ZUBKOV v. RUSSIA

Communicated on 6 November 2015

THIRD SECTION

Application no. 2030/05
Oleg Vladimirovich ZUBKOV
against Russia
lodged on 5 November 2004

STATEMENT OF FACTS

The applicant, Mr Oleg Vladimirovich Zubkov, is a Russian national, who was born in 1970 and lives in Tambov.

A. The circumstances of the case

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

On 25 July 2000 the applicant was arrested and three months later convicted by the Rasskazovskiy District Court of the Tambov Region. The District Court ruled, insofar as relevant, as follows:

“Analysing the foregoing, the court arrives at the conclusion that the guilt of [the applicant] ... is established and ... [his] actions shall be classified [pursuant to] ... subparagraphs “b”, “c”, “d” of paragraph 2 and subparagraph “b” of paragraph 3 of Article 162 of the Criminal Code of the Russian Federation as aggravated robbery, that is assault with the purpose of stealing of other people’s property, committed repeatedly with a threat of using violence against human life or health, with breaking into home, with the use of objects as weapons, for a purpose of stealing other people’s property [in substantial amount].

The court finds it appropriate to exclude from [the applicant’s] conviction with regard to this episode subparagraph “d” of paragraph 3 of Article 162 of the Criminal Code of the Russian Federation as [the applicant] has only one non-expunged criminal record for theft of other people’s property.

... The court finds it appropriate with regard to this episode to exclude from [the applicant’s] conviction subparagraph “a” of paragraph 2 of Article 162 [of the Criminal Code of the Russian Federation], i.e. previous concert [conspiracy] of a group of persons ...

[The court decided] to find [the applicant] guilty of having committed offences stipulated in subparagraph “b” of paragraph 3 of Article 162; paragraph 3 of Article 30, in conjunction with subparagraphs “a”, “b”, and “c” of paragraph 2 of Article 158 and paragraph 1 of Article 222 of the Criminal Code of the Russian Federation and to sentence him to:

- eleven years and six months’ imprisonment with confiscation pursuant to subparagraph “b” of paragraph 3 of Article 162 of the Criminal Code of the Russian Federation;

- five years’ imprisonment pursuant to paragraph 3 of Article 30 and subparagraphs “a”, “b”, “c” of paragraph 2 of Article 158 of the Criminal Code of the Russian Federation;

- a year and a half of imprisonment pursuant to paragraph 1 of Article 222 of the Criminal Code of the Russian Federation.

Subject to Article 69 of the Criminal Code of the Russian Federation the final punishment shall be assessed by partial adding-up of imposed penalties and shall be determined as twelve years and six months of imprisonment with confiscation of property.

[The applicant] shall serve the sentence in a correctional colony of special regime.

The term of [the applicant’s] imprisonment shall run as of 25 July 2000...”.

On 30 November 2000 the conviction was upheld on appeal by the Tambov Regional Court.

Thereafter, on 24 May 2001 the foregoing judgments were amended when the Regional Court reduced the applicant’s sentence acting on appeal by the Tambov Regional Prosecutor. Thus, the applicant’s punishment under paragraph 3 of Article 30 and subparagraphs “a” and “b” of paragraph 2 of Article 158 of the Criminal Code of the Russian Federation of 13 June 1996 N 63-FZ (hereinafter – the “Criminal Code”) was reduced to four years of imprisonment, whereas his punishment under paragraph 1 of Article 222 of the Criminal Code of a year and a half of imprisonment was set subject to Article 64 of the Criminal Code. The remaining part of the judgment was left unaltered.

On 18 December 2003 the District Court, in compliance with the new amendments to the Criminal Code, reduced the applicant’s sentence having annulled the sentence of confiscation of property and having replaced the sentence of imprisonment for an attempted theft to a fine. As a result, the applicant was to serve eleven years and nine months of cumulated sentence of imprisonment in a special regime correctional colony.

In view of further amendments to the Criminal Code, the applicant asked a court to again reconsider his sentence and to decrease it in compliance with the new requirements of the law.

On 22 April 2004 the District Court accepted the request and found as follows:

“[The applicant] asks to bring the sentence into compliance with the amendments, introduced by the Federal Law No. 162-FZ of 8 December 2003 to the Criminal Code of the Russian Federation, and to reduce his punishment.

The robbery committed by him has the qualifying criteria: repetitiveness, illegal entry into home, use of weapons and the purpose of stealing [significant amount of) other people’s property.

Pursuant to the new Law, Article 16, stipulating the notion of repetitiveness, has been excluded from the Criminal Code for which reason this qualifying criteria of the robbery, committed by [the applicant], shall be excluded from [the applicant’s] sentence. He is not subject to any relieve with regard to the remaining part of the aggravated robbery, as the sanction for the offence, he had been found guilty of, under Article 162, as amended, did not reduce the punishment. Subject to Article 9 of the Criminal Code of the Russian Federation, stipulating that the criminality and punishability of an act shall be determined by the criminal law that was in force at the time when that act was committed, his actions shall not be re-classified. At the same time, the term of punishment shall be reduced.

The Federal Law No. 162-FZ introduced a new definition of recidivism of crimes. Pursuant to Article 18 of the Criminal Code of the Russian Federation, as amended by this law, there is no especially dangerous recidivism in [the applicant’s] actions. Having committed one especially grave crime and being in possession of a non‑expunged criminal record for a grave crime he has a dangerous recidivism. For this reason he shall serve his sentence in a correction colony of strict regime...

[The court decided] to exclude from the descriptive part of [the applicant’s] sentence for robbery the qualifying criteria of “the repetitiveness” and to reduce his punishment under subparagraph “b” of paragraph 3 of Article 162 of the Criminal Code of the Russian Federation to eleven years of imprisonment. In so far as his conviction under paragraph 1 of Article 222 of the Criminal Code of the Russian Federation is concerned, [the sentence] is to be left unaltered. The final punishment of [the applicant] shall be determined subject to the rules of paragraph 3 of Article 69 of the Criminal Code of the Russian Federation as imprisonment for the period of eleven years and three months to be served in the strict regime correctional colony.

The remaining part of the sentence is to be left unaltered...”.

By the final judgment of 29 June 2004 the Regional Court partially amended the above judgment and re-classified the offence, committed by the applicant, as follows:

“... The explanatory note to Article 158 of the Criminal Code of the Russian Federation provides that [the qualifying criteria] of “[significant amount]” is equal to the cost of property exceeding 250,000 roubles. As was established in the judgment of 25 October 2000, the damages [i.e. the cost of the property stolen by the applicant] amounted to 75,000 roubles. Therefore, the qualifying criteria [of significant amount] shall be excluded from [the applicant’s] charge and his actions shall be re‑characterised under subparagraphs “c” and “d” of paragraph 2 of Article 162 of the Criminal Code of the Russian Federation and the punishment shall be reduced accordingly ...

Subject to Articles 378 and 388 of the Criminal Procedural Code of the Russian Federation, the judicial panel of [the Regional Court] decided to amend the judgment of the Rasskazovskiy District Court of 22 April 2004 in [the applicant’s case].

[The Regional Court finds] that the applicant should be declared sentenced ... pursuant to subparagraphs “c” and “d” of paragraph 2 of Article 162 of the Criminal Code of the Russian Federation (as amended on 13.06.1996) to ten years and six months’ imprisonment, pursuant to paragraph 1 of Article 222 of the Criminal Code of the Russian Federation to a year and a half of imprisonment, pursuant to paragraph 3 of Article 69 of the Criminal Code of the Russian Federation to [a cumulated sentence of] ten years and nine months of imprisonment to be served in a strict regime correctional colony.

The remaining part of the judgment shall be left unaltered and his appeal shall be dismissed”.

B. Relevant Domestic Law

Article 162 of the Criminal Code (as amended on 9 July 1999), in force at the material time, reads as follows:

 “1. Aggravated robbery, that is, assault with the purpose of stealing other people’s property, committed with violence which threatens human life or health, or with the threat of using such violence, -

Shall be punishable by three to eight years of imprisonment with confiscation of property or without such.

2. Aggravated robbery committed:

(a) by a group of persons by previous consent;

(b) repeatedly;

(c) by breaking and entering to home, premises or other warehouse;

(d) with the use of weapons or objects used as weapons, -

Shall be punishable by seven to twelve years’ imprisonment with confiscation of property.

3. Aggravated robbery committed:

(a) by an organised group;

(b) for a purpose of stealing other people’s property in substantial amount;

(c) with the infliction of serious damage to the victim’s health;

(d) by a person, who had been earlier two or more times tried for stealing or extortion, -

Shall be punishable by eight to fifteen years’ imprisonment with confiscation of property”.

Section III Chapters 48-49 of the Criminal Procedural Code of the Russian Federation dated 18 December 2001 N 174-FZ (as amended on 31.10.2002) (hereinafter – the “Criminal Procedural Code”), in force at the time of delivery of the judgments dated 22 April 2004 and 29 June 2004, allowed certain officials to challenge a judgment which had become effective and to have the case reviewed on points of law and procedure. The supervisory review procedure (Articles 402-412 of the Criminal Procedural Code) is distinct from proceedings in which a case is reviewed in the light of newly established facts (Articles 413-419 of the Criminal Procedural Code).

COMPLAINT

The applicant complained under Article 4 of Protocol No. 7 of the Convention that his criminal acts, for which he was convicted under subparagraph “b” of paragraph 3 of Article 162 of the Criminal Code by the judgment of 25 October 2000 were re-characterised on 29 June 2004 to comply with the new legal amendments. As a result he was declared convicted under subparagraphs “c” and “d” of paragraph 2 of Article 162 of the Criminal Code which were excluded from his conviction on 25 October 2000.

QUESTION TO THE PARTIES

Taking into account that sub-paragraphs “c” and “d” of paragraph 2 of Article 162 of the Criminal Code were excluded from the applicant’s conviction on 25 October 2000, does the re-characterisation of his conviction under the specified sub-paragraphs, made by the judgment of 29 June 2004, comply with the guarantees of Article 4 of Protocol No. 7 of the Convention?

 

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