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FIRST
SECTION
CASE OF DAVYDOV v. RUSSIA
(Application
no. 16621/05)
JUDGMENT
STRASBOURG
25
November 2010
This
judgment is final but it may be subject to editorial revision.
In the case of Davydov v. Russia,
The
European Court of Human Rights (First Section), sitting as a
Committee composed of:
Sverre Erik Jebens,
President,
Anatoly Kovler,
George Nicolaou,
judges,
and André Wampach,
Deputy Section Registrar,
Having
deliberated in private on 4 November 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 16621/05) 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 Sergey Aleksandrovich
Davydov (“the applicant”), on 12 April 2005.
- The
Russian Government (“the Government”) were represented by
Mr G. Matyushkin, Representative of the Russian Federation at the
European Court of Human Rights.
- On
20 May 2009 the President of the First Section decided to give notice
of the application to the Government. In accordance with Protocol No.
14, the application was allocated to a Committee.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1963 and lives in Vladimir.
- The
applicant is a lawyer who used to provide legal services to a certain
enterprise.
- On
11 January 1999 the applicant was detained on suspicion of having
appropriated the enterprise’s funds. On the same day his case
was joined to the case of his co-accused A. A week later a local
newspaper published an article accusing the applicant of the crime
that he was being charged with.
- In
February and March 1999 the investigation authorities commissioned
two expert examinations and apprised the applicant and his
privately-retained counsel of their results.
- From
31 May to 13 October 1999 the applicant studied the case-file.
- On
15 November 1999 the case-file arrived at the Tsentralniy District
Court of Chelyabinsk (“the District Court”) which
scheduled the first hearing for 17 April 2000.
- On
10 April 2000 one of the applicant’s counsels informed the
court by a letter that he would not defend the applicant in court due
to the applicant’s failure to pay for his services. He also
mentioned that he would not be available due to a vacation. The
hearing of 17 April 2000 did not take place following the applicant’s
counsel’s default in appearance. Nor did they appear at the
next hearing scheduled for 4 July 2000.
- At
the hearing of 12 September 2000 the applicant was represented by a
new privately-retained counsel who requested that the case be
remitted to the prosecutor for curing of the investigation defects.
His request was granted on 19 September 2000. The District Court
reasoned that the investigation authorities had failed to ensure that
the applicant was provided with legal assistance while studying the
case-file, ignored his requests for additional expert examinations
and committed certain procedural irregularities.
- On
17 November 2000 the applicant was again invited to study the
case-file. Following his refusal to do so, the investigator informed
him that it was open to him to familiarize himself with the case
materials from 27 December 2000 to 11 January 2001.
- On
2 February 2001 the case arrived to the court. The hearing was first
scheduled for 7 May and then for 14 May 2001 due to the judge’s
involvement in different proceedings.
- On
14 May 2001 the court again granted the defence’s request for
remittal of the case to the prosecutor. However, this decision was
set aside on appeal on 16 July 2001. The trial court was ordered to
continue examination of the case.
- The
next hearing scheduled for 1 October 2001 did not take place due to
the failure to deliver the accused to the court.
- On
8 October 2001 the court allowed the applicant to study the case-file
until 15 October 2001. From 15 October to 1 November 2001 the court
held regular hearings examining the case.
- On
1 November 2001 the court released the applicant from detention on an
undertaking not to leave the town and granted the defence’s
request for remittal of the case to the prosecutor. The decision to
remit the case was again overturned on appeal on 29 November 2001.
- The
next hearing was scheduled for 20 May 2002. However, the court had to
stay the proceedings until 1 October 2002 due to the applicant’s
illness. From 1 October 2002 to 2 April 2003 the court held regular
hearings.
- On
2 April 2003 the District Court acquitted the applicant of all
charges. This judgment was overturned on appeal on 23 June 2003. The
appeal court required a new hearing.
- On
11 August 2003 the applicant requested the court that the proceedings
be adjourned until his convalescence.
- At
the next hearing that took place on 15 October 2003 the court granted
the applicant’s request for an accounting expert examination
whose results arrived to the court on 17 May 2004. In May and June
2004 the court held regular hearings.
- On
25 June 2004 the applicant was convicted of aiding and abetting the
manager of the enterprise in abuse of office and sentenced to two
years and six months’ imprisonment. He was relieved from
serving his sentence due to the expiry of the time-limit for
prosecution for the committed crime. When accepting the change in the
qualification of the offence suggested by the prosecutor, the court
noted that it did not aggravate the situation of the accused, nor did
it impair their right to defence.
- On
2 July and 20 October 2004 the applicant submitted his grounds of
appeal and a supplement to them. On 22 September 2004 he also
submitted his objections to the hearing minutes, which were later
dismissed.
- On
7 February 2005 the Chelyabinsk Regional Court upheld the conviction
on appeal.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the criminal proceedings
against him had been in breach of the “reasonable time”
requirement as provided in Article 6 § 1 of the Convention. The
relevant part of 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
Government submitted that this complaint should be rejected as
manifestly ill-founded in accordance with Article 35 § 3 of the
Convention. They did not elaborate on this argument.
- The
Court notes that this complaint does not appear to be 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 submitted that most of the delays had been caused by the
applicant’s illness and lengthy studying of the case file, or
his counsel’s default in appearance.
- The
applicant maintained his complaints.
- The
Court observes that the criminal proceedings against the applicant
commenced on 11 January 1999 and ended on 7 February 2005.
Accordingly, their aggregate length amounted approximately to six
years and one month, during which period the authorities examined the
applicant’s case twice at two levels of jurisdiction.
- 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 considers that the applicant’s case was not characterised
by particular complexity, having involved a charge of one count and
two co-defendants.
- Regarding
the applicant’s conduct, the Court accepts that the applicant
took a significant period of time to study the criminal case-file and
that the proceedings were adjourned twice due to his illness and
twice due to his privately-retained counsel’s default in
appearance. It is also mindful of the fact that the applicant filed
three motions for remittal of the case to the prosecution, which
further delayed the proceedings. However, it has been the Court’s
constant approach that an applicant cannot be blamed for taking full
advantage of the resources afforded by the national law in the
defence of his interests (see, mutatis mutandis, Yağcı
and Sargın v. Turkey, 8 June 1995, § 66, Series A
no. 319-A). Accordingly, a cumulative delay of ten months can be
attributed to the applicant.
- As
to the conduct of the authorities, the Court observes the following
deficiencies. On three occasions it took the trial court from three
to six months to hold a first hearing; it also took seven months to
examine the applicant’s appeal of the conviction. The Court
notes that the remittal of the case to the prosecutor to remedy the
investigation defects further delayed the proceedings by four months.
Finally, it is cognisant of the fact that it took seven months to
conduct an accounting expert examination commissioned by the trial
court. The Court concludes that an approximate delay of two years and
four months is attributable to the authorities.
- Regard
being had to the relative simplicity of the case and the authorities’
responsibility for the majority of the delays, the Court considers
that the length of the criminal proceedings against the applicant did
not comply with the “reasonable time” requirement.
- There
has accordingly been a violation of Article 6 § 1 of the
Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant also complained under Articles 3 and 5 of the Convention
about the conditions and of unlawfulness of his pre-trial detention;
under Article 6 § 1 of the Convention that the trial court had
forged the hearing minutes, erred in the assessment of the evidence
and prejudiced his defence rights by changing the qualification of
his offence and that the appeal court had not been independent
upholding his conviction; under Article 6 § 2 of the Convention
that the newspaper article had accused him of the crime before
delivery of the judgment by the trial court; under Article 6 § 3
(b) of the Convention that he had not had adequate time and
facilities to prepare his defence; under Article 6 § 3 (d) of
the Convention that he had not been informed in advance of the first
expert examination and that the court had rejected his motion to
summon the expert and to conduct another examination; and under
Article 13 of lack of effective remedies for the violations alleged
above.
- The
Court considers that the complaints under Article 3 and 5 were lodged
out of time and should be rejected in accordance with Article 35 §
1 of the Convention.
- The
complaint under Article 6 § 1 of wrong assessment of evidence is
of a fourth-instance nature. As to the allegation that the trial
court forged the hearing minutes and that the appeal court had not
been independent, this is not supported with any evidence. As regards
the complaint of the change in the qualification of the offence, the
appeal court considered it at an oral hearing from both the
procedural and substantive point of view; therefore the applicant’s
right to defence was not infringed (see Sipavičius
v. Lithuania, no. 49093/99, §§ 29-34, 21
February 2002). Accordingly, these complaints must be rejected under
Article 35 §§ 3 and 4 of the Convention.
- Regarding
the complaints under Article 6 §§ 2 and 3 (b) and (d), they
were not raised in the applicant’s grounds of appeal and
therefore should be rejected in accordance with Article 35 § 1
of the Convention.
- There
is no need for separate examination of the complaint under Article 13
in absence of an arguable claim under the substantive provisions 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 1,685,468 euros (EUR) in respect of pecuniary
damage calculated as lost profits from the business that he had
managed prior to the initiation of the criminal proceedings against
him. He also claimed EUR 4,110,000 as compensation of non-pecuniary
damage.
- The
Government disputed the amounts as manifestly excessive and
unfounded.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim. As
to the claim for non-pecuniary damage, it considers that the
applicant did not significantly contribute to the length of the
criminal proceedings against him and, deciding on an equitable basis,
awards him EUR 3,000 under this head.
B. Costs and expenses
- The
applicant also claimed EUR 33,461 for the costs and expenses incurred
before the domestic courts. He specified that the claimed amount
included lawyer fees, dental care, transport and housing rental fees
incurred during the criminal proceedings against him.
- The
Government noted that the applicant had submitted supporting
documents covering a total amount of 772,791 Russian roubles and
EUR 477.
- Regard
being had to the documents in its possession and to its case law,
the Court rejects the claim for costs and expenses seeing that the
expenses claimed have no connection either to attempts to redress the
found violation at the domestic level or the proceedings in
Strasbourg.
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 excessive
length of the criminal proceedings admissible and the remainder of
the application inadmissible;
- 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,
EUR 3,000 (three 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 25 November 2010,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Sverre Erik Jebens
Deputy
Registrar President
