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FIFTH
SECTION
CASE OF MOKHOV v. RUSSIA
(Application
no. 28245/04)
JUDGMENT
STRASBOURG
4 March
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 Mokhov v. Russia,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Karel
Jungwiert,
Rait Maruste,
Anatoly Kovler,
Mark
Villiger,
Mirjana Lazarova Trajkovska,
Zdravka
Kalaydjieva, judges,
and Claudia
Westerdiek, Section
Registrar,
Having
deliberated in private on 9 February 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 28245/04) 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 a Russian national, Mr Aleksey Vladimirovich
Mokhov (“the applicant”), on 6 July 2004.
- The
applicant, who had been granted legal aid, was represented by Mr P.A.
Finogenov, a lawyer practising in Moscow. The Russian Government
(“the Government”) were represented by
Mr G. Matyushkin, Representative
of the Russian Federation at the European Court of Human Rights.
- On
1 September 2008 the President of the Fifth Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1972 and lives in Kostroma.
He is currently serving a sentence in correctional facility
ZhKh–385/5 in the village of Lepley, Mordoviya.
- On
an unspecified date criminal proceedings were instituted against the
applicant on charges of abuse of powers by a public official,
aggravated bribery and forgery.
- On
8 April 2000 the applicant was arrested and placed in custody on
suspicion of aggravated murder and robbery.
- On
18 April 2000 the applicant was officially charged with aggravated
murder and robbery.
- On
9 December 2000 the applicant was convicted of abuse of powers,
aggravated bribery and forgery and sentenced to five years'
imprisonment.
- On 15 and 18 January 2001, whilst the pre-trial
investigation into the murder and robbery was pending, the State
local television company, KTRK, broadcast the Na grani
(“On the Edge”) programme which contained an interview
with Mr T., an investigator from the prosecutor's office of the
Kostroma Region (“the prosecutor's office”), who informed
the public that the applicant had committed a series of offences. In
particular, he stated that:
“The murder was committed while the investigation
into bribery and abuse of power [with which the applicant had been
charged] had been pending for a sufficiently long time and it was
possible to refer the case to a court. And we found out that Mokhov
had committed a second, more serious, crime – a murder,
connected to the robbery and attack.”
- On
26 January 2001 the applicant lodged a civil claim against the
prosecutor's office and KTRK. Referring to Article 49 of the
Constitution of the Russian Federation, he sought compensation for
non-pecuniary damage resulting from the alleged violation of the
presumption of innocence.
- On
13 June 2001 the Leninskiy District Court of Kostroma (“the
district court”) held a hearing in the applicant's presence and
decided that it could not examine the claim while the criminal
proceedings against the applicant were pending, because it was
essential to know the outcome of those proceedings in order to
determine whether the disseminated information was true or false.
Therefore, the district court ordered the proceedings to be
suspended.
- On
30 July 2001 the Kostroma Regional Court upheld the decision of 13
June 2001.
- On
5 September 2002 the Kostroma Regional Court convicted the applicant
of murder and robbery and sentenced him to twenty-two years'
imprisonment. On 26 May 2003 the judgment became final.
- On
25 June 2003 the district court informed the applicant that the
proceedings in respect of his defamation claim had been resumed and a
hearing had been scheduled for 9 July 2003. The court asked the
applicant if he wished to continue with his claim, and requested him
to submit written explanations.
- In
his reply of 28 June 2003 the applicant modified his statement of
claims, withdrew the claim against KTRK and affirmed his wish to
continue with his claim against the prosecutor's office. He also
asked the court to examine the case in his presence.
- On 9 July 2003 the district court held the hearing in
the applicant's absence. It does not appear from the case materials
that it examined the applicant's request to appear in the courtroom.
Having studied the applicant's written submissions and having heard
the representative of the prosecutor's office, it rejected the claim.
According to the Government, the representative of the prosecutor's
office advanced no new arguments against the claim during the
hearing. The district court found that the impugned statement had
been based on facts which had subsequently been established in the
court judgment of 5 September 2002. With regard to arguments by the
applicant that the investigator was not entitled to publicly state
that the applicant was guilty until this had been proved according to
law, the court said that, by the date of the broadcast, the applicant
had already been charged with murder and robbery, which, under the
Code of Criminal Procedure, was possible only if sufficient evidence
existed. The issue of the applicant's absence was addressed in the
district court's decision as follows:
“The plaintiff was not present at the hearing
because he had been sentenced ... to twenty-two years'
imprisonment... The court received [the plaintiff's] written comments
about the claim made...”
- The
applicant appealed against this judgment. He claimed, inter alia,
that the principle of equality of arms had been breached, as the
court had refused to summon him and hear him in person.
- On
21 January 2004 the applicant, then detained in the correctional
facility in Mordoviya, was notified of the time and place of an
appeal hearing in his defamation case.
- On 4 February 2004 the Kostroma Regional Court held an
appeal hearing in the absence of the parties and upheld the judgment
of 9 July 2003 with minor changes. The appeal judgment, in so far as
relevant, read as follows:
“...[the district] court ensured Mokhov's
participation in the hearing of 13 June 2001 although the laws on
civil procedure in force do not require the court to ensure the
presence in a courtroom of persons kept in custody or sentenced to
imprisonment.
[The district] court duly notified Mokhov of the date of
the hearing. The plaintiff sent to the [district] court his written
comments on the nature of his claims. The reasons given in those
comments were studied and duly assessed by the [district] court.”
II. Relevant domestic
law AND PRACTICE
- Article
49 of the Constitution of the Russian Federation provides that
everyone accused of committing a crime shall be considered innocent
until his guilt is proved according to the rules fixed by the federal
law and confirmed by the sentence of a court which has come into
legal force.
- Article
151 of the Russian Civil Code provides that compensation for
non-pecuniary damage is payable only when physical or moral damage
has been inflicted on a person through actions which violate his or
her rights.
- By virtue of Articles 58 and 184 of the Russian Code
of Civil Procedure, a court may hold a session outside the courthouse
if, for instance, it is necessary to examine evidence which cannot be
brought to the courthouse.
- On several occasions the Constitutional Court of the
Russian Federation has examined complaints by convicted persons whose
requests for leave to appear in civil proceedings had been refused by
courts. It has consistently declared the complaints inadmissible,
finding that the contested provisions of the Code of Civil Procedure
and the Penitentiary Code did not, as such, restrict the convicted
person's access to court. It has emphasised, nonetheless, that the
convicted person should be able to make submissions to the civil
court, either through a representative or in any other way provided
by law. If necessary, the hearing may be held at the location where
the convicted person is serving his or her sentence or,
alternatively, the court hearing the case may instruct the court
having territorial jurisdiction over the correctional colony to
obtain the applicant's submissions or carry out any other procedural
steps (decisions no. 478-O of 16 October 2003, no. 335-O of 14
October 2004, and no. 94-O of 21 February 2008).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 2 OF THE
CONVENTION
- The
applicant complained that his right to benefit from the presumption
of innocence had been breached. He relied on Articles 6 and 8 of the
Convention, as well as on Article 14 of the International Covenant on
Civil and Political Rights. The Court considers that his complaint
falls to be examined under Article 6 § 2 of the Convention,
which reads as follows:
“2. Everyone charged with a criminal
offence shall be presumed innocent until proved guilty according to
law.”
A. The parties' submissions
- The
Government contested the applicant's argument. They claimed that the
presumption of innocence had not been breached in the applicant's
criminal case. The information disseminated by the investigator on
the TV show could not be considered libellous because the applicant
had been convicted by a final judgment for the acts described by the
investigator. By the time that the show had been broadcast, a bill of
indictment had been drawn up in respect of the applicant, charging
him with the crimes referred to by the investigator, which could not
be done until sufficient evidence of the applicant's guilt had been
collected. The investigator had had a right to disseminate
information about the course of the investigation as he had seen fit.
The final judgment of 4 February 2004 established that the
investigator had only disseminated that part of the information about
the investigation that he had been entitled to disseminate. In sum,
they concluded that the applicant's complaint under Article 6 §
2 of the Convention was manifestly ill-founded.
- The
applicant maintained his complaint.
B. The Court's assessment
1. 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 grounds. It must
therefore be declared admissible.
2. Merits
- The
Court reiterates that Article 6 § 2, in its relevant aspect, is
aimed at preventing the undermining of a fair criminal trial by
prejudicial statements made in close connection with those
proceedings. The presumption of innocence enshrined in paragraph 2 of
Article 6 is one of the elements of the fair criminal trial that is
required by paragraph 1 (see Allenet de Ribemont v. France,
10 February 1995, § 35, Series A no. 308). It
prohibits the premature expression by the tribunal itself of the
opinion that the person “charged with a criminal offence”
is guilty before he has been so proved according to law (see Minelli
v. Switzerland, 25 March 1983, § 37, Series A no. 62) but
also covers statements made by other public officials about pending
criminal investigations which encourage the public to believe the
suspect guilty and prejudge the assessment of the facts by the
competent judicial authority (see Allenet de Ribemont, cited
above, § 41; Daktaras v. Lithuania, no. 42095/98,
§§ 41-43, ECHR 2000 X; and Butkevičius
v. Lithuania, no. 48297/99, § 49, ECHR
2002 II).
- It
has been the Court's consistent approach that the presumption of
innocence will be violated if a judicial decision or a statement by a
public official concerning a person charged with a criminal offence
reflects an opinion that he is guilty before he has been proved
guilty according to law. It suffices, even in the absence of any
formal finding, that there is some reasoning suggesting that the
court or the official regards the accused as guilty. A fundamental
distinction must be made between a statement that someone is merely
suspected of having committed a crime and a clear declaration, in the
absence of a final conviction, that an individual has committed the
crime in question. The Court has consistently emphasised the
importance of the choice of words by public officials in their
statements before a person has been tried and found guilty of a
particular criminal offence (see Böhmer v. Germany,
no. 37568/97, §§ 54 and 56, 3 October 2002, and
Nešťák v. Slovakia, no. 65559/01,
§§ 88 and 89, 27 February 2007).
- Turning
to the facts of the present case, the Court observes that, before the
opening of the trial in the applicant's case on charges of murder and
robbery, a State television channel broadcast on two occasions a
statement by the investigator from the prosecutor's office.
- As
regards the contents of the statement, the Court notes that the
investigator stated in affirmative terms that the applicant “had
committed ... a murder, connected to the robbery and attack”
(see paragraph 9 above). This statement was not limited to describing
the status of the pending proceedings or a “state of suspicion”
against the applicant but represented, as an established fact,
without any qualification or reservation, that he had committed the
offences, without even mentioning that he denied it. In addition, the
investigator emphasised that the murder in question had been
committed while the investigation on other charges against the
applicant had been pending, thus portraying him as a hardened
criminal.
- The
Court considers that this statement by the public official amounted
to a declaration of the applicant's guilt and prejudged the
assessment of the facts by the competent judicial authority. Given
that the investigator represented the prosecuting authorities when
interviewed, he should have exercised particular caution in his
choice of words when describing the criminal proceedings pending
against the applicant (see, mutatis mutandis,
Khuzhin and Others v. Russia,
no. 13470/02, § 96, 23 October 2008). The Court
does not share the Government's view that the applicant's
subsequent conviction could have been of any significance in this
respect. Therefore, it considers that the investigator's
statements must have encouraged the public to consider the applicant
a murderer before he had been proved guilty according to law.
Accordingly, the Court finds that there was a breach of the
presumption of innocence with regard to the applicant.
- There
has therefore been a violation of Article 6 § 2 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the first-instance and appeal hearings in
his defamation case had been held in his absence and that the court
proceedings had thus been generally unfair. He relied on Article 6 §
1 of the Convention, which reads, in so far as relevant, as follows:
“1. In the determination of his civil
rights and obligations ..., everyone is entitled to a fair and public
hearing ... by an independent and impartial tribunal established by
law...
A. The parties' submissions
- The Government contested that argument. They claimed
that the applicant had been present at the hearing of 13 June 2001.
Furthermore, the Constitutional Court did not find that the absence
of a convicted person at a hearing in a civil case instituted on his
or her request violated the Constitution. The applicant's right to
equality of arms had not been breached because he had presented his
arguments in writing and the domestic courts had meticulously
examined them. The Government also claimed that the applicant had not
requested the domestic authorities to reopen the civil proceedings
because of newly discovered circumstances and thus had failed to
exhaust effective domestic remedies.
- The
applicant maintained his complaint.
B. The Court's assessment
1. Admissibility
- The Court reiterates that it is incumbent on the
Government claiming non-exhaustion to satisfy the Court that the
remedy was an effective one available in theory and in practice at
the relevant time, that is to say, that it was accessible, capable of
providing redress in respect of the applicant's complaints and
offered reasonable prospects of success (see Selmouni v. France
[GC], no. 25803/94, § 76, ECHR 1999-V, and Mifsud v. France
(dec.), no. 57220/00, § 15, ECHR 2002-VIII). The Court
further reiterates that the domestic remedies must be “effective”
in the sense either of preventing the alleged violation or its
continuation, or of providing adequate redress for any violation that
had already occurred (see Kudła v. Poland [GC], no.
30210/96, § 158, ECHR-XI).
- In
the present case, the Government vaguely asserted that the applicant
could have applied for a reopening of the civil proceedings in his
defamation case in the context of exhaustion of domestic remedies.
The Court observes that the Government have not indicated which
facts, in their view, could have given grounds for a reopening of the
proceedings on the basis of newly discovered circumstances. In
particular they did not specify how the remedy
referred to could have provided the applicant with adequate redress
for the alleged violations of Article 6 § 1. The
Court finds that the Government failed to substantiate their claim
that it was effective (see, among other authorities, Kranz
v. Poland, no. 6214/02, § 23, 17 February 2004,
and Skawinska v. Poland (dec.), no. 42096/98,
4 March 2003).
- Therefore, the Government's
objection as to the non-exhaustion of domestic remedies must be
dismissed.
- The
Court further 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 grounds. It
must therefore be declared admissible.
2. Merits
- The
Court reiterates that the principle of adversarial proceedings and
equality of arms, which is one of the elements of the broader concept
of a fair hearing, requires that each party be given a reasonable
opportunity to have knowledge of and comment on the observations made
or evidence adduced by the other party and to present its case under
conditions that do not place it at a substantial disadvantage
vis-à-vis its opponent (see Krčmář
and Others v. the Czech Republic, no. 35376/97, § 39,
3 March 2000, and Dombo Beheer B.V. v. the Netherlands, 27
October 1993, § 33, Series A no. 274). Article 6 of
the Convention does not guarantee the right to personal presence
before a civil court but rather a more general right to present one's
case effectively before the court and to enjoy equality of arms with
the opposing side. Article 6 § 1 leaves to the State a free
choice of the means to be used in guaranteeing litigants these rights
(see Steel and Morris v. the United Kingdom, no. 68416/01,
§§ 59-60, ECHR 2005-II).
- The
Court further observes that it has previously found a violation of
the right to a “public and fair hearing” in a case where
a Russian court, after having refused leave to appear to the
imprisoned applicants, who had wished to make oral submissions on
their defamation claim, failed to consider other legal possibilities
for securing their effective participation in the proceedings (see
Khuzhin and Others,
cited above, §§ 53 et seq.). It also found a
violation of Article 6 in a case where a Russian court refused leave
to appear to an imprisoned applicant who had wished to make oral
submissions on his claim that he had been ill-treated by the police.
Despite the fact that the applicant in that case was represented by
his wife, the Court considered it relevant that his claim had been
largely based on his personal experience and that his submissions
would therefore have been “an important part of the plaintiff's
presentation of the case and virtually the only way to ensure
adversarial proceedings” (see Kovalev v. Russia,
no. 78145/01, § 37, 10 May 2007).
- The
Court also notes that the Russian Code of Civil Procedure provides
for the plaintiff's right to appear in person before a civil court
hearing his or her claim. However, neither the Code of Civil
Procedure nor the Penitentiary Code make special provision for the
exercise of that right by individuals who are in custody, whether
they are in pre-trial detention or are serving a sentence (see
Khuzhin and Others, cited above, § 104).
- The
issue of the exercise of procedural rights by detainees in civil
proceedings has been examined on several occasions by the Russian
Constitutional Court, which has identified several ways in which
their rights can be secured (see paragraph 23 above). It has
consistently emphasised representation as an appropriate solution in
cases where a party cannot appear in person before a civil court.
Given the obvious difficulties involved in transporting convicted
persons from one location to another, the Court can in principle
accept that in cases where the claim is not based on the plaintiff's
personal experiences representation of the detainee by an advocate
would not be in breach of the principle of equality of arms.
- Turning
to the circumstances of the present case, the Court points out that
the district court did not examine the applicant's request for leave
to attend the session of 9 July 2003. It merely stated in the
judgment that the applicant's absence from the courtroom could be
explained by the fact of his criminal conviction (see paragraph 16
above). The Kostroma Regional Court, in turn, emphasised that the
applicant had been present at the hearing of 13 June 2001 despite the
court not being duty-bound to summon him (see paragraph 19 above).
- As
regards the Government's assertion that the applicant's attendance at
the hearing of 13 June 2001 ensured his effective participation in
the examination of the case, the Court points out that on that date
the district court did not decide on the merits of the defamation
claim and merely ordered that the proceedings be stayed. The next
court session was held on 9 July 2003. The Court doubts that the
district court judge could have clearly recalled the applicant's oral
submissions made more than two years before the hearing of 9 July
2003. In such circumstances the Court considers that, although the
applicant appeared before the district court on 13 June 2001, the
lapse between the two court sessions negated any impact that the
applicant's presence in the courtroom on that date may have had on
the proceedings.
- The parties do not dispute that the applicant asked
the district court to ensure his presence at the hearing of 9 July
2003. However, nothing in the materials at the Court's disposal
suggests that his request was properly addressed and answered. Thus,
the applicant was obviously unable to decide on a course of action
for the defence of his rights because he had not been notified of the
decision refusing him leave to appear (see, mutatis mutandis,
Khuzhin and Others,
cited above, § 107).
- Moreover,
the district court made no attempts to explain to the applicant that
he had a right to be represented at the hearing either by a lawyer or
a layperson of his choosing. The Kostroma Regional Court, in turn,
did not deem it necessary to remedy the situation despite the
applicant's specific reference to the violation of the principle of
equality of arms. Thus, the Court considers that the domestic courts
failed to take any measures to secure the applicant's effective
participation in the civil proceedings.
- Lastly,
the Court points out that, in order to ensure the applicant's
participation in the hearing, it was open to the domestic courts to
hold a session in the applicant's correctional facility (see
paragraph 22 above). However, it does not appear that this option was
ever considered.
- The
Court considers therefore that the applicant was not given an
opportunity to present his arguments in a defamation case before a
court either in person or through representation, in breach of the
equality-of-arms principle.
- There
has thus been a violation of Article 6 § 1 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 10,000 euros (EUR) in respect of non pecuniary
damage he had sustained because of the alleged violations of the
Convention.
- The
Government considered the amount claimed to be excessive.
- The
Court finds it appropriate to award the applicant EUR 6,000 in
respect of non-pecuniary damage.
B. Costs and expenses
- The
applicant made no claims as regards the costs and expenses incurred
both before the domestic courts and the Court.
- Accordingly,
the Court makes no 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
- Declares the application admissible;
- Holds that there has been a violation of Article
6 § 2 of the Convention;
- 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 of
the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 6,000 (six
thousand euros), plus any tax that may be chargeable, in respect of
non-pecuniary damage, to be converted into Russian roubles at the
rate applicable on 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 4 March 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer
Lorenzen
Registrar President
