FIRST SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 12607/03
by Aleksandr Mikhaylovich ZHELTKOV
against Russia
The European Court of Human Rights (First Section), sitting on 30 March 2010 as a Chamber composed of:

and André Wampach, ,
Having regard to the above application lodged on 24 March 2003,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Aleksandr Mikhaylovich Zheltkov, is a Russian national who was born in 1960 and lives in the town of Blagoveshchensk, the Amur region. He was represented before the Court by Mr O.M. Morar, a legal specialist practising in that city.
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.
A.  The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
1.  Criminal proceedings
On an unspecified date an investigator opened a criminal case on suspicion of multiple episodes of aggravated theft, robbery and beatings committed by a group of people and on 26 December 2000 arrested the applicant on suspicion of his involvement in this connection.
On 26 April 2001 the investigator dismissed the applicant’s lawyer on the ground of conflict of interests between the applicant and the other accused person in a related criminal case.
In view of the complexity of the case, the trial court requested the applicant to choose another lawyer. As he refused to do so, it decided to appoint counsel for the applicant itself.
By a decision of 26 June 2001 the applicant was released under an obligation not to leave his place of residence.
On 3 September 2001 the Blagoveshchensk Town Court of the Amur Region (“the Town Court”) examined the applicant’s alleged involvement in some of the episodes of aggravated theft and robbery. The court convicted the applicant of aggravated theft committed repeatedly by a group of people and sentenced him to four years and six months of imprisonment. The court characterised the applicant’s offence under Article 158 § 2 (a, b and c) of the Criminal Code. The applicant was arrested and the investigation of the other charges against him continued.
In so far as those remaining charges are concerned, the applicant had access to the prosecution case file from 5 to 11 March 2002 and from 11 to 14 March 2002. The Town Court adjourned the proceedings to designate the latter period of time and to give him more time to study the case.
The trial record shows that when the second trial opened the indictment was read out in public and the applicant confirmed that the charges were clear to him.
Before and during the second trial the applicant moved to summon extra defence witnesses and to carry out extra expert examinations, but the trial court refused. The applicant did not appeal against those refusals because the court had allegedly advised him that, under the rules of criminal procedure, they could only be appealed against together with the judgment, not separately.
On 19 April 2002 the Town Court convicted the applicant on the remaining charges of other episodes of aggravated theft, robbery and assault. In view of his earlier conviction, the court rendered a cumulative sentence of nine years and six months of imprisonment, having characterised the applicant’s crimes under Article 158 §§ 2 (a, b and c) and 3 (b) and Article 161 § 2 (a, b, d and e) of the Criminal Code.
The applicant appealed against the judgment. He maintained that the proceedings had been unfair and that he was not guilty of the crimes in question. However, from the case file it follows that he did not appeal on the ground that the trial court had refused to hear witnesses or to carry out additional expert examinations.
On 26 September 2002 the Amur Regional Court (“the Regional Court”), acting as an appeal court, upheld the first-instance judgment but reduced the sentence by one year and six months. It follows from the judgment that the period the applicant had spent in pre-trial detention was deduced from his sentence, in accordance with Article 72 §§ 3 and 4 of the Criminal Code, which required to deduce from the final sentence the full term of the convicted person’s detention on remand.
2.  Court proceedings reviewing sentences in connection with the entry into force of amendments to the Criminal Code
On 28 January 2004 the applicant requested his sentence to be reduced on the basis of amendments to the Criminal Code introduced on 8 December 2003 (see the relevant domestic law section below) and the amnesty law.
(a)  First round of proceedings
On 24 February 2004 the Town Court examined the applicant’s claims under Article 397 § 13 of Chapter 47 of the Criminal Procedure Code and granted them, having taken into account the amendments and the amnesty law. It reduced the overall sentence to three years and ten months. The court rendered two decisions that concerned the convictions of 3 September 2001 and 19 April 2002 respectively.
The applicant’s counsel was present, whilst the applicant and the prosecution were absent.
Both decisions of 24 February 2004 entered into force on 5 March 2004, since the parties did not appeal against them.
On 24 August 2004 the prosecutor learned about the decisions of 24 February 2004. On the same day the prosecutor requested the court to restore the time-limits for appeal.
On the next day the Town Court granted his request on the ground that the prosecutor had not been served with a copy of the decisions in time. The court noted that the decisions in question should have been served on the prosecutor during five days following their adoption. The court also established that the prosecutor had been notified about the decisions in question only on 24 August 2004. The court relied on part 2 of Article 357 of the Code of Criminal Procedure which provided for restoration of the time-limit for an appeal if the relevant decision had not been served on the person concerned within 5 days from its adoption.
The applicant’s counsel filed an appeal in which he commented on the prosecutor’s arguments. Allegedly, the appeal was returned on 9 September 2004 for failure to comply with formalities. He resubmitted it with additional grounds on 21 and 23 September 2004. The applicant’s counsel also challenged the appeal court composition and filed an application for the applicant to be present.
On 23 September 2004 the Regional Court, having heard the prosecution and the applicant’s counsel, rejected the applicant’s challenges of the appeal judges and his applications to be present at the appeal hearing as unjustified. The court noted that the applicant’s presence was not mandatory under the domestic law, that he was adequately represented by counsel, who had already submitted his appeal argument, and that in view of the technical nature of the questions to be examined there was no justified need to hear the applicant in person. The court then quashed the decisions of 24 February 2004 for erroneous interpretation of the amendments and amnesty law and remitted the case for a fresh examination.
(b)  Second round of proceedings
The Town Court examined the issue as to whether or not the applicant’s sentence should be reduced due to subsequent amendments to the Criminal Code or due to an amnesty law again on 22 October 2004, declared the amnesty law inapplicable and the earlier interpretation of the amendments to the Criminal Code to have been wrong. The court noted that the legal characterisation of the offences under Articles 158 and 161 of the Criminal Code had to be changed in line with the amendments, but as the scope of the applicant’s original convictions remained unaffected the original sentence of nine years and six months remained valid as well.
The applicant’s counsel was invited to take part in the hearing but failed to do so. The prosecution was also absent.
The applicant and his lawyer appealed on 1 and 10 November 2004 and in particular insisted on the applicant’s personal presence at the final‑instance hearing.
On 21 December 2004 the Regional Court, in the absence of the applicant but in the presence of his counsel, upheld the first-instance decision in full.
B.  Relevant domestic law
1.  Relevant criminal law
Article 158 of the Criminal Code of Russia (as in force between 1 January 1997 and 8 December 2003) made theft a criminally punishable offence. Article 158 § 2 (a, b and c) stated that a theft committed by a group of people, or associated with breaking and entering into premises or any storage places, or inflicting significant damage to a victim was punishable by various sanctions, including a sentence of imprisonment of up to six years. Article 158 § 3 made theft committed repeatedly or associated with breaking and entering into a residential dwelling punishable by various sanctions, including a sentence of imprisonment of up to six years.
The amendments to the Criminal Code of Russia introduced by Federal Law no. 162-FZ of 8 December 2003 changed the notion of significant damage in Article 158 § 2 (b) of the Code by specifying that it could be established regard being had to the personal situation of the victim, the lower limit being losses worth 2,500 Russian roubles (RUB) and losses over RUB 250,000 constituting serious damage. The amendments also lowered the maximum penalty for the offences defined by Article 158 § 2 to five years of imprisonment and changed the contents of Article 158 § 3 by replacing the repetitive character of an offence as a relevant criterion with infliction of serious damage.
As a result of the above-mentioned amendments, Article 161 § 2 (a, b, d and e) of the Criminal Code, which dealt with aggravated robbery committed by a group of people with prior collusion (a), repeatedly (b), associated with violence or threat of violence (d) or with infliction of significant damage to the victim (e), lost the latter subparagraph.
Article 72 § 3 and 4 of the Criminal Code required the domestic courts to deduce from the final sentence the full term of the convicted person’s detention on remand.
2.  Procedure for reviewing sentences in connection with the entry into force of the new Criminal Code
Articles 397 § 13 and 399 in Chapter 47 (“Proceedings for Examination and Determination of Issues Relating to the Execution of Sentences”) of the Code of Criminal Procedure of the Russian Federation of 18 December 2001 (in force since 1 July 2002) provided that decisions on the reduction of a sentence following the enactment of a law with retrospective effect would be made on an application by a convict or prosecutor in accordance with Article 10 of the Criminal Code. In such proceedings the court was required to base its ruling (определение) solely on the circumstances that had been established in the final conviction and could not overrule the interpretation of the criminal law by the convicting court.
Articles 396 § 3 and 401 determined the territorial jurisdiction of the courts and provided for a possibility to bring appeal proceedings against the ruling in question.
Article 10 of the Criminal Code (“Retrospective effect of criminal law”) provides that where a new criminal law decriminalises an offence, provides for more lenient punishment or otherwise improves the situation of the offender it shall apply with retrospective effect to offences committed before it came into force, even where the offender is already serving a sentence. If the new law provides for a shorter sentence, then the offender’s sentence must be reduced accordingly. Laws providing for a heavier sentence or otherwise aggravating the situation of the offender have no retrospective effect.
COMPLAINTS
1.  Relying on Article 5 of the Convention, the applicant complained that the period of his pre-trial detention in connection with his first conviction had not been properly included in the final term of imprisonment.
2.  Under Article 6 of the Convention he complained in respect of the main set of criminal proceedings against him that he had not been properly notified of the charges because the court had failed to read out the bill of indictment and that the trial court had failed to take account of his poor eyesight and provide sufficient time for preparation of his defence. The applicant also complained about the courts’ alleged refusal to summon defence witnesses and the dismissal of his lawyer and the appointment of another counsel against his wishes.
3.  The applicant complained that the proceedings reviewing his sentences in connection with the entry into force of the new Criminal Code fell short of the requirements of Article 6 of the Convention because the first instance court had unlawfully restored the prosecutor’s right to appeal, had infringed his right to be present at the hearing and had rejected his challenges of the court composition.
4.  Lastly, the applicant alleged that by granting the prosecutor’s request for restoration of an appeal time-limit the court had deprived him of his right to a revision of his original conviction by a higher tribunal within the meaning of Article 2 of Protocol No. 7.
THE LAW
1.  Under Article 5 of the Convention the applicant complained about the domestic courts’ alleged failure to deduct the term of his pre-trial detention from his final sentence.
This grievance falls to be examined under Article 5 § 1 (a) of the Convention, which provides as follows:
“1.  Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(a)  the lawful detention of a person after conviction by a competent court; ...”
The Court notes that there can be no doubt that the applicant’s criminal conviction was pronounced by a competent court within the meaning of that provision and that there was a sufficient causal connection between the applicant’s conviction and his sentence of imprisonment. Furthermore, it follows from the case file that, contrary to his allegations, the appeal court did deduct the term of his pre-trial detention from the final term of imprisonment. There is also no indication that the domestic law as such was unclear, inaccessible or vague (see, by contrast, Svetoslav Dimitrovv. Bulgaria, no. 55861/00, §§ 51-61, 7 February 2008). In the absence of any evidence of arbitrariness in the application of the domestic law by the domestic courts (see, for example, Ernő Szabó v. Sweden (dec.), no. 28578/03, 27 June 2006), the Court finds the applicant’s detention following his conviction complied with the requirements of this Convention provision.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

2.  In respect of the main set of criminal proceedings against him the applicant alleged that the trial court had failed to read out the bill of indictment, that it had not taken into account his allegedly poor eyesight and had failed to provide him with sufficient time for preparation of the defence, that the courts had refused to summon his witnesses and had dismissed his lawyer, having appointed a different lawyer against his wishes. The applicant relied on Article 6 of the Convention, which in so far as relevant, provided as follows:
“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
At the outset the Court notes that it is clear from the case file that the bill of indictment was in fact read out and the applicant himself admitted that the charges were clear to him. As regards his aabout the lack of sufficient time to study the prosecution file because of his allegedly poor eyesight, the Court notes that the applicant studied the file twice and on one occasion the court adjourned the trial specifically to give him extra time to finalise this process. The applicant has presented no convincing argument demonstrating that this time was insufficient in the circumstances of the case. His submissions about the court’s failure to summon some defence witnesses at his request must be dismissed for failure to exhaust domestic remedies, since the applicant did not raise this issue before the appeal court. As to his complaint about the replacement of his lawyer, the Court notes that an applicant’s right to choose his defence counsel is not absolute and may be subject to limitations where the interests of justice so require (see, for example, Mayzit v. Russia, no. 63378/00, § 66, 20 January 2005). Under the domestic law, the participation of the prosecution in the proceedings rendered the participation of the defence counsel obligatory. The appointment made by the court in this respect had a relevant and sufficient justification to override the applicant’s wishes. The applicant did not avail himself of the right to choose another representative and thus the court reached a well-founded decision to appoint another defence counsel for him. Insofar as the applicant complained generally of the outcome of the criminal proceedings against him and of various breaches of domestic procedural and substantive law, the Court notes that it is not called upon to examine alleged errors of fact and law committed by the domestic judicial authorities, provided that there is no indication of unfairness in the proceedings and provided the decisions reached cannot be considered arbitrary. On the basis of the materials submitted by the applicant, the Court notes that he, personally and through his defence counsel, was fully able to present his case and contest the evidence that he considered false. Having regard to the facts as submitted by the applicant the Court has not found any reason to believe that the proceedings did not comply with the fairness requirement of Article 6 of the Convention.
Having regard to the above, this part of the application must be rejected pursuant to Article 35 §§ 1, 3 and 4 of the Convention.

 3.  Under Article 6 of the Convention the applicant complained about the subsequent proceedings concerning his request for a modification of his sentence in line with the amendments to the Criminal Code. In particular, he was dissatisfied with the first instance court’s decision to restore the appeal time-limit for the prosecution, the courts’ refusal to summon him to the court hearing in person and also their decision to turn down his challenges of the court composition. This Convention provision, in its relevant parts, provides as follows:
“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
The Government submitted that the proceedings at issue did not determine any criminal charge against the applicant within the meaning of Article 6 of the Convention. The proceedings were conducted in accordance with the chapter of the Code of Criminal Procedure governing issues relating to the execution of sentences. No new charge was brought against the applicant and the proceedings did not affect the substance of the charge that had been previously determined by the courts. The Town Court founded its ruling on the factual circumstances that had been established previously and did not question the legal characterisation attributed to those facts. The sole purpose of the proceedings was to bring the applicant’s sentence into conformity with the amendments to the Criminal Code.
The applicant disagreed and maintained that his Convention rights had been breached and that the courts ought to have reduced his overall sentence rather than leaving it unchanged.
The Court observes that the applicant’s criminal charge had been “determined” on 26 September 2002 when his conviction became final and the sentence had been definitively fixed (see, among other authorities, T. v. the United Kingdom[GC], no. 24724/94, § 108, 16 December 1999, and Nurmagomedov v. Russia, no. 30138/02, §§ 44 and 45, 7 June 2007). The applicant’s sentence was fixed at nine years and six months of imprisonment. In determining the sentence the criminal charge against the applicant was thus “determined” within the meaning of Article 6 of the Convention. Since a set of amendments to the new Criminal Code adopted on 8 December 2003 provided for the retrospective application of more lenient criminal-law provisions, there existed a possibility that the applicant’s sentence might be reduced in the proceedings for bringing the sentence into conformity with these new provisions of the Criminal Code. These proceedings were instituted by the applicant on 28 January 2004 and were conducted before the domestic courts at two levels of jurisdiction. The Court would underline that the domestic courts were solely called upon to match the constituent elements of a crime as established in the original conviction with the definitions of offences contained in the amended Criminal Code and replace the old references with the new. It also had the power to remove reference to circumstances which were no longer considered aggravating under the new law. Unlike supervisory-review proceedings, proceedings for bringing a sentence into conformity with the new law did not empower the court to quash or alter the final conviction. If the new law provided for a heavier sentence for the same offence, the court was required to do nothing because the new law could not be applied retrospectively to the detriment of the offender. If, however, the maximum sentence for the same offence was lighter in the new Code than that imposed under the previous legislation, the court had to reduce it to the maximum set out in the new Code. That was a mathematical operation excluding any discretion on the part of the judge (see Nurmagomedov, cited above, §§ 47-50).
In these circumstances, the Court considers that the proceedings for bringing the applicant’s sentence into conformity with the new criminal law did not involve a “determination of a criminal charge” against the applicant. Furthermore, these proceedings did not concern the lawfulness of the applicant’s conviction, the prison regime under which he was serving his sentence of imprisonment or any other similar question which arguably could have qualified the proceedings as “civil”. The proceedings therefore did not determine his “civil rights and obligations” (see, by contrast, Aerts v. Belgium, 30 July 1998, § 59, Reports of Judgments and Decisions1998‑V, and Enea v. Italy[GC], no. 74912/01, §§ 97-107, 2009‑...). 

 4.  The applicant also alleged that by granting the prosecutor’s request for restoration of an appeal time-limit the court had deprived him of his right to a revision of his original conviction by a higher tribunal within the meaning of Article 2 of Protocol No. 7. This Convention provision provides as follows:
“1.  Everyone convicted of a criminal offence by a tribunal shall have the right to have his conviction or sentence reviewed by a higher tribunal. The exercise of this right, including the grounds on which it may be exercised, shall be governed by law.
2.  This right may be subject to exceptions in regard to offences of a minor character, as prescribed by law, or in cases in which the person concerned was tried in the first instance by the highest tribunal or was convicted following an appeal against acquittal.”
 The Court reiterates from above that the proceedings to which the applicant refers did not determine any criminal charge against him. Furthermore, the Court notes that the applicant had access to the appeal review courts in respect of his convictions of 3 September 2001 and 19 April 2002. Having regard to this, the Court considers that present case does not disclose any appearance of a violation of the provision invoked.
It follows that this part of the application is manifestly ill-founded, and should be rejected, pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
	André Wampach	Nina Vajić
	Deputy Registrar	President