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FIRST
SECTION
CASE OF ANDREY ISAYEV v. RUSSIA
(Application
no. 24490/03)
JUDGMENT
STRASBOURG
23
September 2010
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Andrey Isayev v.
Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis, President,
Nina
Vajić,
Anatoly Kovler,
Khanlar
Hajiyev,
Dean Spielmann,
Sverre Erik
Jebens,
Giorgio Malinverni, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 2 September 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 24490/03) 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 Andrey Aleksandrovich
Isayev (“the applicant”), on 28 May 2003.
- The
applicant was represented by Mr V. Kuvshinov. The Russian Government
(“the Government”) were represented by Mr G. Matyushkin,
representative of the Russian Federation at the European Court of
Human Rights.
- On
5 December 2008 the President of the First Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1978 and lives in Vladimir.
A. Criminal proceedings against the applicant
- On
28 September 1998 he was convicted of theft by a competent court and
given a suspended sentence of two years’ imprisonment with a
three-year delay in the execution of the sentence.
- On
an unspecified date the authorities brought a different set of
criminal charges against the applicant. The Court is in possession of
a letter written by the prosecutor’s office of the Vladimir
Region and dated by 30 April 1999 which contains the following
statement: “...your son A.A. Isayev was arrested on 15
January 1999 in accordance with Section 122 of the Code of the
Criminal Procedure of the Russian Soviet Federal Socialist Republic,
after which, taking into account the circumstances of the case
including his engagement in criminal activities during the service of
a previous sentence, he was placed in detention and charged”.
According to the Government, the authorities did not arrest the
applicant on 15 January 1999 as at the material time he was already
in detention on account of a different criminal investigation against
him, which ended in his conviction by the Oktyabrskiy District Court
of Vladimir on 12 April 2000.
- Between
7 and 9 June 2000 the applicant and his legal counsel studied the
case file.
- On
7 June 2000 and on 1 August 2001 the applicant requested that his
case be examined by a jury.
- On
2 July 2001 the criminal case against the applicant and his two
co defendants was forwarded to the Vladimir Regional Court (“the
trial court”) for trial.
- On
16 July 2001 the trial court set the examination of the case for
30 July 2001.
- On
30 July 2001 the trial court, composed of judge Sh. and two lay
judges (народные
заседатели)
K. and S. started the examination of the case. The applicant was
represented by legal counsel. However, at the hearing he sought leave
to be represented also by his mother and by Mr Kuvshinov. The
trial court dismissed his request.
- The
applicant and his legal counsel appealed against the above decision
to the Supreme Court of the Russian Federation (“the appeal
court”). On 15 October 2001 the appeal court held that it was
not possible to examine the applicant’s appeal against an
interlocutory decision.
- On
15 November 2001 the trial court, which was now composed of judge Sh.
and lay judges G. and Ka., allowed Mr Kuvshinov to defend the
applicant along with his legal counsel.
- On
the same date the trial court rejected the applicant’s request
to have his case heard by a jury on the ground that the jury trial
had not been set up in the Vladimir Region.
- On
4 December 2001 the trial court dismissed the applicant’s
objection to the composition of the trial court. Regarding the lay
judges, the trial court held that they had been elected by the
Vladimir Regional Council of People’s Deputies (Владимирский
областной
совет
народных
депутатов)
during its session of 4 11 April 1990 in accordance with law.
According to the presidential decree of 25 January 2000 their terms
of office had been extended until the court received a new list of
lay judges confirmed by the regional legislature.
- On
24 December 2001 the applicant received a similar answer from the
President of the Vladimir Regional Court.
- On
29 April 2002 the trial court found the applicant guilty of two
premeditated murders, damage to private property and several other
crimes and sentenced him to twenty years’ imprisonment with
confiscation of his possessions. The sentence started to run from 15
January 1999.
- The
applicant appealed against the conviction. In the additional grounds
of appeal he complained, among other things, that the judgment had
been adopted by a court which had not been established in accordance
with law.
- On
19 December 2002 the appeal court upheld the applicant’s
conviction for murders, modified the judgment in respect of the other
charges and reduced his sentence to nineteen years’
imprisonment with confiscation of the possessions. In particular, it
found that the trial court had been established in accordance with
law.
B. Libel proceedings against a newspaper
- On
12 February 2002 the local newspaper Molva published an
article in which it allegedly accused the applicant’s
representative, Mr Kuvshinov, of causing delays in the examination of
the applicant’s case. Defamation proceedings brought by Mr
Kuvshinov against the newspaper ended in a friendly settlement on 16
April 2003. The parties did not appeal against the settlement, and it
entered into force on 28 April 2003.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Code of the Criminal Procedure of RSFSR of 1960
(“the CCrP”) in force until 1 July 2002
- Section
15 of the CCrP provided that hearings of criminal cases in
first instance courts had to be conducted, subject to certain
exceptions, by a single professional judge or by a panel of one
professional judge and two lay judges. In administration of justice
lay judges enjoyed the same rights as professional judges.
B. Law of RSFSR on the Judicial System of 8 July
1981(“the Law”)
- Section
29 of the Law provided that the regional and other equal courts,
including the president of the court, the president’s deputies,
the court members and the lay judges, should be elected by the
relevant council of people’s deputies for the duration of five
years.
C. Federal Law on the Lay Judges of the Federal Courts
of General Jurisdiction in the Russian Federation of 2 January 2000
(“the Act”), in force between 10 January 2000 and 1
January 2004
- Section
1 of the Act provided that the Russian citizens were entitled to
participate in the administration of justice as lay judges. The lay
judges were persons entitled by law to hear civil and criminal cases
as part of the court panel and carry out their judicial duties on a
non-professional basis.
- Section
9 of the Act provided that the lay judges could be called to sit in
cases heard by a regional court for the whole period of examination
of the case and only once a year.
D. Supreme Court’s Ruling on selection of lay
judges of 14 January 2000, in force until 5 August 2002
- The
Ruling provided that the sitting lay judges had to remain in office
until new lists of lay judges arrived to the court.
E. Presidential Decrees
Decree of 25 December 1993
- The Decree provided that lay judges serving in the
regional courts of general jurisdiction were authorised to remain in
office until adoption of the federal law on lay judges.
Decree of 23 January 1997
- The Decree provided that lay judges serving in the
regional courts of general jurisdiction were authorised to remain in
office until adoption of a federal law regulating the order of their
appointment or election.
Decree of 25 January 2000
- The Decree provided that lay judges serving in the
courts of general jurisdiction were authorised to remain in office
until the courts received new lists of lay judges confirmed by a
regional legislative assembly.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION ON ACCOUNT OF LACK OF A TRIBUNAL ESTABLISHED BY LAW
- The
applicant complained under Article 6 of the Convention that the court
that had convicted him on 29 April 2002 had not been a “tribunal
established by law” because it had been composed in breach of
the relevant national rules. In particular, he alleged that the terms
of office of the lay judges G. and Ka. had expired before the trial
in his case had started and that the trial court had not been in
possession of the list of lay judges at the material time. The
relevant part of the provision reads as follows:
“In the determination of ... any criminal charge
against him, everyone is entitled to a fair ... hearing ... by an
independent and impartial tribunal established by law.”
Admissibility
- The
Government contested the argument. In particular, they submitted that
the lay judges G. and Ka. had been elected by the Vladimir Regional
Council of People’s Deputies during its session in April 1990
to serve for five years. Due to the extension of their terms of
office by the three presidential decrees of 1993, 1997 and 2000 they
were still in office at the time of consideration of the applicant’s
case. The new lists of lay judges from the district courts did not
arrive at the Vladimir Regional Court until September 2002, that is
after the applicant was convicted.
- To
support their statements the Government submitted the decision of the
Vladimir Regional Council of People’s Deputies of 11 April 1990
that contains the names of the lay judges G. and Ka., as well as
their other personal data, a certificate from the Vladimir Regional
Court stating that the lay judges G. and Ka. had not taken part in
other trials during the period of consideration of the applicant’s
case, and the decisions of the Vladimir Region legislative assembly
validating the lists of lay judges for the district courts of the
Vladimir Region with a stamped date of their arrival to the Vladimir
Regional Court.
- The
applicant failed to submit his observations but maintained his
complaint in further correspondence with the Court.
- The
Court reiterates that the phrase “established by law”
covers not only the legal basis for the very existence of a
“tribunal” but also the composition of the bench in each
case (see Buscarini v. San Marino (dec.), no. 31657/96, 4
May 2000; and Posokhov v. Russia, no. 63486/00, §
39, ECHR 2003 IV).
- Having
regard to the materials submitted by the Government, the Court is
satisfied that the lay judges G. and Ka. were elected to their office
at the Vladimir Regional Court in accordance with the relevant law at
the material time and were entitled to continue their service
following several extensions of their terms of office. The Court also
accepts that the Vladimir Regional Court was not in possession of the
lists of new lay judges until September 2002 and was thus operating
based on the old list.
- In
view of the foregoing considerations, the Court concludes that there
is no evidence that the tribunal that convicted the applicant on
29 April 2002 had not been established by law.
- It
follows that this complaint is manifestly ill-founded and must be
rejected pursuant to Article 35 §§ 3 and 4 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION ON ACCOUNT OF EXCESSIVE LENGTH OF PROCEEDINGS
- The
applicant further complained under Article 6 § 1 that the
criminal proceedings against him had been excessively long. The
relevant part of the provision reads as follows:
“In the determination of ... any criminal charge
against him, everyone is entitled to a ... hearing within a
reasonable time 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 disagreed with the complaint. Referring to their argument
that on 15 January 1999 the applicant was already in detention on
account of a different criminal investigation against him, they
suggested that the length of the examination of the case be
calculated from 2 July 2001 when the case was forwarded by the
investigation authorities to the trial court. They further submitted,
without supplying specific examples, that the trial had been delayed
by the applicant’s representative’s requests to study the
case, his disruption of the court order, the legal counsels’
illnesses, execution of court orders for delivery of witnesses, and
complexity of the case. In addition, there had been no periods of
court inactivity.
- The
applicant failed to submit his observations but maintained his
complaint in further correspondence with the Court.
- The
Court reiterates that the period to be taken into consideration in
determining the length of criminal proceedings starts from the moment
that a person is substantially affected by actions taken by the
prosecuting authorities as a result of the suspicion against him. It
has been the Court’s long-standing practice to consider an
arrest as such a moment (see Pierre de Varga-Hirsch v. France
(dec.), no. 9559/81, 9 May 1983, Decisions and Reports (DR) 33, p.
158).
- The
Court recalls that in their letter of 30 April 1999 (see paragraph 6
above) the Vladimir Regional prosecutor’s office confirmed that
the applicant had been arrested on 15 January 1999. It further
recalls that the applicant’s sentence under the conviction of
29 April 2002 (see paragraph 17 above) started to run from 15
January 1999. The Government failed to submit any evidence that would
refute the argument that the applicant had been substantially
affected by the arrest on the specified date. Accordingly, the Court
accepts that the criminal proceedings against the applicant
concerning the charges on which he was convicted on 29 April 2002
commenced on 15 January 1999.
- The
Court observes that the criminal proceedings against the applicant
lasted from 15 January 1999 to 19 December 2002, which spanned the
investigation stage and the judicial proceedings where the courts
reviewed the case at two instances. Accordingly, the period to be
taken into consideration amounted approximately to three years and
eleven months.
- The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the following criteria: the complexity of the case,
the applicant’s conduct and the conduct of the competent
authorities (see, among many other authorities, Pélissier
and Sassi v. France [GC], no. 25444/94, § 67, ECHR
1999-II).
- The
Court accepts that the present case was complex, involving three
co-defendants and multiple serious charges. It is further satisfied
that there were no significant or unexplained periods of inactivity
once the trial court received the case.
- However,
the Court is mindful of the fact that the authorities failed to
provide any account for the time that elapsed between 15 January
1999, the date on which the applicant was arrested, and 2 July 2001,
the date on which his case was forwarded to the trial court.
- Having
regard to the serious length of the delay and the lack of any account
for it from the authorities, the Court finds that the period of the
criminal proceedings against the applicant breached the “reasonable
time” requirement (see, among other authorities, Barfuss v.
the Czech Republic, no. 35848/97, §§ 82-83, 31 July
2000).
- Accordingly,
there has been a violation of Article 6 § 1 on account of
excessively long proceedings.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant further complained under Article 6 § 1 that his case
had not been heard by a jury; that the trial and appeal courts had
not been impartial in view of continued examination of the case
despite his complaints about the lay judges’ expired terms of
office and because it had tried to put pressure on the applicant’s
representative by means of an article published in the Molva
newspaper; that on 30 July 2001 the trial court had refused to allow
his representative Mr Kuvshinov to defend him; and that he had not
had sufficient time to prepare his defence.
- The Court considers that the complaint about the
dismissal of the applicant’s request to have his case heard by
a jury is manifestly ill-founded. The jury trial is not an essential
aspect of a fair hearing in the determination of a criminal charge
(see Callaghan and Others v. the United Kingdom, no. 14739/89,
Commission decision of 9 May 1989, DR 60, p. 296; Moiseyev v.
Russia (dec.), no. 62936/00, 9 December 2004) and, furthermore,
jury trials were introduced in the Vladimir Region only after the
applicant’s conviction. A similar complaint was examined and
dismissed by the Court in the case of Klimentyev v. Russia
(dec.), no. 46503/99, 17 September 2002. It follows that this
complaint must be rejected in accordance with Article 35 §§
3 and 4 of the Convention.
- The complaints of the trial court’s lack of
impartiality in view of the continued examination of the case despite
the applicant’s complaints of the lay judges’ expired
terms of office and in view of alleged pressure on the applicant’s
representative through publishing of a newspaper article were not
raised in the grounds of appeal and are completely unsubstantiated.
It follows that these complaints must be rejected in accordance with
Article 35 §§ 1 and 3 of the Convention.
- The complaint about the trial court’s initial
decision to disallow Mr Kuvshinov from defending the applicant
along with his legal counsel was not raised in the grounds of appeal.
In any event, the representative was so allowed before the start of
the examination of the case on the merits, and the applicant had the
aid of professional legal counsel for the duration of the
proceedings. It follows that this complaint must be rejected in
accordance with Article 35 §§ 1 and 3 of the Convention.
IV. 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.”
- The
applicant did not submit a claim for just satisfaction. Accordingly,
the Court considers that there is no call to award him any sum on
that account.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning unreasonable
length of criminal proceedings admissible and the remainder of the
application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention on account of unreasonably long criminal
proceedings against the applicant;
- Holds that there is no call to award the
applicant just satisfaction.
Done in English, and notified in writing on 23 September 2010,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
