FIRST SECTION

CASE OF ALDOSHKINA v. RUSSIA

(Application no. 66041/01)

JUDGMENT

STRASBOURG

12 October 2006

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Aldoshkina v. Russia,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
	Mr	C.L. Rozakis, President,
	Mr	L. Loucaides,
	Mrs	F. Tulkens,
	Mrs	N. Vajić,
	Mr	A. Kovler,
	Mrs	E. Steiner,
	Mr	K. Hajiyev, judges,
and Mr S. Nielsen, Section Registrar,
Having deliberated in private on 21 September 2006,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 66041/01) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Ms Irina Igorevna Aldoshkina, on 27 November 2000.
2.  The Russian Government (“the Government”) were represented by their Agent, Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights.
3.  The applicant alleged, in particular, a violation of her right to defend herself before the supervisory-review instance.
4.  The application was allocated to the First Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1.
5.  By a decision of 16 June 2005, the Court declared the application partly admissible.
6.  The Government but not the applicant filed observations on the merits (Rule 59 § 1).
THE FACTS
I.  THE CIRCUMSTANCES OF THE CASE
7.  The applicant was born in 1968 and lives in Samara. She is a former chief tax inspector.
8.  On 27 August 1998 the applicant was committed to stand trial on charges of abuse of position and concerted extortion of a bribe.
9.  On 28 October 1998 the Samara Regional Court delivered its judgment. It found the applicant guilty of fraud committed in concert with another person through use of her official position, an offence under Article 159 § 2 (a) and (v) of the Criminal Code. She was sentenced to a fine of 1,000 minimum wages (approximately EUR 5,000) and prohibited from holding any positions in tax authorities for three years.
10.  On 17 March 1999 the Supreme Court of the Russian Federation upheld the conviction on appeal. Counsel for the applicant was present at the hearing.
11.  As no ordinary appeal lay against the appeal judgment, counsel for the applicant introduced an application for supervisory review with the Presidium of the Supreme Court of the Russian Federation. He sought a reversal of the judgments passed in the applicant's case in order to redress the violations of the rights of the defence.
12.  On 24 February 2000 a deputy president of the Supreme Court of the Russian Federation lodged an application for supervisory-review with the Presidium of that court. Although the text of the application has not been made available to the Court, it appears from the Government's submissions that he asked for a recharacterisation of the applicant's offence which, in his opinion, should be qualified as an attempt to commit fraud.
13.  On 24 May 2000 the Presidium of the Supreme Court of the Russian Federation examined the application for supervisory review. The applicant and her counsel were not summoned to the hearing and did not attend it. The Presidium heard a report by the judge rapporteur and statements by a deputy Prosecutor General who spoke in support of the recharacterisation. The Presidium found that the offence imputed to the applicant had not been brought to completion. On that ground the Presidium recharacterised the applicant's offence as an attempt to commit fraud (Article 159 § 2 (a) and (v) of the Criminal Code in conjunction with Article 30 § 3). The applicant's sentence remained unaffected.
14.  On 29 May 2000 a copy of the Presidium's decision was mailed to the applicant.
II.  RELEVANT DOMESTIC LAW AND PRACTICE
A.  The RSFSR Code of Criminal Procedure (in force at the material time)
15.  Article 254 required that the court examine the case within the scope of the charges brought against the defendant. The charge could be amended by the court, provided that such an amendment did not aggravate the situation of the defendant or violate his right to defend himself.
16.  Chapter 30 described the power of certain State officials to contest criminal judgments by way of supervisory-review proceedings in which the case could be reviewed on points of law and procedure. The supervisory-review proceedings were distinct from review of a case on account of newly discovered facts. The power to lodge an application for supervisory review could be exercised by the Prosecutor General, the presidents of the Supreme Court of the Russian Federation and of the regional courts and their deputies. A party to the proceedings could petition these officials for institution of supervisory-review proceedings (Article 371).
17.  The supervisory-review instance was not bound by the scope of the application for supervisory review and had to review the criminal case in its entirety. It could uphold, amend or quash any of the earlier judgments, vary the sentence, discontinue the criminal proceedings or remit the matter for a new consideration by the trial or appeal court. It could not, however, increase the sentence or recharacterise the defendant's actions as a more serious offence (Article 380).
18.  Article 377 established that a prosecutor had to be present at the supervisory-review hearing. If necessary, the convicted person and counsel could be summoned to the hearing in order to make submissions. If summoned to the hearing, the defendant and counsel should be able to study the application for supervisory review.
B.  Case-law of the Constitutional Court
19.  In Ruling no. 2-P of 14 February 2000, the Constitutional Court declared Article 377 incompatible with the Russian Constitution to the extent that it permitted the supervisory-review instance to decide on an application for supervisory review which was to the detriment of the convicted or acquitted person. The Court held that such person and his or her counsel should be able to study the application, they should be notified about the date and place of the hearing and given an opportunity to present their position on the arguments in the application.
THE LAW
I.  ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
20.  The applicant complained about procedural irregularities in the criminal proceedings against her. The Court will examine the complaints under Article 6 of the Convention which reads, in the relevant parts, as follows:
“1.  In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing ... by a ... tribunal...
3.  Everyone charged with a criminal offence has the following minimum rights:
(a)  to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
(b)  to have adequate time and facilities for the preparation of his defence;
(c)  to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require...”
21.  The applicant submitted that she had applied to the supervisory-review instance with a view to having the conviction reversed and the proceedings discontinued because the guilty verdict had contradicted the established facts. However, the deputy president had preferred a completely different ground for supervisory-review, namely a recharacterisation of her actions as an attempt to commit fraud. Neither she nor her counsel had been informed about the date of the hearing before the supervisory-review instance. Nor had they been aware of the contents of the application for supervisory review. For that reason they had been prevented from making any submissions or comments, written or oral, and from pleading her innocence.
22.  The Government conceded that the applicant and her counsel had not been summoned for the supervisory-review hearing on 24 May 2000. However, their presence had not been required because the application for supervisory review had not been liable to aggravate her situation, and their summoning had been a discretionary power of the supervisory-review instance. In any event, neither the applicant nor her counsel had sought leave to appear at the hearing.
23.  The Court has already found a violation of the fairness requirement of Article 6 § 1 of the Convention in the case where the supervisory-review court adopted a different legal characterisation of the applicant's offence without summoning him to the hearing and affording him an opportunity to comment on the application for supervisory review (see Vanyan v. Russia, no. 53203/99, §§ 63-68, 15 December 2005).
24.  Having regard to its case-law on the subject and the material submitted by the parties, the Court notes that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. The Presidium of the Supreme Court amended the conviction and adopted a different legal characterisation of the applicant's actions, thereby determining a criminal charge against her. The prosecution was present before the Presidium and made oral submissions in support of the recharacterisation. The Presidium had to exercise a full review of the case and could dismiss the application for supervisory review, quash the conviction and/or the appeal judgment, discontinue the criminal proceedings, or amend any of the earlier decisions. In these circumstances, the Court considers that the Presidium court could not, if the trial were to be fair, determine the applicant's case in her absence. Had she or her counsel been present, she would have had an opportunity to plead the case and comment on the application by the deputy President of the Supreme Court and on the oral submissions by the prosecutor (see Vanyan, loc. cit.).
25.  In view of the above considerations the Court finds that the proceedings before the Presidium of the Supreme Court of the Russian Federation did not comply with the requirements of fairness. There has therefore been a breach of Article 6 § 1 of the Convention. In the light of this finding it is not necessary to examine separately whether the provisions of Article 6 § 3 have been complied with.
II.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
26.  Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
A.  Damage
27.  The applicant claimed 481,140 euros (EUR) in respect of compensation for the pecuniary damage, representing her actual and future loss of salary and other emoluments resulting from her conviction. She further claimed EUR 500,000 in respect of compensation for non-pecuniary damage.
28.  The Government considered these amounts to be excessive and unreasonable.
29.  The Court reiterates that the complaints concerning the applicant's conviction were declared inadmissible in the decision of 16 June 2005. It rejects therefore her claim for the pecuniary damage. The Court considers that the applicant must have suffered frustration and a feeling of injustice as a consequence of the domestic authorities' failure to ensure her presence at the supervisory-review hearing. The Court finds that the applicant suffered non-pecuniary damage, which would not be adequately compensated by the finding of a violation. Accordingly, making its assessment on an equitable basis, it awards the applicant EUR 1,000, plus any tax that may be chargeable on that amount.
B.  Costs and expenses
30.  The applicant claimed 18,000 Russian roubles (RUR) in respect of the legal expenses in the trial and appeal proceedings and RUR 2,000,000 in respect of the costs of the supervisory-review and Strasbourg proceedings.
31.  The Government pointed out that the applicant did not submit evidence showing that these expenses had been actually made.
32.  According to the Court's case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. The Court reiterates that the complaints concerning the applicant's trial and conviction were declared inadmissible. As to the supervisory-review and Strasbourg proceedings, the applicant did not submit any documents showing that the expenses had been actually incurred. Accordingly, the Court does not make an award under this head.
C.  Default interest
33.  The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1.  Holds that there has been a violation of Article 6 § 1 of the Convention;

2.  Holds
(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 1,000 (one thousand euros) in respect of non-pecuniary damage, to be converted into Russian roubles at the rate applicable at the date of settlement, plus any tax that may be chargeable on that amount;
(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

3.  Dismisses the remainder of the applicant's claim for just satisfaction.
Done in English, and notified in writing on 12 October 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Søren Nielsen	Christos Rozakis
	Registrar	President