Постановление Европейского суда по правам человека от 29.01.2009 "Дело "Киселев (Kiselev) против Российской Федерации" [рус., англ.]

lusions. Contrary to this legitimate aim, the very purpose of the retrial in the present case was to require the lower courts to impose a harsher penalty than the initial "final" one. This was the legal ground for the requested supervisory review, and the single issue discussed in the resulting decision to order a rehearing of the case. It must not be overlooked that the reasoning given for this decision was binding and served as a mandatory instruction for the lower courts. In Daktaras v. Lithuania <**> (§§ 35 et seq.) the Court considered that "[the binding] opinion cannot be regarded as neutral from the parties' point of view. By recommending that a particular decision be adopted or quashed, the President necessarily becomes the defendant's ally or opponent (see, mutatis mutandis, Borgers v. Belgium, 30 October 1991, § 26, Series A No. 214-B)." In Daktaras the Court found that "the applicant's doubts as to the impartiality of the Supreme Court may be said to have been objectively justified. Consequently, there has been a breach of Article 6 § 1 of the Convention."
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<*> Ibidem, p. 383 - in regard of the French text of the provision.
<**> Application No. 42095/98, judgment of 10 October 2000.

In the present case the similarly binding opinion had the effect of instructing the lower courts to come to certain conclusions and to a predefined result. Moreover, once the Presidium of the upper court agreed with the prosecutor's view that the penalty was inappropriately lenient, the applicant's case was destined to as many quashings, remittals and reviews as necessary to achieve the harsher penalty sought. Any different outcome was vulnerable to further supervisory review proceedings and there was nothing in the law to stop the subsequent quashing of decisions which failed to comply with the instructions given. Since the initiation of the supervisory review mechanism was a privilege of the prosecution with the consent of the upper courts, it allowed the perpetuation of the criminal proceedings until that party was satisfied with the result.

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