Постановление Европейского суда по правам человека от 15.01.2009 «Дело Шаромов (Sharomov) против России» [англ.]

hem an opportunity to comment on the applications for supervisory review (see Vanyan, cited above, §§ 63 - 68; Aldoshkina v. Russia, No. 66041/01, §§ 23 - 25, 12 October 2006; and Stanislav Zhukov v. Russia, No. 54632/00, §§ 23 - 25, 12 October 2006).
40. The Court notes that in the Vanyan case (§§ 23 - 25 of the judgment) the applicant was convicted of procurement of drugs with a view to their sale, and possession or storage of "particularly large" quantities of drugs. The supervisory-instance court gave a different legal categorisation to his actions, considering that he had not acted with a view to selling drugs, and also substantially reduced his sentence. In the Aldoshkina case (§§ 9 and 13 of the judgment), the applicant was convicted of fraud committed in concert with another person through use of her official position. The supervisory-instance court re-categorised the applicant's actions as an attempt to commit fraud. Similarly, the applicant in the Zhukov case was found guilty of kidnapping committed by a group of persons with the use of violence. The supervisory-instance court re-examined the case and found him guilty of being an accomplice to kidnapping without the use of violence (§§ 8 - 14 of the judgment).
41. In the present case, the applicant was convicted of theft. In 2001 the President of the Regional Court lodged a request for supervisory review indicating that there had been an error in the calculation of the applicant's prison term. On 2 July 2001 the Presidium of the Regional Court upheld the conviction but reduced the applicant's sentence to four years and six months because of an error in the calculation of the term.
42. The Court further observes that in November 2002 the prosecutor's office applied for supervisory review of the trial and appeal judgments, contending that the trial court had erred in determining the prison regime to be applied to the applicant without having regard to the cancellation of his conviction in 1992 for another offence. On 2 December 2002 the Presidium of the Regional Court held that the 1992 conviction had indeed been cancelled in 1997 and should not have been taken into consideration when the trial court decided whether there had been recidivism. It concluded that the applicant's acts under review had constituted dangerous rather than "particularly" dangerous recidivism, and changed the type of the correctional facility in which the applicant was to serve his sentence. The prison term, however, remained unchanged. Although the scope of the above proceedings was limited to the questions of the applicant's sentence and the prison regime rather than amendment of the conviction due to a different legal categorisation of his actions, the Court considers that those proceedings nevertheless concerned a determination of the "criminal charge" against the applicant (see Findlay v. the United Kingdom, judgment of 25 February 1997, Reports of Judgments and Decisions 1997-I, p. 279, § 69; see, by contrast, Gutfreund v. France, No. 45681/99, § 32, ECHR 2003-VII, and Aydin v. Turkey (dec.), No. 41954/98, 14 September 2000). Indeed, there was no disagreement between the parties on that point. Under the applicable legislation, a supervisory-instance court was not bound by the scope of a request for supervisory review and was under an obligation to exercise a full review of the case (see paragraph 23 above). It could dismiss the application for supervisory review, quash the conviction and/or the appeal judgment, discontinue the criminal proceedings, or amend any of the earlier decisions. As can be seen from the text of the supervisory review ruling in the applicant's case, the supervisory-instance court not only amended the trial and appeal judgments but also upheld them "in the remaining part". Thus, the Court has no doubts that the proceedings in question fell within the ambit of Article 6.
43. Thus, the Court has

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