Communicated on 26 August 2015
FIRST SECTION
Application no. 50048/06
Natalya Yuryevna SILICHEVA
against Russia
lodged on 19 September 2006
STATEMENT OF FACTS
The applicant, Ms Natalya Yuryevna Silicheva, is a Russian national, who was born in 1974 and lives in Novoshakhtinsk, the Rostov region.
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, a lawyer by profession, was a managing director of the non‑profit organisation “Union of External Managers of the Rostov Region” («Союз арбитражных управляющих Ростовской области», hereinafter – “SAURO”).
On 22 April 2002 SAURO entered into an agreement on rendering legal services with the federal unitary enterprise “Elektroapparat” (“GUP Elektroapparat”) represented by its external manager, Mr Z.
On the basis of the agreement the applicant provided legal advice to GUP Elektroapparat in connection with a purchase deed the content of which had been classified as containing State secrets. The applicant had access to the classified information. Later on the validity of the purchase deed was tested before a commercial court; the proceedings were classified and the commercial court sat in camera.
In June 2003 criminal proceedings were instituted against Mr Z. under Article 201 (“abuse of powers by a manager of a commercial organisation”) of the Russian Criminal Code (“CCP”).
On 24 October 2003 officers of the Russian Federal Security Service (“FSB”) searched the SAURO premises in connection with the criminal proceedings against Mr Z. and seized two laptops, two computer system units, a monitor, a printer, a keyboard, a mouse, floppy disks and documents related to the agreement on rendering legal services to GUP Elektroapparat.
On 27 November 2003 the FSB seized from a bank documents related to the SAURO’s banking account.
At some point the applicant was summoned to interviews with the FSB officers in connection with the proceedings against Mr Z. On 23 and 24 December 2003 the applicant was questioned as a witness twice. She was asked questions concerning her relationship with Mr Z. and the services rendered to GUP Elektroapparat. During the interview of 24 December 2003 the applicant refused to answer certain questions referring to her right not to incriminate herself guaranteed by Article 51 of the Russian Constitution.
On 2 March 2004 the applicant was again summoned to an interview as a witness in connection with the proceedings against Mr Z. Again, she refused to answer certain question referring to Article 51 of the Russian Constitution.
On 27 April and 7 May 2004 the FSB officers again seized objects from the SAURO premises.
On 19 May 2004 the authorities decided to obtain a sample of the applicant’s handwriting.
The applicant was questioned as a witness in connection with the criminal case against Mr Z. four more times: on 19 May and on 8, 9 and 10 June 2004. On those occasions she replied to all questions asked by the FSB officers.
On 9 July 2004 a criminal investigation was opened against the applicant under Article 308 (“refusal to give testimony”) of the CCP on account of her refusals to answer the questions in the course of the interviews of 24 December 2003 and 2 March 2004.
On 23 November 2004 a justice of the peace of circuit no. 2 of the Leninskiy district of Rostov-on-Don (“the justice of the peace”) convicted the applicant under Article 308 of the CCP on account of the events of 24 December 2003 and 2 March 2004 and sentenced her to a fine of 10,000 Russian roubles (RUB). The applicant’s argument that she had refused to answer certain questions because of ample reasons to fear criminal prosecution as the FSB had taken a number of investigative measures in her respect was dismissed as irrelevant.
On 24 December 2004 the Leninskiy district court of Rostov-on-Don (“the district court”) upheld on appeal the conviction of 23 November 2004 in full.
On 22 March 2005 the Rostov regional court (“the regional court”) upheld the district court’s appeal judgment on cassation appeal.
On 11 May 2005 a judge of the regional court dismissed the applicant’s supervisory review complaint.
On 11 October 2005 the president of the regional court quashed the refusal of 11 May 2005 and accepted the applicant’s supervisory review complaint for examination on the merits. He reasoned that the applicant had had grounds to refuse to testify pursuant to Article 51 of the Constitution and that the criminal proceedings against Mr Z. had been terminated for the lack of an event of a crime.
On 17 November 2005 the presidium of the regional court quashed by way of supervisory review the appeal judgment of 24 December 2004 and the cassation appeal judgment of 22 March 2005 and remitted the case for a fresh examination on appeal.
On 1 February 2006 the district court delivered a new appeal judgment which amended the conviction of 23 November 2004 by deleting the reference to the refusal to testify on 24 December 2003 and terminating the criminal proceedings against the applicant in respect of that event owing to the statute of limitations. However, the findings as to the applicant’s guilt were confirmed. The fine was diminished to RUB 5,000; in the remaining part the conviction was upheld.
On 18 April 2006 the regional court quashed on cassation appeal the judgment of 1 February 2006 in the part related to refusal to testify on 2 March 2004 and terminated the proceedings in that respect owing to the statute of limitations; in the remaining part the conviction was upheld.
B. Relevant domestic law
1. Constitution of 1993
No-one shall be held obliged to testify against him- or herself, his or her spouse, and close relatives the list of which shall be defined by a federal law (Article 51 § 1). A federal law may establish other exemptions from the duty to make a witness statement (Article 51 § 2).
2. Criminal Code of 1996
Article 308 of the Russian Criminal Code of 1996 reads as follows:
“A refusal of a witness or of a victim of a crime to give testimony, or a victim’s refusal to undergo a medical examination, or a forensic expert examination when his or her consent is not required, or a refusal to provide a handwriting sample or other samples for comparative examination shall be punishable by a fine of up to 40,000 roubles, or his or her wages for up to three months, or obligatory works for up to 360 hours, or correctional works for up to a year, or an arrest of up to three months.
Annotation. A person shall not be liable to criminal responsibility for the refusal to give testimony against him- or herself, his or her spouse or close relatives.”
COMPLAINTS
1. The applicant complains under Article 6 § 1 of the Convention that the fact that she was prosecuted and convicted for a refusal to testify amounts to a breach of her right not to incriminate herself.
2. The applicant further complains under Article 7 of the Convention, referring to the annotation contained in the text of Article 308 of the CCP, that she was convicted for an act that did not constitute a criminal offence under domestic law.
QUESTIONS TO THE PARTIES
1. Did the criminal proceedings instituted against the applicant on account of her failure to answer certain questions in the context of the criminal proceedings against Mr Z. which led to her conviction under Article 308 of the Russian Criminal Code amount to coercion such as to render her right not to incriminate herself ineffective (see, mutatis mutandis, Serves v. France, 20 October 1997, § 47, Reports of Judgments and Decisions 1997‑VI)? Would the applicant’s answering all questions asked by the FSB officers in connection with the criminal proceedings against Mr Z. have involved a very real likelihood of being required to give information on matters which could subsequently arise in the criminal proceedings against the applicant (see, mutatis mutandis, Shannon v. the United Kingdom, no. 6563/03, § 38, 4 October 2005)? Were there any relevant safeguards in the procedure to protect the applicant from improper compulsion to make self-incriminating statements (see, mutatis mutandis, Jalloh v. Germany [GC], no. 54810/00, § 117, ECHR 2006‑IX)? In sum, has there been a violation of Article 6 § 1 of the Convention?
2. Has there been a breach of Article 7 of the Convention? In particular, having regard to the wording of the annotation contained in Article 308 of the Russian Criminal Code of 1996, was there in force a legal provision which made the act that led to the applicant’s being prosecuted and convicted punishable at the time when she performed the said act (see, with further references, Del Río Prada v. Spain [GC], no. 42750/09, § 80, ECHR 2013)?
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