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

ention. It may be subject to editorial revision.

In the case of Kiselev v. Russia,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
Peer Lorenzen, President,
Rait Maruste,
Karel Jungwiert,
Anatoly Kovler,
Renate Jaeger,
Mark Villiger,
Zdravka Kalaydjieva, judges,
and Claudia Westerdiek, Section Registrar,
Having deliberated in private on 6 January 2009,
Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (No. 75469/01) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") by a Russian national, Mr Bogdan Aleksandrovich Kiselev ("the applicant"), on 17 April 2001.
2. The Russian Government ("the Government") were represented by Mr P. Laptev and Ms V. Milinchuk, former Representatives of the Russian Federation at the European Court of Human Rights.
3. The applicant alleged, in particular, that the supervisory review conducted in the present case had violated his rights under Article 6 of the Convention and Article 4 of Protocol No. 7 to the Convention.
4. By a decision of 5 February 2007, the Court declared the application partly admissible.
5. The Government, but not the applicant, filed further written observations (Rule 59 § 1).

THE FACTS

I. The circumstances of the case

6. The applicant was born in 1973 and lives in Vyatskiye Polyany, Kirov Region.
7. On 7 February 2000 the applicant was remanded in custody on suspicion of having committed gang rape. He remained in custody throughout the investigation.
8. On 3 May 2000 the Vyatsko-Polyanskiy District Court of the Kirov Region found the applicant guilty of aggravated rape and violent sexual assault and sentenced him to two years and two months' imprisonment. In deciding on the sentence the court applied Article 64 of the Criminal Code, which allowed the imposition of a penalty below the statutory minimum (which was four years' imprisonment) with regard to the voluntary compensation paid to the victim, her request to terminate the applicant's prosecution, the absence of a previous criminal record and the fact that the applicant had a child.
9. On 10 May 2000 the Vyatsko-Polyanskaya District Prosecutor's Office filed an appeal against the judgment on the ground that the sentence, resulting from an unjustified application of Article 64 of the Criminal Code, was too lenient. On an unknown date the applicant also filed an appeal, pleading not guilty and requesting the reduction of his sentence and release on parole.
10. On 26 May 2000 the Amnesty Act entered into force.
11. On 8 August 2000 the Kirov Regional Court dismissed the appeals of both parties and upheld the judgment of the District Court at final instance. It held, in particular, that the applicant's participation in the rape had been "secondary" and that this in combination with other circumstances referred to by the first-instance court had justified application of a penalty below the statutory minimum. The court also stated that no grounds for applying the Amnesty Act had been made out.
12. On 18 August 2000 the Vyatsko-Polyanskiy District Court of the Kirov Region, in a separate decision, found that this was the applicant's first conviction and that his prison sentence did not exceed three years. It absolved the applicant from serving the sentence by virtue of the Amnesty Act.
13. On 31 October 2000 the Kirov Regional Prosecutor lodged an application for supervisory review, seeking to have the judgment of 3 May 2000 and the appeal decisio



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