ZAKHODYAKIN AND OTHERS v. RUSSIA - 31466/09 (Judgment (Merits and Just Satisfaction) : Court (Third Section Committee)) [2017] ECHR 138 (07 February 2017)

In the case of Zakhodyakin and Others v. Russia,

The European Court of Human Rights (Third Section), sitting as a Committee composed of:

          Helena Jäderblom, President,
          Dmitry Dedov,
          Branko Lubarda, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having deliberated in private on 17 January 2017,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in thirteen applications (nos. 26401/06, 29258/06, 12149/07, 37061/07, 35903/08, 4874/09, 20343/09, 28877/09, 29514/09, 31466/09, 32934/10, 70306/11 and 59413/12) 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 thirteen Russian nationals whose names and the dates on which they introduced their applications are set out in Appendix I.

2. Some of the applicants were represented by lawyers whose names are listed in Appendix I. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights.

3. The applicants complained, in particular, that they had been denied an opportunity to appear in person or that had not been represented before the appellate court in the criminal proceedings against them.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

A. Absence from appeal hearings

4. The applicants were convicted in Russia of various crimes. The applicants and their lawyers, except for Mr Yakupov, whose lawyer was present, were refused leave to attend the appeal hearings on the ground that their presence was unnecessary or without addressing this issue at all.

5. Following communication of the cases, the supervisory-review courts quashed the appeal judgments at the prosecutor’s request and remitted the cases for fresh examinations before the appellate courts. In most of the cases the applicants and their lawyers were present at the new appeal hearings. Mr Trifonov and Mr Sidelnikov did not ask for leave to appear and did not attend the new hearings, but they were represented by lawyers.

6. Detailed information about the applicants’ attendance and dates of the hearings is set out in Appendix II.

B. Length of proceedings (application no. 31466/09)

7. On 12 November 2002 criminal proceedings were initiated against Mr Zakhodyakin. Since then the criminal proceedings were suspended and reopened several times.

8. On 26 June 2007 the Vuktyl Town Court of the Komi Republic found the applicant guilty of abuse of office and sentenced him to one year’s imprisonment. On 24 August 2007 the Supreme Court of the Komi Republic upheld that judgment on appeal.

9. On 8 October 2008 the Presidium of the Supreme Court of the Komi Republic quashed the judgment of 24 August 2007 and remitted the case for a fresh examination. On 7 November 2008 the Supreme Court of the Komi Republic upheld the judgment of 26 June 2007.

10. On 3 October 2012 the Presidium of the Supreme Court of the Komi Republic quashed the judgment of 7 November 2008 and remitted the case for a fresh examination. On 18 December 2012 the Supreme Court of the Komi Republic upheld the judgment of 26 June 2007.

II. RELEVANT DOMESTIC LAW

11. If a convicted person wishes to take part in appeal hearing, he or she must indicate this request in his or her statement of appeal (Code of Criminal Procedure of the Russian Federation, Article 375 § 2).

12. The failure of a party, who has been duly notified of the date, time and place of the appeal hearing, to attend the hearing should not preclude the court from proceeding with the examination of the case (Code of Criminal Procedure, Article 376 § 4).

13. If the court is unable to proceed owing to the absence of a party summoned to court, it must adjourn the hearing (Code of Criminal Procedure, Article 253 § 1).

THE LAW

I. JOINDER OF THE APPLICATIONS

14. In accordance with Rule 42 § 1 of the Rules of the Court, the Court decides to join the applications, given their similar factual and legal background.

II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION ON ACCOUNT OF ABSENCE FROM AN APPEAL HEARING

15. The applicants complained under Article 6 §§ 1 and 3 (c) of the Convention that the authorities had failed to ensure their and their lawyers’ presence at the appeal hearings, while the prosecutor had attended and had made oral submissions. The relevant parts of Article 6 of the Convention provide 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 ...”

16. The Government stated that the applicants had lost their victim status.

17. The applicants maintained their complaint.

18. The Court reiterates that in situations where an alleged violation has already occurred, subsequent events can give rise to a loss of the status of “victim”, provided that the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see, among other authorities, Amuur v. France, 25 June 1996, § 36, Reports of Judgments and Decisions 1996-III).

19. The Court further reiterates that the reopening of proceedings by itself may not automatically be regarded as sufficient redress capable of depriving the applicant of his victim status. To ascertain whether or not the applicant retained his victim status the Court will consider the proceedings as a whole, including the proceedings which followed the reopening (see Sakhnovskiy v. Russia [GC], no. 21272/03, § 83, 2 November 2010, and Timoshin v. Russia (dec.), no. 17279/05, 17 May 2011).

20. In the present cases the supervisory-review courts quashed the appeal judgments on the ground that the courts had failed to secure the presence of the applicants and their lawyers at the appeal proceedings. Thus they explicitly acknowledged the infringement of the applicants’ right to defence in person and legal assistance in the appeal proceedings and ordered a fresh appeal hearing.

21. Mr Burmistrov, Mr Budrin, Mr Gayniyatov, Mr Mezhinov, Mr Chichkin, Mr Ivanovskiy, Mr Sadovnik, Mr Zakhodyakin, Mr Goncharov, Mr Kayzer, Mr Yakupov and their lawyers were present at the new appeal hearings and were able to make oral submissions. There is no indication that these new proceedings had any defects. Therefore the measures taken by the authorities provided adequate redress to the applicants in respect of the violation of their right to take part in the appeal hearing.

22. Mr Trifonov and Mr Sidelnikov were represented by lawyers at the new appeal hearings. Their lawyers had had sufficient time to study the case file and made oral and written submissions. As to the applicants’ personal presence, they failed to apply for leave to appear though they had been informed of this requirement. They had also been informed of the date of new appeal hearings.

23. In these circumstances, the Court concludes that the defects in the original appeal proceedings were remedied by the subsequent procedure before the appellate court. The fact that the applicants were duly represented at the new hearings constituted adequate redress for the violation of their right to fair trial.

24. Therefore, having regard to the content of the supervisory-review courts’ judgments and the subsequent re-examination of the applicants’ cases during which they were afforded an effective opportunity to be present or be represented, the Court finds that the national authorities have acknowledged, and then afforded redress for, the alleged breach of the Convention which occurred as a result of the authorities’ failure to summon the applicants to the hearings (see Timoshin, cited above; Lozhkin v. Russia (dec.), no. 16384/08, §§ 14-22, 22 October 2013; and Khismatullin v. Russia, no. 33469/06, §§ 61-67, 11 December 2014).

25. It follows that the applicants can no longer claim to be “victims” of the alleged violation of Article 6 §§ 1 and 3 (c) of the Convention within the meaning of Article 34 of the Convention and that this part of the application must be rejected pursuant to Articles 34 and 35 §§ 3 (a) and 4 of the Convention.

III. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION ON ACCOUNT OF EXCESSIVE LENGTH OF PROCEEDINGS

26. Mr Zakhodyakin complained under Article 6 § 1 of the Convention of a breach of the “reasonable-time” requirement as regards the length of the criminal proceedings against him. Article 6 § 1 provides:

“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”

27. The Government acknowledged that the length of the proceedings did not satisfy the “reasonable-time” requirement.

28. The applicant maintained his complaint.

A. Admissibility

29. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

30. In the leading case of Nakhmanovich v. Russia (no. 55669/00, 2 March 2006) the Court found a violation in respect of issues similar to those in the present case.

31. The total duration of proceedings to be taken into account, less the time between appeal judgments and quashing by way of supervisory review, amounted to five years and twenty-seven days.

32. Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion as to the merits of this complaint. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable-time” requirement.

33. There has accordingly been a breach of Article 6 § 1 of the Convention on account of an excessive length of proceedings.

IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

34. The applicants also submitted other complaints, in particular complaints concerning conditions of detention, unlawful detention, unfairness and the outcome of criminal proceedings against them.

35. However, having regard to all the material in its possession, and in so far as these complaints fall within its competence, the Court finds that there is no appearance of a violation of the rights and freedoms set out in the Convention. It follows that this part of the application must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

V. APPLICATION OF ARTICLE 41 OF THE CONVENTION

36. 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

37. Mr Zakhodyakin claimed 67,000 euros (EUR) and 50,000 euros (EUR) in respect of pecuniary and non-pecuniary damage respectively.

38. The Government considered his claim excessive.

39. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this part of the claim. On the other hand, it awards the applicant EUR 2,000 in respect of non-pecuniary damage.

B. Costs and expenses

40. Mr Zakhodyakin also claimed 181,661.77 Russian roubles (RUB) for the costs and expenses incurred before the domestic courts and before the Court.

41. The Government stated that these expenses had not been actually and necessarily incurred and were not reasonable as to quantum.

42. Regard being had to the documents in its possession and to its case-law, the Court notes that the applicant’s complaint concerning his absence from the appeal hearing was declared inadmissible. Accordingly, these expenses are not to be reimbursed. As to the legal fees, the Court notes that the legal costs incurred in the domestic proceedings are relevant only in so far as they were incurred in order to remedy the violation of Article 6 of the Convention on account of excessive length of proceedings. Those costs cannot be deduced from the documents submitted. On the other hand, it considers it reasonable to award the sum of EUR 12 covering postal costs.

C. Default interest

43. The Court considers it appropriate that the default interest rate 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,

1. Decides to join the applications;

2. Declares the complaints concerning the applicants’ absence from the appeal hearings inadmissible and Mr Zakhodyakin’s complaint concerning excessive length of criminal proceedings admissible;

3. Holds that there has been a violation of Article 6 of the Convention on account of excessive length of criminal proceedings;

4. Holds

(a) that the respondent State is to pay Mr Zakhodyakin, within three months, the following amounts to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 2,000 (two thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 12 (twelve euros), plus any tax that may be chargeable, in respect of costs and expenses;

(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;

5. Dismisses the remainder of Mr Zakhodyakin’s claim for just satisfaction.

Done in English, and notified in writing on 7 February 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Fatoş Aracı Helena Jäderblom
Deputy Registrar President

Appendix I

No.	Application No.	Lodged on	Applicant Date of birth Place of residence	Represented by
1.	26401/06	28/04/2006	Vladimir Mikhaylovich BURMISTROV 06/07/1959 Kamenskiy village, Saratov Region	Yekaterina Viktorovna YEFREMOVA
2.	29258/06	25/05/2006	Vladimir Aleksandrovich TRIFONOV 28/09/1953 Pechora, Komi Republic	Eduard Valentynovych MARKOV
3.	12149/07	23/01/2007	Sergey Olegovich BUDRIN 30/12/1978 Solikamsk, Perm Region
4.	37061/07	19/07/2007	Yevgeniy Maratovich GAYNIYATOV 26/01/1978 Izhevsk, Udmurtia Republic	Aleksandr Grigoryevich MANOV
5.	35903/08	10/05/2008	Yuriy Mikhaylovich MEZINOV 07/05/1968 Elets, Lipetsk Region	Valeriy Vladimirovich SHUKHARDIN
6.	4874/09	05/11/2008	Oleg Alekseyevich CHICHKIN 25/04/1976 Bor, Nizhniy Novgorod Region	Dmitriy Vladimirovich AGRANOVSKIY
7.	20343/09	02/02/2009	Oleg Yevgenyevich SIDELNIKOV 28/09/1968 Pugachev, Saratov Region
8.	28877/09	23/04/2009	Roman Timofeyevich IVANOVSKIY 10/01/1975 Metallistov village, Tver Region
9.	29514/09	18/04/2009	Vitaliy Valeryevich SADOVNIK 08/05/1990 Nosovo, Rostov Region	Yevgeniya Dmitriyevna DOKHNOVA
10.	31466/09	07/05/2009	Nikolay Dmitriyevich ZAKHODYAKIN 07/04/1951 Vuktyl, Komi Republic
11.	32934/10	26/04/2010	Ivan Alekseyevich GONCHAROV 21/01/1975 Volgograd
12.	70306/11	05/10/2011	Vladimir Ivanovich KAYZER 19/11/1951 Staroshcherbinovskaya, Krasnodar Region	Eduard Valentynovych MARKOV
13.	59413/12	01/12/2011	Ruslan Ramilovich YAKUPOV 26/12/1974 Belebey, Bashkortostan Republic

APPENDIX II

No.	Application number and applicant’s name	First appeal (supervisory review) hearing, attendance		Quashing	New appeal hearing, attendance
No.	Application number and applicant’s name	Present	Represented	Quashing	Present	Represented
1.	26401/06, Burmistrov Vladimir Mikhaylovich	09/03/2006, Saratov Regional Court		09/08/2012, Supreme Court of Russia	18/09/2012, Saratov Regional Court
				09/08/2012, Supreme Court of Russia	No; Leave to appear: No	Yes
				18/02/2013, Presidium of the Saratov Regional Court	26/03/2013, Saratov Regional Court
		No	No	18/02/2013, Presidium of the Saratov Regional Court	Yes	Yes
2.	29258/06, Trifonov Vladimir Aleksandrovich	27/02/2006, Supreme Court of Russia		21/07/2010, Presidium of the Supreme Court	14/10/2010, Supreme Court of Russia
2.	29258/06, Trifonov Vladimir Aleksandrovich	No	No	21/07/2010, Presidium of the Supreme Court	No; leave to appear : No; informed of the hearing	Yes
3.	12149/07, Budrin Sergey Olegovich	10/08/2006, Supreme Court of Russia		23/01/2013, Presidium of the Supreme Court of Russia	26/03/2013, Supreme Court of Russia
3.	12149/07, Budrin Sergey Olegovich	No	No	23/01/2013, Presidium of the Supreme Court of Russia	Yes	Yes
4.	37061/07, Gayniyatov Yevgeniy Maratovich	25/01/2007, Supreme Court of the Udmurtia Republic		18/03/2013, Presidium of the Supreme Court of the Udmurtia Republic	25/04/2013, Supreme Court of the Udmurtia Republic
4.	37061/07, Gayniyatov Yevgeniy Maratovich	No	No		Yes	Yes
5.	35903/08, Mezhinov Yuriy Mikhaylovich	22/01/2008, Orel Regional Court		18/06/2009, Presidium of the Orel Regional Court	22/09/2009, Orel Regional Court
5.	35903/08, Mezhinov Yuriy Mikhaylovich	No	No	18/06/2009, Presidium of the Orel Regional Court	Yes	Yes
6.	4874/09, Chichkin Oleg Alekseyevich	07/05/2008, Ulyanovsk Regional Court		30/08/2012, Presidium of the Ulyanovsk Regional Court	19/09/2012, Ulyanovsk Regional Court
6.	4874/09, Chichkin Oleg Alekseyevich	No	No	30/08/2012, Presidium of the Ulyanovsk Regional Court	Yes	Yes
7.	20343/09, Sidelnikov Oleg Yevgenyevich	26/08/2008, Moscow Regional Court		05/12/2012, Presidium of the Moscow Regional Court	05/02/2013, Moscow Regional Court
7.	20343/09, Sidelnikov Oleg Yevgenyevich	No	No	05/12/2012, Presidium of the Moscow Regional Court	No; Leave to appear: No; informed of the hearing	Yes
8.	28877/09, Ivanovskiy Roman Timofeyevich	11/11/2008, Tver Regional Court		17/01/2013, Supreme Court of Russia	05/03/2013, Tver Regional Court
8.	28877/09, Ivanovskiy Roman Timofeyevich	No	No	17/01/2013, Supreme Court of Russia	Yes	Yes
9.	29514/09, Sadovnik Vitaliy Veleryevich	16/12/2008, Supreme Court of Russia		Supreme Court of Russia, date unclear	29/08/2012, Supreme Court of Russia
9.	29514/09, Sadovnik Vitaliy Veleryevich	No	No	Supreme Court of Russia, date unclear	Yes	Yes
10.	31466/09, Zakhodyakin Nikolay Dmitriyevich	24/08/2007, Supreme Court of the Komi Republic		08/10/2008, Presidium of the Supreme Court of Komi Republic	07/11/2008, Supreme Court of the Komi Republic
				08/10/2008, Presidium of the Supreme Court of Komi Republic	No; Leave to appear: Yes	No
				03/10/2012, Presidium of the Supreme Court of Komi Republic	18/12/2012, Supreme Court of the Komi Republic
		No	No	03/10/2012, Presidium of the Supreme Court of Komi Republic	Yes	Yes
11.	32934/10, Goncharov Ivan Alekseyevich	30/11/2009, Volgograd Regional Court		08/05/2013, Presidium of the Volgograd Regional Court	14/06/2013, Volgograd Regional Court
11.	32934/10, Goncharov Ivan Alekseyevich	No	No	08/05/2013, Presidium of the Volgograd Regional Court	Yes	Yes
12.	70306/11, Kayzer Vladimir Ivanovich	18/05/2011, Krasnodar Regional Court		20/02/2013, Presidium of the Krasnodar Regional Court	03/07/2013, Krasnodar Regional Court
12.	70306/11, Kayzer Vladimir Ivanovich	No	No	20/02/2013, Presidium of the Krasnodar Regional Court	Yes	Yes
13.	59413/12, Yakupov Ruslan Ramilovich	02/06/2011, Supreme Court of the Bashkortostan Republic		12/09/2012, Presidium of the Supreme Court of the Bashkortostan Republic	19/02/2013, Supreme Court of the Bashkortostan Republic
13.	59413/12, Yakupov Ruslan Ramilovich	No	Yes		Yes	Yes

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You are here: BAILII >> Databases >> European Court of Human Rights >> ZAKHODYAKIN AND OTHERS v. RUSSIA - 31466/09 (Judgment (Merits and Just Satisfaction) : Court (Third Section Committee)) [2017] ECHR 138 (07 February 2017) URL: http://www.bailii.org/eu/cases/ECHR/2017/138.html Cite as: CE:ECHR:2017:0207JUD003146609, [2017] ECHR 138, ECLI:CE:ECHR:2017:0207JUD003146609