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THIRD
SECTION
CASE OF
STADUKHIN v. RUSSIA
(Application
no. 6857/02)
JUDGMENT
STRASBOURG
18 October 2007
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 Stadukhin v. Russia,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Mr B.M. Zupančič,
President,
Mr C. Bîrsan,
Mr A.
Kovler,
Mrs E. Fura-Sandström,
Mrs A.
Gyulumyan,
Mr E. Myjer,
Mrs I. Ziemele,
judges,
and Mr S. Quesada, Section Registrar,
Having
deliberated in private on 27 September 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 6857/02) 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 Ruslan Aleksandrovich
Stadukhin (“the applicant”), on 29 June 2001.
- The
Russian Government (“the Government”) were represented by
Mr P. Laptev, Representative of the Russian Federation at the
European Court of Human Rights.
- The
applicant alleged that he had not been apprised of an appeal hearing
in criminal proceedings against him.
- By
a decision of 8 December 2005, the Court declared the application
partly admissible.
- The
applicant and the Government each filed further written observations
(Rule 59 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant was born in 1970 and lives in the
Stavropol Region.
- By
a judgment of 5 December 2000 following a guilty verdict delivered by
a jury, the Stavropol Regional Court convicted the applicant and his
co defendant of murder, robbery and the illegal acquisition,
storage and carrying of arms. The applicant was sentenced to sixteen
years' imprisonment and confiscation of property and ordered
to pay pecuniary and non-pecuniary damages to the victim.
- The
applicant, who was being held in custody, appealed against the
judgment to the Supreme Court of Russia. He submitted, inter alia,
that the judgment had been based on evidence which had not been
thoroughly examined, that the investigating authority had failed to
verify his co defendant's statements by way of a scene-of-crime
reconstruction, that the court had dismissed his request for
examination of additional witnesses, that no psychiatric and
psychological examination had been conducted and that he had had no
motive to commit the murder and robbery. He requested the appeal
court to quash the judgment and order a fresh examination of the
case.
- On
21 February 2001 the Supreme Court examined the applicant's appeal.
It heard a public prosecutor who requested that the judgment should
be upheld. The applicant, who had not been apprised of the hearing,
was not present. He was not represented by counsel at the hearing.
- By
a decision of 21 February 2001 the Supreme Court dismissed the
applicant's appeal and upheld the judgment. It found that the trial
court's presiding judge had conducted the trial impartially and
ensured that the case had been thoroughly examined. There had been no
need for a scene-of-crime reconstruction by the investigating
authority, as the evidence collected in the case had been sufficient.
The applicant's unsuccessful request for examination of evidence had
not concerned evidence which could have had a significant impact on
the outcome of the case. The applicant's submission that he had had
no motive to commit the murder and robbery could not serve as a
ground for quashing a jury-based judgment, and the applicant had been
informed of this by the trial court. The applicant's complaint about
the authorities' failure to order a psychiatric and psychological
examination had not been based on law, as neither the investigating
authority nor the trial court had had doubts about the applicant's
mental health and no request for such an examination had been made
before or during the trial.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The right to be present at an appeal hearing
- Under
Article 335 of the Code of Criminal Procedure of 1960 (“CCP”),
in force at the material time, the public prosecutor would give a
conclusion at an appeal hearing on whether a judgment was lawful and
well-founded. Defence counsel could participate in the hearing. A
decision about the defendant's participation in the hearing was taken
by the appeal court. A defendant who appeared before the court was
always entitled to give explanations.
- In
Decision no. 27-P of 10 December 1998,
the Constitutional Court of the Russian Federation declared
Article 335 § 2 of the CCP incompatible with the Constitution on
the ground that this provision enabled appeal courts to take a final
decision where a defendant's request to attend the appeal hearing had
been rejected and where a defendant had not been given an opportunity
to study the materials of the hearing and communicate in writing his
or her opinion on the issues raised before the appeal court.
- Article
336 of the CCP provided that persons who had submitted appeals were
to be apprised of the appeal hearing if it was held before courts
lower than the Supreme Court of Russia. If an appeal was to be
examined by the Supreme Court, an appellant would be apprised of the
appeal hearing if he or she had requested the court to do so in their
appeal or observations on the appeal. Notification of the time of the
hearing on appeal was to be placed in the court not later than three
days before the hearing.
- In
Decision no. 200-O of 17
October 2001, the Constitutional Court held that the provisions of
Article 336 of the CCP could not serve as a basis for failing to
inform persons entitled to appeal against judgments about the date of
examination of their appeals by a court of any level.
- Article
338 of the CCP required that, at the beginning of an appeal hearing,
the presiding judge should verify who was present and the court
should decide whether to proceed with the hearing.
- Rules
set out in Articles 332, 335, 336 and 338 of the CCP concerning
appeals against judgments delivered by courts in their ordinary
composition also governed the procedure in respect of appeals against
judgments delivered by a jury court (Article 420 of the CCP).
B. The appeal court's jurisdiction
- Appeal courts considered, on the basis of the
materials in the case file and newly submitted materials, whether a
first-instance judgment was lawful and well-founded. They were not
bound by the grounds of the appeal and
exercised a full review of the case
(Article 332
of the CCP).
- Under
Article 465 of the CCP, in cases decided by a jury the appeal court
could change or quash the judgment on the following grounds:
(i) incomplete
court examination as a result of the trial court's failure or refusal
to examine admissible evidence, or examination of inadmissible
evidence, where the evidence in question could have had a significant
impact on the outcome of the case;
(ii) grave
violations of the criminal procedural law;
(iii) improper
application of law;
(iv) unfair
punishment.
- Appeal
courts could quash or vary the judgment provided that the changes
were not to the detriment of the defendant. They could not quash an
acquittal or a decision to terminate the proceedings or another
decision in the defendant's favour on the grounds of a grave
violation of his or her rights (Article 465 of the CCP).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained about the failure of the judicial authorities to
apprise him of the appeal hearing. He relied on Article 6 § 1 of
the Convention which, in so far as relevant, reads as follows:
“In the determination of ... any criminal charge
against him, everyone is entitled to a fair ... hearing ... by [a]
... tribunal...”
A. The parties' submissions
1. The Government
- The
Government submitted that the applicant had not informed the
court that he had wished to be present at the appeal hearing. No
request for his notification of the place and date of the appeal
hearing had been made in his appeal or by way of a separate written
request.
- According
to Article 336 of the Code of Criminal Procedure, in force at the
material time, only an appellant who requested notification of an
appeal hearing in his or her appeal or observations on the other
party's appeal was to be informed of the date of an appeal hearing
before the Supreme Court of the Russian Federation. Since the
applicant had failed to request notification of the appeal hearing,
as required by the rules governing criminal procedure, the Supreme
Court had not violated his right to a fair hearing by holding a
hearing in his absence. Decision no. 200-O of 17 October 2001 of
the Constitutional Court, which made it obligatory to inform all
appellants of the date of examination of their appeals, had been
adopted after the examination of the applicant's case.
- The
applicant's absence before the appeal court had had no impact on the
appeal court's decision to uphold the judgment. It followed
from the Supreme Court's decision of 21 February 2001 that all of the
arguments raised by the applicant in his appeal were examined and all
the conclusions were reasoned. The lawfulness and
well-foundedness of the judgment had also been verified by a
supervisory review instance.
2. The applicant
- The
applicant claimed that he had sent, from the remand prison, separate
written requests for notification of the date of the appeal hearing,
to the Stavropol Regional Court on 10 January and 9 February
2001 and to the Supreme Court on 31 January 2001. He referred to
an extract from the records of remand prisoners' outgoing
correspondence in 2000-2001, dated 5 July 2006.
Referring to Decision no. 200-O of 17 October 2001 of the
Constitutional Court, the applicant argued that the Supreme Court
should have applied the Constitution directly and informed him of the
hearing anyway.
- In
his observations on the merits, the applicant submitted a new
complaint concerning the allegedly inhuman conditions in a pre-trial
detention facility in Stavropol in which he had been detained in 2000
and 2001. He also submitted complaints concerning the criminal
proceedings brought against him, which were partly new and partly
repeated those complaints which were dismissed by the Court in its
admissibility decision of 8 December 2005. Thus, he complained that
his acts had been wrongly classified under the Criminal Code, that he
had had no time to prepare for examination of witnesses, that his
request for examination of additional witnesses and other evidence
had been rejected, that one of his lawyers had failed to represent
him properly, that third parties had not been obliged by law to give
information to a lawyer, that he had had no full-scale trial before a
supervisory review court and that he had served part of his sentence
in a prison instead of a correctional facility as ordered in the
judgment. He relied on Articles 3, 6 §§ 1 and 3 (b) and
(d), 7 and 13 of the Convention and Articles 2 and 4 of Protocol No.
7 to the Convention.
B. The Court's assessment
1. Scope of the case
- The Court notes that in his observations on the merits
the applicant raised new
complaints
relating to his conviction and resubmitted some of the
complaints which were declared inadmissible by the Court in its
decision of 8 December 2005 (see paragraph 25 above).
- The Court reiterates that the admissibility decision
delimits the scope of the case before it (see Stankov and the
United Macedonian Organisation Ilinden v. Bulgaria, nos. 29221/95
and 29225/95, § 59, ECHR 2001 IX). It follows that it
cannot take into account the newly raised complaints in the framework
of the present application. Nor can it re-examine the complaints
which were earlier declared inadmissible.
2. Merits
- The
concept of a fair trial guaranteed under Article 6 § 1 of the
Convention requires that the rights of the defence and equality of
arms in the sense of a “fair balance” between the parties
must be respected (see Borgers v. Belgium, judgment of 30
October 1991, Series A no. 214 B, p. 31, § 24, and
Dombo Beheer B.V. v. the Netherlands, judgment of 27 October
1993, Series A no. 274, p. 19, § 33). In this context importance
is attached to appearances as well as to the increased sensitivity of
the public to the fair administration of justice (see Borgers v.
Belgium, cited above, ibid.).
- The
Court notes the Government's submission that the applicant had failed
to make known to the judicial authorities that he had wished to be
apprised of the appeal hearing, as was required by the rules
governing criminal procedure. The applicant claimed that he had done
so.
- The
Court observes that the Code of Criminal Procedure in force at the
material time released the Supreme Court from the duty to apprise an
appellant of the appeal hearing if an appellant had not made an
explicit request to that end. However it appears that the Supreme
Court had the discretion to ensure the applicant's participation in
the hearing notwithstanding his failure to make a request to attend
the hearing (see paragraph 11 above). The Court further observes that
the extract from the records of the remand prisoners' correspondence
produced by the applicant does not make it possible to ascertain
whether such a request was indeed made in his applications to the
Regional Court and the Supreme Court. However, the Court does not
find it necessary to resolve this discrepancy between the parties'
submissions. It considers, for the reasons stated below, that even
assuming that the applicant had failed to request explicitly that he
be apprised of the appeal hearing, it was incumbent on the judicial
authorities to do so in order for the proceedings to be fair (see,
mutatis mutandis, Kremzow v. Austria, judgment of 21
September 1993, Series A no. 268 B, p. 45, §§ 67-69).
- In
the present case the defence was unrepresented at the appeal hearing
before the Supreme Court.
- The
Supreme Court examined the applicant's appeal, in which he contested
his conviction on the grounds of the trial court's allegedly improper
examination of evidence and the lack of a motive to commit the
crimes. He sought the quashing of the judgment and a fresh
examination of the case by the first-instance court (see paragraph 8
above).
- The
Supreme Court was entitled to quash the Stavropol Regional Court's
judgment and remit the case for a fresh trial, or to vary the
judgment for reasons such as the improper examination of evidence,
serious breaches of the procedural law, incorrect application of the
law or an unfair punishment. The Supreme Court was not bound by the
scope of the appeal and had to exercise a full review of the case in
order to assess whether the judgment had been lawful and well-founded
(see paragraphs 17-19 above).
- The
Supreme Court exercised the above powers in the applicant's case by
upholding the conviction and the sentence.
- The
prosecution was present at the appeal hearing and made oral
submissions to the Supreme Court. They requested that the judgment be
upheld.
- The
Court considers that in these circumstances there was a violation of
the rights of the defence and the principle of equality of arms (see
Ekbatani v. Sweden, judgment of 26 May 1988, Series A no. 134,
p. 14, § 30, and Monnell and Morris v. the United
Kingdom, judgment of 2 March 1987, Series A no. 115, pp. 23-24, §
62).
- In
conclusion, the Court finds that the appeal proceedings before the
Supreme Court failed to comply with the requirements of fairness. It
follows that there has been a violation of Article 6 § 1 in the
present case.
- In
view of this conclusion, the Court considers it unnecessary to carry
out a separate examination of whether the proceedings disclosed any
further unfairness in relation to the fact that the applicant did not
appear in person before the Supreme Court.
II. 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 pecuniary damage comprising of 50,000 euros (EUR)
for the loss of his flat in Stavropol, EUR 6,800 and EUR 6,600 for
the cost of food and clothing which his family had brought him during
his detention in a pre-trial detention facility and in a correctional
facility after his conviction and EUR 500 for the loss of a tooth in
a pre-trial detention facility, allegedly as a result of improper
medical care. The applicant also claimed EUR 1,500,000 in respect of
non-pecuniary damage.
- The
Government contested the applicant's claims. They submitted that the
claims for pecuniary damage were unsubstantiated and lacked
connection with the alleged violation of the Convention.
- The
Court finds that there has been no causal link between the violation
found and the claimed pecuniary damage. Consequently, it sees no
reason to award the applicant any sum under this head.
- The
Court accepts that the applicant has suffered non-pecuniary damage
which would not be adequately compensated by the finding of a
violation. Making its assessment on an equitable basis, the Court
awards the applicant EUR 1,000 under this head, plus any tax that may
be chargeable on that amount.
B. Costs and expenses
- The
applicant claimed EUR 10,000 for reimbursement of lawyers' fees,
postal expenses relating to correspondence with his representative
and the domestic judicial authorities, the cost of legal books and
travel expenses. He claimed 653.45 Russian roubles for postal
expenses relating to his correspondence with the Court.
- The
Government submitted that these claims were unsubstantiated.
- The
Court points out that under Rule
60 of the
Rules of
Court any
claim for just satisfaction must be itemised and submitted in
writing together with the relevant supporting documents or vouchers,
“failing which the Chamber may reject the claim in whole or in
part”. According to the Court's established case-law, an
applicant is entitled to reimbursement of his costs and expenses only
in so far as it has been shown that these have been actually and
necessarily incurred and were reasonable as to quantum. In the
present case, the Court considers that only postal expenses relating
to the applicant's correspondence with the Court meet the above
criteria. Thus, the applicant failed to provide the Court with any
information or documents concerning the work allegedly done by
lawyers and the relevant expenses allegedly incurred by him. The
Court awards the applicant EUR 19 in respect of his postal
expenses, plus any tax that may be chargeable on that amount.
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
- 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
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following
amounts, to be converted into Russian roubles at the rate applicable
at the date of settlement:
(i) EUR
1,000 (one thousand euros) in respect of non-pecuniary damage;
(ii) EUR
19 (nineteen euros) in respect of costs and expenses;
(iii) any
tax that may be chargeable on the above amounts;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 18 October 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Boštjan M. Zupančič
Registrar President
