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FIRST
SECTION
CASE OF
KARYAGIN, MATVEYEV and KOROLEV v. RUSSIA
(Applications
nos. 72839/01, 74124/01 and 15625/02)
JUDGMENT
STRASBOURG
28 May 2009
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Karyagin, Matveyev and Korolev v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos
Rozakis,
President,
Nina
Vajić,
Anatoly
Kovler,
Khanlar
Hajiyev,
Dean
Spielmann,
Sverre
Erik Jebens,
Giorgio
Malinverni,
judges,
and
Søren Nielsen, Section
Registrar,
Having
deliberated in private on 7 May 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in three applications (nos. 72839/01, 74124/01 and
15625/02) 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 three Russian
nationals, Mr Valeriy Ivanovich Karyagin, Mr Sergey Anatolyevich
Matveyev and Mr Sergey Lvovich Korolev (“the applicants”),
on 11 January 2001 (the two first applications) and 9 January 2001
respectively.
- The
applicant Mr S. Matveyev was represented before the Court by
Mr I. Smorodin, a lawyer practising in Magnitogorsk. The
Russian Government (“the Government”) were represented by
Mr P. Laptev and Mrs V.
Milinchuk, former Representatives of the Russian
Federation at the European Court of Human Rights.
- The
applicants alleged that they had not received a fair trial on account
of discrepancies between the copy of the judgment served on them and
the copy of the judgment examined by the appeal court.
- By
decisions of 23 October 2007, the Court declared the applications
admissible.
- The
Chamber decided to join the applications (Rule 42 § 1).
- The
applicants and the Government each submitted further written
observations (Rule 59 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicants Mr Karyagin and Mr Matveyev were born in
1955 and the applicant Mr Korolev was born in 1953. They live in
Magnitogorsk, Chelyabinsk region.
- On
5 February 1998 the Chelyabinsk Regional Court, composed of presiding
judge Ms Ikryannikova and two lay assessors, convicted Mr Korolev,
who had occupied the post of the head of the Magnitogorsk police
department for the fight against economic crimes, and the applicant
Mr Matveyev, who had been his deputy, of several episodes of
bribe-taking, abuse of office and unlawful
possession of firearms and sentenced them to nine and ten years'
imprisonment respectively. The applicant Mr Karyagin was
convicted of aiding and abetting bribe-taking and sentenced to nine
years' imprisonment.
- On
19 February 1998 the court sent the judgment to detention facility
SIZO 70/2 of Magnitogorsk in which the applicants were detained. Each
applicant received a typed copy of the judgment on twenty-seven
pages. It had signatures against the words “judge” and
“secretary” and the Chelyabinsk Regional Court's official
stamp. The same copy of the judgment was included in the applicants'
personal files at the detention facility.
- The
applicants appealed against the judgment, denying the offences and
claiming that there was no proper evidence of their guilt.
- The
Regional Court forwarded the case file, which included a typed
copy of the judgment on thirty-one pages, to the Supreme Court for
examination.
- On
14 October 1998 the Supreme Court examined the case. It held that the
finding of the applicants' guilt had been corroborated by statements
of victims and witnesses, expert reports, the applicants' own
statements and other evidence. By a decision of 14 October 1998 the
Supreme Court reclassified the applicants' acts in respect of one of
the episodes imputed to them as an attempted crime, reduced the
amount of the bribe in respect of another episode imputed to Mr
Korolev and Mr Matveyev and upheld their conviction in the remaining
part.
- In
2000 the applicants learned that there had been two different copies
of the judgment. They asked the Regional Court to send them the
judgment from the case file. In October 2000 the Regional Court
sent them a copy of the judgment on thirty-one pages. The applicants
examined the twenty-seven-page copy and the thirty-one-page copy and
identified over 200 differences between them.
- The
applicants complained to the Presidium of the Supreme Court about the
discrepancy, arguing that they had based their points of appeal on
the twenty-seven-page copy of the judgment while the appeal court had
had before it the thirty-one-page copy of the judgment. They
requested the court to exercise its power of supervisory review and
quash the judgment. The Supreme Court replied to all three applicants
that it saw no reason to reopen the case. Furthermore, in its letters
of 31 May 2001, concerning the applications for the cases of Mr
Karyagin and Mr Korolev to be reopened, signed by a deputy President
of the Supreme Court, Mr Verin, the Supreme Court stated that it had
been established as a result of the in-house inquiry carried out at
the Chelyabinsk Regional Court that the copy of the judgment on
twenty-seven pages had been “falsified”. It had not been
endorsed by the judge Ms Ikryannikova. The Supreme Court further
stated in one of its above letters that the argument that the trial
court had delivered two different judgments in the case, one of which
had been sent to the convicts and the other to the appeal instance,
“did not comport with the materials of the case”. It
stated in the other letter that it could not agree with the
submission that the discrepancies between the two copies of the
judgment had breached the rights of the defence on appeal.
II. RELEVANT DOMESTIC LAW
- Under
Article 312 of the Code of Criminal Procedure, in force at the
material time, any rectification in a judgment was allowed before the
public pronouncement of the judgment.
THE LAW
- The
applicants complained under Article 6 §§ 1 and 3 of the
Convention that the fact that the judgment they had appealed against
was different from the judgment examined by the appeal court had
violated their right to a fair trial.
Article
6 of the Convention, in so far as relevant, reads as follows:
“1. In the determination of ... any
criminal charge against him, everyone is entitled to a fair ...
hearing ... by [a] ... tribunal ...
...
3. Everyone charged with a criminal offence
has the following minimum rights:
...
(b) to have adequate time and facilities for
the preparation of his defence;
...”
A. The parties' submissions
1. The Government
- The
Government submitted that at the time, in the absence of computers
and copying machines, judgments had been typed on printing machines
either using a carbon paper or typing each copy separately. In the
applicants' case the twenty-seven-page copy of the judgment had been
typed immediately after the delivery of the judgment with a view to
serving it on the applicants within the established time-limit to
ensure the proper exercise of their right of appeal. The
thirty-one-page copy of the judgment had been typed later, in
compliance with the relevant requirements, and thus was of better
quality. The Government emphasised that there were no significant
differences between the two copies. The existing differences did not
concern the evidence assessed by the court and did not change the
meaning conveyed by the judgment. They were explained by the
correction of grammar and technical mistakes and bringing the text in
compliance with the requirements for official documents. The
different number of pages was explained by larger interlinear spacing
and different paragraph formatting.
- The
Government further pleaded that the quashing of the judgment in the
applicants' criminal case for reasons of the differences between the
two copies of the judgment would not be justified. It would involve
summoning witnesses, victims and other participants to the
proceedings for the fresh examination of the case and probably the
applicants' detention pending retrial. It would entail a violation of
the “reasonable time” requirement of Article 6 of the
Convention. What is more, given the insignificance of the differences
between the two copies of the judgments, the retrial would lead to
the same outcome.
- The
Government asserted that the proceedings in the applicants' case
complied with the fair trial requirements under Article 6. In the
preparation of their appeals against the judgment the applicants had
been free to consult the court records and the other documents from
the case file and to signal any discrepancies in their appeals.
Lastly, the applicants could have requested the criminal prosecution
of the servant of the court's registry who was responsible for the
inaccuracy in the preparation of the copies of the judgment, had they
considered that the twenty-seven-page copy of the judgment had been
falsified. The word “falsified” in the Supreme Court's
letter of 31 May 2001 was not used in its legal meaning but simply
referred to the absence of the judge's signature.
2. The applicants
- The
applicants asserted that the thirty-one-page copy had been prepared
later than the twenty-seven-page copy as all the grammatical and
stylistic errors which could be found in the twenty-seven-page copy
had been corrected in the thirty-one-page copy. All the appeals had
been lodged with judge Ms Ikryannikova at the Regional Court who had
then forwarded them to the Supreme Court. She must have prepared the
thirty-one-page copy of the judgment after the examination of those
appeals.
- The
applicants argued that there were over 200 discrepancies between the
two texts, about half of which could allegedly be said to have
changed the meaning conveyed by the judgment in respect of the
circumstances of the case, the evidence and the court's conclusions
with the effect of intensifying the accusations against the
applicants to their detriment. The other half concerned grammatical
and stylistic changes which were mostly aimed at facilitating the
understanding of the text. They further complained that references to
pages and lines of the twenty seven page copy in their
appeals had become meaningless for the appeal court, which had
examined the thirty-one-page copy.
- The
applicants argued that the twenty-seven-page copy had been signed by
judge Ms Ikryannikova and sealed with the official court's stamp. It
had been officially served on them by the Regional Court and included
in their personal convict files as a basis for them to serve their
sentence.
B. The Court's assessment
- The
Court notes first that the applicants lodged a supervisory review
request with the Presidium of the Supreme Court. The reaction of the
Supreme Court in respect of the applicants' grievance about the
discrepancies between the two copies of the judgment was that the
applicants' copy of the judgment had not been signed by the judge and
had been “falsified”, but, nevertheless, the applicants'
complaint lacked foundation. The Court finds such a reaction striking
in that it only gave rise to further questions and frustration.
- The
Court considers that the applicants showed convincingly that the
twenty-seven-page copy of the judgment (“copy 1”) had
been officially served on them by the Chelyabinsk Regional Court
which had delivered the judgment. It was the only copy of the
judgment available to them for the preparation of their appeals. The
Government did not dispute that. The Court notes further that it was
not disputed by the parties that the Supreme Court as an appeal
instance had based its examination on the thirty-one-page copy of the
judgment (“copy 2”), which it had received from the
Chelyabinsk Regional Court. Furthermore, it transpires from the
parties' submissions that copy 2 had been typed later than copy 1 and
had rectified mistakes present in copy 1.
- The Court reiterates that Contracting States enjoy
considerable freedom in their choice of appropriate means of ensuring
that their judicial systems comply with the requirements of Article
6. The national courts must, however, indicate with sufficient
clarity the grounds on which they base their decision. It is this,
inter alia, which makes it possible for the accused to
exercise usefully the right of appeal available to him (see
Hadjianastassiou v. Greece, 16 December 1992, § 33,
Series A no. 252).
- It
is clearly preferable for the fairness of the trial that a defendant
and an appeal court have identical copies of a judgment. The Court
notes with concern that this was not the case in the applicants'
proceedings. However, the Court cannot conclude that this impropriety
as such amounts to a violation of Article 6 of the Convention (see
Zipper v. Austria, no. 27778/95, Commission decision of
21 May 1997). What it must examine is whether the discrepancies
between the two texts were such as to have adversely affected the
applicants' right to defend themselves before the appeal court to an
extent incompatible with the guarantees of Article 6.
- The
Court has examined in detail the two versions of the judgment and the
comparison submitted by the applicants in support of their arguments.
It has found that there was indeed a substantial number of
discrepancies between the two documents. In its opinion, however,
these discrepancies are not material, and it has been unable to
identify any change that would substantiate the applicants'
complaints. The overwhelming majority of differences in the texts
concern rectifications of spelling or grammar, or the addition of
information that is not in itself significant. The Court notes that
the applicants complain, inter alia, of the following changes,
many of which occurred more than once: hand-written words in copy 1
have been typewritten in copy 2; correction of the initial letter of
a sentence to upper-case; the use of the word “as” in
place of the original hyphen; figures have been given as numerals
rather than written in full (and vice versa); the inclusion of a
given individual's initials with the surname in copy 2; the omission
of a given individual's initials in copy 2; corrections of
grammatical cases to comply with the rules of written Russian; the
order in which individuals' surnames are listed; “st.”
used in copy 2 instead of “street” (as in copy 1);
altered word order in certain sentences; splitting up of a single
long sentence into two sentences; the joining of two separate
sentences as a single sentence; abbreviations written out in full;
dates given in figures rather than in full; time references expressed
in different forms; the correction of typing errors in individuals'
names; a home address has been written in different ways; the
regrouping of paragraphs; etc.
- The
Court considers that these numerous instances of minor changes, while
regrettable, were not sufficient to render the applicants' right of
appeal nugatory. According to the applicants, other discrepancies had
intensified the accusations against them, making the perception of
the judgment by the appeal court more unfavourable, and had rendered
references to pages and lines in their appeals meaningless. However,
a detailed examination of the discrepancies alleged to be significant
indicates that most of the limited number of differences in question
concern the order in which the defendants' names were listed, the use
of different verbal forms (imperfective or perfective aspects,
passive or active voice) or the use of plural rather than singular
nouns (and vice versa). Certain words have been substituted
(taken/undertaken, audio-cassettes/audio-recordings). The other
examples are discussed below. The Court further notes that the
applicants did not give specific examples of the connection between
the discrepancies in the judgments and the points of their appeals.
No tangible argument can be elicited from their submissions as to how
these discrepancies had affected the appeal court's examination of
the case to their detriment.
- Thus,
for example, the applicants pointed out that copy 2 of the judgment
recounted that, according to record no. 1413 concerning a search in a
garage, five million roubles received as a bribe had been found and
seized. In copy 1 of the judgment the same sentence refers to six
million roubles. However, the applicants gave no indication to the
Court as to the precise connection between this piece of evidence and
their conviction, nor as to the impact of this discrepancy on their
appeals. It is unclear why a lesser amount of money being involved,
as indicated in the copy of the judgment examined by the appeal
court, could have led to an assessment less favourable for the
applicants. In another example the applicants complained of a
difference in the spelling of the initials of one of the victims.
However, it is unclear what problem this might have created for the
applicant since in both copies that person is clearly identified with
a reference to his post as a manager of a specific company. In
another instance the applicants complained that copy 2 omitted one
sentence mentioning audiotapes as evidence and individuals whose
speech had been recorded. However, the text below in that copy
contains a detailed description of what was recorded on those
audiotapes, including the names of the relevant persons. Similarly, a
missing paragraph of an article of the Criminal Code, under which,
along with other provisions, the applicant Mr Karyagin had been
convicted, appears further down in the operative provisions of copy 2
of the judgment.
- In
view of the above considerations the Court finds that in the
particular circumstances of the present case the procedural
irregularity concerning the discrepancies between the two copies of
the judgment did not render the applicants' proceedings unfair.
- Therefore,
there has been no violation of Article 6 §§ 1 and 3 of the
Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Holds
that there has been no violation of Article 6 §§ 1 and 3 of
the Convention.
Done in English, and notified in writing on 28 May 2009, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren
Nielsen Christos Rozakis
Registrar President
