Постановление ЕСПЧ от 23.02.2016 <Дело Навальный и Офицеров (Navalnyy and Ofitserov) против России> (жалобы N 46632/13 и 28671/14) [англ.] Часть 3

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III. Alleged violation of Article 7 of the Convention

 

  1. The applicants complained that the legal provision on the basis of which they had been convicted of embezzlement had not been applicable to their acts. They claimed that the authorities extended the interpretation of the offence to such broad and ambiguous terms that it did not satisfy the requirements of foreseeability. They relied on Article 7 of the Convention, which reads as follows:

«1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.

  1. This article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.»

 

  1. Admissibility

 

  1. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

 

  1. Merits

 

  1. The Government submitted that there had been no violation of Article 7 of the Convention as regards the applicants, both of whom had been convicted of large-scale embezzlement, a criminal offence under Article 160 § 4 of the Criminal Code. They maintained that the relevant domestic courts had correctly decided on the legal classification of the offence, in accordance with the Supreme Court’s guidelines of 27 December 2007. They also noted that the applicants’ appeal on points of law had been rejected at a higher level.
  2. The applicants contended that they had been convicted of a criminal offence for acts that had been perfectly legal. They claimed that the scope and purpose of Article 160 of the Criminal Code as interpreted by the Supreme Court had not allowed criminal liability to be extended to theft by persons who had acted lawfully.
  3. The Court has established above that the domestic courts applied criminal law arbitrarily and found the applicants guilty of acts indistinguishable from regular commercial activities (see paragraph 115 above), in violation of Article 6 of the Convention.
  4. In the light of this finding, the Court considers that it is not necessary to examine whether this also constituted a violation of Article 7 § 1 of the Convention.

 

  1. Alleged violation of Article 18 of the Convention taken in conjunction with Articles 6 and 7 of the Convention

 

  1. Lastly, the applicants alleged that their prosecution and criminal conviction had been for reasons other than bringing them to justice, and in particular in order to prevent the first applicant from pursuing his public and political activities. They relied on Article 18 of the Convention, which reads as follows:

«The restrictions permitted under [the] Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed.»

  1. The Court notes that the applicants refer to Article 18 in conjunction with all of their other complaints, notably under Articles 6 and 7 of the Convention. The Court observes, however, that the provisions of these Articles, in so far as relevant to the present case, do not contain any express or implied restrictions that may form the subject of the Court’s examination under Article 18 of the Convention.
  2. For this reason this complaint must be rejected as incompatible ratione materiae with the provisions of the Convention.

 

  1. Application of Article 41 of the Convention

 

  1. 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.»

 

  1. Damage

 

  1. The applicants requested that the Court award them 100,000 euros (EUR) each in respect of non-pecuniary damage, or make an award at its discretion. They indicated the adverse consequences brought about by their prosecution and conviction, in particular the restriction on their freedom of movement, their loss of earnings and the reputational damage they had both sustained. The first applicant, in addition, indicated that he had been stripped of his advocate’s licence and had lost the right to stand in elections.
  2. The applicants also asked the Court to award them 500,000 Russian roubles each on account of the fine they had been made to pay in the criminal proceedings. They made this claim under the head of costs and expenses, but it falls to be considered as pecuniary damages.
  3. The Government submitted that if the Court were to find a violation of the Convention in the present case, this finding would constitute in itself sufficient just satisfaction. They stated that in any event, a violation of Articles 6 or 7 of the Convention, if the Court were to make such a finding, would constitute grounds for reopening the criminal proceedings against the applicants, in accordance with Article 413 of the Code of Criminal Procedure. They pointed out that the applicants, if acquitted, would be entitled to compensation and would be able to present their claims to the domestic courts at that stage.
  4. The Court has found a violation of Article 6 of the Convention and considers that, in the circumstances, the applicants’ suffering and frustration cannot be compensated for by the mere finding of a violation. Making its assessment on an equitable basis, it awards the applicants EUR 8,000 each in respect of non-pecuniary damage.
  5. Furthermore, the Court refers to its settled case-law to the effect that when an applicant has suffered an infringement of his rights guaranteed by Article 6 of the Convention, he should, as far as possible, be put in the position in which he would have been had the requirements of that provision not been disregarded, and that the most appropriate form of redress would, in principle, be the reopening of the proceedings, if requested (see, mutatis mutandis, v. Turkey [GC], no. 46221/99, § 210 in fine, ECHR 2005-IV, and Popov v. Russia, no. 26853/04, § 264, 13 July 2006). This applies to both applicants in the present case. The Court notes, in this connection, that Article 413 of the Code of Criminal Procedure provides a basis for the reopening of the proceedings if the Court finds a violation of the Convention.
  6. In view of the above, the Court accepts the Government’s assurance concerning the prospect of reopening the applicants’ criminal case and notes that the scope of the domestic review would allow the applicants to formulate their pecuniary claims and to have them examined by the domestic courts. For this reason, it dismisses the applicants’ claims as regards pecuniary damage.

 

  1. Costs and expenses

 

  1. The first and second applicants claimed EUR 48,053 and EUR 22,893 respectively for costs and expenses incurred in the domestic proceedings and before the Court. They submitted contracts and receipts indicating their lawyers’ fees and attached travel documents and hotel receipts for the expenses incurred during their trial in Kirov.
  2. The Government objected on the grounds that compensation for costs and expenses in this case would be tantamount to setting aside the domestic judgment of 18 July 2013. They proposed that these claims be dealt with in the new domestic proceedings.
  3. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. Moreover, awards for costs and expenses are linked to the finding of a violation of the Convention, violations of Article 6 of the Convention not being an exception (see, as a recent example, Volkov and Adamskiy v. Russia, nos. 7614/09 and 30863/10, §§ 68 and 71, 26 March 2015, where the Court found a violation of Article 6 of the Convention and made an award for costs and expenses). It therefore dismisses the Government’s objection that an award for costs and expenses would be tantamount to setting aside the domestic judgment in question.
  4. In the present case, which was of a certain complexity and involved multiple levels of domestic court and the proceedings before the Court, there have been a violation of Article 6 of the Convention. Regard being had to the documents in its possession and the above-mentioned criteria, the Court considers it reasonable to award the claimed amounts in full. It awards the first and second applicants EUR 48,053 and EUR 22,893 respectively, plus any tax that may be chargeable on these amounts, in respect of costs and expenses.

 

  1. Default interest

 

  1. The Court considers it appropriate that the default interest rate 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

 

  1. Decides, unanimously, to join the applications;
  2. Declares, unanimously, the complaints under Articles 6 and 7 of the Convention admissible and, by a majority, the remainder of the applications inadmissible;
  3. Holds, unanimously, that there has been a violation of Article 6 § 1 of the Convention;
  4. Holds, unanimously, that there is no need to examine the remaining complaints under Article 6 of the Convention;
  5. Holds, unanimously, that there is no need to examine the complaint under Article 7 of the Convention;
  6. Holds,

(a) by six votes to one, that the respondent State is to pay each applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 8,000 (eight thousand euros) in respect of non-pecuniary damage, plus any tax that may be chargeable, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(b) unanimously, that the respondent State is to pay the first applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 48,053 (forty-eight thousand and fifty-three euros) in respect of costs and expenses, plus any tax that may be chargeable, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(c) unanimously, that the respondent State is to pay the second applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 22,893 (twenty-two thousand eight hundred and ninety-three euros) in respect of costs and expenses, plus any tax that may be chargeable, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(d) unanimously, that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

  1. Dismisses, unanimously, the remainder of the applicants’ claim for just satisfaction.

 

Done in English, and notified in writing on 23 February 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Luis  GUERRA President

Marialena TSIRLI Deputy Registrar

 

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judges Nicolaou, Keller and Dedov is annexed to this judgment.

L.L.G.

M.T.

JOINT PARTLY DISSENTING OPINION OF JUDGES NICOLAOU, KELLER AND DEDOV

 

  1. For the reasons set out in paragraphs 102 — 21 of the present judgment, we are in full agreement with the majority of our colleagues that there has been a violation of Article 6 of the Convention in this case. We also voted with the majority as regards Article 7 of the Convention. However, we are unable to agree with our colleagues’ conclusion that the applicants’ complaint under Article 18 of the Convention is inadmissible. Our colleagues considered that, given the findings made under Article 6 § 1 of the Convention, it was not necessary to examine the applicants’ other complaints under Articles 6 and 7 of the Convention. They were not, however, content to follow the same approach on Article 18 of the Convention, choosing instead to dismiss that complaint as inadmissible. We respectfully disagree.
  2. First, we consider that the majority’s approach underestimates the significance of Article 18 of the Convention. That provision states simply that «[t]he restrictions permitted under [the] Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed». However, the preparatory work on the provision shows that it was drafted as a defence against abusive limitations of Convention rights and freedoms and thus to prevent the resurgence of undemocratic regimes in Europe. Article 18 of the Convention was intended to provide Europe with the new approach needed in the «battle against totalitarianism», premised on the understanding that States could always and would always find excuses or reasons to limit, restrict, and ultimately hollow out individual rights and freedoms: the public interest in «morality, order, public security and above all democratic rights» can all be abused for this purpose <*>. Thus, an early version of the provision, proposed by the Legal Committee to the Consultative Assembly, proscribed «any restriction on a guaranteed freedom for motives based, not on the common good or general interest, but on reasons of state» <**>. This version of Article 18 of the Convention was part of the universal limitations clause that was, at an early stage of the Convention’s drafting, introduced to apply to all Convention rights and freedoms <***>.

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<*> Statement of Lodovico Benvenuti (Italy) at the first session of the Consultative Assembly of the Council of Europe, Strasbourg, 8 September 1949, in Collected Edition of the «Travaux » of the European Convention on Human Rights, Vol. I (Martinus Nijhoff, The Hague 1975), pp. 179 — 180.

<**> Collected Edition of the «Travaux «, op. cit., Vol. I: Preparatory Commission of the Council of Europe; Committee of Ministers, Consultative Assembly, 11 May — 8 September 1949, p. 200.

<**> Ibid.

 

  1. As ultimately codified in the Convention, Article 18 was intended to go beyond the content of the rights and freedoms in the Convention to protect individuals from limitations of their rights that run counter to the spirit of the Convention, including politically motivated prosecutions. This application of the provision is also reflected in the Court’s practice, though findings of a violation of Article 18 are rather rare, given the exacting standard of proof applied as a result of the presumption that States comply with their Convention obligations in good faith <1>. The Court has nonetheless found a number of violations of Article 18 of the Convention. One example is the Court’s 2012 Lutsenko v. Ukraine judgment, where it found that the criminal prosecution of the applicant had not only been initiated in order to bring him to justice for a suspected criminal offence, but also «for other reasons», inter alia to punish him for asserting his innocence and going to the media in order to contest the allegations made against him <2>. Another example is the 2014 Ilgar Mammadov v. Azerbaijan case. There, the applicant was called in for police questioning on the day after posting a blog entry providing information about riots which the authorities had wanted to keep from the public. Criminal proceedings were then begun against him. Given the absence of «objective information giving rise to a bona fide suspicion against the applicant» <3>, the Court considered it sufficiently proven that «the actual purpose of the impugned measures was to silence or punish the applicant for criticising the Government and attempting to disseminate what he believed was the true information that the Government were trying to hide» <4>. There are also several other examples of judgments in which the Court applied Article 18 of the Convention to politically motivated proceedings <5>. While rare, the application of the provision to such proceedings is nonetheless confirmed by the Court’s case-law.

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<1> Lutsenko v. Ukraine, no. 6492/11, §§ 106 — 07, 3 July 2012.

<2> Lutsenko, cited above, §§ 106 — 09.

<3> Ilgar Mammadov v. Azerbaijan, no. 15172/13, § 142, 22 May 2014.

<4> Ilgar Mammadov, cited above, § 143.

<5> Compare Khodorkovskiy and Lebedev v. Russia, nos. 11082/06 and 13772/05, 25 July 2013; Cebotari v. Moldova, no. 35615/06, 13 November 2007; Gusinskiy v. Russia, no. 70276/01, ECHR 2004-IV; and Tymoshenko v. Ukraine, no. 49872/11, 30 April 2013.

 

  1. Secondly, we consider that the majority limit the scope of application of Article 18 of the Convention without necessity or justification. Of course, we note that Article 18 cannot be invoked to combat abuse of power in every possible form. The Court — and indeed the text of Article 18 itself — makes it clear that the provision enshrines an accessory right which must be invoked together with another Article of the Convention <1>. However, it is important to note that this other Article need not have been violated. The question at issue in the present case is whether Article 18 can be invoked together with any Convention right, or only with those that explicitly provide for justified restrictions. In its past case-law, the Court has explicitly permitted the invocation of Article 18 together with Article 5 of the Convention <2>, Article 8 of the Convention <3> and Article 1 of Protocol No. 1 to the Convention <4>. However, the Court also seems to have allowed Article 18 to be invoked together with one of these three provisions and other Convention rights, for example Article 6 of the Convention <5>. Furthermore, the drafting history of Article 18 would indicate that its application was not intended to be limited to those provisions of the Convention containing an explicit restriction clause. Instead, as per its ratio conventionis, it applies to limitations on all Convention rights, with the exception of those absolute rights that do not permit limitation and to which it therefore cannot logically apply, for example those under Article 3.

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<1> See, inter alia, Gusinskiy, cited above, § 73, and Ilgar Mammadov, cited above, § 137.

<2> Ilgar Mammadov, cited above, §§ 137 — 44; Tymoshenko, cited above, §§ 294 — 301; and Lutsenko, cited above, §§ 104 — 10.

<3> Handyside v. the United Kingdom, 7 December 1976, § 64, Series A no. 24.

<4> OAO Neftyanaya Kompaniya Yukos v. Russia, no. 14902/04, §§ 659 — 66, 20 September 2011.

<5> Compare Khodorkovskiy and Lebedev, cited above, which is rather vague on this point.

 

  1. The present case is the first in which the Court has been called upon to apply the accessory protection of Article 18 solely in conjunction with Article 6 or 7 of the Convention. The majority have resolved the previously unanswered question as to the possibility of such a combination by finding that it is not possible to invoke Article 18 solely in conjunction with these provisions, which «inasmuch as relevant to the present case do not contain any express or implied restrictions that may form the subject of the Court’s examination under Article 18 of the Convention» (see paragraph 129 of the judgment). Given the textually broad nature of Article 18 of the Convention, the majority’s finding would, at the very least, have merited an explanation.
  2. Focusing on Article 6 of the Convention, it is undeniable that this right permits limitations: the provision has inherent restrictions according to both its very wording and the Court’s case-law <*>. Article 6 of the Convention, like Article 5, does not enshrine an absolute right, and though neither provision textually provides for restrictions in a separate second paragraph analogous to those contained in Articles 8 — 11 of the Convention, limitations are nonetheless possible <**>. There is therefore no a priori reason why Article 18 should apply only in conjunction with Article 5 and not with Article 6.

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<*> Van Mechelen and Others v. the Netherlands, 23 April 1997, §§ 54 and 58, Reports of Judgments and Decisions 1997-III; Doorson v. the Netherlands, 26 March 1996, § 72, Reports 1996-II; Deweer v. Belgium, 27 February 1980, § 49, Series A no. 35; Kart v. Turkey [GC], no. 8917/05, § 67, ECHR 2009 (extracts); and  v. France, 29 July 1998, § 37, Reports 1998-V.

<**> Only Articles 2, 3, 4 § 1 and 7 of the Convention are absolute in the sense of Article 15 of the Convention, meaning that they do not permit derogation in times of emergency. Furthermore, while an interference with the right guaranteed under Article 3 of the Convention cannot be justified, it is indeed possible to justify interference with Article 6 of the Convention.

 

7. The relevance of Article 18 of the Convention is particularly significant when examining the case of the first applicant. The criminal proceedings brought against him were not simply unfair and thus in violation of Article 6 § 1; there is also an arguable claim to the effect that the proceedings contained an abusive element. The domestic criminal proceedings at issue subjected a government-critical, prominent and politically active person to criminal prosecution in a manner that the majority in this case found to have «arbitrarily and unforeseeably construed [the domestic law] to the detriment of the applicants, leading to a manifestly unreasonable outcome of the trial» (see paragraph 115 of the judgment). The effect of such a distortion of the law — the singling out of dissidents in order to silence them by means of criminal proceedings — is precisely the sort of abuse from which Article 18 is intended to provide protection. This is a separate issue from the complaint under Article 6 § 1, and it is an issue regarding which the applicants raised an arguable claim in Strasbourg. The Court was therefore under a duty to examine the allegation made. Rejecting the complaint as incompatible ratione materiae, as the majority do, flies in the face of the ratio conventionis and the previous case-law concerning Article 18. For this reason, though we do not consider it our place to make a determination about the merits of the applicants’ complaint in this context, we consider that the Court should have declared the complaint under Article 18 of the Convention admissible.

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