ITEMID: 001-103086
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF BORTNIK v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Violation of P6-3-c
JUDGES: Ganna Yudkivska;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Zdravka Kalaydjieva
TEXT: 5. The applicant was born in 1960 and is currently serving a sentence in Correctional Colony no. 32 (Виправна колонія №32) in Makiyivka, Ukraine. He is disabled (his feet were partly amputated in 2001) and walks with a stick.
6. Late in the evening of 27 September 2002 P., the applicant's neighbour, was severely beaten in her house and received several knife wounds, concussion and broken bones. She died in hospital three days later.
7. On 30 September 2002 criminal proceedings for grievous bodily harm causing death were instituted by the police. On the same day the applicant was questioned. He submitted that he knew P. as she was his neighbour. She had lived alone and communicated with nobody. He further submitted that in September 2002 two persons, K. and M., had built an extension to P.'s house and on 28-29 September 2002 there had been a party in the neighbourhood.
8. On 1 October 2002 the applicant was arrested. In the report drawn upon his arrest it was indicated, without any further details, that the applicant had been arrested on suspicion of causing grievous bodily harm to P. The applicant was further questioned as a suspect. He submitted that in the evening of 27 September 2002 he had wanted to buy some home-made alcohol or to borrow some money from P. As the latter had refused, he had hit her with his wooden walking stick. P. told him that she would inform the police. The applicant decided that if she did that he would get a criminal record, he had taken a knife and struck P. several times “in order to intimidate her and take revenge”. In his written statements he also wrote that he “refused to be represented by a lawyer and this was not related to his financial state”.
9. On the next day the police held an on-site reconstruction of events with the participation of the applicant and witnesses Ku. and L.
10. On 4 October 2002 the applicant was charged with inflicting grievous bodily harm causing P.'s death; he pleaded guilty. The maximum possible punishment for this crime was ten years' imprisonment. The applicant again confirmed that he did not need a lawyer.
11. On the same day Konstyantinovskiy Town Court remanded the applicant in pre-trial custody.
12. On 13 November 2002, during a forensic psychiatric examination, the applicant stated that he had not committed the crime and had been subjected to physical and psychological pressure from the police. The experts stated that the applicant was lying and insincere. They also indicated that although the applicant was “socially dysfunctional” and suffered from chronic alcoholism, he was able to control his actions.
13. On 21 and 26 November 2002 the applicant submitted that he did not want to be legally represented and “would defend his rights himself”. On the latter date he also pleaded guilty and indicated that he had not wanted to kill P.
14. On 25 November 2002 the Konstyantinovka town prosecutor decided not to qualify the applicant's actions as murder.
15. On an unknown date the case was transferred to the court.
16. On 14 January 2003 during the preliminary examination of the case by the court the applicant lodged a request for a lawyer.
17. On 28 January 2003 the applicant's representative, Mr Anikin, joined the proceedings as his lawyer.
18. On 26 February 2003 the court returned the case for further investigation. In the court hearing the prosecutor indicated that more witnesses should be questioned, the construction workers who built an extension to P.'s house in September 2002 should be found, and there should be a further forensic examination of samples of P.'s skin, hair and nails and the applicant's stick. The applicant submitted that he had not committed the crime in question. He had confessed to it only because, being disabled, he was afraid that the police officers would ill-treat him. The ambulance doctor, G., testified that P. had said that she had been beaten by “men” without giving any names. G. insisted that the word was used in the plural. P.'s neighbours testified that P. lived alone and would never let strangers, including the applicant, who had lived on their street for a month, into her house.
19. On 11 April 2003 the applicant's actions were reclassified as murder committed for financial gain, since the nature of the victim's injuries confirmed the attacker's intention to kill her. The possible penalties for this crime included a life sentence.
20. On 12 May 2003 the applicant was questioned in the presence of his lawyer and denied guilt.
21. On 25 November 2003 the Donetsk Regional Court of Appeal found the applicant guilty of murder and robbery. In particular, it found that the applicant had hit P. with his walking stick and with a knife, and had stolen a half-litre of home-made alcohol, an apple and a glass. In a court hearing the applicant contested the charges and submitted that he had pleaded guilty because the police officer Ki. had beaten him and the investigation officer Ko. had promised him the minimum punishment if he pleaded guilty. In the applicant's opinion, P. had been murdered by the people who had built the house extension, because she had not paid them.
22. The court rejected the applicant's submissions and referred to the applicant's testimony given during the pre-trial investigation. It also based its decision on the following evidence.
23. G., the ambulance doctor, testified that P. had told her that she had been attacked by a man, without giving a name. Ku. and L. testified that they had been present at the on-site reconstruction of events during which the applicant had explained how had he committed the crime. He was not subjected to any pressure. The police officer, Ki., explained that he had never met the applicant. The investigation officer, Ko., testified that the applicant had not been subjected to any pressure. K. and M. submitted that P. had paid them for their work. When they played football with the applicant he told them that they had not been paid enough. The forensic medical examination confirmed that some of P.'s injuries could have been inflicted in the circumstances described by the applicant earlier. According to the DNA examination the blood from the blood spots on the applicant's trousers could have been P.'s, with a degree of probability of 1/2000.
24. The court finally sentenced the applicant to thirteen years' imprisonment, with obligatory treatment for alcoholism.
25. The applicant appealed against this decision. He complained, inter alia, that his actions had been wrongly classified at the pre-trial stage of the proceedings, which had breached his right to defence. The applicant indicated that P. knew him but while still alive she had never identified him as her attacker. Also, P.'s neighbours, including Pu. and Ma., who were drinking in the house next to the victim's, were not questioned at all, or only perfunctorily.
26. On 18 March 2004 the Supreme Court of Ukraine, in the presence of a prosecutor, upheld the applicant's sentence. Neither the applicant nor his lawyer were present at the hearing. The applicant was apprised of this decision on 3 August 2004.
27. The relevant extracts from Article 45 of the CCP as worded at the material time read as follows:
“Participation of a defence lawyer in the inquiry, pre-trial investigations and trial by the first-instance court is compulsory:
...
...
(4) from the moment of the person's arrest or when he or she is [officially] charged with a criminal offence carrying a penalty of life imprisonment...”
28. Article 46 of the CCP as worded at the material time provided that a suspect, accused or defendant was entitled to waive his or her right to defence counsel. Such a waiver was permissible only on the initiative of the suspect, accused or defendant, himself or herself.
A waiver was not permitted if the participation of a defence lawyer was compulsory.


ITEMID: 001-22601
LANGUAGEISOCODE: ENG
RESPONDENT: MDA
BRANCH: ADMISSIBILITY
DATE: 2002
DOCNAME: GORIZDRA v. MOLDOVA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Valentin Gorizdra, is a Moldovan national, who was born in 1948 and lives in Chişinău.
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant is a former councillor of the Chişinău City Council. In January 1997 he lodged with the Chişinău Regional Court an application contesting the Municipal Council’s decision of 19 July 1994 concerning the levying of local taxes and duties and the decision of 17 October 1996 regarding the placement of outside advertisements in the Municipality of Chişinău, the presidential decree of 10 May 1995 appointing the mayor and certain provisions of i) the law of 27 December 1994 concerning the date of local elections and the extension of the mandate of the councillors of local councils, ii) the law of 7 December 1994 concerning the local elections, iii) the law of 7 December 1994 concerning the local public administration, iv) the law of 19 April 1995 concerning the status of the Municipality of Chişinău and v) the law of 19 April 1995 concerning the status of a councillor in a local council. He alleged that the contested legal provisions contravened the Constitution and ratified international instruments and that the unlawfully conducted municipal elections of 1995 precluded him from freely exercising his right to participate in the administration of local public affairs. On 23 January 1997 the Chişinău Regional Court dismissed as unfounded the application on the ground that his right to participate in the administration of local public affairs as a former councillor had not been interfered with as a result of the municipal elections and of the impugned acts. The applicant appealed against this decision, submitting that the Regional Court had erroneously applied the material law and incorrectly dismissed his application. On 14 October 1997 the Court of Appeal dismissed the appeal as unfounded referring to the reasoning of the Regional Court. The applicant appealed against this decision, arguing that the inferior courts had disregarded the relevant provisions of the Constitution and ratified international instruments on human rights. On 17 December 1997 the Supreme Court allowed the appeal, set aside the Court of Appeal’s decision of 14 October 1997 and sent the case back for re-examination to the same court. On 8 April 1998 the Court of Appeal dismissed as unfounded the applicant’s appeal against the decision of the Regional Court of 23 January 1997 and upheld the latter decision.
The applicant lodged an appeal against this decision, arguing that the Court of Appeal had erroneously applied procedural law and disregarded the relevant provisions of the Constitution and ratified international instruments on human rights. On 15 July 1998 the Supreme Court dismissed the appeal after having found that the Court of Appeal had conducted the proceedings in accordance with applicable procedural rules having due regard to the relevant provisions of the Constitution and ratified international instruments on human rights. On 16 September 1998 the Supreme Court dismissed as unfounded the applicant’s petition for annulment against of decision.
In 1997 the applicant contested before the Court of Appeal an official letter signed and addressed to him by a judge of the Constitutional Court, explaining that the court lacked jurisdiction insofar as it concerned individual and collective petitions lodged by citizens directly with the Constitutional Court. He argued that the said letter and the refusal of a judge of the Constitutional Court to examine his application had infringed his constitutional right to have direct access to the Constitutional Court. On 19 August 1997 the Court of Appeal dismissed the applicant’s complaint on the ground of its lack of jurisdiction, observing that jurisdiction in the matter lay with the competent district court. The applicant appealed against this decision, submitting that the Court of Appeal had erroneously applied procedural law and incorrectly dismissed the application. On 8 October 1997 the Supreme Court dismissed the applicant’s initial application relying on the fact that the contested letter could not be classified as an administrative act and that therefore the courts lacked jurisdiction as regards the infringement of the applicant’s rights he had complained of.
In 1998 the applicant contested before the Court of Appeal the actions and omissions of judges of Constitutional Court who had rejected his numerous complaints and letters in which he had challenged the constitutionality of certain legislative provisions and administrative decisions. He complained that the contested acts and omissions contravened the Constitution and ratified international instruments on human rights. On 9 April 1998 the Court of Appeal dismissed the application on the ground that the court lacked jurisdiction as regards the infringements of the applicant’s rights he had complained of. The applicant lodged an appeal against this decision. On 22 July 1998 the Supreme Court, relying on the same grounds as those stated in the Court of Appeal’s decision, dismissed the applicant’s appeal. On 3 September 1998 the Supreme Court dismissed as unfounded the applicant’s petition for annulment of this decision.
In 1997 the applicant contested before the Court of Appeal the presidential decree of 9 August 1994 appointing the mayor of Chişinău and the presidential decree of 10 May 1995 appointing the Chişinău Municipal Council, alleging that the contested decrees contravened the Constitution and ratified international instruments on human rights and precluded him from freely exercising his right to vote and to be elected to the Municipal Council and to participate in the administration of local public affairs. On 3 September 1997 the Court of Appeal dismissed the applicant’s complaint on the ground of its lack of jurisdiction as regarded the alleged unconstitutionality of the above acts, observing that jurisdiction in the matter lay with the Constitutional Court. The applicant appealed against this decision, arguing that the Court of Appeal had failed to examine all the complaints contained in his application. On 22 October 1997 the Supreme Court, referring to the Court of Appeal’s reasoning, dismissed the appeal as unfounded.
Also in 1997 the applicant contested before the Court of Appeal the provisions of i) Article 140 § 1 of the Constitution, ii) the law of 13 December 1994 concerning the Constitutional Court, iii) the Code of constitutional jurisdiction of 28 September 1995 and iv) six administrative acts of the Parliament and its divisions. He alleged that the contested legal norms contravened the Constitution and ratified international instruments on human rights and precluded him from freely exercising his right to vote and to be elected to the Municipal Council and to participate in the administration of local public affairs. On 5 September 1997 the Court of Appeal dismissed the applicant’s complaint on the ground of its lack of jurisdiction as regarded the alleged unconstitutionality of the above acts, observing that jurisdiction in the matter lay with the Constitutional Court. The applicant appealed against this decision, arguing that the Court of Appeal had failed to examine all the complaints contained in his application. On 22 October 1997 the Supreme Court quashed the decision of the Court of Appeal of 5 September 1997 and sent the case back for re-examination to the same court. On 6 January 1998 the Court of Appeal dismissed the initial application on the ground of its lack of jurisdiction, observing that the jurisdiction in the matter concerning the constitutionality of the challenged acts lay with the Constitutional Court, while the competence concerning the electoral disputes lay with competent district court. On 3 June 1998 the Supreme Court, relying on the same grounds as those stated in the Court of Appeal’s decision of 6 January 1998, dismissed the applicant’s appeal against the above decision.
In 1998 the applicant contested before the Supreme Court eleven decisions of the Central Electoral Commission concerning the preparation and carrying out of the electoral campaign for the parliamentary elections of 1998 and the manner in which the Central Electoral Commission had applied certain provisions of the Electoral Code. He argued that the contested acts and the manner in which they were applied contravened the relevant provisions of the Constitution and ratified international instruments on human rights and infringed his right to vote and to stand for the parliamentary elections. In particular, he complained that the threshold of 4% of the votes cast established for all candidates placed the independent candidates in a disadvantageous position as against other candidates (e.g. political parties, blocks etc.). On 19 March 1998 the Supreme Court dismissed the application on the ground that all the contested decisions had been adopted in accordance with the applicable provisions of the Constitution and Electoral Code. In the same decision, the court ruled that it had had due regard to the relevant provisions of the ratified international instruments on human rights and that the applicant had failed to adduce prima facie evidence to prove that the contested acts had interfered with his right to vote and to stand for the parliamentary elections of 1998 and dismissed as unfounded his complaint concerning the difference in treatment of the candidates. The applicant appealed against this decision, arguing that the Supreme Court had erroneously applied the Electoral Code and the rules of civil procedure, and had disregarded relevant provisions of the international instruments on human rights incorporated in the domestic legal order. On 21 March 1998 the enlarged panel of the Supreme Court, relying on the same grounds as those stated in its decision of 19 March 1998, dismissed the applicant’s appeal.
In 1998 the applicant lodged with the Court of Appeal an application against the Government, Chancellery of State and eleven ministries requesting the annulment of a joint decision of 21 May 1998 of the Ministry of Economy and Ministry of Finance imposing the levying of compulsory fees as a condition for exercising certain entrepreneurial activities. In the same application, he argued that the decision contravened the Constitution and ratified international instruments on human rights and sought compensation for pecuniary and non-pecuniary damage caused to him as a result of the decision. On 7 April 1999 the Court of Appeal discontinued the proceedings on the ground of lack of jurisdiction in respect of the alleged unconstitutionality of the above decision, observing that jurisdiction lay with the Constitutional Court.
The applicant appealed against this decision, submitting that the court had erroneously applied procedural law and incorrectly discontinued the proceedings. On 16 July 1999 the Supreme Court quashed the judgment and sent the case back for re-examination to the Court of Appeal on the ground that the applicant had failed to exhaust extra-judicial proceedings by contesting the decision before the administrative authority which had adopted the decision. On 26 October 1999 the Court of Appeal dismissed the initial application as inadmissible on the ground that, in the meantime, the above administrative decision had been declared unconstitutional by the Constitutional Court and had been subsequently repealed by another administrative decision. The applicant lodged an appeal against this decision, arguing that his appeal had been dismissed as a result of the erroneous interpretation and application of the applicable provisions of civil procedure. On 23 February 2000 the Supreme Court dismissed the appeal, relying on the same grounds as those stated in the judgment of the Court of Appeal of 26 October 1999. On 5 April 2000 the Supreme Court dismissed as unfounded the applicant’s petition for annulment of this decision.
Article 1 provides that the Republic of Moldova is governed by the rule of law, where the dignity of people, their rights and freedoms, the open development of human personality, justice and political pluralism represent supreme values, which shall be guaranteed.
Under Article 2, national sovereignty resides with the people of the Republic of Moldova, who shall exercise it directly and through its representative bodies in the ways provided for by the Constitution.
With regard to the human rights and freedoms, Article 4 states that the constitutional provisions for human rights and freedoms shall be understood and implemented in accordance with the Universal Declaration of Human Rights, and with other conventions and treaties endorsed by the Republic of Moldova. Wherever disagreements appear between conventions and treaties signed by the Republic of Moldova and her own national laws, priority shall be given to international regulations.
Pursuant to Article 7, the Constitution is the supreme law of the country, where no laws or other legal acts and regulations in contradiction with the provisions of the Constitution may have any legal power.
As for the observance of international law and international treaties, in accordance with Article 8, the Republic of Moldova pledges to respect the Charter of the United Nations and the treaties to which it is a party, to observe with its relations with other States the unanimously recognised principles and norms of international law. The coming into force of an international treaty containing provisions contrary to the Constitution shall be preceded by a revision of the latter.
Article 54 provides that the exercise of certain rights or freedoms may be restricted only under the law and only as required in cases such as: the defence of national security, public order, health or morals, or citizens’ rights and freedoms, the carrying out of investigations in criminal cases, preventing the consequences of a natural calamity or of a technological disaster.
Article III of the final and transitional provisions provides that all State institutions in existence as of the date marking the coming into force of this Constitution (27 August 1994) retain their functionality until new institutions are established.
Pursuant to Article 39, Moldovan citizens shall have the right to participate in the administration of public affairs, either directly or through their representatives. Article 109 further provides that the public administration governing in the administrative/territorial units is based on the principles of local autonomy, decentralisation of public services, eligibility of local public administration authorities and consultation of the citizens on local problems of special interest. With regard to village and town authorities, Article 112 states that at village and town level, the public administration authorities through which local autonomy is exercised are represented by the elected local councils and mayors.
Article 53 sets out the rights of persons aggrieved by public authority and provides, inter alia, that any person, whose rights have been interfered with in any way by public authority through an administrative ruling or a lack of timely legal reply to an application, is entitled to obtain acknowledgement of those rights, cancellation of the ruling and compensation of damages.
As to the fiscal system, pursuant to Article 132, all taxes, duties, and other revenue of the national budget, including the national social security budget and the district, town and village budgets shall be established under the law by the representative agencies, as required.
Under Article 11 of the Code, the courts, in examining cases, shall apply the Constitution, laws and the international treaties endorsed by the Republic of Moldova. The provisions concerning human rights and freedoms shall be applied in accordance with Article 4 of the Constitution. The same Article states that a court shall not apply a law or any other normative act which contravene the Constitution.
As for the procedural aspects, pursuant to Article 131, a judge may refuse to take for examination an action or application if the case is not liable to be examined by the courts or the court lacks jurisdiction in respect of that case.
Article 235 provides, inter alia, that the collegiate acts of the public administration and the individual acts of officials can be contested before the courts.
Article 20 of the Constitution states that every citizen has the right to obtain effective protection from competent courts against actions infringing his or her legitimate rights, freedoms and interests. Article 134 of the Constitution further provides that the Constitutional Court is the sole authority of constitutional judicature in Moldova and that it is independent of any other public authority and obeys only the Constitution.
However, Article 26 of the law of 13 December 1994 on the Constitutional Court and Article 38 of the Constitutional Jurisdiction Code of 16 June 1995 provide that the Constitutional Court shall exercise its constitutional jurisdiction only upon an appeal of the following subjects: a) President; b) Government; c) Minister of Justice; d) Supreme Court of Justice; e) Court of Audit; f) Prosecutor General; g) Member of the Parliament and h) Parliamentary faction.
Under Article 140 of the Constitution, laws and other regulations or parts thereof become null and void from the moment that the Constitutional Court passes the appropriate decisions to that effect.
Article 86 of the Electoral Code regulates the determination of the threshold of representation and states that upon receiving records of the voting results in all districts from all district electoral councils, the Central Electoral Commission shall count the number of valid votes cast for each candidate in order to establish whether or not they have passed the 4% threshold of representation. Accordingly, candidates having obtained votes than 4% of the votes cast shall be excluded from assuming their Parliamentary mandates by a decision of the Central Electoral Commission.


ITEMID: 001-23913
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: ADMISSIBILITY
DATE: 2004
DOCNAME: ARKHIPOV v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicant, Mr Yuriy Vyeniaminovych Arkhipov, is a Ukrainian national, who was born in 1976. He is currently serving a prison sentence. He is represented before the Court by his mother, Ms Tamara Sukmanyuk, and Mr Sergiy Stetsko, a human rights activist.
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 1 October 1999 the Starokonstiantynivsky District Court sentenced the applicant to ten days' administrative arrest following his conviction for failure to comply with the lawful demands of police officers (Article 185 of the Code of Administrative Offences).
Between 10 and 24 December 1999 the applicant took revenge on the judge of the Starokonstiantynivsky District Court by setting fire to his house. However, only minor damage was caused.
On 2 February 2000 the applicant was detained on suspicion of having been involved in an arson attack on the night of 31 January and 1 February 2000. The applicant was held in the Starokonstiantynivsky Local Police Department. On 6 February 2000 the applicant was released.
On 19 February 2000 the applicant was again detained by the police on suspicion of having been involved in an arson attack on 5 February 2000. On 22 February 2000 he was released. Before being released the applicant, in the presence of his lawyer, pleaded guilty to the offence.
On 25 February 2000 the police decided to conduct a joint investigation into the arson offences committed on 1 and 5 February 2000.
On 28 February 2000 the police reclassified the applicant's acts as an attempt to destroy the property of the judge in revenge for his conviction.
On 5 May 2000 the applicant was detained for a third time in view of the criminal proceedings pending against him.
On 25 May 2000 the applicant told the investigators that he was not guilty.
On 29 May 2000 the prosecution service completed its investigation into the facts of the case.
On 30 May 2000 the case file was remitted to the Polonne City Court for consideration on the merits. The applicant remained in detention.
In October 2000 the Polonne City Court commenced its consideration of the merits of the case.
On 22 January 2001 the Polonne City Court remitted the case for an additional investigation and ordered that the applicant was to remain in custody.
On 29 January 2001 the Khmelnytsk Regional Court upheld the decision to remit the case for additional investigation.
On 20 February 2001 the Slavutsky prosecution service undertook the additional investigation into the case.
On 5 October 2001 the Slavutsky City Court sentenced the applicant to four years' imprisonment following his conviction for the destruction of the judge's property in revenge for his conviction. The court examined the applicant's complaints that he had been ill-treated by police officers, but found no evidence of this. It stated that the applicant had not been held in custody between 22 February and 5 May 2000 and thus had had an opportunity to complain of the alleged his ill-treatment, either to the court or to the prosecution. However, he had failed to avail himself of these possibilities. Furthermore, the applicant had not submitted any medical evidence in support of his allegations and had failed, moreover, to prove that he had sustained injuries at the hands of the police.
On 12 October 2001 the applicant lodged an appeal against the judgment of 5 October 2001. On 22 October 2001 the Slavutsky City Court refused the applicant leave to appeal on account of his failure to comply with the rules governing the form and content of an appeal. The applicant was allowed time to rectify the shortcomings. On 1 November 2001 the applicant's appeal was left without consideration because of his failure to comply with the ruling of 22 October 2001 and to provide the relevant number of copies of his appeal to the parties.
On 5 November 2001 the applicant complained about the ruling of 1 November 2001 to the Khmelnytsk Regional Court of Appeal. On 4 December 2001 that court quashed the ruling on the ground that it was unlawful. It also decided that it had jurisdiction to hear the applicant's appeal. The applicant remained in detention.
On 22 January 2002 the Khmelnytsk Regional Court of Appeal upheld the judgment of the Slavutsky City Court of 5 October 2001 and dismissed the applicant's appeal as being unsubstantiated. It confirmed the decision of the first-instance court rejecting the applicant's allegations of ill-treatment.
“... The Supreme Court of Ukraine is highest judicial body in the system of courts of general jurisdiction...
Courts of appeal and local courts operate in accordance with the law.”
“The following decisions may be reviewed in cassation proceedings:
1) judgments, rulings and resolutions of an appellate court rendered by it as a court of first instance; and
2) judgments and resolutions of an appellate court rendered by it in appeal proceedings.
Judgments and resolutions of district (city) courts, inter-district (circuit) courts and garrison military courts may be also reviewed in cassation proceedings, as well as rulings of appellate courts rendered with regard to those judgments and resolutions.”
“Cassation appeals against the court decisions referred to in part one of Article 383 of this Code may be lodged by the persons defined by Article 348 of this Code.
Cassation appeals against the court decisions referred to in part two of Article 383 of this Code may be lodged by:
1) a convicted person, or his/her legal representative or defence counsel in respect of provisions which concern the interests of the convicted person;
2) an acquitted person or his/her legal representative or defence counsel in respect of the operative provisions of the acquittal;
3) a plaintiff, respondent or their representatives in respect of the provisions which concern a settlement of the claim;
4) a victim or his/her representative in respect of the provisions which concern the victim's interests. ...
Persons who are entitled to lodge a cassation appeal or a cassation petition may be apprised of the materials of the court case-file in order to decide whether or not to lodge a cassation complaint or petition.” (As amended according to Law No. 2670-III of 12 July 2001)
“Cassation complaints and petitions are examined by:
1) a panel of judges of the Criminal Chamber of the Supreme Court of Ukraine in respect of court decisions rendered by the Supreme Court of the Crimean Autonomous Republic, the regions and the Kyiv and Sevastopol city courts, and in respect of judgments of district (city) courts and inter-district (circuit) courts; ...”
“Cassation appeals and petitions against the court decisions referred to in part one of Article 383 of this Code may be lodged within one month from the date of delivery of the judgment, ruling or resolution complained of, and where lodged by a convicted person who is held in custody within the same period from the date on which he has been served with a copy of the judgment or resolution.
Cassation appeals against the court decisions referred to in paragraph two of Article 383 of this Code may be lodged within six months from the date of their entry into force.
During the period specified for lodging a cassation complaint, no one, save the court of cassation, shall request or obtain the case file from the court executing the court decision.
In the event that the period prescribed by parts one and two of this Article for lodging a complaint or filing a petition has been missed and there is no application for it to be extended, the complaint or petition shall be held by a judge's resolution not to be subject to examination. This period may be extended in the instances and in accordance with the procedure provided for by Article 353 of this Code.”
“The case file together with the cassation appeal and/or petition against a judicial decision mentioned in Article 383 § 1 of the Code shall be remitted for consideration to the court of cassation once the case file has been deposited with the court.
A cassation appeal or petition lodged by the prosecutor against a judicial decision mentioned in Article 383 § 2 of this Code shall be referred to a judge of the court of cassation, who shall decide, within 15 days from the date of receipt, on the initiation of the proceedings upon the cassation appeal. The cassation proceedings shall be initiated unless the cassation appeal does not comply with the requirements of Article 350, 383 § 2, 384, 386 § 2, 396 § 1 of this Code, for which reasons the appeal in cassation shall not be considered by the court of cassation. The judge shall adopt a resolution with regard to the cassation appeal, a copy of which shall be sent to the prosecutor or the person lodging a cassation appeal. The resolution is not subject to appeal. A refusal to initiate cassation proceedings is not an obstacle to review of the case once the person who lodged a cassation appeal has rectified any mistake in it and has complied with the time-limits envisaged by Article 386 of this Code, or if it is lodged not later than one month from the date of receipt of the copy of the resolution on refusal to initiate cassation proceedings.
The judge who decided on the initiation of the criminal proceedings may also decide to suspend the enforcement of the judgment in the case until the cassation appeal has been considered; this procedure does not concern decisions mentioned in Article 383 § 1 of this Code.”
“The lodging of cassation appeals or petitions against a judicial decision mentioned in Article 383 of the Code suspends its entry into force.
The lodging of cassation appeals or petitions against a judicial decision mentioned in Article 383 of the Code does not suspend its entry into force.”
“Cassation appeals and petitions against court decisions referred to in part one of Article 383 of this Code shall be examined and notice of that examination served on the prosecutor and the persons referred to in Article 384 of this Code.
Cassation appeals and petitions against court decisions referred to in part two of Article 383 of this Code shall be examined within thirty days of receipt by the cassation court composed of three judges with the participation of a prosecutor. The court shall either assign the case for examination and must notify the persons referred to in Article 384 of this Code accordingly or dismiss it.
The case assigned for examination, with notice served on the prosecutor and the persons referred to in Article 384 of this Code, shall be examined by the cassation court composed of three judges with the participation of a prosecutor in accordance with the procedure provided for by parts one, two and three of Article 362 of this Code.
The deliberations of the cassation court's judges shall be conducted in accordance with the requirements provided for by Articles 322 and 325 of this Code.”
“As a result of the examination of a case in accordance with the cassation procedure, the court shall take one of the following decisions:
1) uphold the judgment, ruling or resolution and dismiss the cassation complaint or petition;
2) reverse the judgment, ruling and resolution refer the case for a fresh investigation or trial or appeal hearing;
3) reverse the judgment, ruling or resolution and terminate the proceedings in a case;
4) modify the judgment, ruling or resolution.
In the event of withdrawal of a cassation complaint or petition, the cassation court shall issue a ruling terminating the cassation proceedings unless the decision has been appealed against by other participants in the trial in accordance with the cassation procedure.”
“Grounds for reversal or modification of a judgment, ruling or resolution shall be:
1) substantial violation of the law of criminal procedure;
2) incorrect application of the criminal law;
3) disproportionate punishment imposed on the convicted person in conjunction with the gravity of the crime.
In resolving the issue of availability of the grounds referred to in part 1 of this Article, a court of cassation shall be guided by Articles 368-372 of this Code.
A court of cassation shall have no powers to reverse a judgment of acquittal, a ruling or resolution terminating proceedings in the case merely on the grounds of a substantial violation of the rights of the accused.”


ITEMID: 001-118760
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2013
DOCNAME: PAWLAK v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Zdravka Kalaydjieva
TEXT: 1. The applicants, Ms Mirosława Pawlak and Mr Janusz Pawlak, are Polish nationals, who were born in 1951 and 1947 respectively and live in Piastów. They were represented before the Court by Mr W. Śliwiński, a lawyer practising in Warsaw. The Polish Government (“the Government”) were represented by their Agent, first Mr J. Wołąsiewicz and, subsequently, Ms J. Chrzanowska, both of the Ministry of Foreign Affairs.
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. The applicants, a married couple, built a house in Piastów in 1999. The house is located on an estate of detached family houses.
4. In 1997 the Piastów municipality sold a plot of land to HIT Zarząd Majątkiem Polska Piastów 1 sp. z. o.o. (“the HIT company”). According to the applicants, the sales contract was conditional on the issuance of the planning permission for the construction of a commercial centre.
5. On 28 May 1999 the Mayor of Piastów granted planning permission (decyzja o warunkach zabudowy i zagospodarowania terenu) to the HIT company for the construction of a commercial centre. The Mayor found that the planned commercial centre conformed to the local development plan. The decision provided that on one side of the commercial centre the investor was required to erect a minimum three-metre high screen between the delivery area of the centre and the neighbouring houses.
6. It appears that the applicants were not informed about the grant of the planning permission despite the fact that their house was directly adjacent to the area of the future development. As a result, they could not lodge a regular appeal against the grant of planning permission.
7. On 5 October 1999 the Mayor of Piastów partly altered the planning permission by adding another plot to the planned development.
8. On 26 October 2000 the applicants requested the Warsaw Local Government Board of Appeal to declare the planning permission null and void. They argued that it had been issued contrary to the provisions of the local development plan. On 1 August 2001 the Board of Appeal refused the request and subsequently confirmed its decision on 8 May 2002.
9. On 17 October 2003 the Supreme Administrative Court quashed both decisions of the Board of Appeal as being issued prematurely. Subsequently, the Supreme Administrative Court dismissed the cassation appeal lodged by the HIT company.
10. On 4 December 2003 the Board of Appeal again refused to declare the planning permission null and void. On 17 February 2006 the Board of Appeal confirmed its earlier decision. The applicants together with other neighbours and two local associations appealed.
11. On 16 November 2006 the Warsaw Regional Administrative Court quashed both decisions of the Board of Appeal. It observed that pursuant to the Local Planning Act a planning permission was null and void if it was contrary to the local development plan. The court found that the local development plan in Piastów had reserved the relevant part of the town for green zones and services with accompanying green zones. It accordingly held that the Board of Appeal had erred in its examination of the provisions of the local development plan related to the area on which the commercial centre was to be built. Furthermore, the Board of Appeal had erred in its assessment of the adverse environmental impact of the commercial centre. The court referred in this respect to the Supreme Administrative Court’s judgment of 12 November 2002 (case no. IV SA 1373-1379/02, see below). It noted, among other things, that the delivery area of the commercial centre on the Harcerska street side was to be isolated by a minimum three-metre high wall from the neighbouring estate of detached houses.
12. On 18 June 2007 the Board of Appeal, following the findings of the Regional Administrative Court, declared the planning permission null and void pursuant to Article 156 § 1 (2) and (7) of the Code of Administrative Procedure. The primary reason for the annulment decision was that the planning permission had been issued in breach of the local development plan. On 31 August 2007 the Board of Appeal confirmed its decision.
13. On 10 December 2007 the Warsaw Regional Administrative Court rejected the HIT company’s complaint as being submitted out of time.
14. Having obtained planning permission, the HIT company was required to obtain a construction permit. On 16 August 2000 the Mayor of Piastów issued a construction permit (pozwolenie na budowę) for a commercial centre and supporting facilities. The applicants and other neighbours appealed. They submitted, inter alia, that the planned construction would be contrary to the local development plan. They also argued that the commercial centre would adversely affect their health and their homes.
15. On 24 August 2000 the Mayor of Piastów issued an order (postanowienie) in which he altered a number of plots on which the commercial centre was to be constructed. That order was issued under Article 113 of the Code of Administrative Procedure which provided for rectification of clerical errors and obvious mistakes in administrative decisions. On 15 February 2002 the Mazowiecki Governor dismissed the applicants’ appeal against that order. The applicants appealed.
16. On 19 February 2002 the Mazowiecki Governor dismissed the applicants’ appeal against the construction permit of 16 August 2000. Consequently, the construction permit became final and enforceable. It appears that shortly afterwards the HIT company started construction works.
17. The applicants appealed against the Governor’s decision to the Supreme Administrative Court. They argued, inter alia, that the adverse environmental impact of the commercial centre had not been duly addressed by the administrative authorities. The applicants also requested the administrative court to issue an interim order halting the enforcement of the construction permit. It appears that the court did not respond to this request.
18. On 12 November 2002 the Supreme Administrative Court (case no. IV SA 1373-1379/02) quashed as unlawful the decision of the Governor and the construction permit issued by the Mayor. It found that the planned commercial centre was to be considered as having an adverse environmental impact within the meaning of the Ordinance of the Minister of the Environment of 14 July 1998. In this respect it had regard to the fact that the commercial centre would have a meat-processing capacity of ten tons per day, car park facilities for five hundred cars and a commercial surface area exceeding three hectares. The court noted that had the commercial centre been considered as a development adversely affecting the environment, the local authorities would have been required to follow stringent procedures. It further observed that:
“As it transpires from the file, the authorities conducting the proceedings and the investor, were perfectly aware of the existing regulations and the relevant obligations; however at all costs it was attempted to give the public an impression that the investment is not considered as having a potentially adverse impact on the environment, manipulating from the very beginning the number of plots, the number of places in the car park and interpreting narrowly the notion of “a commercial centre”.
The court observed that the authorities had failed to carry out relevant analyses of the environmental impact of the commercial centre and that their findings as to its environment-neutral status had been entirely unsubstantiated.
19. On 12 November 2002 the Supreme Administrative Court quashed as unlawful the Governor’s order of 15 February 2002 and the Mayor’s order of 24 August 2000. It observed that the Mayor’s order on rectification of the construction permit had been in fact a decision on the merits of the case and should have been issued in the form of an administrative decision. In addition, that rectification order had made the construction permit incompatible with the planning permission of 28 May 1999.
20. On 6 October 2003 the Mayor of Piastów discontinued the proceedings concerning the issuance of the construction permit. It found that the construction of the commercial centre had been terminated in October 2002 and that the HIT company had begun operating it. In those circumstances, the proceedings concerning the construction permit had become devoid of purpose.
21. The applicants appealed. On 26 March 2004 the Mazowiecki Governor dismissed their appeal against the discontinuation of the proceedings.
22. The applicants lodged a complaint against that decision with the Warsaw Regional Administrative Court. On 12 October 2004 the court dismissed their complaint. On 7 December 2005 the Supreme Administrative Court dismissed the applicants’ cassation appeal against the Regional Administrative Court’s judgment. The judgment was served on the applicants on 6 February 2006.
23. On 21 October 2002 the Mayor of Piastów issued a permit for the use (pozwolenie na użytkowanie obiektu budowlanego) of the HIT commercial centre with the supporting facilities. It appears that the Mayor did not serve the decision on the applicants and other interested neighbours.
24. The applicants together with a group of their neighbours and a local association “Eko-Piastów” appealed to the Mazowiecki Governor. On 12 May 2003 the Governor found that the appeals had been submitted out of time. However, on 12 October 2004 the Regional Administrative Court quashed the Governor’s decision.
25. Subsequently, the Regional Inspector of the Construction Supervision became the competent authority to examine the appeal.
26. The applicants requested that the permit for the use of the commercial centre be declared null and void. On 29 August 2003 the Mazowiecki Regional Inspector of the Construction Supervision allowed that request. It found that the Mayor of Piastów had issued the permit without having obtained the necessary authorisation from the Pruszków District Sanitary Inspector. The latter authority had expressly informed the Mayor that due to the complexity of the case it would not be able to give its authorisation before 18 November 2002.
27. On 31 March 2004 the Chief Inspector of the Construction Supervision quashed the decision of the Mazowiecki Regional Inspector of 29 August 2003 and discontinued the proceedings before the first-instance authority.
28. On 16 December 2008 the Regional Inspector of the Construction Supervision quashed the Mayor’s decision of 21 October 2002 and remitted the case to the Piaseczno District Inspector of the Construction Supervision. The Regional Inspector found that the Mayor of Piastów had not given sufficient reasons for his decision. The Mayor had further failed to establish correctly the facts of the case and to inform all the parties concerned about his decision.
29. On 16 January 2009 the HIT company appealed against the decision to the Regional Administrative Court and requested the court to issue an interim order halting the enforcement of the decision of the Regional Inspector. The last hearing before the Regional Administrative Court took place on 22 February 2010. The court gave judgment. However, at the time of submitting their observations the Government were not in possession of the judgment.
30. At present the commercial centre is owned by company T. It operates twentyfour hours a day and seven days per week.
31. On 15 November 2002 the applicants complained to the Pruszków District Sanitary Inspector about the excessive levels of noise generated by the commercial centre. Their complaint was transferred to the Mayor of the Pruszków District as the competent authority to deal with it. On 16 May 2003 the Mayor of the District ordered company T. to prepare an environmental survey with regard to the hypermarket located in Piastów. On 15 March 2006 the Mayor of the District issued a decision fixing the maximum level of noise for the T. hypermarket. On 7 April 2006 the Mayor of the Pruszków District issued a decision obliging T. to limit the level of noise generated by the hypermarket. On appeal, the decision was quashed due to procedural errors. The applicants did not submit copies of any subsequent decisions.
32. Article 144 of the Civil Code provides as follows:
“In the exercise of his or her rights, an owner of immovable property shall refrain from actions which would infringe the enjoyment of adjacent immovable property and which go beyond the normal use arising from the socio-economic purpose of the immovable property and local relations.”
Pursuant to Article 222 § 2 of the Civil Code:
“The owner shall have the right to claim restitution of his lawful position and acessation of infringements of the law, against a person who infringes his ownership otherwise than by depriving the owner of the actual control of the property in question.”
There is no limitation period for claims under Article 222 of the Civil Code if they relate to immovable property (Article 223 of the Civil Code).
33. Articles 417 et seq. of the Civil Code (Kodeks cywilny) provide for the State’s liability in tort. In the version applicable until 1 September 2004, Article 417 § 1, which lays down a general rule, read as follows:
“1. The State Treasury shall be liable for damage caused by a State official in the performance of the duties entrusted to him.”
34. On 1 September 2004 the Law of 17 June 2004 on amendments to the Civil Code and other statutes (Ustawa o zmianie ustawy – Kodeks cywilny oraz niektórych innych ustaw) (“the 2004 Amendment”) entered into force. The relevant amendments were in essence aimed at enlarging the scope of the State Treasury’s liability in tort under Article 417 of the Civil Code – including the addition of a new Article 4171.
The amended Article 417 § 1 of the Civil Code reads as follows:
“The State Treasury, or [as the case may be] a local government entity or other legal person responsible for exercising public authority, shall be liable for any damage (szkoda) caused by an unlawful act or omission [committed] in connection with the exercise of public authority.”
35. Following the 2004 Amendment, Article 4171 § 2 reads in so far as relevant:
“Where damage has been caused by the delivery of a final ruling or a final decision, redress for such damage may be sought after their unlawfulness has been established in the relevant proceedings, except where provided otherwise by law.”
However, under the transitional provisions of section 5 of the 2004 Amendment, Article 417 as applicable before 1 September 2004 applies to all events and legal situations that subsisted before that date.
36. Article 156 § 1 of the Code of Administrative Procedure (“the CAP”) (Kodeks postępowania administracyjnego), which sets out grounds on which a final administrative decision is subject to annulment, states:
“1. A public administration authority shall declare a decision null and void if:
1) it has been issued in breach of the rules governing competence;
2) it has been issued without a legal basis or in flagrant breach of the law;
3) concerns a case already decided by means of another final decision;
4) it has been addressed to a person who is not a party to the case;
5) it was unenforceable on the date of its issuance and its unenforceability is of a permanent nature;
6) it would give rise to a punishable offence in the event that it has been enforced;
7) it has a flaw making it null and void by the force of law.
37. Article 160 of the CAP set out principles for compensation for loss caused by the issuance of an administrative decision subsequently annulled on the grounds listed in Article 156 § 1.
38. This provision was repealed by the 2004 Amendment with effect from 1 September 2004 and replaced by new Article 4171 § 2 of the Civil Code. However, under section 5 of the 2004 Amendment, which sets out transitional rules, Article 160, in the version applicable on the repeal date, still applies to “events and legal situations” that subsisted before the entry into force of the 2004 Amendment.
Article 160, in the version applicable on the relevant date, read as follows:
“1. A party who has suffered a loss on account of the issuance of a decision in breach of Article 156 § 1 or on account of annulment of such a decision shall have a claim for compensation for actual damage, unless he has culpably caused the circumstances mentioned in this provision.
2. The provisions of the Civil Code, except for Article 418 [provision repealed], shall apply to [such] compensation.
3. Compensation is due from an authority that issued a decision in breach of Article 156 § 1, unless the other party to the proceedings concerning the decision culpably caused the circumstances mentioned in this provision; in the latter case a claim for compensation shall be directed against the culpable party.
4. A public administration authority that has declared a decision null and void or declared, pursuant to Article 158 § 2, that it has been issued contrary to the law shall rule on compensation due from the authority referred to in § 1. A claim for compensation from a person who has culpably caused the circumstances mentioned in Article 156 §1, shall be pursued before a court of law.
5. A party who is not satisfied with compensation granted by a public administration authority referred to in § 4, may lodge a claim with a court of law within 30 days from the date of service of a decision given on that matter.
6. A claim for compensation shall be time-barred after 3 years from the date on which has become final the decision declaring null and void the decision issued in breach of Article 156 § 1 or decision whereby an authority has declared, pursuant to Article 158 § 2, that the contested decision has been issued in breach of Article 156 § 1.”
39. On 30 March 2011 the Civil Chamber of the Supreme Court, sitting in plenary, gave a resolution (no. III CZP 112/10) on the application of Article 160 of the CAP and rules regarding compensation. The resolution was given in response to legal questions submitted by the First President of the Supreme Court in connection with certain problems and divergences arising in judicial practice, in particular in respect of the temporal effects of Article 160 as determined in section 5 of the 2004 Amendment, the application of Article 4171 § 2 of the Civil Code which replaced Article 160 and rules for adjudicating compensation.
40. The resolution contains an extensive reasoning which, in so far as relevant, may be summarised as follows: Article 160 §§ 1,2,3 and 6 of the CAP applies to all claims for damages arising from an issuance of a final administrative decision given before 1 September 2004, which has been declared null and void or has been declared as being issued in breach of Article 156 § 1 of the CAP after that date. In contrast, paragraphs 4 and 5 of Article 160, setting out the procedure for vindicating such claims, should be considered as no longer applicable. Consequently, a party seeking compensation under this provision should file an action directly with a civil court.


ITEMID: 001-91037
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: ADMISSIBILITY
DATE: 2009
DOCNAME: BABKIN v. RUSSIA
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
TEXT: The applicant, Mr Anatoliy Ivanovich Babkin, is a Russian national who was born in 1930 and lives in Moscow. He was represented before the Court by Ms K. Kostromina, a lawyer with the International Protection Centre in Moscow. The respondent Government were represented by Mr P. Laptev, former Representative of the Russian Federation at the European Court of Human Rights.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant was a professor and a research scientist at the Bauman Moscow State Technical University.
On 28 March 2000 the Investigations Division of the Federal Security Service of the Russian Federation (“the FSB”) opened a criminal investigation into disclosure of State secrets, an offence under Article 283 § 1 of the Criminal Code.
On 3 and 4 April 2000 the applicant's home and office were searched and a body search was carried out on his person. Reports containing technical information on Russian-made missiles and related engineering drawings were found during the searches.
On 12 April 2000 the applicant was charged with disclosure of State secrets, an offence under Article 283 § 1 of the Criminal Code. On 13 June 2000 the charge was amended to that of high treason (Article 275 of the Criminal Code). The applicant was accused of having transmitted five reports containing State secrets to Mr P., a United States citizen and retired naval officer employed by the University of Pennsylvania. He was also accused of collecting classified engineering drawings which he supposedly intended to transmit to Mr P. He had allegedly received remuneration for his services.
In August 2000 the applicant had a heart attack. The proceedings against him were stayed pending his convalescence.
On 6 December 2000 the Moscow City Court found Mr P. guilty of espionage under Article 276 of the Criminal Code and sentenced him to twenty years' imprisonment in a high-security colony. On 14 December 2000 Mr P. was amnestied by a special decree of the Russian President, expelled from Russia and prohibited from re-entering the country.
On 7 February 2001 the proceedings against the applicant were resumed.
At the trial the applicant testified that he had participated in a cooperation project with the University of Pennsylvania. He admitted that he had communicated information to Mr P. in connection with that project. He insisted, however, that that information had been transmitted through the official university channels and had not contained State secrets. He denied receiving any remuneration. He further confirmed that he had obtained engineering drawings from Mr I. but claimed that they had been necessary for his work. He had had no intention of making them available to Mr P.
The court questioned several participants in the cooperation project with the University of Pennsylvania. They testified that the applicant had collected information on the missiles, had personally prepared five reports describing the technical characteristics of those missiles and had transmitted the reports to Mr P. He had received remuneration for his work.
The prosecutor then requested the court's permission to read out the statements made by Mr P. during his trial and statements that Mr I. had made as a prosecution witness during the pre-trial investigation. It was impossible to obtain Mr P.'s attendance as he had been expelled from Russia and had been prohibited from re-entering the country. Mr I. had refused to appear, referring to his unstable condition following his heart attack and a medical opinion that he was not fit to appear in court. The applicant did not object to the reading out of Mr P.'s statements. However, he made an objection to admitting Mr I.'s depositions in evidence.
The court allowed the prosecutor's request and the statements by Mr P. and Mr I. were read out. Mr P. confirmed that he had received reports containing technical information on the missiles from the applicant and had paid him for that task. Mr I. testified that the applicant had obtained engineering drawings from him in order to pass them on to Mr P.
The court further examined expert reports submitted by the prosecutor. The experts established that the reports transmitted by the applicant to Mr P. and the engineering drawings found on the applicant contained classified information.
Finally, the court listened to audio recordings and watched video recordings of the applicant's meetings with Mr P. During the meetings the applicant had received instructions from Mr P. as to the nature of the information to be collected and transmitted. The applicant and Mr P. had also discussed the amount of remuneration the applicant was to receive for his services.
On 19 February 2003 the Moscow City Court found the applicant guilty of high treason committed in the form of espionage, an offence under Article 275 of the Criminal Code. Relying on the statements by the applicant's colleagues, Mr P.'s depositions and the audio and video recordings, the court found that the applicant had personally transmitted reports containing information on Russian-made missiles to Mr P. and had received money for doing so. The classified nature of the communicated information had been established by the experts. Finally, referring to the testimony by Mr I., the court found that the applicant had collected engineering drawings with the intention of transmitting them to Mr P. It considered that the applicant's actions had undermined the external security of the Russian Federation. Having regard to the applicant's age and frail health, the court sentenced him to eight years' imprisonment conditional on five years' probation.
Both the prosecution and the defence appealed against the judgment. The applicant submitted, in particular, that Mr P. had not been summoned as a witness against him. He had not had any procedural status in the proceedings and the trial court had been barred from relying on his statements. He further complained that the trial court had failed to secure the attendance of the prosecution witness Mr I.
On 6 November 2003 the Supreme Court of the Russian Federation upheld the judgment of 19 February 2003. As to the alleged procedural defects, it found as follows:
“...The case materials were reviewed with sufficient thoroughness; in particular, an assessment of the statements by Mr P[.], whose conviction had become final and whose depositions were read out in accordance with Article 281 of the Code of Criminal Procedure, was made; there have been no substantial breaches of the rules of criminal procedure in the trial ...”
The Supreme Court also quoted the deposition by the witness Mr I., without indicating the reasons for his non-attendance.
The Criminal Code of the Russian Federation provides as follows:
“High treason, that is, espionage, disclosure of State secrets or assistance otherwise provided to a foreign State, a foreign organisation or their representatives for ... subversive activities undermining the external security of the Russian Federation, committed by a Russian national, shall be punishable by twelve to twenty years' imprisonment and confiscation of property...”
“Communication of State secrets, as well as their collection, theft or storage with a view to communicating them to a foreign State, a foreign organisation or their representatives, and also communication or collection of other items of information at the request of a foreign intelligence service, for the purpose of using them to harm the external security of the Russian Federation, committed by a foreign national or a stateless person, shall be punishable by ten to twenty years' imprisonment.”
“Disclosure of State secrets not amounting to high treason, by a person who has been granted access to State secrets or to whom such secrets have become known in the course of his service or work ..., shall be punishable by four to six months' arrest or by up to four years' imprisonment with or without a prohibition on occupying certain positions ...”
The Russian Code of Criminal Procedure defines evidence as any information on the basis of which a court establishes the existence or absence of circumstances that have to be proved in a criminal case (Article 74 § 1). Admissible evidence includes (i) statements by the accused or defendant; (ii) statements by the victim or witness; (iii) conclusions and statements of an expert; (iv) material evidence; (v) records of investigative or judicial steps; and (vi) other documents (Article 74 § 2).
Circumstances established by a final judgment may be accepted by the court without further inquiry if they do not raise doubts in the judge's mind. However, such judgment cannot prejudge the guilt of individuals who have not participated in the proceedings leading to that judgment (Article 90).
Witnesses are to be examined directly by the trial court (Article 278). Statements given by the victim or a witness during the pre-trial investigation may be read out with the consent of the parties in two cases: (i) if there is a substantial discrepancy between those statements and the testimony before the court; or (ii) if the victim or witness has failed to appear in court (Article 281).
The judgment may only be founded on the evidence that has been examined at the trial (Article 240 §§ 1-3).