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FIRST
SECTION
CASE OF SAMOSHENKOV AND STROKOV v. RUSSIA
(Applications
nos. 21731/03 and 1886/04)
JUDGMENT
STRASBOURG
22
July 2010
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 Samoshenkov and
Strokov v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis,
President,
Anatoly Kovler,
Elisabeth
Steiner,
Dean Spielmann,
Sverre Erik
Jebens,
Giorgio Malinverni,
George Nicolaou,
judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 1 July 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in two applications (nos. 21731/03 and 1886/04)
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 two Russian nationals, Mr
Andrey Petrovich Samoshenkov (“the first applicant”) and
Mr Igor Gennadiyevich Strokov (“the second applicant”),
on 19 May and 10 November 2003.
- The
applicants, who had been granted legal aid, were represented by Mr
P.A. Finogenov, a lawyer with the International Protection Centre, a
Moscow-based human-rights NGO. The Russian Government (“the
Government”) were represented by Mr G. Matyushkin, the
Representative of the Russian Federation at the European Court of
Human Rights.
- On
5 May and 23 June 2008 the President of the First Section decided to
give notice of the applications to the Government. It was also
decided to examine the merits of the applications at the same time as
their admissibility (Article 29 § 1).
- The
Government objected to the joint examination of the admissibility and
merits of the applications. Having considered the Government’s
objection, the Court dismissed it.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1962 and 1967 respectively and are now
serving their sentence in the Chelyabinsk Region.
A. Criminal proceedings against the first applicant
- On 14 January 1995 the first applicant was arrested on
suspicion of murder, an offence punishable with up to fifteen years’
imprisonment or capital punishment. On 28 February 1996 he was
formally charged with murder and on 6 December 1996 committed to
stand trial before the Chelyabinsk Regional Court.
- On 26 February 1997 and 5 February 1999 the Regional
Court returned the case to the prosecutor for additional
investigation.
- On 9 November 2000 the Chelyabinsk Regional Court
convicted the first applicant of inflicting grievous bodily harm and
sentenced him to six years’ imprisonment. However, he was
immediately released on the basis of a general amnesty.
- On 31 October 2001 the Supreme Court of the Russian
Federation quashed the judgment on appeal and ordered a retrial by a
different bench.
- The new trial opened on 6 December 2001. Owing to the
absence of co-defendants, the hearing was first adjourned until 29
December 2001 and then again until 11 February 2002. The first
applicant failed to appear at that hearing and on 20 February 2002
the Regional Court issued a search warrant and severed his case from
the proceedings against the other defendants.
- On 25 April 2002 the first applicant was arrested and
remanded in custody. The trial resumed on 22 August 2002.
- On 19 September 2002 the Chelyabinsk Regional Court
convicted the first applicant of aggravated murder and sentenced him
to eleven years’ imprisonment.
- Counsel for the first applicant filed a statement of
appeal.
- On 27 December 2002 the Supreme Court upheld the
judgment on appeal. The hearing was conducted by means of a videolink
connecting the courtroom with the remand prison where the first
applicant was held. Counsel for the first applicant was not invited
to take part in the appellate proceedings.
- On 10 September 2007 the first applicant sent an
application for supervisory review to the President of the Supreme
Court of the Russian Federation, complaining that he had not been
represented in the appellate proceedings. It appears that the
institution of supervisory review proceedings was refused.
B. Criminal proceedings against both applicants
- In
2002 both applicants were charged with beating a Mr O., and
fraudulently gaining possession of his car.
- On
16 August 2002 the second applicant was remanded in custody for an
initial two-month detention period.
- On
10 October 2002 the first applicant and his counsel asked the
investigator, among other matters, to secure the attendance of the
witnesses Ms E., Mr B., Mr U., as well as unnamed garage employees
and others, at the trial. On the following day the investigator
acceded to that request and directed that the witnesses be included
in the witness list accompanying the charge sheet.
- The
case was sent for trial to the Miass Town Court of the Chelyabinsk
Region on 17 October 2002.
- On
6 November 2002 the Town Court returned the case-file to the
prosecutor on the ground that the charge sheet had not been properly
served on the defendants.
- On
25 February 2003 the Town Court held a preliminary hearing. The court
rejected the first applicant’s request to call further
witnesses, other than those already listed on the charge sheet. The
applicants did not appeal against the decision.
- On
11 March 2003 the Town Court noted that the witnesses had not
appeared but decided to proceed with the trial. It heard the parties’
views on the order of oral argument and examined the victim Mr O.
- On
7 April 2003 the Town Court issued an order requiring the witness Ms
E. and others to attend. On 7 and 21 April 2003 a bailiff filed two
reports, stating that he would be unable to bring the witnesses to
the court because he did not have enough money to travel to their
places of residence.
- On
17 April 2003 the witness Mr B. sent a telegram to the Town Court
informing it that he would not be able to attend because of financial
constraints. On the following day the nurse of a child of the witness
Mr U. contacted the court by telephone and said that Mr U. had been
away for professional reasons.
- On
22 April 2003 the Town Court, among other procedural matters,
rejected the first applicant’s request for examination of Mr U.
before the court.
- On
15 May 2003 the Town Court examined the prosecutor’s
application for a further extension of the applicant’s
detention. It noted that the authorised period of detention had
expired on 17 April 2003 and held that it should be extended for a
further three months, until 17 July 2003.
- During
the trial the Town Court overruled the applicants’ objection to
the reading-out of Ms E.’s written statement made at the stage
of the preliminary investigation and authorised the prosecutor to use
this piece of evidence. Subsequently, the court rejected the
applicants’ second request to obtain the attendance and
examination of Ms E.
- On
25 June 2003 the Town Court rejected the applicants’ request
for examination of the investigators Ms K. and Ms P. and the expert
witness Mr Ku. It noted that the investigator Ms P. had already
been examined in court, that the investigator Ms K. had not taken
part in the investigating of the criminal case, and that the expert
Mr Ku. had not been required to give his opinion on the origin of the
victim’s injuries. The applicants did not appeal against the
decision.
- On
1 July 2003 the Miass Town Court delivered its judgment. It found
that, driven by personal enmity against the victim Mr O., the
applicants had beaten him and had also forced him to hand over the
keys and registration papers for his Mercedes car. The court did not
accept the applicants’ defence that the first applicant had
legitimately purchased the car from Mr O. In finding the applicants
guilty of robbery, the court referred to the following evidence:
The testimony by the
victim, Mr O., who related to the court that on 5 October 2001
he had gone to an office in Miass for business negotiations
concerning a failure to make payment for a shipment of metal
belonging to his uncle Mr St. He had been surprised to see in the
office both applicants, whom he had not previously known. They had
shouted at him and the first applicant had broken a leg off a chair
and attempted to hit him with it. They demanded that he give them
keys and registration papers for his Mercedes car. When he refused,
they had punched and kicked him and also hit him on his head with
the chair leg. Subsequently Mr O. had been told by a middleman that
he was to pay 1,000 United States dollars “to settle the
problem” and also transfer the registration of his Mercedes
car to the first applicant, which he did on 12 October 2001 at
the traffic police department of Magnitogorsk.
The testimony by Mr
St. who had gone to the meeting together with Ms E. and his nephew
Mr O. He had seen both applicants shout at Mr O. and wield the
chair leg. He had not seen what had happened thereafter because the
first applicant had told him to go outside. Later, he had seen Mr O.
with his face covered in blood and the first applicant driving
Mr O.’s car.
The pre-trial
statement by Ms E. who had gone to the meeting together with Mr St.
and had seen both applicants in the office. Although she had
remained outside, she had seen through the window that the first
applicant had been beating Mr O. with some kind of a wooden stick,
and that Mr O. was covered in blood and swollen when leaving the
office.
The pre-trial
statement by Mr B. who had seen the applicants in the office. He had
gone away on a personal errand for some fifteen minutes and upon his
return he had seen Mr O. with a wound on his head and bloodstains on
his jacket.
The testimony of Ms
M. who had not been present in the office but who had seen Mr O.
covered in blood.
The testimony of Mr
and Ms V., who had been around the office but had not seen anyone
beat Mr O.
The testimony of Mr
U., a former traffic-police officer in Magnitogorsk, who said that
it might be possible that he had registered the transfer of
ownership of the Mercedes car but he could not remember it clearly.
The testimony by the
former police officer Mr F. and investigator Ms P., who had detained
and interviewed the first applicant in April or May 2002.
Documents concerning
the financial transaction which had been the source of conflict, and
the Mercedes car.
Forensic reports
showing that Mr O. had injuries from being struck with a blunt
object that may have been caused in October 2001, and that Mr O.
was a person of sound mind.
- The
Town Court sentenced the first applicant to eight years’
imprisonment and the second applicant to three years’
imprisonment. The applicants and their counsel appealed against the
conviction.
- The
first applicant, among other matters, specifically complained about
the trial court’s failure to examine the witness Ms E. and the
reading-out of her written statement.
- The
second applicant complained, in particular, that the trial court had
not taken measures to obtain the attendance of the defaulting
witnesses Ms E. and Mr B. and had read out their written statements
despite the objections by the defence. He maintained that the trial
court had unlawfully decided to examine the witnesses for the defence
before those for the prosecution. Finally, he submitted that his
detention from 17 April to 15 May 2003 had been unlawful.
- On
4 September 2003 the Chelyabinsk Regional Court upheld the conviction
on appeal. As regards the applicants’ specific grievances, it
found as follows:
“The convicts’ argument that the trial court
did not take measures for summoning the witnesses is unfounded
because the case-file contains several court orders requiring the
witnesses to attend, which shows that the court complied with the
requirements of the criminal-procedure law.
The convicts’ argument that the trial court
breached the order of examination of evidence is unfounded because
the trial record shows that the decision on the order of examination
of evidence was made upon consultation with the parties and that the
witnesses were examined in the order of their appearance before the
trial court.
...
The convicts’ argument that there was no reason to
read out the written statement by the witness Ms E. is unfounded
because the grounds and procedure for making such a decision are
compatible with Article 281 of the Code of Criminal Procedure.
The convict Strokov’s argument that he was
unlawfully detained from 17 April to 15 May 2003 is unfounded because
this period, like all other detention periods, was credited towards
the sentence imposed on him.”
II. RELEVANT DOMESTIC LAW
A. Custody matters
- The Russian Constitution establishes that a judicial
decision is required before a defendant can be detained or his or her
detention extended (Article 22).
- The Code of Criminal Procedure (“CCrP”)
provides that the term of detention “during the trial” is
calculated from the date the court received the file and to the date
the judgment is given. The period of detention “during the
trial” may not normally exceed six months, but if the case
concerns serious or particularly serious criminal offences, the trial
court may approve one or more extensions of no longer than three
months each (Article 255 §§ 2 and 3 of the CCrP).
B. Legal representation in the appellate proceedings
- Article 51 of the CCrP provides for mandatory legal
representation if the accused faces serious charges carrying a term
of imprisonment exceeding fifteen years, life imprisonment or the
death penalty. Unless counsel is retained by the accused, it is the
responsibility of the investigator, prosecutor or the court to
appoint legal-aid counsel.
- The Constitutional Court, in its decision of 18
December 2003, confirmed the applicability of the requirements of
Article 51 of the CCrP to the appellate proceedings.
THE LAW
I. JOINDER OF THE APPLICATIONS
- Having regard to the fact that the applicants were
co-defendants in the same criminal proceedings, the Court decides to
join their applications, in accordance with Rule 42 § 1 of
the Rules of Court.
II. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
- The
first applicant complained under Article 5 of the Convention that his
pre-trial detention from 14 January 1995 to 9 November 2000 and from
25 April to 19 September 2002 had been excessively long and
procedurally defective. The second applicant complained that his
detention from 17 April to 15 May 2003 had been unlawful. The
relevant parts of Article 5 read 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:
...
(c) the lawful arrest or detention of a
person effected for the purpose of bringing him before the competent
legal authority on reasonable suspicion of having committed an
offence or when it is reasonably considered necessary to prevent his
committing an offence or fleeing after having done so...”
A. Admissibility
1. Complaints by the first applicant
- The
Court observes that the first applicant’s pre-trial detention,
in so far as it falls under the Court’s jurisdiction ratione
temporis, ended on 19 September 2002 when he was convicted
by the Chelyabinsk Regional Court. However, he lodged his application
only on 19 May 2003, that is more than six months later. It follows
that this complaint has been introduced out of time and must be
rejected in accordance with Article 35 §§ 1 and 4
of the Convention.
2. Complaint by the second applicant
- The
Government submitted that the second applicant had not made use of
domestic remedies in connection with his complaint about the
unlawfulness of his detention in the period from 17 April to 15 May
2003.
- The
Court observes that the Government did not identify a specific remedy
of which the second applicant should have made use. In these
circumstances, the Government’s objection must be dismissed.
- The
Court further notes that the complaint is not inadmissible on any
other grounds. It must therefore be declared admissible.
B. Merits
- The
second applicant submitted that from 17 April to 15 May 2003 he had
been held in custody without judicial authorisation. This was evident
from the text of the Town Court’s decision which spoke of the
six-month detention period that had expired on 17 April 2003. The
Town Court had accepted the prosecutor’s application for a
three-month extension and granted such extension until 17 July 2003,
which further corroborated the claim that the previously authorised
detention period had expired on 17 April 2003. However, ex
post facto authorisation of detention was not permitted by
Russian law and was incompatible with the “right to security of
person” under Article 5 of the Convention.
- The
Government emphasised that the second applicant had been held in
custody on the basis of judicial decisions and in full compliance
with the criminal-procedure rules.
- The
Court reiterates that the expressions “lawful” and “in
accordance with a procedure prescribed by law” in Article 5 §
1 essentially refer back to national law and state the obligation to
conform to the substantive and procedural rules thereof. However, the
“lawfulness” of detention under domestic law is not
always the decisive element. The Court must in addition be satisfied
that detention during the period under consideration was compatible
with the purpose of Article 5 § 1 of the Convention, which is to
prevent persons from being deprived of their liberty in an arbitrary
fashion (see, among many other authorities, Khudoyorov v. Russia,
no. 6847/02, § 124, ECHR 2005 X (extracts)).
- The
Russian Constitution required that any period of detention be covered
by a judicial authorisation. The Code of Criminal Procedure specified
that the initial period of detention after a case was sent for trial
may not exceed six months, with the possibility of an extension for a
further three months (see paragraph 35 above).
- On
the facts, the Court observes that the case against the second
applicant was sent for trial on 17 October 2002 and the
authorised detention period expired six months later, that is on
17 April 2003. Since the second applicant was charged with a
serious criminal offence, Article 255 of the Code of Criminal
Procedure permitted the trial court to approve one or more extensions
of his detention of no longer than three months each. However, no
such extension was sought by the prosecutor or approved by the trial
court before the expiry of the authorised detention period on 17
April 2003 or immediately thereafter. As it happened, a further
extension was granted by the Miass Town Court only twenty-eight days
later, on 15 May 2003. It follows that the applicant’s
detention in the intervening period, that is from 17 April to 15 May
2003, was not covered with any detention order, a situation that was
incompatible with the Russian Constitution, the Code of Criminal
Procedure and the requirements of Article 5 § 1 of the
Convention.
- Even though the Town Court’s decision of 15 May
2003 purported to cover the three-month period starting from 17 April
2003 and ending on 17 July 2003, it could not have constituted a
“lawful” basis for the second applicant’s detention
in the period preceding the date of its issue. The Russian
Constitutional Court emphasised that Russian law did not contain “any
provisions permitting the court to take a decision extending the
defendant’s detention on remand [some time] after the
previously authorised time-limit ha[d] expired, in which case the
person [would be] detained for a period without a judicial decision”
(as cited in the Khudoyorov judgment, § 56). As the
Court has already found in many similar cases, any ex post facto
authorisation of detention is incompatible with the “right to
security of person”, as it is necessarily tainted with
arbitrariness (see Lamazhyk v. Russia, no. 20571/04, §
70, 30 July 2009; Moskovets v. Russia, no. 14370/03,
§ 64, 23 April 2009; Belov v. Russia, no.
22053/02, § 81, 3 July 2008; Shukhardin v. Russia,
no. 65734/01, § 69, 28 June 2007; Solovyev
v. Russia, no. 2708/02, § 99, 24 May 2007; and
Khudoyorov, cited above, § 142).
- There
has therefore been a violation of Article 5 § 1 of the
Convention on account of the second applicant’s unlawful
detention from 17 April to 15 May 2003.
III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION ON ACCOUNT OF THE EXCESSIVE LENGTH OF THE FIRST SET OF
CRIMINAL PROCEEDINGS
- The
first applicant complained under Article 6 § 1 of the Convention
that the first set of criminal proceedings against him had been
excessively long. The relevant parts of Article 6 read as follows:
“In the determination of ... any criminal charge
against him, everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal ...”
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other ground. It must
therefore be declared admissible.
B. Merits
1. Period to be considered
- The
Court notes that the first applicant was arrested on 14 January 1995.
However, the period to be taken into consideration for the purposes
of the present case began only on 5 May 1998, when the Convention
entered into force in respect of Russia. In assessing the
reasonableness of the time that elapsed after that date, account must
nevertheless be taken of the state of the proceedings at that time.
The period in question ended on 27 December 2002, when the
Supreme Court upheld the first applicant’s conviction on
appeal. It had lasted, accordingly, a total of seven years eleven
months and thirteen days, of which four years and almost eight months
fall within the Court’s jurisdiction. During that period the
charges against the first applicant were examined twice at two levels
of jurisdiction.
2. Reasonableness of the length of proceedings
- The
Government claimed that the overall length of the proceedings had
been reasonable. It was accounted for by the complexity of the
investigative measures, the large number of defendants, and the
length of the period during which the defendants had studied the case
file. The delays had been caused mainly by the first applicant
himself, who had defaulted on several occasions.
- The
first applicant pointed out that the delay attributable to his
conduct had been negligible: following his absence at the hearing on
11 February 2002, he had been arrested just two months later, on
25 April 2002. On the other hand, the aggregate delay of
approximately seven months resulted from the decisions to return the
case for additional investigation and was attributable to the
authorities. The almost one-year period of inactivity before the
appeal hearing on 31 October 2001 was also due to the conduct of the
Russian judicial authorities. Finally, the first applicant emphasised
that he had been held in custody for six years and four months and
that this called for particular expedition in the proceedings.
- The
Court accepts that the case at issue was one of a certain complexity
since it involved a series of criminal offences allegedly committed
by several co-defendants. Nevertheless, in the Court’s view,
the complexity of the case, taken on its own, cannot justify the
overall length of the proceedings.
- With
regard to the first applicant’s conduct, the Court notes that
his failure to appear at the hearing of 11 February 2002 led to a
delay of approximately two and a half months, until he was
apprehended in April 2002. It does not appear that the first
applicant caused any other appreciable delays in the proceedings.
- As
to the conduct of the domestic authorities, it is observed that the
case was twice returned to the investigator because of procedural and
substantive lacunae in the initial investigation. As a result, more
than five years had elapsed before the first conviction was
pronounced, and two and a half of those years fall within the Court’s
jurisdiction ratione temporis. Following that conviction, it
took the Supreme Court almost one year to fix the date for the appeal
hearing. Furthermore, after the first applicant had been apprehended
in April 2002 and although the case against him had already been
severed in February 2002, the Regional Court began the trial only in
August 2002, that is approximately four months later.
- Lastly,
the Court observes that more than three years of the first
applicant’s detention extended into the post-ratification
period, and that that fact required particular diligence on the part
of the domestic courts to ensure that justice be administered
expeditiously (see Kalashnikov v. Russia, no. 47095/99,
§ 132, ECHR 2002-VI).
- In
the light of the criteria laid down in its case-law and having regard
to all the circumstances of the case, the Court considers that in the
instant case the length of the criminal proceedings against the first
applicant leading up to his conviction of aggravated murder was
excessive and failed to meet the “reasonable time”
requirement. There has accordingly been a breach of Article 6 §
1 on that account.
IV. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3
(c) OF THE CONVENTION IN THE CRIMINAL PROCEEDINGS AGAINST THE FIRST
APPLICANT ALONE
- The
first applicant complained under Article 6 §§ 1 and 3 (c)
about a violation of his right to a fair trial, in the proceedings
leading up to his conviction of aggravated murder, because his
counsel had not been afforded an opportunity to take part in the
appellate proceedings before the Supreme Court of the Russian
Federation on 27 December 2002. The relevant parts of Article 6 read
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:
...
(c) to defend himself in person or through
legal assistance of his own choosing or, if he has not sufficient
means to pay for legal assistance, to be given it free when the
interests of justice so require.”
A. Admissibility
- The
Government submitted that, after the Constitutional Court had
confirmed the applicability of the right to legal assistance in the
appellate proceedings in its decision of 18 December 2003 (see
paragraph 37 above), Russian courts began instituting
supervisory-review proceedings with a view to remedying the convicted
person’s right to legal representation in the appellate
proceedings in cases where such representation had been mandatory in
accordance with Article 51 of the CCrP (see paragraph 36 above).
Accordingly, an application for supervisory review would have been an
effective domestic remedy in the first applicant’s case.
- The
first applicant replied that in 2007 he had already asked the
President of the Supreme Court to institute supervisory-review
proceedings on the same ground, but his application had been
rejected.
- The Court has found in a number
of cases against Russia that supervisory-review proceedings are not
an effective remedy for the purposes of Article 35 § 1 of the
Convention (see Berdzenishvili v.
Russia (dec.), no. 1697/03, 29
January 2004; and, more recently, Sutyagin
v. Russia (dec.), no. 30024/02, 8
July 2008). Moreover, as matters transpired, in the instant case the
first applicant did make use of the remedy suggested by the
Government but his request was rejected. Finally, the Court notes
that the Government did not produce any evidence confirming the
existence of an automatic review of final convictions in cases where
legal assistance was denied to defendants at the appeal stage.
Accordingly, the Court rejects the Government’s objection.
- The
Court further notes that this complaint is not manifestly ill founded
within the meaning of Article 35 § 3 of the Convention and that
it is not inadmissible on any other grounds. It must therefore be
declared admissible.
B. Merits
- The
Government stated that counsel for the first applicant had not
applied to participate in the appellate proceedings. The arguments
she had put forward in the statement of appeal had been properly
reviewed and assessed by the Supreme Court.
- The
applicant maintained that, having regard to the gravity of the
charges, the severity of the sentence and his lack of legal
expertise, he should have had legal representation at the appeal
stage if the proceedings were to be considered fair.
- The
Court observes that the first applicant stood trial on the charge of
murder, an offence punishable with up to fifteen years’
imprisonment or capital punishment. Article 51 of the Code of
Criminal Procedure imposed mandatory legal representation of
defendants who faced criminal charges of that gravity (see paragraph
36 above). As it happened, the first applicant was not represented in
the appellate proceedings before the Supreme Court, which were
conducted by videolink with the remand prison, and his counsel had
not been invited to take part in those proceedings.
- The
Court has already examined several similar cases against Russia in
which applicants had not been represented during the appeal
proceedings in a criminal case. Taking into account three factors –
(a) the fact that the jurisdiction of appeal courts in Russia
extended to both legal and factual issues and that they were thus
empowered to fully review the case and to consider additional
arguments which had not been examined in the first-instance
proceedings, (b) the seriousness of the charges against the applicant
and (c) the severity of the sentence which he had faced – the
Court considered that the interests of justice demanded that, in
order to receive a fair hearing, the applicant should have had legal
representation at the appeal hearing. The Court therefore found a
violation of Article 6 § 1 in conjunction with Article
6 § 3 (c) of the Convention (see Shilbergs
v. Russia, no. 20075/03, § 123, 17 December 2009;
Potapov v. Russia, no. 14934/03, § 24, 16 July
2009; and Shulepov v. Russia, no. 15435/03, §§ 34-39,
26 June 2008). Those elements were present in the instant case and
the Government did not furnish any arguments that would have allowed
the Court to reach a different conclusion.
- Moreover, the Court reiterates that the exercise of
the right to legal assistance takes on particular significance where
the applicant communicates with the courtroom by videolink (see
Golubev v. Russia (dec.), no. 26260/02, 9 November
2006, and Shulepov, cited above, § 35). In the present
case, the appeal hearing was conducted by videolink which was yet
another factor that should have prompted the appeal court to verify
the reasons for the absence of defence counsel for the first
applicant (compare Grigoryevskikh v. Russia, no. 22/03,
§ 92, 9 April 2009).
- In
view of the Supreme Court’s failure to do so in the present
case, the Court concludes that there has been a violation of Article
6 §§ 1 and 3 (c) of the Convention.
V. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 (d)
OF THE CONVENTION IN THE PROCEEDINGS CONCERNING BOTH APPLICANTS
- The
applicants further complained under Article 6 § 3 (d) that the
trial court, in the proceedings concerning the charge of robbery, had
not secured the attendance and examination of the witnesses Ms E., Mr
B. and Mr U., garage employees, the investigators Ms K. and Ms P.,
or the forensic expert Mr Ku. As the requirements of Article 6 §
3 are to be seen as particular aspects of the right to a fair trial
guaranteed by Article 6 § 1, the Court will examine the
applicants’ complaints under those two provisions taken
together (see, among many other authorities, Van Mechelen and
Others v. the Netherlands, 23 April 1997, § 49,
Reports of Judgments and Decisions 1997-III). Article 6 §
3 (d) reads as follows:
“3. Everyone charged with a criminal
offence has the following minimum rights:
...
(d) to examine or have examined witnesses
against him and to obtain the attendance and examination of witnesses
on his behalf under the same conditions as witnesses against him.”
- The
Government submitted that the domestic authorities had repeatedly
attempted to obtain the attendance of witnesses Ms E. and B. However,
Ms E. had been away on a business trip and Mr B. had not been able to
travel for financial reasons. The reading-out of their statements had
been authorised in compliance with the domestic law and had not
impaired the applicants’ rights. They further indicated that
the investigator Ms P. had been examined in open court. Finally, the
examination of the investigator Ms K. and the forensic expert Mr Ku.
had not been necessary: Ms K. had taken part only in the initial
verification of materials prior to the institution of the criminal
proceedings, and Mr Ku. had recorded the origin of the victim’s
injuries on the basis of the victim’s own statements.
- The
applicants submitted that they had repeatedly requested that the
witnesses be examined in open court. An examination of Ms E. and Mr
B. would have provided important evidence with a view to establishing
whether they had coerced the victim into transferring the ownership
of his car by force, or by threatening him with a weapon, and why the
victim had waited for so long after the events before going to the
police. The domestic authorities had not deployed sufficient efforts
to obtain the attendance of witnesses. The insufficient funding of
court bailiffs, preventing them from travelling to the witnesses’
places of residence, did not release the authorities from the
obligation to secure the applicants’ right to a fair trial.
- The
Court reiterates its constant case-law that evidence must normally be
produced at a public hearing, in the presence of the accused, with a
view to adversarial argument. Although it may prove necessary in
certain circumstances to refer to statements made during the
investigative stage, the defendant should be given an adequate and
proper opportunity to challenge such statements, for their admission
in evidence to be compatible with Article 6 §§ 1 and 3 (d).
The corollary of that, however, is that where a conviction is based
solely or to a decisive degree on statements that have been made by a
person whom the accused has had no opportunity to examine or to have
examined, whether during the investigation or at the trial, the
rights of the defence are restricted to an extent that is
incompatible with the guarantees provided by Article 6 (see, most
recently, Makeyev v. Russia, no. 13769/04, §§
34-35, 5 February 2009, and, as a leading authority, Lucà
v. Italy, no. 33354/96, § 40, ECHR 2001-II).
- The
applicants had to answer the charge of physically assaulting the
victim Mr O. and forcing him to hand his car over to them. The
beating had allegedly happened during a business meeting in an office
in Miass in October 2001. Many people had attended the meeting but
nearly all of them had been ordered to vacate the premises by the
first applicant and had not seen what had been happening inside.
However, Mr St. testified in open court that even before he left he
had seen both applicants shout at the victim Mr O. and the first
applicant brandish the chair leg. Ms E. – whose attendance in
court was not secured – had stated in her pre-trial statement
that she had remained outside but had seen through the window as the
first applicant was administering blows to Mr O. with some kind of
wooden stick. Some time later, as Mr O. was leaving the office,
several eyewitnesses – who testified in court – had seen
bloodstains on his head and clothing. In the circumstances where Mr
O. had entered the office in good health, had remained there in the
company of the applicants who had been seen shouting at him and
brandishing objects, and had later emerged from the office covered in
blood, the Court is unable to find that the statements by Ms E. and
her description of what she had seen through the window played a
crucial role for establishing the fact that Mr O.’s injuries
had been caused by the applicants. Likewise, the statement by Mr B.,
who had been away from the scene for a quarter of an hour, merely
corroborated the other testimony and did not contain any new relevant
elements. Accordingly, the Court considers that their statements were
not of decisive importance for the applicants’ conviction
(compare Makeyev, cited above, § 40).
- It
is further noted that, contrary to the applicants’ submissions,
the former traffic-police officer Mr U. did actually appear before
the trial court. In any event, he did not clearly remember the
registration of the transfer of ownership of Mr O.’s car and
could not confirm or disprove the applicants’ claim that it had
been a bona fide transaction.
- The
investigator Ms P. had been interviewed at the trial and the
applicants did not explain what evidence could have been obtained in
the event of her repeated appearance. It was noted by the trial court
and by the Government and not contested by the applicants that the
investigator Ms K. had not taken any meaningful part in their case
and that the forensic expert Mr Ku. had only described the extent of
the victim’s injuries rather than making any findings as to
their origin. Finally, the applicants never identified the garage
employees whose attendance they sought to obtain, by name or
otherwise.
- The
Court concludes from the above that the alleged inability to question
the witnesses Mr B., Ms E., Ms K. or Mr Ku. did not deprive the
applicants of a fair trial, as the way in which evidence was dealt
with, taken as a whole, was fair. It follows that this part of the
application must be rejected as being manifestly ill-founded,
pursuant to Article 35 §§ 3 and 4 of the Convention.
VI. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
Court has examined the remainder of the applicants’ complaints
as submitted by them. However, having regard to all the material in
its possession, it finds that these complaints do not disclose any
appearance of a violation of the rights and freedoms set out in the
Convention or its Protocols. It follows that this part of the
application must be rejected as being manifestly ill-founded,
pursuant to Article 35 §§ 3 and 4 of the Convention.
VII. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
first applicant claimed 163,352.02 Russian roubles (RUB) in respect
of pecuniary damage, representing the value of the Mercedes car that
had been kept by the authorities as real evidence throughout the
trial. The applicants also claimed RUB 2,145,396 and RUB 1,560,288 in
respect of non-pecuniary damage.
- The
Government submitted that the claims had been excessive.
- The
Court notes that the issue of the alleged damage to the first
applicant’s car was not subject to its examination in this
case. Accordingly, it rejects his claim in respect of pecuniary
damage.
- The
Court further considers that the applicants’ claims in respect
of non-pecuniary damage are excessive. Making its assessment on an
equitable basis, it awards the first applicant EUR 2,400 and the
second applicant EUR 9,000 under this head, plus any tax that
may be chargeable.
B. Costs and expenses
- The
applicants did not file a claim for costs or expenses. Accordingly,
there is no call to make an award under this head.
C. Default interest
- The Court considers it appropriate that the default
interest should be based on the marginal lending rate of the European
Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Decides to join the applications;
- Declares admissible the second applicant’s
complaint concerning his allegedly unlawful detention from 17 April
to 15 May 2003 and the first applicant’s complaints about the
allegedly excessive length of proceedings and the lack of legal
representation in the appellate proceedings, and the remainder of the
applications inadmissible;
- Holds that there has been a violation of Article
5 § 1 of the Convention on account of the second applicant’s
unlawful detention from 17 April to 15 May 2003;
- Holds that there has been a violation of Article
6 § 1 of the Convention on account of the excessive length of
criminal proceedings against the first applicant;
- Holds that there has been a violation of Article
6 §§ 1 and 3 (c) of the Convention on account of the lack
of legal representation of the first applicant in the appellate
proceedings;
- Holds
(a) that
the respondent State is to pay, within three months from the date on
which the judgment becomes final in accordance with Article 44 § 2
of the Convention, EUR 2,400 (two thousand four hundred euros) to the
first applicant and EUR 9,000 (nine thousand euros) to the second
applicant, plus any tax that may be chargeable, in respect of
non-pecuniary damage, to be converted into Russian roubles at the
rate applicable at the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicants’
claim for just satisfaction.
Done in English, and notified in writing on 22 July 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
