BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
FIRST
SECTION
CASE OF SEVASTYANOV v. RUSSIA
(Application
no. 37024/02)
JUDGMENT
STRASBOURG
22 April 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 Sevastyanov v.
Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis,
President,
Anatoly Kovler,
Elisabeth
Steiner,
Dean Spielmann,
Sverre Erik
Jebens,
Giorgio Malinverni,
George Nicolaou,
judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 25 March 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 37024/02) 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 Pavel Igorevich
Sevastyanov (“the applicant”), on 10 September 2002.
- The
applicant, who had been granted legal aid, was represented by
Mr M. Rachkovskiy, a lawyer practising in Moscow, Russia.
The Russian Government (“the Government”) were
represented by Ms V. Milinchuk, the then Representative of the
Russian Federation at the European Court of Human Rights.
- On
2 April 2007 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 § 3).
- The
Government objected to the joint examination of the admissibility and
merits of the application. Having considered the Government's
objection, the Court dismissed it.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1979 and is serving a sentence of
imprisonment in the Ivanovo Region.
A. Criminal proceedings against the applicant
1. The investigation
- On 28 October 2000 victims B. and M. were killed in the
latter's house. On 31 October 2000 the applicant was questioned in
the Oktyabrskiy district prosecutor's office of Ivanovo in relation
to the murders. Having been apprised of the privilege against
self-incrimination, the applicant stated that he had spent most of
the relevant day with his girlfriend Y. and his friend Ov., as well
as several other persons (I., K. and V.), except for some time in the
afternoon when Ov. and the applicant went to M.'s place but the
latter was absent. The applicant added a note to the interview record
alleging that he had been threatened with death or violence if he
refused to make certain admissions. The record was also signed by a
lawyer, Mr O. Immediately thereafter, the applicant signed a suspect
arrest record, in which he indicated that he would like to be
represented by O.
- On
the same evening, the investigator twice heard Y., who stated at the
second interview around midnight that the applicant had told her that
he had killed victim M. The investigator also interviewed Ov., who
confirmed in substance the applicant's account of the events but
added that the applicant had told him that he had killed victims M.
and B. with an axe; Ov. had also heard the applicant discuss an alibi
with Y.
- On
1 November 2000 the applicant was brought for further interrogation.
He was assisted by counsel and refused to testify. According to the
applicant, a police officer or several officers exerted pressure on
him and hit him on the head with a folder in order to force him to
make self-incriminating statements. On the same day Y. gave a more
detailed statement in addition to her second statement made on 31
October 2000.
- On
2 November 2000 the applicant refused the services of O., allegedly
under pressure from unnamed officers. As follows from his written
statement, he declined the services of counsel O. due to
“contradicting positions on the case” and sought the
appointment of a Ms Z. instead. The investigator appointed Z. as
counsel and she assisted the applicant during the interview on the
same day. The Government referred to the interview record from which
it would follow that the applicant had made admissions on that date;
that he had felt well and had been willing to give an oral testimony
in the presence of counsel Z.; that he had been provided with an
opportunity to have a consultation with counsel before the interview;
and that he had had no complaints against any police officers. Ov.
was also interviewed and provided a more detailed account of the
events.
- On 3 November 2000 the applicant was examined by a
medical expert. The applicant had scratches on his left elbow,
bruises and scratches on his right arm and legs, several cuts and
scratches on his hands, scratches below the ribs, and a scratch on
his head. According to the expert, the above injuries had been
sustained four to nine days before the date of the examination.
- On
10 November 2000 the applicant expressed a wish to be represented by
O. again. However, on 7 December 2000 the applicant retained the
services of another counsel, Mr S., who assisted him in the
subsequent pre-trial and trial proceedings.
- On
20 December 2000 O. (instead of counsel S.) requested the
investigator to order an expert report to verify if the applicant had
been emotionally disturbed when, according to his version, he had
seen victim B. kill victim M. in the latter's house. However, the
investigator rephrased the question to the expert as whether the
applicant had been emotionally disturbed when the victims had been
murdered.
- Ov.
and Y. were interviewed again in 2001. The investigator also
interviewed K., who stated that on 28 October 2000 he had been
together with the applicant until his departure in the evening; that
Ov. told him that the applicant had killed M. and B.
- On
an unspecified date, the applicant was charged with murder, robbery
and destruction of property. The case was referred to the
Ivanovo Regional Court for trial by a jury.
2. The trial
- The trial judge considered that it was appropriate to
accept in evidence the applicant's interview record of 2 November
2000 since the applicant's allegation of duress was unfounded. The
applicant argued that he had seen victim B. kill victim M.; he
admitted the arson of the house but pleaded legitimate self-defence
in respect of causing injuries to victim B. during a violent fight.
- It
also appears that a number of expert reports were presented to the
jury. It transpires from the available material that one of the
reports concluded that certain traces of blood at the crime scene and
on the clothes of the applicant “could belong” to the
applicant and victim B. who had the same blood group.
- The
jury heard a number of witnesses, including witnesses K., V., I., who
had seen the applicant in Ov.'s flat on the day of the murders or on
the next day. The trial judge allowed the reading out of their
pre-trial depositions.
- The
jury also heard Ov. and the applicant was given an opportunity to put
questions to him. At the court hearing Ov. alleged that he had
previously made statements against the applicant under pressure from
the police. The judge examined the allegation of ill-treatment and
rejected it as unfounded. The judge thus allowed the reading out of
his pre-trial depositions to the jury (see also paragraph 20 below).
- The trial judge twice summoned Y. However, the
subpoenas could not be served on her and were returned to the court
because she did not live at the address which she had provided to the
domestic authorities during the investigation. There was no
information about her whereabouts; her next of kin were not aware of
her new place of residence. Having excluded Y.'s statement made on
31 October 2000, the trial judge, however, allowed the reading
out of her subsequent statements (see also paragraph 21 below).
- In her summing-up to the jury on 16 October 2001, the
trial judge reiterated the charges against the applicant and the
evidence referred to by the parties and declared admissible. The
judge explained to the jury that she had not been presented with any
evidence indicating that Ov.'s testimony had been obtained under
duress or otherwise in breach of law. Considering that the defence
counsel had presented a distorted summary of the victims' injuries in
his final speech, the judge reiterated the conclusions of the
admissible expert reports. She also indicated to the jury that it was
not their remit to decide on the putative self-defence issue.
- After several hours of deliberations, the jury
returned a guilty verdict on the charges of murder, robbery and
destruction of property. On 17 October 2001 the trial judge
held the final hearing concerning civil claims, the sentence and
other matters to be determined by the trial judge. Y. appeared before
the trial judge on that day and explained that she had not received
any court summons, which had been sent to her mother's home address.
Her mother was unaware of her new place of residence. Having learnt
about the trial the day before, she decided to come to the courthouse
(see also paragraph 19 above). The trial judge allowed Y. to give her
opinion concerning the applicant's personality in so far as this
matter could be relevant to the sentence. On the same day, the
applicant was sentenced to eighteen years' imprisonment and the
confiscation of his property was ordered.
- The applicant submitted objections to the trial
verbatim record, considering inter alia that Y. had in fact
explained to the trial judge that the investigator had wrongly noted
her new home address as her work address. The trial judge, however,
rejected those objections as untrue.
3. Appeal proceedings
- The
applicant and his counsel submitted appeals to the Supreme Court of
Russia. They argued that there had been various defects in the
pre-trial investigation, in particular as regards the right to legal
assistance; they contested the quality of the evidence, including the
expert opinions, and the trial judge's summing-up to the jury. The
applicant's counsel S. asked to be notified of the date for the
appeal hearing and the applicant asked to be brought to that hearing.
- On
8 January 2002 the applicant requested the Regional Court to
give him access to the case file in order to prepare his defence on
appeal. On 1 February 2002 the Regional Court dismissed his
request because Russian law did not vest in the accused a right to
have access to the file in appeal proceedings. The applicant
unsuccessfully renewed his request in February 2002.
- On
22 February 2002 the judge rejected a request by the applicant to
have the trial verbatim record amended. Having examined the
trial transcript, on 18 March 2002 the applicant's counsel submitted
a statement of appeal. A handwritten inscription by the trial judge
contained the instruction that “all participants in the
proceedings be made aware of that document”.
- On
19 April 2002 the Supreme Court granted leave to the applicant to
participate in the appeal hearing and ordered that he be brought to
Moscow from the Ivanovo Region. As can be seen from a telegram
dated 28 May 2002, the applicant's counsel had been informed
that the appeal hearing was listed for 4 June 2002 at 10 am.
According to the Government, the applicant was also informed
accordingly on the same date.
- The
applicant asserted that in April 2002 he had requested the Supreme
Court to grant him access to the documents relating to the appeal
proceedings, including the statement of appeal lodged by his lawyer
and the written observations prepared by the prosecutor. He received
no reply to this request.
- On
an unspecified date, the prosecutor lodged his observations in reply
to the applicant's appeal. A copy of those observations was not made
available to the applicant or his counsel.
- On
31 May 2002 Moscow remand centre received a letter from the Supreme
Court requiring them to make arrangements for the applicant's
participation in the appeal hearing on 4 June 2002 at 10 am and for
the applicant to be notified of the date of the hearing.
- On
4 June 2002 the Supreme Court heard the applicant by way of a video
link and upheld the trial judgment. During the appeal hearing the
applicant was not represented by a lawyer. The prosecutor was present
at the hearing.
- The
court refused to examine the applicant's arguments directed against
the findings of fact made at first instance by the jury since this
aspect of the case could not be challenged on appeal. It noted that
the applicant had been informed of the special procedure for appeal
against the verdict of a jury (see also paragraph 48 below). The
appeal court examined the remaining arguments and dismissed them.
Lastly, the court noted that the applicant had been given access to
the case file before the trial in July-August 2001 and after the
trial in December 2001-February 2002. The applicable legislation did
not require photocopying of the file.
4. Subsequent proceedings
- In
2005 the Regional Court reconsidered the trial and appeal judgments
in the light of the amended (more favourable) legislation and lifted
the order for the confiscation of the applicant's property.
B. Proceedings concerning the alleged ill-treatment
- The
applicant complained to the district prosecutor that on 1 November
2000 an officer had hit him on the head with a folder; that he had
been subjected to threats on 2 November 2000 and that he had been
compelled to decline O.'s services. The prosecutor heard the
investigator in charge of the case against the applicant and the
officer who had allegedly beat him. On 6 December 2000 the
district prosecutor refused to initiate criminal proceedings, noting
the applicant's contradictory statements concerning the alleged
threats or beating. The inquiry file was then lost. In the resumed
proceedings, the district investigator heard the applicant and the
investigator in charge of the case against the applicant. On 27
August 2001 the district investigator issued a new decision not to
institute criminal proceedings. He referred to the medical report of
3 November 2000, which had revealed injuries sustained,
according to the expert, four to nine days before the date of the
examination (see paragraph 10 above). The investigator concluded that
those injuries had been sustained before the applicant's arrest. He
also noted that the applicant had made no health complaints during
his detention in the temporary detention centre from 31 October
to 3 November 2000.
- The
applicant was informed of his right to appeal against the above
refusals to a prosecutor or to seek judicial review. Instead, the
applicant brought court proceedings accusing the town prosecutor of
inaction in relation to the alleged threats on 31 October 2000. On 29
March 2002 the Leninskiy District Court of Ivanovo discontinued the
proceedings because the town prosecutor had never been asked to deal
with the applicant's complaint. The court also held that the
prosecutor's office had carried out inquiries but found no evidence
of the alleged ill-treatment. Moreover, the District Court referred
to the fact that the Regional Court had dealt with this issue at the
applicant's trial and also found no evidence of the alleged
ill-treatment. On 30 April 2002 the Regional Court upheld
the decision of 29 March 2002, considering that only formal
decisions were amenable to judicial review. In separate proceedings,
the applicant complained about unlawful actions against him on 31
October 2000. On 15 May 2002 the Regional Court took the final
decision to discontinue the case because there was no formal decision
amenable to review. On 18 April 2003 the applicant again
complained to a court about the alleged ill-treatment by the police
and the inaction of the regional prosecutor's office. On 19 June
2003 the Regional Court took the final decision to discontinue the
case.
C. Conditions of detention in the Moscow remand centre
- From
31 October to 3 November 2000 the applicant was kept in a temporary
detention centre in Ivanovo. It appears that from 3 November 2000 to
14 May 2002 he was detained in Ivanovo remand centre no. 1. The
applicant was kept in Moscow remand centre no. 77/3 from 14 May
to 2 August 2002 in relation to the appeal proceedings in his
criminal case.
1. The applicant's account
- The applicant submitted that on 4 June 2002 he had
spent six hours in a small cell in the remand centre with fifteen
other persons. The cell had been overheated and had no ventilation.
While the temperature outside on 4 June 2002 had exceeded 30ºC,
the temperature in the cell had reached over 50ºC. He had not
been given water for six hours and had not been allowed to use the
toilet.
- The
applicant subsequently submitted that the cell measured 18.6 square
metres and that he had been detained with up to twenty other persons.
2. The Government's account
- According to the Government, on 4 June 2002 the
applicant had been placed in an “assembly cell” measuring
18.6 square metres. This cell had no windows, ventilation, sanitary
installations or water supply. However, the prison staff allowed the
detainees to go to the toilet outside the cell and provided them with
drinking water. Air access was ensured by an opening in the cell
door.
- Later on the same day, the applicant had been
transferred to cell no. 521 measuring 32.7 square metres
for the purpose of participating in the appeal hearing before the
Supreme Court by way of a video link. The cell was equipped with a
ventilation system, water supply and a sink. Toilet facilities were
separated from the main area. Drinking water had been made available
to the applicant and the lights had been left on. During the summer
period the window panes were removed and detainees were provided with
fans. The outside temperature had not exceeded 21.4ºC on that
day. The applicant had been provided with bedding and tableware in
the remand centre. Detainees were provided with three hot meals a
day.
3. The applicant's complaints to national authorities
- The
applicant and certain other detainees complained about the conditions
of detention in the Moscow remand centre.
- According to a letter from the Moscow Prosecutor's
Office of 9 March 2004, the conditions of detention in cell
no. 521 were acceptable; the outside temperature in Moscow on 4
June 2002 did not exceed +18º C, as indicated by the Moscow
Weather Centre.
- According to letters from the Moscow Prosecutor's
Office of 5 and 7 July 2004, the conditions in a cell
measuring 18.6 square metres “did not meet the sanitary
requirements” at the material time. After an inquiry the
supervising prosecutor concluded on 5 July 2004 that up to late 2002
detainees awaiting an appeal hearing had been placed in the above
cell with no window, ventilation, sanitary installations or water
supply. Since late 2002 detainees awaiting appeal hearings had been
placed in “assembly cell” no. 521. Although the
applicant had not provided sufficient details, on the basis of
information from the prison staff the prosecutor determined that the
applicant had also been kept in cell no. 521 on 4 June 2002. The
prosecutor also indicated that the document confirming that the
applicant had received the letter from the Supreme Court concerning
the appeal hearing did not bear his signature. He concluded that the
remand centre staff had nonetheless ensured the applicant's right to
participate in the appeal hearing.
D. Correspondence with the European Court
- According to the applicant, on 23 January 2003 he
handed over a letter to be dispatched by the prison administration to
the Registry of the Court. In November 2003 the latter acknowledged
receipt of his letter dated 14 September 2003 and informed him that
no letter dated 23 January 2003 had been received.
- On
13 July 2004 the Registry of the Court, by registered mail, requested
the applicant to provide by 24 August 2004 certain documents and
information concerning his application pending before the Court.
According to the acknowledgement-of-receipt card, on 5 August 2004
the letter was received by an unspecified person in the detention
facility. According to the Government, on 5 and 15 August 2004 the
applicant was called to the office in charge of correspondence in the
facility in order to receive the letter, but refused to accept it.
- On
22 September 2004 the applicant's sister informed the Court by
fax that the applicant had only received the letter on 21 September
2004 in an unsealed envelope.
- Following the applicant's complaint about the issue,
on 3 November 2004 the Penitentiary
Department of the Ivanovo Region replied that the delay in the
delivery of the letter did not constitute a hindrance of the
applicant's correspondence with the European Court; although the
prison officer had been negligent, there had been no intention to
delay the letter.
II. RELEVANT DOMESTIC LAW
A. Appeal proceedings in criminal cases
- Under
the RSFSR Code of Criminal Procedure, in force at the time, the
appeal court was empowered to review a first-instance judgment in
full, irrespective of the scope of the statement of appeal lodged by
a party to the proceedings (Article 332). This review was carried out
on the basis of the file and new materials adduced before or during
the appeal hearing (Articles 332 and 337). A prosecutor was required
to participate in an appeal hearing and to state his position on the
case (Article 335).
- However, Article 465 of the Code contained special
rules for appeal against a verdict of a jury. The grounds of appeal
were limited to the exclusion of otherwise admissible evidence at the
trial, which was prejudicial to the outcome of the trial or an
unjustified refusal to examine of important piece of evidence; the
trial court's reliance on inadmissible evidence; violations of
procedural rules or wrong application of the law to the facts as
established by the jury; imposition of an unfair sentence.
B. Re-opening of criminal proceedings
- Article
413 of the 2001 Code of Criminal Procedure provides that criminal
proceedings may be reopened if the European Court of Human Rights has
found a violation of the Convention.
C. Prisoners' correspondence
- Article 91 of the 1997 Code of Execution of Sentences
has provided since December 2003 that a detainee's correspondence
with the European Court of Human Rights cannot be opened and
inspected.
- On
30 July 2001 the Ministry of Justice adopted the Internal Prison
Regulations. As amended in March 2004, they provided that the
incoming and outgoing correspondence of detainees had to be censured
by prison staff, except for a detainee's correspondence with a court,
prosecutor, a supervising public authority or the European Court of
Human Rights. The Internal Regulations were revoked in 2005.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant complained that the conditions of his detention on 4 June
2002 in the Moscow remand centre had been in breach of Article 3 of
the Convention, which reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
- The
Government submitted that the applicant had been detained in cell
no. 521 in acceptable conditions (see paragraph 39 above). They
accepted however that the conditions in another unnumbered cell
measuring 18.6 square metres had not been as good (see paragraph 38
above). They also argued that the applicant should have lodged a
court action for compensation on account of the conditions of his
detention.
- The
applicant maintained his complaint concerning the unnumbered cell.
- The
Court observes at the outset that the applicant's complaint is
limited to the conditions of his detention on 4 June 2002, the date
of the appeal hearing in his criminal case. Having examined the
parties' submissions, the Court does not find it necessary to deal
with the exhaustion issue because the complaint is in any event
inadmissible.
- Having regard to the findings made at the time by the
national authorities (see paragraph 42 above) and the applicant's own
contention, the Court finds it established that he was kept in the
unnumbered cell measuring 18.6 square metres. The Government
submitted no proof to challenge the applicant's allegation that he
had been kept there with at least fifteen other persons. Thus, the
Court is inclined to accept the applicant's contention. It is
uncontested that this cell had no windows, ventilation, sanitary
installations or water supply. Air access was ensured by an opening
in the cell door.
- The
Court reiterates, however, that it must be satisfied, on the basis of
the materials before it, that the conditions of the applicant's
detention constituted treatment which exceeded the minimum threshold
for Article 3 of the Convention to apply. Even though the above
conditions could potentially raise an issue under Article 3 of the
Convention, it is to be observed that the applicant was only kept in
such conditions for some hours (see, in a similar context, Seleznev
v. Russia, no. 15591/03, § 61, 26 June 2008; see
also Fedotov v. Russia, no. 5140/02, §§ 66-70,
25 October 2005; Salmanov v. Russia, no. 3522/04, §
63, 31 July 2008; and Moiseyev v. Russia, no. 62936/00,
§§ 140-143, 9 October 2008).
- Given
the above considerations, the Court concludes that the distress and
hardship the applicant may have endured on 4 June 2002 did not attain
a minimum level of severity under Article 3 of the Convention
(compare Andrei Georgiev v. Bulgaria, no. 61507/00, §
61, 26 July 2007).
- Lastly,
the Government indicated that the applicant had also been kept in
cell no. 521. However, the applicant raised no grievance in
relation to that cell (see paragraph 36 above). In any event, it does
not appear that the conditions there were such as to raise an issue
under Article 3 of the Convention.
- It follows that this complaint is manifestly
ill-founded and must be rejected in accordance with Article 35 §§
3 and 4 of the Convention.
II. ALLEGED VIOLATIONS OF ARTICLE 6 OF THE CONVENTION
- The
applicant considered that there had been a violation of Article 6 §§
1 and 3 of the Convention on account of various procedural defects in
the criminal proceedings against him. The relevant provisions read as
follows:
“1. In the determination of ... any
criminal charge against him, everyone is entitled to a fair ...
hearing ...
3. Everyone charged with a criminal offence
has the following minimum rights:
...
(b) to have adequate time and facilities for
the preparation of his defence;
(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;
(d) to examine or have examined witnesses
against him and to obtain the attendance and examination of witnesses
on his behalf under the same conditions as witnesses against him;
...”
A. The parties' submissions
1. The applicant
- As regards the pre-trial and trial proceedings, the
applicant complained that the allegedly forced removal and
replacement of counsel O. in November 2000 and the admission by the
trial court of certain evidence violated Article 6 of the Convention.
The applicant had not been afforded an opportunity to suggest an
issue for the pre-trial expert examination, and the expert had been
biased. The trial judge had been biased, in particular in her summing
up to the jury; the applicant had not had sufficient access to the
case file; the trial court had failed to make every reasonable effort
to summon Y. for questioning by the defence while the authorities had
been well aware of her new address; the trial judge had been wrong to
admit Y. and Ov.'s pre-trial incriminating statements, which had
allegedly been obtained under duress, as evidence. The trial judge
had refused to amend the trial transcript, which contained distorted
information.
- As
regards the appeal proceedings, the applicant alleged that his
ability to participate effectively and to ensure his own defence in
them had been undermined due to a number of factors: the lack of
access to the case file before the appeal hearing and of an
opportunity to familiarise himself with and comment on the materials
submitted by his own counsel and the prosecutor to the appeal court;
a short notice of the date and time of the hearing and lack of any
prior consultation with counsel; the conditions of his detention on 4
June 2002; the low quality of the audio link so that he could not
follow the oral pleadings by the prosecutor and the judge rapporteur;
and the swift character of the hearing. On the other hand, the
prosecutor had been present in the courtroom and had forcefully
presented his position to the appeal court. Lastly, the applicant
mentioned that during the hearing he had been kept in a metal cage
measuring 1.5 x 2 metres.
2. The Government
- The
Government considered that the criminal proceedings had been fair. In
particular, regarding the appeal proceedings, they submitted that the
applicant and counsel had been informed when the case had been sent
to the Supreme Court. The applicant was aware that leave for his
participation in the appeal hearing had been granted. His counsel had
been informed of the date and time of that hearing. The Government
acknowledged that a copy of the prosecutor's written pleadings in
reply to the applicant's statement of appeal had not been made
available to the defence. They argued, however, that the applicant
had taken cognisance of them, since they had been read out at the
hearing. Lastly, the Government indicated that the audio link had
been “compliant with the applicable technical standards”.
B. The Court's assessment
1. Admissibility
- The
Court considers, in the light of the parties' submissions, that this
part of the application raises serious issues of fact and law under
the Convention, the determination of which requires an examination of
the merits. The Court considers therefore that it is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. No other ground for declaring it inadmissible has been
established.
2. Merits
- With regard to judicial decisions, the Court
reiterates that, in accordance with Article 19 of the Convention, its
only task is to ensure the observance of the obligations undertaken
by the Parties to the Convention. In particular, the Court is not
competent to deal with an application alleging that errors of law or
fact have been committed by the domestic courts, except where it
considers that such errors might have involved a possible violation
of any of the rights and freedoms set out in the Convention (see,
among other authorities, Schenk v. Switzerland, 12 July 1988,
§ 45, Series A no. 140).
- As regards Article 6 of the Convention, the Court
reiterates that the admissibility of evidence is primarily a matter
for regulation by national law and as a general rule it is for the
national courts to assess the evidence before them. The Court's task
under the Convention is not to give a ruling as to whether statements
of witnesses were properly admitted as evidence, but rather to
ascertain whether the proceedings as a whole, including the way in
which evidence was taken, were fair (see Doorson v. the
Netherlands, judgment of 26 March 1996, § 67, Reports
1996-II, and Van Mechelen and Others v. the Netherlands,
judgment of 23 April 1997, § 50, Reports 1997-III). All
the evidence must normally be produced at a public hearing, in the
presence of the accused, with a view to adversarial argument. There
are exceptions to this principle, but they must not infringe the
rights of the defence (see Lüdi v. Switzerland, judgment
of 15 June 1992, § 49, Series A no. 238).
- Bearing
in mind the above principles, the Court has first examined the
applicant's grievances concerning the preliminary investigation in
his criminal case and the trial by a jury (paragraph 62 above). The
applicant, who was represented, was afforded an adequate opportunity
to present his argument and evidence, as well as to contest the
prosecution's arguments and evidence in adversarial proceedings
(paragraphs 15 - 22 above). The available material before the Court
does not disclose that any alleged violation was such as to impair
the overall fairness of the proceedings under Article 6 of the
Convention.
- As
regards the appeal proceedings, the manner of application of Article
6 to proceedings before courts of appeal depends on the special
features of the proceedings involved; account must be taken of the
entirety of the proceedings in the domestic legal order and of the
role of the appellate court therein (see Ekbatani v. Sweden,
26 May 1988, § 27, Series A no. 134, and Monnell and Morris
v. the United Kingdom, 2 March 1987, § 56, Series
A no.115). Indeed, even where an appeal court has full
jurisdiction to review the case on questions both of fact and of law,
Article 6 does not always require a right to a public hearing and a
fortiori a right to be present in person (see Kamasinski v.
Austria, 19 December 1989, § 106, Series A no. 168, and
Fejde v. Sweden, 29 October 1991, § 31, Series A no.
212-C). Regard must be had in assessing this question to, inter
alia, the special features of the proceedings involved and the
manner in which the defence's interests were presented and protected
before the appellate court, particularly in the light of the issues
to be decided by it (see Helmers v. Sweden, 29 October 1991,
§§ 31-32, Series A no. 212-A), and their importance for the
appellant (see Kremzow v. Austria, 21 September 1993, § 59,
Series A no. 268-B; Kamasinski, § 106 in fine; and
Ekbatani, §§ 27 and 28, both cited above).
- The
Court also reiterates that Article 6, read as a whole, guarantees the
right of an accused to participate effectively in a criminal trial,
including, inter alia, not only his right to be present, but
also to hear and follow the proceedings (see Stanford v. the
United Kingdom, 23 February 1994, § 26, Series A no.
282-A). The principle of equality of arms – one of the
elements of the broader concept of a fair trial – requires each
party to be given a reasonable opportunity to present his case under
conditions that do not place him at a substantial disadvantage
vis-à-vis his opponent (see, among other authorities,
Nideröst-Huber v. Switzerland, judgment of 18 February
1997, § 23, Reports 1997-I). The concept of a fair trial
also means in principle the opportunity for the parties to a trial to
have knowledge of and comment on all evidence adduced or observations
filed with a view to influencing the court's decision (see Kress
v. France [GC], no. 39594/98, § 74, ECHR 2001 VI,
with further references). The above did not, however, confer a right
to have disclosed to an applicant, before the hearing, submissions
which have not been disclosed to the other party to the proceedings
or to the reporting judge or to the judges of the trial bench (see
Nideröst-Huber, cited above, ibid.).
- Where
an appellate court has to examine a case as to the facts and the law
and make a full assessment of the issue of guilt or innocence, it
cannot determine the issue without a direct assessment of the
evidence given in person by the accused for the purpose of proving
that he did not commit the act allegedly constituting a criminal
offence (see Dondarini v. San Marino, no. 50545/99, § 27,
6 July 2004).
- Turning to the circumstances of the present case, the
Court observes at the outset that the Supreme Court granted the
applicant's request to be brought to the appeal hearing. For this
purpose the applicant was escorted from the Ivanovo Region to Moscow.
However, instead of being brought to the hearing the applicant
participated in it by video link from a Moscow remand centre (see
also paragraph 56 above). The applicant, apparently, first learnt
that he would participate in the appeal hearing by video link on the
day of the hearing and thus could not be expected to have objected to
it in the absence of legal advice. The respondent Government did
not suggest, and the Court does not consider, that there was any
compelling reason to justify the applicant being brought to Moscow
but not to the courtroom of the Supreme Court.
- The Court further reiterates that where an applicant
communicates with the court by way of a video link, the exercise of
the right to legal assistance takes on particular significance
especially where, as in the present case, there are numerous and
serious charges against the applicant and the sentence to which he is
liable is severe (see Shulepov v. Russia, no. 15435/03,
§ 35, 26 June 2008, and Golubev v. Russia (dec.),
no. 26260/02, 9 November 2006). The applicant was not
represented at the appeal hearing. Furthermore, it is noted that the
prosecutor was present in the courtroom and had an opportunity to
make oral submissions (see paragraph 48 above). Given the scope
of the appeal, it is possible that the prosecution commented on the
defence's arguments concerning various defects in the pre-trial
investigation, the trial judge's summing-up to the jury and the
quality of evidence, including the expert opinions. In such
situation, though it is doubtful that the absence of counsel was
imputable to the authorities, they should have ensured, for instance
by adjourning the hearing and/or appointing another counsel, that the
defence rights were secured in the appeal proceedings to an extent
compatible with Article 6 of the Convention (see Artico v. Italy,
judgment of 13 May 1980, § 36, Series A no. 37, and Balliu
v. Albania, no. 74727/01, §§ 35-38, 16 June 2005). This
was not so in the present case.
- Moreover,
in the absence of any evidence to the contrary, the Court finds that
the applicant was not promptly informed of the date and time of the
hearing and could not take cognisance of his counsel's submissions
filed with the appeal court. Also, as acknowledged by the
Government, the applicant was not provided with a copy of the
prosecution's written observations in reply to the defence's
statements of appeal.
- Lastly,
in the Court's opinion, it can be accepted that a telegram containing
the notification about the hearing was sent to counsel several days
in advance and that the prosecution submissions were read out at the
hearing. However, the Court considers that in the circumstances
mentioned in the preceding paragraphs, the applicant was not afforded
a reasonable opportunity to present his case.
- There
has accordingly been a violation of Article 6 § 1 of the
Convention.
- In
view of the above, there is no need to examine separately the
remaining allegations made by the applicant in relation to the appeal
proceedings.
III. ALLEGED VIOLATIONS OF ARTICLE 34 OF THE CONVENTION
A. Opening and inspection of the letter of 13 July 2004
- The
applicant complained that the opening and inspection by the prison
staff of the Court's letter of 13 July 2004 addressed to him and the
delay in handing it over to the applicant had been in breach of the
State's obligation not to hinder his exercise of the right of
individual application under Article 34 of the Convention.
- Article
34 reads as follows:
“The Court may receive applications from any
person, non-governmental organisation or group of individuals
claiming to be the victim of a violation by one of the High
Contracting Parties of the rights set forth in the Convention or the
Protocols thereto. The High Contracting Parties undertake not to
hinder in any way the effective exercise of this right.”
- The
Government submitted that the applicant had twice refused to have the
letter handed to him by the prison staff. The latter had wrongly
assumed that, as with other letters, the addressee should have
displayed due diligence in receiving correspondence from the European
Court. However, there had been no intention to delay that letter.
Moreover, thereafter the staff of the prison had been reminded of the
special status of correspondence from the European Court and the
requirement that it be handed over to detainees immediately. Lastly,
the applicant's allegation about the opening and inspection of that
letter was unsubstantiated.
- The
applicant contested that he had been required to come to the office
in charge of correspondence to receive the letter. The Government had
submitted no proof of this assertion. In any event, a refusal on his
part would have amounted to a breach of the prison rules. Moreover,
the delayed handing over of the letter had been acknowledged by the
authorities in their letter of 3 November 2004 (see paragraph 46
above). He added that all letters from the Court, including the
letter in question, had been and continued to be opened by the same
prison administration. He submitted copies of other letters bearing
the stamp of the detention facility, the receipt date and the
registration number.
- The
Court notes at the outset that the present complaint is limited to an
alleged violation in relation to one letter, that is, the Court's
letter of 13 July 2004 addressed to the applicant. As
regards its opening and inspection, it is noted that the Russian
legislation at the time prohibited the opening and inspection of
incoming and outgoing correspondence between a detainee and the Court
(see paragraph 50 above). The Court finds that there is insufficient
evidence to show that the letter of 13 July 2004 was opened and
inspected.
- Thus,
there has been no breach by the respondent State of their obligation
under Article 34 of the Convention on that account.
- At
the same time, the Court observes that the national authorities have
acknowledged the delay in handing over the letter to the
applicant. The applicant submitted that he had received the
letter on 21 September 2004, that is, after the expiry of the
time-limit set by the Court. The Government did not contest this.
- It
is well known that various proceedings before the Court are subject
to time-limits, the non-observance of which is liable to entail legal
consequences for the parties. It is noted that by the letter of
13 July 2004 the applicant was given a time-limit by which to
submit additional documents and information. An applicant's failure
to comply with the Court's instructions would in principle lead the
Court to decide on the admissibility of the case on the basis of the
file as it then stood, or to conclude that the applicant was no
longer interested in pursuing the application and to decide to strike
it out of its list of cases under Article 37 § 1 of the
Convention (see, among many others, Kupryakov v. Russia
(dec.), no. 18792/03, 20 September 2007). While admitting
that the responsible prison officer should have handed over the
letter to the applicant without delay, the Government submitted that
the applicant had contributed to that delay by failing to comply with
the order to present himself to the office in charge of
correspondence.
- Bearing
in mind the vulnerable position of detainees in so far as their
communication with the outside world is concerned, the Court
considers that it was incumbent on the respondent State in the
present case to ensure that the applicant received the
above-mentioned registered letter without undue delay.
- Thus,
the respondent State has not complied with their obligation under
Article 34 of the Convention.
B. Other allegations under Article 34 of the Convention
- The
applicant also alleged that the authorities' failure to assist him in
gathering evidence in support of his complaint before the Court
concerning the conditions of detention amounted to a violation of the
respondent State's obligation under Article 34 of the Convention. In
addition, he alleged that a letter dated 23 January 2003 had not
been dispatched by the prison administration (see paragraph 43
above).
- The
Court has examined those complaints as presented by the applicant.
However, in the light of all the material in its possession, the
Court finds that they do not disclose an appearance of a breach by
the respondent State of its obligation under Article 34 of the
Convention.
IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- Lastly,
the applicant complained under Articles 3 and 13 of the Convention of
ill-treatment and threats, to which he had allegedly been subjected
on several occasions between 31 October and 2 November 2000.
- The Court reiterates that allegations of ill-treatment
brought to it must be supported by appropriate evidence (see Labita
v. Italy [GC], no. 26772/95, § 121, ECHR 2000-IV).
To assess this evidence, the Court adopts the standard of proof
“beyond reasonable doubt”. Such proof may also follow
from the coexistence of sufficiently strong, clear and concordant
inferences or of similar unrebutted presumptions of fact (see Ireland
v. the United Kingdom, judgment of 18 January 1978, § 161 in
fine, Series A no. 25).
- Having
examined the available material, the Court is not satisfied that the
applicant has established that he was subjected to any proscribed
treatment at the hands of State agents. The applicant did not provide
a sufficiently clear and detailed account of the alleged physical
ill-treatment on each relevant date. Nor is there any indication that
the applicant was subjected to any form of pressure or coercion that
exceeded the minimum threshold of severity required under Article 3
of the Convention. The Court further observes that the applicant's
allegation was, however, investigated by the national authorities who
refused to initiate criminal proceedings against any public officers.
The applicant did not put forward any cogent argument contesting the
effectiveness of the domestic inquiries. Thus, the applicant's
grievances under Article 3 of the Convention should be declared
inadmissible.
- The
Court also reiterates that, according to its constant case-law,
Article 13 applies only where an individual has an “arguable
claim” to be the victim of a violation of a Convention right
(see Boyle and Rice v. the United Kingdom, 27 April
1988, § 52, Series A no. 131). In view of the Court's findings
above, the Court does not consider that the applicant had an arguable
claim under Article 3 of the Convention.
- 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.
V. 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 5,000 euros (EUR) in respect of non-pecuniary
damage for each violation established by the Court.
- The
Government considered this claim to be excessive.
- Making
an assessment on an equitable basis and having regard to the nature
of the violations found, the Court awards the applicant EUR 3,000
in respect of non-pecuniary damage, plus any tax that may be
chargeable.
- As regards the findings under Article 6 of the
Convention, the Court also reiterates that when an applicant has been
convicted despite an infringement of his rights as guaranteed by
Article 6 of the Convention, he should, as far as possible, be put in
the position in which he would have been had the requirements of that
provision not been disregarded, and that the most appropriate form of
redress would, in principle, be the reopening of the relevant
proceedings if requested (see Somogyi v. Italy, no. 67972/01,
§ 86, ECHR 2004-IV, and Shulepov, cited above, §
46). The Court notes in this connection that Article 413
of the Code of Criminal Procedure provides that criminal proceedings
may be reopened if the Court has found a violation of the Convention.
B. Costs and expenses
- The
applicant also claimed 20,000 Russian roubles for his counsel's fees
for representing him before the Regional Court, paid apparently by
the applicant's sister.
- The
Government contested the claim.
- According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. It does not appear that the above expenses
were related to the violations found or that they were incurred by
the applicant or that he was under an enforceable legal or
contractual obligation to do so (see Salmanov v. Russia, no.
3522/04, § 98, 31 July 2008). The Court therefore rejects the
claim.
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 the fairness
of the criminal proceedings against the applicant admissible and the
remainder of the application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention in relation to the proceedings before
the appeal instance court;
- Holds that the respondent State has complied
with its obligation under Article 34 of the Convention in relation to
the confidential nature of the Court's letter of 13 July 2004;
- Holds that the respondent State has not complied
with its obligation under Article 34 of the Convention in relation to
the delivery of the Court's letter of 13 July 2004;
- 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 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 22 April 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
In
accordance with Article 45 § 2 of the Convention
and Rule 74 § 2 of the Rules of Court, the following joint
concurring opinion of Judges Spielmann and Malinverni is annexed to
this judgment.
C.L.R.
S.N.
JOINT CONCURRING OPINION OF JUDGES SPIELMANN AND
MALINVERNI
Paragraph
99 of the judgment states: “As regards the findings under
Article 6 of the Convention, the Court ... reiterates that when an
applicant has been convicted despite an infringement of his rights as
guaranteed by Article 6 of the Convention, he should, as far as
possible, be put in the position in which he would have been had the
requirements of the provision not been disregarded, and that the most
appropriate form of redress would, in principle, be the reopening of
the relevant proceedings if requested ...”
For
reasons we have explained on many occasions, either alone or together
with other judges,
we would very much have liked this principle, on account of its
importance, to have been reflected in the operative part of the
judgment.
