees No. 1203 of 30 November 1995 and No. 61 of 24 January 1998, and the Ministry of Defence Decrees Nos. 071:93 and 055:96.

On 15 June 1999 the FSB appointed new experts from the Central Research Institute of the Ministry of Defence to evaluate the damage. It was estimated at 20,000 United States Dollars.

The new indictment was brought on 2 July 1999. The applicant was charged with treason through espionage (Article 275 of the Criminal Code) and of disclosure of an official secret with serious consequences (Article 283 § 2 of the Criminal Code). The assessment whether the report contained official secrets was based on an expert opinion dated 10 June 1999 which referred, inter alia, to the Ministry of Defence Decrees Nos. 071:93 and 055:96, and Presidential Decrees Nos. 1203:95 and 61.

On 12 July 1999 the additional investigation was completed.

On 26 August 1999 the defence finished reading the file.

The first instance hearing in the St. Petersburg City Court started on 23 November 1999.

On 29 December 1999 the St. Petersburg City Court acquitted the applicant of all the charges. The court stated that “according to the Russian legislation officially published at the time, Nikitin had reason to believe that the impugned information could not pertain to official secrets, since it was of ecological relevance”. It also held that the charges against the applicant were solely based on secret and retroactive decrees, which was contrary to the Constitution.

The prosecution appealed. The hearing of the appeal was set for 29 March 2000, but then postponed on the Prosecutor General’s request to allow more time for preparation.

On 17 April 2000 the Supreme Court of the Russian Federation upheld the acquittal. The court found the charges unconstitutional since they were based on secret and retroactive legislation. The acquittal thus acquired final force.

On 30 May 2000 the Prosecutor General lodged a request for a supervisory review of the acquittal (протест на приговор, вступивший в законную силу, an extraordinary appeal). He applied to have the judgment quashed on grounds of the wrongful interpretation of the applicable law and the wrongful assessment by the courts of the evidence and facts of the case. A remittal for investigation was also requested.

On 19 July 2000 the applicant was informed of the hearing scheduled for 2 August 2000. On 13 September 2000 the Presidium of the Supreme Court of the Russian Federation (Президиум Верховного суда РФ) considered the case on the merits and held that the inherent incompatibility of the charges with the legislation prevented the courts from reaching a finding of guilt. It further pointed out that the investigation authorities had had enough time and opportunity to conduct a full and thorough examination of the case, notably to carry out the acts asked for in the request for supervisory review. The Presidium therefore refused to grant the request and upheld the acquittal.

B.  Relevant domestic law

1.  Criminal liability

The Constitution of the Russian Federation adopted by referendum on 12 December 1993 provides, in so far as relevant, as follows:

Article 15 § 3

“Laws shall be officially published. Unpublished laws shall not be applied. No regulatory legal act affecting the rights, liberties or duties of the human being and citizen may apply unless it has been published officially for general knowledge.”

Article 54

“1.  A law instituting or aggravating the liability of a person shall have no retroactive effect.

2.  No one may be held liable for an action that was not recognised as an offence at the time of its commitment. If liability for an offence has been lifted or mitigated after its perpetration, the new law shall apply.”

The relevant provisions of the Criminal Code (Уголовный кодекс РСФСР), in force until 1 January 1997, read as follows:

Article 10 § 1  Retroactive effect of criminal law

“... Criminal laws instituting criminal liability, aggravating punishment or otherwise operating to the detriment of a person shall not have retroactive effect.”

Article 64(a)  Treason

“Treason, being an intentional act or a failure to act by a USSR citizen which undermines sovereignty, territorial integrity, national security or defence, in particular..., the disclosure of an official or military secret, ... shall be punished by 10 to 15 years’ imprisonment,..., or the death penalty.”

Article 75  Disclosure of official secrets

“Disclosure of an official secret by anyone who was in charge, or could have had access to it due to his service or employment, which does not constitute treason or espionage, shall be punished by 2 to 5 years’ imprisonment, or, if it caused serious consequences, by 5 to 8 years’ imprisonment.”

The relevant provisions of the Criminal Code (Уголовный кодекс РФ), in force as of 1 January 1997, read as follows:

Article 275 Treason

“Treason, in particular espionage, disclosure of official secrets, or assistance otherwise provided to a foreign state, a foreign organisation, or their representatives, by way of hostile activities undermining the external security of the Russian Federation, committed by a Russian citizen, shall be punished by 12 to 20 years’ imprisonment...”

Article 283 Disclosure of official secrets

“1.  Disclosure of an official secret committed by anyone who had been entrusted or could have had access to it due to their service or employment, which does not constitute treason... shall be punished by 4 to 6 months’ arrest, or up to 4 years’ imprisonment...

2.  ...[or] if it causes serious consequences,... [by] 3 to 7 years’ imprisonment.”

2.  Official Secrets (Государственная тайна)

Rules governing what information is to be classified as officially secret are set out in the Law on Official Secrets (Закон о государственной тайне) No. 5485‑1, dated 21 July 1993. This Law specifies the type of military information which is protected by official secrecy, subject to its specification in a list adopted by the President and duly published (Articles 5 and 9). Article 7 expressly excludes from such classification information about catastrophes which threaten health and safety, as well as information about the state of the environment.

On 6 October 1997 the Law on Official Secrets was amended. In particular, the title of Article 5 - “The List of Information which can be classified as Official Secrets” - was changed to “The List of Information classified as Official Secrets”. The requirement that a list be adopted by the President and published remained intact.

The following legislative acts, which contain a definition of official secrets, were referred to in the indictments:

-  Presidential Decree No. 1203:95 (Articles 6 and 7), which entered into force on 30 November 1995, was published officially for general public knowledge;

-  Ministry of Defence Decree No. 055:96 (Articles 275, 287, 305 and 582), which entered into force on 1 September 1996, was not published officially for general public knowledge; and

-  Ministry of Defence Decree No. 071:93 (Articles 242, 287, 300, 317, 612), which entered into force on 7 September 1993, was also not published officially for general public knowledge.

3.  Supervisory review (Пересмотр в порядке надзора)

Section VI, Chapter 30, of the Code of Criminal Procedure (Уголовно-процессуальный кодекс) in force at the material time allowed certain officials to challenge a judgment which had entered into force and have the case reviewed on points of law and procedure. The supervisory review procedure is to be distinguished from proceedings which review a case because of newly established facts.

(a)  Entry into force of a judgment

Pursuant to Article 356 of the Code of Criminal Procedure, a judgment enters into force and is subject to execution as of the day when the appeal (cassation) instance pronounces its judgment.

(b)  Authorised officials

Article 371 of the Code of Criminal Procedure provided that the power to lodge a request for a supervisory review (an extraordinary appeal) may be exercised by the Prosecutor General, the President of the Supreme Court of the Russian Federation and their Deputies, in respect of any judgment other than those of the Presidium of the Supreme Court, and by the Presidents of the regional courts in respect of any judgment of a regional or subordinate court. A party to criminal or civil proceedings may solicit the intervention of such officials for a review.

(c)  Limitation period

Article 373 of the Code of Criminal Procedure set a limitation period of one year during which a request calling for the supervisory review of an acquittal judgment may be brought by an authorised official. The period runs from the day when the acquittal enters into force.

(d)  The effect of a supervisory review

According to Articles 374, 378 and 380 of the Code of Criminal Procedure, the request for supervisory review should have been considered by the judicial board (the Presidium) of the competent court which examines the case on the merits, not being bound by the scope and grounds of the extraordinary appeal. The Presidium could either dismiss the request and thus uphold the earlier judgment, or grant it. In the latter case it could decide whether to quash the judgment and terminate the criminal proceedings, to remit the case for a new investigation, or for a fresh court examination at any instance, to uphold a first instance judgment reversed on appeal, or to amend and uphold any of the earlier judgments.

4.  Length of proceedings; remedies

(a)  Remittal of the case for further investigation

A decision to remit the case for further investigation taken by a first instance court may be appealed to a higher court. This was established by the Constitutional Court in its judgment No. 20‑П of 2 July 1998 on the compatibility of Articles 331 and 446 of the Code of Criminal Procedure with the Constitution. The ordinary rules of “cassation” appeal apply to such proceedings. This means that the higher court has competence, inter alia, to find the first instance decision unlawful and to order the court proceedings be resumed.

(b)  Extension of the investigation time-limit

A decision to extend the period of investigation may be appealed to a court. This directly follows from Article 46 of the Constitution, and was confirmed by the Constitutional Court in its judgment No. 5‑П of 23 March 1999. The court may annul any unreasonable or unlawful extension.

(c)  Supervisory review

No separate appeal is allowed against supervisory review as such. The parties’ objections are to be considered by the judicial board which is to decide whether to grant the extraordinary appeal.

(d)  Damages

Article 1070 § 1 of the Civil Code provides for liability of the State for damages caused by its agents acting in their official capacity. The Constitutional Court in its judgment of 25 January 2001 expressly confirmed the possibility to award damages for excessive length of proceedings under this provision, and ruled that it was not limited to cases in which the responsible judge was convicted of miscarriage of justice.

COMPLAINTS

1.  The applicant complains under Article 6 § 1 of the Convention that the length of the criminal proceedings against him was unreasonable, having particular regard to the remittal of the case for further investigation on 29 October 1998, the extension of the investigation period on 29 March 1999 and the consideration by the Presidium of the Supreme Court of the Russian Federation of the Prosecutor General’s request for supervisory review of 30 May 2000. He also complains under Article 13 of the Convention that he did not have an effective remedy as regards the length of the proceedings.

2.  In relation to the consideration by the Presidium of the Supreme Court of the Russian Federation of the Prosecutor General’s request for supervisory review, the applicant complains under Article 6 § 1 of the Convention and Article 4 of Protocol No. 7 to the Convention that the very possibility to challenge his acquittal, which had entered into force, violated his right to a fair hearing and his right not to be tried again in criminal proceedings for an offence of which he had been finally acquitted.

THE LAW

1.  The applicant complains that the overall length of the proceedings in his criminal case exceeded the reasonable time guaranteed by Article 6 § 1 of the Convention. He complains in particular that the remittal of the case for fresh investigation, the extension of that investigation and the subsequent supervisory review of the final acquittal constituted unjustified delays within the meaning of this Article.

Article 6 § 1 of the Convention provides as follows:

“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”

The Government submit that the remittal of the case for a fresh investigation was reasonable and was justified in view of the shortcomings in the indictment and the lack of an expert opinion as to whether the information at issue constituted “official secrets”. They also submit that these reasons were considered by the appeal instance.

As to the extension of the investigation, the Government contend that it was necessary to collect as broad a range of evidence as possible and to ensure “the conditions for effective execution of justice”.

The applicant argues that the overall length of proceedings – 4 years, 11 months and 8 days, of which 2 years, 4 months and 8 days are within the Court’s competence ratione temporis – cannot be regarded as reasonable. He maintains that it was due to the authorities’ conduct that the charge was not determined within a reasonable time.

He also disputes the Government’s position as to the specific episodes of delay. As regards the remittal for a fresh investigation and its extension, he insists that the case should have been terminated by an acquittal once the court concluded that the criminal indictment was faulty. By ordering another investigation the court gave additional time and opportunities to the prosecution which, as the court itself had found, had failed to substantiate the charge. He claims that the courts were in the same position to dismiss the charges in 1998 as they were in 2000, when they eventually did dismiss it.

As to the supervisory review, the applicant points out that the examination of the prosecutor’s request prolonged the proceedings by another 5 months. Given that the request called for examination of the same issues as those which underlay previous extensions, this delay was devoid of any justification.

A.  Period to be considered

The first indictment was brought against the applicant on 6 February 1996. However, the Court recalls the Court’s established test to define the date on which the criminal proceedings commence, namely whether “the situation of the [suspect] has been substantially affected” (see, inter alia, Deweer v. Belgium judgment of 27 February 1980, Series A no.35, p. 22 § 46, Slezevicius v. Lithuania no. 55479/00, 13 November 2001, § 26). The Court notes that as a result of the seizure of the applicant’s passport his freedom of movement was substantially restricted. He could not enter into certain transactions and was restricted in all other situations where he needed to present his identification document. The Court also notes that the applicant was aware of the link between the seizure and the investigation into Bellona’s report. Under these circumstances, the Court considers that from 5 October 1995 the applicant was subject to a “criminal charge”, and that the length of the criminal proceedings against the applicant must be calculated from this date.

The proceedings terminated on 13 September 2000 when the acquittal of the applicant was upheld by the supervisory instance.

The proceedings, including the pre-trial investigation, lasted in total 4 years, 11 months and 8 days.

The Court observes that, when examining the length of the proceedings, the period to be considered only began on 5 May 1998, when the Convention entered into force in respect of Russia. In this case, 2 years, 4 months and 8 days fall within the Court’s competence ratione temporis.

B.  Reasonableness of the length of proceedings

The Court recalls that in assessing the reasonableness of the time that elapsed after the entry of the Convention into force, account must be taken of the then state of proceedings (see Foti and others v. Italy judgment of 10 December 1982, Series A no. 56, p. 18, § 53). As of 5 May 1998 the criminal investigation against the applicant was at an advanced stage. In particular, the facts of the case were established, the evidence collected, including expert opinions, and the charges essentially defined. On 29 June 1998 the criminal case was transmitted to the first instance court.

The Court further reiterates that the reasonableness of the length of the proceedings is to be assessed in the light of the particular circumstances of the case, regard being had to the criteria laid down in the Court’s case-law, in particular the complexity of the case, the conduct of the applicant and that of the authorities before which the case was brought (cf. Pélissier and Sassi v. France [GC], no. 25444/94, ECHR 1999-II, § 67).

Complexity of the case

The facts of the case were clear and undisputed, even if, as it appears, the potential relevance of official secrets to the proceedings may have added an element of complexity to the case.

Behaviour of the applicant

The applicant does not appear to have caused any delays in the proceedings.

Conduct of the relevant authorities

In the present case the length of the proceedings to be considered is 2 years, 4 months and 8 days. During that time there were no periods when either the courts or the investigators were inactive.

The Court concludes that the length of the criminal proceedings against the applicant did not exceed the “reasonable time” set out in Article 6 § 1 of the Convention. It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4 of the Convention.

2.  The applicant complains that he was denied an effective remedy for his complaint about the length of proceedings. He specifically refers to the occasion when his complaints concerning the delays caused by remittal of the case for a new investigation and its extension were dismissed by the courts. Article 13 provides as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

The Government consider that the applicant had an effective remedy as he could contest before a court any act or omission by the authorities allegedly causing delays in the criminal proceedings. They point out that the applicant availed himself of an opportunity to challenge before a court the remittal of the case for a fresh examination, including the length considerations. They refer to the proceedings of 4 February 1999 in which the court examined the applicant’s length complaint and dismissed it as unmeritorious. Similarly, the Government state that since 23 March 1999 a remedy existed in respect of the extension of the investigation, and it was also used by the applicant. On 1 June 1999 the competent court examined the applicant’s claim and decided that it was unfounded. The Government consider the court proceedings to constitute an effective remedy against the alleged delays because the courts were bound by law to examine the length complaints, and they did so in accordance with the procedure and the time-limits laid down by law.

The applicant disagrees with the Government. He claims that although court proceedings were available, in his case they were not effective as a remedy. Having found that the remittal of the case for fresh investigation and its extension were “lawful” and “necessary”, the courts did not assess the possible consequential delays to the applicant’s right to a trial within a reasonable time.

The Court recalls that Article 13 guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they may happen to be secured in the domestic legal order. The effect of Article 13 is thus to require the provision of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief (see for example Kudła v. Poland [GC], no. 30210/96, § 157, ECHR 2000-XI).

Referring to the foregoing considerations under Article 6 § 1, the Court concludes that in respect of the length of proceedings the applicant had no “arguable complaint” under that provision. It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4 of the Convention.

3.  The applicant maintains that supervisory review conducted after his final acquittal constituted a violation of his right to a fair trial. He invokes Article 6 § 1 of the Convention which, in so far as relevant, provides:

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”

The Government state that the supervisory review proceedings did not constitute a new examination of the applicant’s criminal charge because the request to quash the acquittal lodged by the Prosecutor General was dismissed by the Presidium of the Supreme Court without entering into the merits. They also claim that, in so far as the supervisory review proceedings had no negative impact on the applicant’s final acquittal, they cannot constitute a violation of the applicant’s right to a fair hearing within the meaning of Article 6 § 1.

The applicant, on the contrary, maintains that the very possibility to challenge the final and enforceable acquittal violates his right to a fair hearing guaranteed by Article 6 § 1 of the Convention. He states that the supervisory review, as provided for by law at the material time, was an extraordinary procedure as it was only directly accessible by the prosecution, not by the defence, and in his case was abused. He claims that in the absence of newly discovered facts or fundamental defects in previous proceedings, such new consideration of the finally decided case was incompatible with the Convention principles.

The Court considers, in the light of the above and the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

4.  The applicant also contends that supervisory review conducted after his final acquittal constituted a violation of his right not to be liable to be tried again in criminal proceedings for an offence of which he had been finally acquitted. He invokes Article 4 of Protocol No. 7 to the Convention which, in so far as relevant, provides:

“1.  No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.

2.  The provisions of the preceding paragraph shall not prevent the reopening of the case in accordance with the law and penal procedure of the State concerned, ... if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case.”

The Government consider that, for the purposes of Article 4 of Protocol No. 7, the supervisory review proceedings did not constitute a second trial.

The applicant contests the Government’s position and submits that, contrary to the non bis in idem principle, the prosecutor’s request made him liable to be tried again. Although the outcome remained unchanged, he was effectively prosecuted twice for the same offence. He claims that the supervisory review was not justified as an exceptional reopening permitted by the second paragraph of Article 4 of Protocol No. 7, as neither the prosecutor’s request for supervisory review nor the Government’s observations referred to any newly discovered facts or a fundamental defect in previous proceedings which would call for a reassessment of the case. The applicant also recalls that no fundamental defect in the previous proceedings was found by the Presidium of the Supreme Court, when it dismissed the request for supervisory review as groundless and upheld the acquittal judgment as lawful and reasonable.

The Court considers, in the light of the above and the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicant’s complaints under Article 6 § 1 and Article 4 of Protocol No. 7 that the supervisory review conducted after his final acquittal violated his right to a fair hearing and his right not to be liable to be tried again in criminal proceedings for an offence of which he had been finally acquitted;

Declares inadmissible the remainder of the application.

S. DolléJ.-P. Costa
RegistrarPresident

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