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FIRST
SECTION
DECISION
Application no. 39549/02
Venyamin Leonidovich BENIASHVILI
against
Russia
The
European Court of Human Rights (First Section), sitting on 13 March
2012 as a Chamber composed of:
Nina
Vajić,
President,
Anatoly
Kovler,
Elisabeth
Steiner,
Mirjana
Lazarova Trajkovska,
Nona
Tsotsoria,
Julia
Laffranque,
Linos-Alexandre
Sicilianos,
judges,
and
André Wampach, Deputy
Section Registrar,
Having
regard to the above application lodged on 3 October 2002,
Having
regard to the observations submitted by the respondent Governments
and the absence of those of the applicant in reply,
Having
deliberated, decides as follows:
THE FACTS
- The
applicant, Mr Venyamin Beniashvili, is a Russian national who was
born in 1975 and is currently detained in a strict-regime prison in
Rybinsk (ФГУ ИК-2),
the Russian Federation. He was represented before the Court by Mr V.
Yakovlev, a lawyer practising in Rybinsk. The Russian Government were
represented by Mrs V. Milinchuk, former Representative of the Russian
Federation at the European Court of Human Rights. The Georgian
Government were represented by their former Agent, Mr D. Tomadze
of the Ministry of Justice.
A. The circumstances of the case
- The
facts of the case, as submitted by the parties, may be summarised as
follows.
1. Extradition proceedings
- On
23 August 1998 criminal proceedings were initiated with regard to a
murder committed the same day in Moscow.
- On
23 November 1998 the applicant, whose whereabouts were unknown at
that time, was charged in absentia with the above offence,
imposed with the measure of detention on remand, and declared wanted
by resolutions of the Moscow city prosecutor’s office. The
criminal proceedings were stayed pending the search for the
applicant.
- On
10 December 2000 the applicant was arrested by the Georgian police in
Tbilisi on the basis of Article 61 of the Convention on Legal
Assistance and Legal Relations in Civil, Family and Criminal Matters
of 22 January 1993 (see Shamayev and Others v. Georgia and
Russia, no. 36378/02, § 266, ECHR 2005 III) in
relation to the criminal proceedings pending against him in Russia
and for the consequent purpose of his extradition there. As disclosed
by a record of his apprehension, the applicant was duly explained the
reasons for his international search and arrest. He was then placed
in the short-term remand prison of the Tbilisi Central Police
Department (“the CPD”).
- According
to the applicant, he was subjected to psychological pressure by
several police officers during his detention in the CPD, who were
allegedly requesting money in exchange for his release.
- On
31 March 2001 the applicant was transferred from the CPD to Tbilisi
prison no. 5.
- In
April 2001 the applicant filed several complaints with the Ministry
of Justice, the authority in charge of the custodial institutions in
Georgia, and the General Prosecutor’s Office of Georgia,
challenging the lawfulness of the extradition proceedings and the
quality of the material conditions of his detention in Tbilisi prison
no. 5. As confirmed by the case file, he did not raise the issue of
his alleged harassment by the police officers in the CPD. All those
complaints went unanswered.
- On
7 May 2001 the applicant was extradited to Russia. He was escorted
from the Tbilisi international airport by a Russian law-enforcement
agent, an officer of the Russian penitentiary authority, who
allegedly gave the applicant several sedative injections and cuffed
his hands to the seat during the flight to Moscow.
2. Criminal proceedings in the Russian Federation
- On
18 May 2001 the applicant, who was assigned by the Russian
authorities a public lawyer due to his and his family’s
financial inability to hire a private one, was formally informed, in
that lawyer’s presence, of the details of the charge against
him. According to the applicant, the
investigator in charge of the case, Mr S., then demanded
money from him in exchange for the discontinuation of the criminal
case. Those demands were allegedly reiterated by the investigator
throughout the entire period of the applicant’s detention
pending investigation.
- On
23 October 2001 the applicant dismissed his lawyer, requesting that
leave be granted to his girlfriend instead, who did not possess any
legal background, to represent his interests during the trial. The
prosecution authority rejected the request on the same day,
explaining that, pursuant to Article 47 § 5 of the Russian Code
of Criminal Procedure, only a court could
authorise relatives or other close persons who were not qualified
lawyers to act as legal counsels in a criminal case.
- On
23 October 2001 the prosecution authority contacted the applicant’s
mother, inviting her to hire a private lawyer for her son. Citing
financial difficulties, she refused the offer and asked the
authorities to assign another public lawyer for the applicant.
- On
29 October and 1 November 2001 the applicant complained to the Moscow
city prosecutor’s office about the facts of extortion of money
by investigator S. Those complaints were rejected as unsubstantiated
by the prosecution authority on 23 November 2001.
- On
5 November 2001 the Russian authorities assigned another public
lawyer for the applicant. The applicant did not object to that
assignment. As confirmed by the applicant’s and his new
lawyer’s signatures on the relevant receipt paper, which
document was then added as evidence to the criminal case file, both
of them studied the case materials in their entirety (on 232 pages)
between 6 and 8 November 2001.
- The
applicant’s trial started on 21 March 2002 at the Tushinskiy
District Court. The bill of indictment was based on the statements of
numerous witnesses, including the two persons who had directly
incriminated the applicant in the murder (“the witnesses for
the prosecution”), and the results of numerous crime detection
examinations, all of which had been collected by the investigative
authority in 1998. At the beginning of the trial, the applicant
requested leave to have the witnesses for the prosecution examined in
court and that criminal proceedings be instituted against
investigator S. for the alleged extortion of money. He also
complained that he had not been given an opportunity to study the
criminal materials in full and requested leave for his girlfriend to
act as his legal counsel and to have their civil marriage registered.
- By
a ruling of 22 March 2002, the Tushinskiy District Court granted the
applicant’s request for the examination of the witnesses for
the prosecution, summoning them for trial. However, as those persons
failed to appear within the following week, the District Court then
decided, on 28 March 2002, after having obtained the applicant’s
and his lawyer’s explicit consent to that end, to finalise the
trial without the witnesses’ participation by reading out the
statements which they had given to the investigators in 1998. The
fact of the applicant’s and his lawyer’s unambiguous
consent to the reading out of the witnesses’ pre-trial
depositions was duly recorded in the minutes of the hearing of 28
March 2002.
- As
regards the applicant’s other requests, the District Court
dismissed all of them by its ruling of 22 March 2002 for various
reasons. Thus, the court stated that, lacking the necessary powers of
investigation and prosecution under the domestic law, it could not
initiate criminal proceedings against investigator S. As to the
applicant’s complaint about the inability to study the case
materials, the court dismissed it as manifestly ill founded,
referring to the applicant’s own signature on the receipt paper
which confirmed his full acquaintance with the file. As regards the
issue of the applicant’s representation by his girlfriend, the
court dismissed that request, noting that she lacked the necessary
legal qualifications and that the applicant had already been assigned
a qualified lawyer. Lastly, the court rejected the applicant’s
request for the registration of the marriage, stating that such an
issue was wholly irrelevant to the criminal proceedings at stake.
- By
a judgment of 29 March 2002, the Tushinskiy District Court convicted
the applicant of murder, sentencing him to thirteen years in prison.
The conviction was based on the statements of numerous witnesses,
including the two witnesses for the prosecution, and the results of
the forensic examinations which, having been conducted upon discovery
of the victim’s body in August 1998, confirmed the existence of
the applicant’s fingerprints and blood samples on the body and
on the site of the crime.
- On
22 May 2002 the applicant appealed against the judgment of 29 March
2002, challenging the Tushinskiy District Court’s findings of
fact. As confirmed by a copy of his statement of appeal, the
applicant did not complain about the inability to examine the
witnesses for the prosecution during the trial at first instance.
- On
3 June 2002 the Moscow Regional Court, dismissing the applicant’s
appeal, finally upheld the conviction of 29 March 2002. Subsequently,
the applicant was placed in the strict-regime prison located in
Rybinsk (“the Rybinsk prison”).
B. Relevant Russian domestic law
- Pursuant
to Article 10 of the Family Code and section 27 § 7 of a Federal
Law of 15 November 1997 on Civil Registration Acts (Федеральный
закон от 15 ноября
1997 г. № 143-ФЗ “Об актах
гражданского
состояния”),
detained persons, both those detained pending trial and those who
serve sentences after convictions, can marry. For a marriage to take
legal effect it must be recorded in the Civil Register. The official
registration of a detainee’s marriage shall be conducted on the
premises of the relevant custodial institution, and under the direct
supervision of the Governor of that institution, by the Head of the
relevant local Civil Registry office.
COMPLAINTS
A. Complaints against Georgia
- Relying
on Articles 3, 4, 5 §§ 1 (f), 2 and 4 and 6 § 1 of the
Convention, the applicant complained about the material conditions of
his detention in the CPD and Tbilisi prison no. 5 and about the
unlawfulness of the extradition proceedings.
B. Complaints against the Russian Federation
1. As regards the period preceding the applicant’s
conviction
- Under
Article 3 of the Convention, the applicant complained that the
Russian law-enforcement agent had effectuated his extradition on 7
May 2001 in a degrading manner and that the investigator in charge of
his criminal case, Mr S., had been pressurising him with the aim of
bribe extortion during his detention pending investigation.
- Relying
on Article 5 § 1 (f) of the Convention, the applicant claimed
that the Russian State should be held responsible for the arbitrary
extradition proceedings in Georgia. Under Article 5 § 2 of the
Convention, he further complained that the Russian investigative
authority had informed him of the nature of the
criminal charge against him as late as on 18 May 2001, that is with a
delay of eleven days after his extradition to Russia had taken place
on 7 May 2001.
- Under
Article 6 §§ 1 and 3 (b), (c) and (d) of the Convention,
the applicant complained that the Tushinskiy District Court had not
allowed him to study the criminal case materials, to have his
girlfriend appointed as his legal counsel and to examine the
witnesses for the prosecution during the trial. Relying on Article 12
of the Convention, he further complained that the District Court had
not allowed him to register his civil marriage with his girlfriend.
Lastly, Articles 7, 13 and 14 of the Convention were also invoked,
without any coherent explanation, with respect to the criminal
proceedings against the applicant.
2. As regards the period subsequent to the applicant’s
conviction
- Relying
in substance on Articles 3, 8 and 34 of the Convention, the applicant
complained, without giving any factual description, about the quality
of the material conditions of his detention after his conviction and
about the control of his correspondence with his family, lawyer and
the Court by the administration of the Rybinsk prison. In particular,
he contested that the prison administration refused to mail his
letters to the Court at its own expense.
PROCEDURE
- On
10 January 2008 the Court decided to give notice of the application
to the respondent Governments. The applicant was informed thereof on
the same day.
- On
3 March 2008 the applicant informed the Court of his wish to withdraw
the part of the application concerning the period of his detention
after his conviction, in the Rybinsk prison.
- By
a letter of 10 April 2008, the Court informed the respondent
Governments of the applicant’s partial withdrawal of his
application.
- On
6 June 2008 the respondent Governments’ observations on the
admissibility and merits of the case were transmitted to the
applicant, who was invited to submit his observations in reply by 18
July 2008. However, no response followed.
- On
19 March 2009 the Court sent the applicant a reminder about his
obligation to submit observations, on pain of striking out his
application under Article 37 § 1 (a) of the Convention. The
reminder was sent both to the applicant’s and his
representative’s addresses.
- On
30 August 2010 the Court received a handwritten letter from the
applicant. The Court concluded from the content of that letter that
the applicant remained interested in having his case adjudicated.
However, the applicant did not submit any additional arguments on the
admissibility and merits of the relevant complaints.
- On
18 October 2010 the Court informed the applicant, in reply to his
letter of 30 August 2010, that it would proceed with the examination
of the case on the basis of the file as it stood at hand.
THE LAW
A. The violations alleged with respect to Georgia
- In
the part of his application directed against Georgia, the applicant
complained, invoking various provisions of the Convention (see
paragraph 22 above), about the unlawfulness of the extradition
proceedings and the poor quality of the material conditions of his
associated detention during the period between 10 December 2000 and 7
May 2001.
1. The parties’ submissions
- As
regards his complaint about the extradition proceedings, the Georgian
Government submitted that the applicant had not exhausted domestic
remedies, contrary to Article 35 § 1 the Convention. Notably,
referring to various provisions of the Georgian Code of Criminal
Procedure, they suggested that the applicant could have challenged
the lawfulness of his forthcoming extradition to Russia before a
domestic court. Alternatively, if the objection of non-exhaustion
were not to be accepted, the Government asked the Court to reject the
complaint for failure to comply with the six month rule. As to
the applicant’s complaint about the poor conditions of his
detention in the Georgian prisons, the Government submitted that the
applicant had failed to substantiate his allegations by material
evidence.
- The
applicant did not submit any comments in reply to the Georgian
Government’s objections.
2. The Court’s assessment
- The
Court recalls that the relevant Georgian law and practice did not
provide for an effective domestic remedy in extradition cases,
contrary to the respondent State’s obligations under Article 13
of the Convention, at the material time (see Shamayev and Others,
cited above, §§ 258 and 462 466). Furthermore, as
regards the compatibility of the material conditions of the
applicant’s detention with the requirements of Article 3 of the
Convention, the Court already found such complaints to have been
conditioned by general, structural problems in the penitentiary
sector of Georgia, against which no effective remedy lay at that time
(cf., Ramishvili and Kokhreidze v. Georgia (dec.), no.
1704/06, 27 June 2007; and Aliev v. Georgia, no. 522/04,
§ 62, 13 January 2009).
- Consequently, in the absence of an effective domestic
remedy for either of the above-mentioned issues raised by the
applicant, the Court considers that the six-month time-limit laid
down in Article 35 § 1 of the Convention started to run
from the moment the factual situation constitutive of the alleged
violations ceased to exist (see, amongst many others, Panjikidze
and Others v. Georgia (dec), no. 30323/02, 30 June 2006).
That situation ended on 7 May 2001, when the applicant’s
extradition from the Georgian jurisdiction to the Russian one was
finally and irrevocably effectuated. However, as the present
application was lodged with the Court on 3 October 2002, the part of
the application directed against Georgia is thus belated and must be
rejected pursuant to Article 35 §§ 1 and 4 of the
Convention.
B. The violations alleged with respect to the Russian
Federation
1. As regards the period preceding the applicant’s
conviction
(a) The complaints under Article 3 of the
Convention
- The
applicant first claimed that the manner of his extradition by the
Russian law-enforcement officer on 7 May 2001 had been incompatible
with Article 3 of the Convention. Relying on the same provision, he
further complained that, subsequent to the extradition and during the
period his pre trial detention in Russia, the investigator in
charge of his criminal case had been demanding a bribe from him.
Article 3 of the Convention reads as follows:
Article 3
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
i. The parties’ submissions
- The
Russian Government submitted that the applicant’s complaints
under Article 3 of the Convention were manifestly ill-founded,
reproaching him for his failure to submit any material evidence in
support of his allegations. As regards the applicant’s
complaint concerning the extortion of a bribe by the investigator,
the Government added that the domestic authorities had already duly
examined that issue and rejected it as unsubstantiated.
- The
applicant did not submit any arguments in reply to the Government’s
objection.
ii. The Court’s assessment
- With
respect to the applicant’s first complaint under Article 3 of
the Convention, the Court, having due regard to the documents
available in the case file, notes that he never filed a complaint
with the aim to hold the law-enforcement officer in charge of his
extradition criminally liable for the alleged abuse of power, which
would have been the only effective domestic remedy in the
circumstances (see, amongst many others, Trubnikov v. Russia
(dec.), no. 49790/99, 14 October 2003 and Medvedev v. Russia
(dec.), no. 26428/03, 1 June 2006). Consequently, this complaint
must be rejected under Article 35 §§ 1 and 4 of the
Convention for non-exhaustion of domestic remedies.
- As regards the second complaint, the Court considers
that the investigator’s allegedly intimidating behaviour aimed
at bribe extortion cannot, as scarcely described by the applicant,
attain a minimum level of severity to fall within the scope of
Article 3 of the Convention (compare, amongst many others, with
Moiseyev v. Russia (dec.), no. 62936/00, 9 December 2004
and Kositsyn v. Russia (dec.), no. 69535/01, ECHR 19 October
2006). This complaint is thus manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 and 4 of the
Convention.
(b) The complaints under Article 5 of the
Convention
- Relying
on Article 5 § 1 (f) of the Convention, the applicant claimed
that the Russian Federation should be held responsible for the
unlawfulness of his detention pending extradition. As regards the
subsequent period of his detention pending trial, the applicant
complained, under Article 5 § 2 of the Convention, that the
Russian authorities had been too late in providing him on 18 May 2001
with the information about the nature of the criminal charge against
him. The invoked provisions read as follows:
Article 5
“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: ...
(f) the lawful arrest or detention of a
person to prevent his effecting an unauthorised entry into the
country or of a person against whom action is being taken with a view
to deportation or extradition.
2. Everyone who is arrested shall be informed
promptly, in a language which he understands, of the reasons for his
arrest and of any charge against him.”
i. The parties’ submissions
- The
Russian Government submitted that the applicant’s complaint
under Article 5 § 1 (f) of the Convention could not be held
imputable to the Russian Federation as his detention pending
extradition had been regulated and supervised exclusively by the
Georgian legislation and law-enforcement agents. As to the complaint
under Article 5 § 2 of the Convention, the Government stated
that, as well as being belated within the meaning of Article 35 §
1 of the Convention, the complaint was also manifestly ill founded
in the light of the relevant circumstances of the case. Notably, the
Government referred to the fact that the applicant had learnt of the
nature of the criminal charge against him right upon his arrest in
Georgia on 10 December 2000.
- The
applicant did not comment on the Government’s submissions.
ii. The Court’s assessment
- In so far as the complaint under Article 5 § 1
(f) of the Convention about the arbitrariness of the extradition
proceedings is concerned, the Court finds that nothing in the case
file indicates that the Russian State could arguably be held
responsible for the legality of those proceedings which took place
within the exclusive jurisdiction of Georgia (compare, for instance,
with Wedler v. Poland (dec.), no. 44115/98, 27 May 2003).
- As
regards the applicant’s complaint under Article 5 § 2 of
the Convention, the Court notes that the case materials, as
supplemented by the respondent Governments after the communication of
the case, show that he was first informed of the nature of the
criminal proceedings pending against him in Russia right upon his
arrest in Georgia on 10 December 2000 (see paragraph 5 above). In the
course of the subsequent extradition proceedings, he learnt many
other details about those criminal proceedings. Consequently, by the
time of his transfer to the jurisdiction of the Russian Federation,
the applicant obviously knew the reasons for his international
search, arrest and continued detention and possessed sufficient
details about the charge of murder which had been brought against him
in 1998 (compare, for instance, with Ryabikin v. Russia
(dec.), no. 8320/04, ECHR 10 April 2007 and Batalov v. Russia
(dec.), no. 30789/04, 15 November 2005).
- It
follows that the applicant’s complaints under Article 5 §§
1 (f) and 2 of the Convention directed against the Russian Federation
are manifestly ill-founded and must be rejected in accordance with
Article 35 §§ 3 and 4 of the Convention.
(c) The complaints under Article 6 of the
Convention
- Relying
on Article 6 §§ 1 and 3 (b), (c) and (d) of the Convention,
the applicant complained that the Tushinskiy District Court had not
allowed him to study the case materials, to have his girlfriend
appointed as a legal counsel and to examine the witnesses for the
prosecution during the trial. These provisions read as follows:
Article 6
“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;
(c) to defend himself ... through legal
assistance of his own choosing ...;
(d) to examine or have examined witnesses
against him ...”
i. The parties’ submissions
- The
Russian Government submitted that the applicant’s complaints
under Article 6 §§ 1 and 3 (b), (c) and (d) were manifestly
ill-founded in the light of the relevant circumstances of the case.
Notably, with respect to the first complaint, the Government
submitted a copy of the receipt paper bearing the signatures of the
applicant and his lawyer in confirmation of the fact of their full
acquaintance with the criminal case materials which had taken place
between 6 and 8 November 2001 (see paragraph 14 above). As to whether
or not the applicant’s girlfriend should have been allowed to
act as his legal counsel in the proceedings, the Government referred
to the fact that she had not possessed any legal background
whatsoever and that the applicant had already benefited from the
services of the qualified public lawyer at that time. Lastly, the
Government submitted that the domestic court had done everything
possible to summon the impugned witnesses for the trial so the
applicant could examine them in person. However, given the objective
inability to secure those persons’ presence, the Tushinskiy
District Court then offered and the applicant agreed himself to have
those witnesses’ pre-trial depositions read out in their
absence and then never challenged the legality of that procedural
decision before the appellate instance.
- The
applicant did not submit any comments in reply.
ii. The Court’s assessment
- Firstly,
as regards the complaint about the inability to study the criminal
case materials, the Court observes that the case file, as
supplemented by the Russian Government and left uncontested by the
applicant after the communication of the case, proves the contrary.
Thus, the relevant receipt paper confirms that in the period between
6 and 8 November 2001 both the applicant and his lawyer
acquainted themselves with all the 232 pages of the criminal case
materials (see paragraph 14 above).
- Secondly,
as to the participation of the applicant’s girlfriend in the
trial, the Court reiterates that the right to be defended by counsel
of one’s own choosing is not absolute (see Croissant v.
Germany, 25 September 1992, § 29, Series A no. 237 B).
The question of whether or not a limitation of this right has
amounted to a violation of the above-mentioned provision of the
Convention must be assessed not as an isolated element but, on the
contrary, against the fairness of the proceedings taken as a whole
(see Gorodnichev v. Russia (dec.), no. 52058/99, 3 May 2005).
- The
Court, sharing the Government’s argument, considers that the
Tushinskiy District Court cannot be reproached for not having allowed
the applicant’s girlfriend, a person without any legal
knowledge whatsoever, to act as his counsel in the situation when he
already benefited from the services of a qualified lawyer. As to the
professional quality of that public lawyer, who had been assigned by
the authorities due to the applicant’s and his family’s
financial inability to hire a private one, nothing in the case file
can arguably suggest that the participation of that lawyer impaired
the fairness of the proceedings in any manner (cf., Sarıkaya
v. Turkey, no. 36115/97, § 64, 22 April 2004). It is to
be noted that the applicant himself never objected to the appointment
of that lawyer nor contested the latter’s professional aptitude
before the domestic courts.
- Thirdly, in so far as the applicant’s inability
to examine the witnesses for the prosecution during the trial is
concerned, the Court recalls that the use in evidence of statements
obtained at the stage of the investigation is not in itself
inconsistent with Article 6 § 3 (d) of the Convention, provided
that the rights of the defence have been respected. On the contrary,
it may prove necessary in certain circumstances to refer to
statements made before the trial (see Belevitskiy v. Russia,
no. 72967/01, § 117, 1 March 2007). Furthermore, a
defendant’s right to examine or have examined witnesses against
him or her is not an absolute one but, on the contrary, can be
waived. Such a waiver, however, must be made in an unequivocal manner
(see Bonev v. Bulgaria, no. 60018/00, § 40, 8 June 2006).
In particular, whenever a defendant has voluntarily and knowingly
agreed to have witnesses’ pre-trial depositions read out during
the trial in their absence, such a conduct could be accepted as a
waiver of the above mentioned right (see, for instance, Vozhigov
v. Russia, no. 5953/02, § 57, 26 April
2007; and also Andandonskiy v. Russia,
no. 24015/02, § 54, 28 September 2006).
- Returning
to the circumstances of the present case, the Court observes that the
Tushinskiy District Court duly granted, at the outset, the
applicant’s request to examine the two witnesses for the
prosecution, by summoning them for trial. However, as those witnesses
failed to appear, the District Court, as disclosed by the record of
the hearing of 28 March 2002, then enquired with the applicant and
his lawyer whether they considered it possible to proceed with the
trial in the absence of the witnesses in question. The applicant and
his lawyer replied that they had no objections and agreed to the
reading of the witnesses’ pre-trial depositions (see paragraph
16 above). The Court also notes that neither in his statement of
appeal lodged with the Moscow Regional Court did the applicant
complain that the absence of the witnesses for the prosecution during
the trial had infringed his rights of a defendant (see paragraph 19
above). In such circumstances, the Court considers that the applicant
can reasonably be considered to have waived his right to confront the
witness for the prosecution in the proceedings in question (compare
with Ozerov v. Russia (dec.), no. 64962/01, 3 November
2005; Andandonskiy, cited above, §§ 53 and 54; and
contrast with Vladimir Romanov v. Russia, no. 41461/02, §
98, 24 July 2008).
- In
the light of the foregoing findings, the Court thus concludes that
the applicant’s complaints under Article 6 §§ 1 and 3
(a), (b) and (c) of the Convention are manifestly ill-founded and
must be rejected in accordance with Article 35 §§ 3 and 4
of the Convention.
(d) The complaint under Article 12 of the
Convention
- The
applicant also complained to have been denied the right to have the
civil marriage with his girlfriend registered, in breach of Article
12 of the Convention. This provision reads as follows:
Article 12
“Men and women of marriageable age have the right
to marry and to found a family, according to the national laws
governing the exercise of this right.”
i. The parties’ submissions
- The
Russian Government submitted that the applicant had never requested
the registration of his marriage in detention in accordance with the
only relevant legal procedure envisaged to that end by the Russian
legislation. They explained to the Court that, in order for a
detainee in Russia to have his or her civil marriage registered, he
or she must, pursuant to Article 10 of the Family Code and section 27
§ 7 of the Federal Law of 15 November 1997 on Civil Registration
Acts, apply to the administration of the prison and to the relevant
Civil Registry office. Only when, and if, such a request was rejected
by the above-mentioned authorities, the detainee could then challenge
their refusal in court by bringing separate administrative-legal
proceedings (see paragraph 21 above). As to the fact that the
applicant had requested leave to marry during his trial, the
Government stated that, pursuant to the relevant provisions of the
Russian Code of Criminal Procedure defining the scope of the
jurisdiction of trial courts, that request could not have been
addressed by the Tushinskiy District Court during the examination of
the applicant’s criminal case.
- The
applicant did not comment in reply to the Government’s
arguments.
ii. The Court’s assessment
- Having
due regard to the relevant domestic law on the matter and to the
materials available in the case file, the Court observes that,
indeed, the applicant never applied either to the penitentiary
authority or to the Civil Register, the only two national authorities
competent to make a decision in that respect under the domestic law
(see paragraphs 21 and 60 above), with a request for leave to marry
his girlfriend in prison. That omission could not have been
compensated by the applicant’s having raised the issue of his
marriage before the Tushinskiy District Court during the trial, which
was a wholly inappropriate course of action in the proceedings
exclusively limited to the determination of the criminal charge
against him (cf., Lebedev v. Ukraine (dec.), no.
42484/02, 2 September 2008). It is to be noted that the trial court
itself advised the applicant that his request for leave to marry was
irrelevant to the criminal proceedings at stake.
- The
Court considers therefore that the applicant’s complaint under
Article 12 of the Convention is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 and 4 of the
Convention.
(e) The remaining complaints
- Lastly,
as regards the applicant’s unsubstantiated complaints under
Articles 7, 13 and 14 of the Convention similarly related to the
criminal proceedings against him, the Court, in the light of all the
material in its possession, and in so far as the matters complained
of are within its competence, the Court finds that they 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 is manifestly ill founded and must be rejected
in accordance with Article 35 §§ 3 (a) and 4 of the
Convention.
2. As regards the period subsequent to the applicant’s
conviction
- As
to the applicant’s complaints under Articles 3, 8 and 34 of the
Convention concerning the period of his detention subsequent to his
conviction, the Court notes the applicant’s own request for the
withdrawal of this part of the application, which was made in a clear
and unambiguous manner (see paragraph 28 above). It thus considers
that the applicant no longer wishes to pursue the relevant
complaints, within the meaning of Article 37 § 1 (a) of the
Convention.
- Furthermore, in accordance with Article 37 § 1 in
fine, the Court finds no special circumstances regarding respect
for human rights as defined in the Convention and its Protocols which
require the continued examination of this part of the application.
For these reasons, the Court unanimously
Decides to strike the application out of its list of cases in
so far as it relates to the period of the applicant’s detention
after his conviction;
Declares the remainder of the application inadmissible.
André Wampach Nina Vajić
Deputy
Registrar President
