BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
FIRST
SECTION
CASE OF KARASEV v. RUSSIA
(Application
no. 35677/05)
JUDGMENT
STRASBOURG
21 October
2010
This
judgment is final but it may be subject to editorial revision.
In the case of Karasev v. Russia,
The
European Court of Human Rights (First Section), sitting as a
Committee composed of:
Nina Vajić,
President,
Anatoly Kovler,
Khanlar Hajiyev,
judges,
and André Wampach,
Deputy Section Registrar,
Having
deliberated in private on 30 September 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 35677/05) 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 Vladimir Vasilyevich
Karasev (“the applicant”), on 18 August 2005.
- The
applicant was represented by Mr A.A. Zabusov, a lawyer practising in
Pervomaiskiy of the Tambov Region. The Russian Government (“the
Government”) were represented by Mr G. Matyushkin,
Representative of the Russian Federation at the European Court of
Human Rights.
- On
23 September 2009 the President of the First Section decided to give
notice of the application to the Government. In accordance with
Protocol No. 14, the application was allocated to a Committee. It was
also decided that the Committee would rule on the admissibility and
merits of the application at the same time (Article 29 § 1 of
the Convention).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1958 and lives in Ryazan.
- On
29 March 2000 the applicant and two other individuals were detained
on suspicion of having committed an assault and infliction of grave
bodily harm resulting in death. The applicant’s challenge of
the custodial measure of restraint was rejected on 11 August 2000.
- On
8 September 2000 the preliminary investigation was completed. The
applicant did not study the case materials as his legal counsel were
unable to assist him at the time due to illness and involvement in
different proceedings.
- On
29 September 2000 the applicant signed the undertaking not to leave
the town and was released. He and his counsel did not appear at the
investigator’s summons to study the case materials.
- From
12 October to 13 November 2000 the applicant stayed in hospital.
Following his and his counsel’s repeated failure to familiarise
themselves with the case materials, the investigator set the deadline
at 25 April 2001.
- On
3 May 2001 after finalising the bill of indictment the prosecutor
decided again to place the applicant in detention, which was
subsequently extended by the court on several occasions and upheld by
decisions of 27 February 2003, 4 December 2003, 24 February
2004, 10 June 2004 and 12 August 2004 of the Ryazan Regional Court
(“the Regional Court”).
- The
Ryazhskiy District Court of the Ryazan Region received the
applicant’s case for examination on 8 May 2001. By decision of
22 May 2001 the court adjourned the proceedings due to the
applicant’s illness.
- The
next hearing scheduled for 2 July 2001 did not take place due to the
counsels’ failure to appear.
- At
the hearing of 17 July 2001 the applicant requested that he be given
one month to study the case-file but could not do so as both of his
counsel were on vacation. On 28 September 2001 the court limited the
time granted to the applicant to study the case-file by 1 November
2001.
- The
next hearing scheduled for 20 November 2001 did not take place due to
the judge’s illness.
- On
8 January 2002 president of the Ryazhskiy District Court requested
that president of the Regional Court assign the applicant’s
case to a different trial court due to the fact that the judge who
was considering it was ill and the other judges had already taken
part in the proceedings in some form and could not examine the case.
On 22 January 2002 the applicant’s case was transferred to the
Ukholovskiy District Court of the Ryazan Region (“the District
Court”).
- At
the next hearing scheduled for 27 February 2002 the court granted the
defence’s request for an outpatient psychiatric examination and
a graphologic examination.
- On
20 June 2002 the court commissioned an inpatient psychiatric
examination which was held on 2 December 2002. The applicant did not
object to the composition of the trial court and did not challenge
the judges.
- Between
14 January 2003 and 14 September 2004 twenty two scheduled hearings
did not take place due to the counsels’ failure to appear; on
twenty occasions it was the default of the applicant’s counsel.
Following the applicant’s refusal to continue examination of
the case in his counsel’s absence, on several occasions
president of the District Court requested replacement of the counsels
at the Tambov and Ryazan regional bars as well as the Ryazan Region
Lawyers’ Council. It is not clear whether or when this measure
became successful.
- On
21 September 2004, in presence of the applicant’s legal
counsel, the District Court convicted the applicant as charged and
sentenced him to 13 years’ imprisonment. It also granted the
civil suit again him.
- In
his grounds of appeal the applicant challenged the bench which had
delivered the conviction alleging defects in the appointment of the
lay judges.
- On
24 February 2005 the Regional Court upheld the judgment on appeal. It
also found that the trial court had been composed in accordance with
the law and that the applicant had failed to challenge the bench
during the trial.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- Article
50.3 of the Russian Code of Criminal Procedure of 2001 provides that
in the event of a counsel’s failure to appear during 5 days
after a motion for legal assistance, the court may invite the accused
to retain a different counsel or assign a legal-aid lawyer.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the criminal proceedings
against him had been incompatible with the “reasonable time”
requirement as provided in Article 6 § 1 of the Convention, the
relevant part of which reads 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
Government argued that this complaint was manifestly ill founded
and should be rejected in accordance with Article 35 § 3 of the
Convention.
- The
Court notes that this complaint does not appear to be manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
- The
Government stated that the length of the criminal proceedings had
been justified to some extent by the objective need to conduct
several expert examinations. They also contended that the most
serious delays had occurred through the fault of the applicant’s
legal counsel and not the authorities.
- The
applicant retorted that the trial court had delayed the proceedings
by first commissioning an outpatient psychiatric examination and only
then ordering an inpatient one. He also referred to Article 50.3 of
the Code of Criminal Procedure arguing that the court should have
appointed a legal aid lawyer on account of his privately retained
counsels’ failure to appear.
- The
Court observes that the criminal proceedings against the applicant
had commenced on 29 March 2000 and ended on 24 February 2005, in
which period the case was considered at two levels of jurisdiction.
The aggregate length of the proceedings amounts accordingly to four
years and eleven months.
- The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the following criteria: the complexity of the case,
the applicant’s conduct and the conduct of the competent
authorities (see, among many other authorities, Pélissier
and Sassi v. France [GC], no. 25444/94, § 67, ECHR
1999-II).
- The
Court considers that the case had been relatively simple having
involved one incident and only two hearings on the merits.
- Regarding
the applicant’s conduct, the Court observes that the
applicant’s illnesses as well as his lengthy unexplained
failure to familiarise himself with the case materials delayed the
proceedings approximately for one year.
- As
to the authorities’ behaviour, the Court is mindful that some
of the delay had been the result of the judges’ illnesses and
protracted expert examinations. However, it is particularly struck by
the fact that during one year and eight months of the
privately-retained counsel’s default in appearance, the trial
court had failed to take advantage of the powers bestowed on it by
law and invite the applicant to retain a different counsel or to
assign a legal-aid lawyer in accordance with the domestic legal
provisions (see paragraph 21 above). The applicant’s possible
lack of activity in the circumstances of detention did not ‘absolve
the court from ensuring compliance with the requirements of Article 6
concerning reasonable time’ (see, mutatis mutandis,
Unión Alimentaria Sanders S.A. v. Spain, 7 July
1989, § 35, Series A no. 157). The Court concludes that the
overall delay attributable to the authorities amounts approximately
to two years and nine months. Regard being had to the fact that the
applicant remained detained for all but eight months of the
proceedings, it finds such inactivity unacceptable and leading to a
breach of the “reasonable time” requirement of Article 6.
- The
foregoing considerations are sufficient to enable the Court to
conclude that there has been a violation of Article 6 § 1 of the
Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant also complained under Article 5 of the Convention that his
pre-trial detention had been unlawful and too long and under
Article 6 § 1 of the Convention that the trial court that
had convicted him had not been composed in accordance with law.
- Regarding
the complaint under Article 5, the Court observes that it was lodged
out of time as the applicant’s pre-trial detention ended on
21 September 2004 when the trial court determined the charges
against him (see Daktaras v. Lithuania (dec.), no. 42095/98,
11 January 2000). It should therefore be rejected in accordance with
Article 35 § 1 of the Convention.
- As
to the complaint under Article 6 § 1 of unlawful composition of
the trial court, nothing in the case file indicates that the
applicant’s allegations have any merit to it. The complaint
should be rejected in accordance with Article 35 §§ 3 and 4
of the Convention.
III. 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
applicant claimed 1,000,000 Russian roubles (app. 25,000 euros (EUR))
in respect of non-pecuniary damage.
- The
Government disputed the claim as excessive and unfounded and argued
that in the case of finding of a violation, it in itself would
constitute adequate just satisfaction.
- Taking
into account the applicant’s partial contribution to the delay
(see paras. 7 and 8 above) and deciding on an equitable basis, the
Court awards the applicant EUR 1,700 in respect of non-pecuniary
damage.
B. 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
- Declares the complaint concerning excessive
length of the proceedings admissible and the remainder of the
application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds
(a)
that the respondent State is to pay the applicant, within three
months, EUR 1,700 (one thousand seven hundred euros), 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 amount 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 applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 21 October 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Nina Vajić
Deputy Registrar President
