CCPR/C/116/D/2411/2014
2.4
On 29 December 2006, the author filed a cassation appeal with the Supreme Court
claiming erroneous application of criminal law by the court of first instance. He argued that
the Krasnodar Territorial Court had applied an old version of the Criminal Code, not the
new version that had entered into force on 27 July 2006, i.e. before the author’s trial had
taken place. Since the new version of article 205 of the Criminal Code had amended the
subjective element of the disposition (the purpose of the terrorist act),2 the author argued
that his actions did not constitute terrorism under the new law. His actions should have
been qualified under different articles of the Criminal Code, which would entail a lighter
penalty. The author also claimed a wrong application of articles 306 (3) and 307 (2) of the
Criminal Code and of the additional penalty depriving him of the rank and awards.
Furthermore, he made complaints concerning procedural violations in the court of first
instance. For example, he complained about: the biased attitude of the presiding judge, her
influencing the decision of the jury by expressing an opinion about the facts of the case and
the guilt of the defendants, manipulation of the way evidence was presented and the
witnesses were questioned, the failure of the presiding judge to read in court the pretrial
statements of the witnesses (Mr. D. and Mr. S.), which differed from those given by them
during the hearing, the additional expert examination on the possible cause of a fire in his
apartment after a grenade explosion on 19 April 2005 and the discrepancy between the facts
of the case and the conclusions of the court.
2.5
In its decision of 22 November 2007, the Supreme Court, acting as a court of
cassation, repealed the additional sanction depriving the author of his rank and awards. The
rest of the sentence remained unchanged. The Court stated that the qualification of the
author’s actions under article 205 (3) was correct and that the procedural rules regarding the
materials of the case and the transcript of the trial had not been violated by the court of first
instance. The Court found that the defence had had a chance to question the witnesses
during the court hearing but had not used this opportunity. As for the discrepancies between
the facts of the case and the verdict, the court of cassation stated that the jury had the
exclusive prerogative to establish the facts of the case and its judgment could not be
revised.
2.6
On 28 August 2008, the author filed an appeal, under the supervisory review
proceedings, to the Presidium of the Supreme Court, making the same claims he had made
to the court of cassation. In its decision of 19 November 2008, the Supreme Court partially
changed the sentence. It ruled that articles 33 (3) and 205 (3) of the Criminal Code should
have been applied once since the actions falling under the same provision of the Criminal
Code formed a single and not a cumulative offence. The Court also repealed the author’s
sentence under article 307 (2) of the Criminal Code. At the same time, it increased the
original prison terms set by the court of first instance under articles 306 (3), 167 (2)
2
Article 205 of the Criminal Code as amended on 27 July 2006 reads as follows:
1. The carrying out of an explosion, arson or other actions intimidating the population, and creating
the threat of human death, of infliction of significant property damage or the onset of other grave
consequences, for the purpose of influencing the taking of a decision by authorities or international
organizations, and also the threat of commission of the said actions for the same purposes, shall be
punishable by a term of imprisonment of 8 to 15 years.
…
3. Acts stipulated by parts one or two of this article if they:
(a) Entail encroachment on installations of the use of atomic energy or with the use of nuclear
materials or of sources of radioactive radiation or venomous, poisonous, toxic or hazardous chemical
or biological substances;
(b) Have entailed intentional causing of death to a person shall be punishable with imprisonment for
15 to 20 years or with a life sentence. (See http://legislationline.org/documents/section/criminalcodes/country/7).
3