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FIRST SECTION
CASE OF PONOMAREV v. RUSSIA
(Application no. 7672/03)
JUDGMENT
STRASBOURG
15 May 2008
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 Ponomarev v. Russia,
The European Court of Human Rights (First Section), sitting as a
Chamber composed of:
Christos Rozakis, President,
Nina Vajić,
Anatoly
Kovler,
Elisabeth Steiner,
Khanlar
Hajiyev,
Dean Spielmann,
George Nicolaou,
judges,
and André Wampach, Deputy
Section Registrar,
Having deliberated in private on 24 April 2008,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
- The case originated in an application (no. 7672/03)
against the Russian Federation lodged with the Court under Article 34
of the Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by a Russian national, Mr
Vladimir Vladimirovich Ponomarev (“the applicant”), on 22
May 2001.
- The applicant was represented by Mr V.D. Yermeychuk, a
lawyer practising in the Republic of Komi. The Russian Government
(“the Government”) were represented by Mr P. Laptev, the
former Representative of the Russian Federation at the European Court
of Human Rights.
- On 11 January 2006 the Court decided to communicate the
complaint concerning the domestic courts' failure to examine the
applicant's claim about his alleged infection with tuberculosis to
the Government. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the application at
the same time as its admissibility.
- The
Court dismissed an objection raised by the Government concerning the
application of Article 29 § 3 of the Convention to the present
case.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1975 and lives in Vorkuta, in the Republic of
Komi.
A. Criminal proceedings
against the applicant
6. On
30 October 1996 police apprehended the applicant on suspicion of
having committed theft from a garage, together with Sh. Upon arrival
at the police station the applicant and Sh. admitted the charges. The
applicant told the police the location of the garage they had robbed.
It appears from the records of the applicant's arrest and first
questioning that his right to have legal assistance provided by the
state or of his own choosing was explained to him. However, he
declined the offer initially and said that he would appoint a counsel
to defend him during the trial.
7. On
1 November 1996 the applicant was remanded in custody.
8. On
28 February 1997 the prosecution authorities referred the criminal
case to the Vorkuta Town Court of the Republic of Komi (“the
Town Court”) for trial.
9. On
9 December 1997 the Town Court found that during the pre-trial
investigation the applicant had been deprived of an opportunity to
appoint legal counsel of his own choosing. In the Town Court's view,
the applicant's defence rights had not been respected and the charges
against him had been based to a large extent on his
self-incriminating testimony. Furthermore, the Town Court established
that the applicant had been in custody for a year and that he had
contracted tuberculosis. In those circumstances it decided to release
the applicant on the undertaking not to leave his place of residence,
and returned the case to the prosecution authorities for further
investigation. The Town Court ordered that all investigative
measures, including questioning the applicant, should be conducted in
the presence of the applicant's legal counsel.
10. In
July 1998 the investigating authorities discontinued the criminal
proceedings against the applicant in the absence of any corpus
delicti.
However, in November 1998 the Deputy Prosecutor of Vorkuta ordered
them to be re-opened.
11. On
18 December 2000 the Town Court examined the applicant's case. The
applicant was represented by K., a counsel appointed by him. The
applicant and Sh. denied all charges. They submitted that they had
confessed to theft to protect Sh.'s brother. The applicant refused to
give any further testimony, relying on his right not to incriminate
himself.
12. The
Town Court heard testimonies by a victim, several witnesses and the
investigator in charge of the case, who stated that the applicant had
been assisted by a lawyer throughout the proceedings, except at times
when he had refused to call one. Each time his refusal had been noted
in the records of questioning and endorsed by the applicant. The Town
Court held that the applicant had admitted the charges and that other
evidence examined in the trial proved his guilt. It dismissed as
unsubstantiated the applicant's complaint that he had been questioned
on occasion with no counsel present, finding that according to the
records of questioning sessions signed by the applicant, he had
declined to call a lawyer.
13. On
the same date the Town Court convicted the applicant as charged and
sentenced him to two years' imprisonment, but ordered the sentence to
be lifted under the
Amnesty Act of 26 May 2000. On
26 January 2001 the Supreme Court of the Republic of Komi (“the
Supreme Court”) upheld the conviction on appeal.
B. Civil proceedings for damages
- On 22 December 1998 the applicant brought a court
action against the Ministry of Finance of the Russian Federation,
seeking to recover lost wages and obtain compensation for his
allegedly unlawful detention. He also claimed damages for his alleged
infection with tuberculosis while in detention. He relied on Articles
1070 and 1100 of the Civil Code of the Russian Federation and claimed
150,000 Russian roubles (RUB). In the course of the proceedings, on 5
July 2001, the applicant increased his claim to RUB 300,000.
- In support of his claims concerning his alleged
infection with tuberculosis, the applicant provided the Town Court
with an extract of his medical record delivered by the hospital of
the village of Severnyy on 23 October 1998, and medical
certificates delivered by the tuberculosis dispensary of Vorkuta on
23 December 1997 and 5 August 1998. According to those documents the
applicant had been diagnosed with tuberculosis in 1997, while in
pre-trial detention, and had to follow regular in-patient and
sanatorium therapy.
- The
Town Court delivered its judgment on 23 January 2003. It held that
the applicant's pre-trial detention had been lawful and dismissed his
claim in respect of compensation for detention. It did not address
the applicant's complaint about his alleged infection with
tuberculosis. On 17 March 2003 the Supreme Court upheld the
judgment on appeal.
II. RELEVANT DOMESTIC LAW
- Constitution of the Russian Federation of 12 December
1993
Article 53
“Everyone shall have the right to compensation by
the state for harm caused by the unlawful action (or inaction) of
State organs or their officials.”
- Criminal Code of the Russian Federation of 13 June
1996
Article 84 Amnesty
“An amnesty may be declared by the State Duma of
the Federal Assembly of the Russian Federation with regard to a broad
range of persons.
Persons who have committed crimes may be relieved from
criminal liability by an act of amnesty. Persons convicted of crimes
may be released from punishment, or the punishment imposed on them
may be reduced or replaced with a milder penalty, or such persons may
be released from additional penalties. The criminal records of
persons who have served punishment may be expunged by an act of
amnesty.”
- Part II of the Civil Code of the Russian Federation of
26 January 1996, as worded at the material time
Article 1069 Liability for harm caused by State
agencies, local self-government agencies and their officials
“Harm caused to an individual or a legal person as
a result of the unlawful action (or inaction) of state agencies,
local self-government agencies or officials thereof, including as a
result of the issuing by state and local self-government agencies of
acts that do not conform with the law or with other legal acts, shall
be subject to compensation. Such compensation shall be paid by the
treasury of the Russian Federation, the treasury of the subject of
the Russian Federation, or the treasury of a municipal authority, as
the case may require.”
Article 1070 Liability for harm caused by the
unlawful actions of agencies of inquiry, agencies of preliminary
investigation, the prosecutor's office and the courts
“1. Harm caused to an individual as a
result of unlawful conviction, unlawful criminal prosecution,
unlawful application as a measure of restraint of remand in custody
or a written undertaking not to leave a specified place, unlawful
imposition of administrative sanctions in the form of an arrest or
correctional labour, shall be compensated in full at the expense of
the treasury of the Russian Federation and, in those instances
provided for by law, at the expense of the treasury of the subject of
the Russian Federation or the municipal authority concerned,
regardless of any fault on the part of officials of agencies of
inquiry, preliminary investigation, the prosecutor's office and the
courts, in the procedure established by law.
2. Harm caused to an individual or a legal
person as a result of the unlawful activity of agencies of inquiry,
preliminary investigation, prosecutor's offices, which has not
entailed the consequences specified in paragraph 1 of this Article,
shall be compensated on the grounds and in accordance with the
procedure set out in Article 1069 of this Code. Harm caused in the
course of the administration of justice by the courts shall be
compensated in cases where the fault of a judge has been established
by a court judgment that has entered into legal force.”
Article 1100 Grounds for compensation for
non-pecuniary damage
“Non-pecuniary damage shall be compensated,
regardless of the fault of the person responsible for inflicting the
damage, in the following instances:
where the damage to the life and health of an individual
was caused by a source of extreme danger;
where the damage was caused to an individual as a result
of his unlawful conviction, unlawful criminal prosecution, unlawful
application as a measure of restraint of remand in custody or a
written undertaking not to leave a specified place, unlawful
imposition of an administrative sanction in the form of an arrest or
correctional labour;
where the harm was caused as a result of the
dissemination of defamatory information discrediting honour, dignity
and business reputation;
in other instances specified by law.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The applicant complained that the domestic courts had
failed to examine his claim concerning his infection with
tuberculosis while in pre trial detention. The Court considers
that this complaint falls to be examined under Article 6 § 1 of
the Convention. The relevant parts of this provision read as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing ... by
[a] ... tribunal...”
A. 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.
B. Merits
- The Government acknowledged that the applicant's right
of access to a court had been violated as a result of the domestic
courts' failure to examine his claim concerning his alleged infection
with tuberculosis while in pre-trial detention.
- The applicant maintained his complaint.
- The Court reiterates that Article 6 § 1 secures
to everyone the right to have any claim relating to his civil rights
and obligations brought before a court or tribunal. In this way that
provision embodies the "right to a court", of which the
right of access, that is the right to institute proceedings before
courts in civil matters, constitutes one aspect (see Golder v. the
United Kingdom, judgment of 21 February 1975, Series A no. 18, §
36). However, the right of access to a court does not consist only of
a right to institute proceedings, but also of a right to obtain a
“determination” of the dispute, or, in other words, to
have the claims examined, by a court (see, mutatis mutandis,
Multiplex v. Croatia, no. 58112/00, § 45,
10 July 2003).
- The Court observes that on 22 December 1998 the
applicant brought a claim against the Ministry of Finance before the
Vorkuta Town Court of the Republic of Komi, seeking compensation for
his allegedly unlawful detention but also for having contracted
tuberculosis in pre-trial detention. The applicant submitted several
medical certificates in support of his claims relating to the alleged
infection with tuberculosis. The Court notes that the applicant's
claims for compensation were undoubtedly “civil” within
the meaning of Article 6 § 1 of the Convention, and had a basis
in national law.
- It follows from the judgment of 23 January 2003, that
the Vorkuta Town Court examined only the applicant's claims relating
to compensation for detention and failed to examine his claim
concerning his alleged infection with tuberculosis. The appellate
instance, in its turn, endorsed the first instance court's
findings in summary fashion. It is therefore clear that the
applicant's claims regarding compensation for his alleged infection
with tuberculosis remained without examination. Against this
background and taking into account that the Government acknowledged
the domestic courts' failure to examine the applicant's claim, the
Court considers that the applicant was denied access to a court.
- Accordingly, there has been a violation of Article 6 §
1 of the Convention on that account.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The applicant complained under Article 3 that he had
been infected with tuberculosis while in pre-trial detention. The
Court recalls that, in accordance with the general rules of
international law, the provisions of the Convention do not bind a
Contracting Party in relation to any act or fact which took place or
any situation which ceased to exist before the date of the entry into
force of the Convention with respect to that Party (see, for example,
Blečić v. Croatia [GC], no. 59532/00, § 70, 8
March 2006). The Court observes that the applicant was detained from
30 October 1996 to 9 December 1997, whereas the Convention
entered into force in respect of the Russian Federation on 5 May
1998. It follows that this complaint is incompatible ratione
temporis with the provisions of the Convention and must be
rejected in accordance with Article 35 §§ 3 and 4 of the
Convention.
- The applicant further complained, under Article 5 §
5, that the domestic courts had dismissed his claim for damages for
his allegedly unjustified detention. The Court notes that the right
to compensation set forth in paragraph 5 presupposes that a violation
of one of the preceding paragraphs of Article 5 has been established,
either by a domestic authority or by the Court (see, for example,
Stoichkov v. Bulgaria, no. 9808/02, § 72, 24 March
2005). In the present case the domestic courts have not established
that the applicant's detention from 30 October 1996 to 9 December
1997 was unlawful. The Court itself is not competent to examine the
lawfulness of the applicant's detention as it took place before 5 May
1998, the date of entry into force of the Convention in respect of
the Russian Federation. Therefore, the applicant's complaint under
Article 5 § 5 is manifestly ill-founded and must be rejected in
accordance with Article 35 §§ 3 and 4 of the Convention.
- The applicant also complained, under Article 6 §
3, that in the criminal proceedings against him he had not been
assisted by a lawyer during the first questioning by police and he
had been forced to incriminate himself. The Court notes that on 9
December 1997 the Town Court returned the case for further
investigation on the ground that the applicant's right to defence had
not been respected, and a new investigation had been conducted,
respecting the applicant's rights. Furthermore, the domestic courts
established that the applicant had been assisted by a lawyer
throughout the proceedings, except in those instances when he had
explicitly declined to call him. It follows that this part of the
application is manifestly ill-founded and must be rejected in
accordance with Article 35 §§ 3 and 4 of the Convention.
- The applicant complained that the domestic courts had
violated his rights under Article 8 of the Convention when they
applied the Amnesty Act without him asking them to do so. The Court
considers that this complaint does not disclose any appearance of a
violation of Article 8. Finally, the applicant complained under
Article 13 that the authorities had infringed his right to an
effective remedy. The Court considers that the applicant failed to
substantiate that complaint. Moreover, in so far as he relied on the
fact that the domestic courts had not properly examined his
complaints (see paragraph 20 above), the Court considers that this is
covered by its findings under Article 6 of the Convention. In these
circumstances the Court finds that this part of the application is
manifestly ill-founded and must be rejected in accordance with
Article 35 §§ 3 and 4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The applicant claimed 200,000 euros (EUR) in
compensation for his alleged infection with tuberculosis. He further
claimed 150,000 United States dollars in respect of just satisfaction
for all the alleged violations of the
Convention.
- The
Government considered that the amounts claimed were excessive and
unsubstantiated. They submitted that if the Court were to find a
violation in the present case, that in itself would constitute
sufficient just satisfaction for any damage sustained by the
applicant.
- As
regards the applicant's claim for compensation for his alleged
infection with tuberculosis, the Court notes that this issue were not
subject to examination on the merits in the present case, and
therefore rejects this claim. Furthermore, the Court considers that
an award for just satisfaction in the present case must be based on
the fact that the applicant did not have the benefit of the right of
access to a court. However, the Court cannot speculate as to what
would have been the final outcome of the proceedings (see, for
example, Freitag v. Germany, no. 71440/01, § 64, 19 July
2007). It accordingly rejects the applicant's claim in so far as it
relates to pecuniary damage. On the other hand, the Court considers
that the applicant has suffered distress and frustration as a result
of the domestic courts' failure to examine his claim about his
alleged infection with tuberculosis, and that this cannot be
sufficiently compensated for by the finding of a violation. Making
its assessment on an equitable basis and having regard to its
case-law on the subject, the Court awards the applicant EUR 2,000 in
respect of non pecuniary damage plus any tax that may be
chargeable on that amount.
B. Costs and expenses
- The
applicant did not make any claims in respect of
the costs and expenses incurred before the domestic courts and before
the Court. Accordingly, the Court does not award anything 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 complaint concerning lack of access
to a court admissible and the remainder of the application
inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention in respect of the applicant's right of
access to a court;
- 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, EUR 2,000 (two 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 at the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 15 May 2008, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Christos Rozakis
Deputy Registrar President
