In the case of Sizov v. Russia (no. 2),
The European Court of Human Rights (First Section), sitting as
a Chamber composed of:
NinaVajić, President,
AnatolyKovler,
PeerLorenzen,
ElisabethSteiner,
KhanlarHajiyev,
Linos-AlexandreSicilianos,
ErikMøse, judges,
andSøren Nielsen, Section Registrar,
Having deliberated in private on 3 July 2012,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
58104/08) 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 Mikhail Mikhaylovich Sizov (“the
applicant”), on 6 November 2008.
The applicant was represented by Ms A. Vasilyeva
and Mr A. Gliskov, lawyers practising in Krasnoyarsk. The Russian
Government (“the Government”) were represented by Mr G. Matyushkin, Representative
of the Russian Federation at the European Court of Human Rights.
The applicant alleged that he had been detained
in appalling conditions,in which he had contracted tuberculosis, and that
criminal proceedings against him had been excessively long.
On 27 August 2009the application was communicated
to the Government. It was also decided to rule on the admissibility and merits
of the application at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1980 and lives in Krasnoyarsk.
A. Criminal proceedings against the applicant
1. First set of criminal proceedings
On 4 July 2003 the applicant was arrested on
suspicion of extortion. On 6 July 2003 the Zheleznodorozhnyy District Court of
Krasnoyarsk dismissed the prosecutor’s request to place the applicant in
detention and ordered his release on an undertaking not to leave his place of
residence.
On 3 September 2003 the applicant was charged
with extortion on several counts.In December 2003 the case was referred to the
Central District Court of Krasnoyarsk for trial.
On 5 January 2004 the District Court
received the casefile. On 9 January 2004 the court scheduled the trial for
19 January 2004.
On 12 October 2004 the District Court decided to
place the applicant and his co-defendants Zh. and T. in detention pending
trial. On 16 November 2004 the Krasnoyarsk Regional Court upheld the
detention order. The applicant remained in custody pending trial.
During the period between 19 January 2004
and 3 February 2005 the District Court scheduled thirty-nine hearings. The
Government provided the following information concerning the adjournments:
|
Date
of hearing
|
Reasons
for adjournment
|
|
January 2004
|
Certain witnesses failed to appear
and /or the parties asked for additional witnesses to be heard.
|
|
March 2004
|
Newly appointed counsel asked for
additional time to study the casefile.
|
|
March, 19 and 28 April, 6 and
14 May 2004
|
Certain witnesses failed to appear
and /or the parties asked for additional witnesses to be heard.
|
|
May 2004
|
The prison guards failed to ensure
two co-defendants’ presence.
|
|
June 2004
|
One of the co-defendants’ counsel
failed to appear.
|
|
, 9 and 16 June 2004
|
Certain witnesses failed to appear
and /or the parties asked for additional witnesses to be heard.
|
|
June 2004
|
One of the co-defendants’ counsel
failed to appear.
|
|
June 2004
|
The applicant failed to appear.
|
|
, 24 and 25 June, 1 July 2004
|
Certain witnesses failed to appear
and /or the parties asked for additional witnesses to be heard.
|
|
September 2004
|
Certain witnesses failed to appear
and /or the parties asked for additional witnesses to be heard. Counsel B.,
representing one of the victims, failed to appear.
|
|
September 2004
|
Counsel B., representing one of the
victims, failed to appear.
|
|
September and5 October
2004
|
Certain witnesses failed to appear
and /or the parties asked for additional witnesses to be heard.
|
|
October 2004
|
The prison guards failed to ensure
two co‑defendants’ presence.
|
|
October, 10 and
17 November 2004
|
The parties asked for additional time
to prepare certain documentary evidence.
|
|
December 2004
|
Counsel B., representing one of the
victims, failed to appear.
|
|
and 15 December 2004
|
The parties asked for additional time
to prepare certain documentary evidence.
|
|
December 2004
|
One of the co-defendants’ counsel
failed to appear
|
On 14 February 2005 the District Court convicted
the applicant and his co-defendants on several counts of extortion and
acquitted them on one count. The applicant was sentenced to three years’
imprisonment. On the same date the applicant appealed against his conviction.
On 24 May 2005 the Regional Court quashed the
judgment of 14 February 2005 and referred the case back to the trial court
for examination by a different panel. It held, in particular, that the trial
court had failed to duly establish the circumstances of the case and to apply
the criminal law correctly.
2. Second set of criminal proceedings
On 15 June 2005 the District Court returned the
case to the prosecutor, at his request, to be joined to the cases against other
defendants. On 30 June 2005 the district deputy prosecutor joined the
cases in respect of five defendants, including the applicant. The case-file
comprised sixteen volumes.
On 4 July 2005 the case was again referred to
the District Court. During the period between 18 August 2005 and
15 May 2006 the District Court heldnineteen hearings. The Government
provided the following information concerning the adjournments:
On 15 May 2006 the District Court found the
applicant and his co‑defendants guilty on several counts of extortion.
The applicant was sentenced to eight years’ imprisonment.
On 10 October 2006 the Regional Court quashed
the judgment of 15 May 2006 on account of procedural breaches and referred
the case to the trial court for fresh examination.
3. Third set of criminal proceedings
On 16 October 2006 the District Court set the
case for trial. During the period between 16 October 2006 and
30 January 2008 the District Court held thirty-seven hearings. The
Government provided the following information concerning the adjournments:
On 2 August 2007 the District Court, at the
prosecutor’s request, suspended the criminal proceedings against the applicant
on the ground that the applicant was undergoing intensive treatment for
tuberculosis and his ill health prevented him from participating in the
examination of the case. By the same decision the District Court held that the
applicant was to remain in detention. The examination of the criminal charges
against the applicant’s co-defendants continued and, by a final decision of
15 November 2007, they were convicted.
On 9 January 2008 criminal proceedings against
the applicant were resumed.
On 30 January 2008 the District Court found the
applicant guilty of extortion and sentenced him to five years and ten months’
imprisonment.On 13 May 2008 the Regional Court upheld that judgment.
On 4 September 2008 the Minusinskiy Town Court
of the Krasnoyarsk Region ordered the applicant’s release on parole.
B. Conditions of the applicant’s detention
1. General conditions of detention
(a) Submissions by the Government
The applicant was detained pending trial in
remand prison no IZ‑24/1in Krasnoyarsk. On several occasions he was
transferred to a temporary detention centre for investigation purposes.
Furthermore, the applicant spent certain time in hospital where he underwent
anti‑tuberculosis treatment.In support of their submissions the
Government produced excerpts from the remand prison populations register
reflecting the situation in the applicant’s cell on one day per month for
2006-2007. They further indicated that the prison population register for
2003-2005 had been destroyed. The relevant information provided by the
Government is summarised below:
|
Type
of facility
|
Period
of detention
|
Cell
no.
|
Cell
surface area (sq. m)
|
Number
of inmates
|
Number
of beds
|
|
Remand prison no. IZ-24/1
|
From 12 October 2004 to
3 February 2006
|
|
|
No data available
|
|
|
Temporary detention centre
|
From 3 to 6 February 2006
|
No data provided
|
|
Remand prison no. IZ-24/1
|
From 6 February to 31 March
2006
|
|
|
No data available
|
|
|
Temporary detention centre
|
From 31 March to 2 April
2006
|
No data provided
|
|
Remand prison no. IZ-24/1
|
From 2 April to 23 May 2006
|
|
|
No data available
|
|
|
Temporary detention centre
|
From 23 to 27 May 2006
|
No data provided
|
|
Remand prison no. IZ-24/1
|
From 27 May to 5 June 2006
|
|
|
No data available
|
|
|
Temporary detention centre
|
From 5 to 13 June 2006
|
No data provided
|
|
Remand prison no. IZ-24/1
|
From 13 June to 10 July
2006
|
|
|
No data available
|
|
|
Temporary detention centre
|
From 10 to 19 July 2006
|
No data provided
|
|
Remand prison no. IZ-24/1
|
From 19 July to 8 August
2006
|
|
|
No data available
|
|
|
|
From 8 August to
8 September 2006
|
The period not accounted by the
Government
|
|
Remand prison no. IZ-24/1
|
From 8 September to
23 October 2006
|
|
|
No data available
|
|
|
From 23 October to
20 November 2006
|
|
75
|
-12
|
|
|
From 20 November 2006 to
12 January 2007
|
|
|
-8
|
|
|
Temporary detention centre
|
From 12 to 20 January 2007
|
No data provided
|
|
Remand prison no. IZ-24/1
|
From 20 January to
5 February 2007
|
|
|
-8
|
|
|
From 5 to 8 February 2007
|
|
85
|
-6
|
|
|
Regional specialised
anti-tuberculosis prison hospital
|
From 8 February to 1 March
2007
|
No data provided
|
|
Remand prison no. IZ-24/1
|
From 1 March to 21 June
2007
|
|
75
|
-6
|
|
|
From 21 June to 2 July 2007
|
|
75
|
-6
|
|
|
Regional specialised
anti-tuberculosis prison hospital
|
From 2 July to 18 October
2007
|
No data provided
|
|
Remand prison no. IZ-24/1
|
From 18 October 2007 to
14 February 2008
|
|
75
|
-6
|
|
|
Regional specialised
anti-tuberculosis prison hospital
|
From 14 to 21 February 2008
|
No data provided
|
|
Remand prison no. IZ-24/1
|
From 21 February to 3 June
2008
|
|
75
|
-6
|
|
(b) Submissions by the applicant
The applicant submitted that, in addition to the
cells indicated by the Government, he was detained in cells nos. 155, 104, 109,
73, 201, and 196. The conditions of detention in the remand prison were
unsatisfactory. He did not have sufficient personal space and had to share
cells with detainees suffering from tuberculosis.
2. Anti-tuberculosis treatment
(a) Submissions by the Government
During the time the applicant was detained in
the remand prison he underwent medical examinations and check-ups on a regular
basis. At no time was he detained with inmates suffering from tuberculosis.
On 31 January 2007 the applicant underwent
a chest X-ray test and was diagnosed with tuberculosis.
On 8 February 2007 the applicant was
admitted to a regional specialised anti-tuberculosis prison hospital where he
was treated for tuberculosis until 1 March 2007. He was then transferred
to the remand prison hospital where he continued further treatment.
The applicant again underwent treatment in the
regional prison hospital from 2 July to 18 October 2007 and from 14
to 21 February 2008. The treatment was conducted in strict compliance with
national standards. Upon discharge from the hospital, the applicant continued
to receive outpatient treatment and undergo examinations at the remand prison
hospital. In particular, he underwent regular chest X-rays, a sputum smear test
and clinical and biochemical blood tests. The test results demonstrated a
positive effect of the anti-tuberculosis treatment.
After the applicant’s conviction became final,
he was transferred to medical correctional facility LIU-32 in the Krasnoyarsk
Region to serve his sentence and receive further treatment for tuberculosis.
His subsequent examinations and tests carried out in June 2008 showed that the
applicant was no longer in need of anti-tuberculosis treatment.
(b) Submissions by the applicant
Upon arrival in the remand prison,the applicant
underwent a medical examination, including a chest X-ray, which established
that he was in good health.Further medical examinations performed on 15 April
and 19 November 2005 and 17 May 2006 revealed that his heart and lungs
were healthy.
Upon his release on 4 September 2008 the
applicant received an extract of his medical record, which stated that on
release he had been diagnosed with tuberculosis of the upper lungs in the induration phase.
C. Proceedings for damage incurred as a result of
infection with tuberculosis and the unreasonable length of the criminal
proceedings
On 27 June 2007, when the criminal proceedings
against the applicant were still pending and he was in custody, the applicant
brought proceedings for damages against the Ministry of Finance. He claimed
that the criminal proceedings against him had been excessively long and that as
a result of his lengthy detention in unsatisfactory conditions in the remand
prison he had contracted tuberculosis.
On 28 May 2008 the Zheleznodorozhnyy District
Court of Krasnoyarsk dismissed the applicant’s claim in full.The court heldthat
the length of the proceedings was justified by the complexity of the case, as
well as by the joining of several criminal cases and the suspension of the proceedings
against the applicant pending his treatment for tuberculosis. As regards the
applicant’s allegations concerning his infection with tuberculosis, the court
established that the applicant had received proper medical treatment for
tuberculosis. The court further noted that the applicant had not described the
conditions he had been detained in, why those conditions had not met legal
requirements, with which detainees suffering from tuberculosis he had been
detained and when he had been in contact with those detainees. It further held
that the mere fact of contracting tuberculosis was not enough to entitle him to
damages, since for such entitlementto come into play the damage incurred had to
be the result of concrete unlawful actions.
On 28 July 2008 the Regional Court upheld that
judgment on appeal.
II. DOMESTIC LAW
A. Conditions of pre-trial detention
Section 23 of the Detention of Suspects Act of
15 July 1995 provides that detainees should be kept in conditions which satisfy
sanitary and hygienic requirements. They should be provided with an individual
sleeping place and given bedding, tableware and toiletries. Each inmate should
have no less than four square metres of personal space in his or her cell.
35. Moreover, detainees should be given, free of
charge, sufficient food for the maintenance of good health in line with the
standards established by the Government of the Russian Federation (section 22
of the Act).
B. Coercive powers of the court
Article 111 of the Code of
Criminal Procedure (“the CCP”)provides that in order to ensure the proper
administration of criminal proceedings, the courts have the power to compel the
parties to the proceedings to cooperate by means of measures such as escorting
them to a courtroom or imposing fines. The former can be applied to witnesses
if they fail to honour court summonses without valid reasons (Article 113 of
the CCP). A fine can be imposed on a party in the event of his or her failure
to fulfil procedural obligations (Article 117 of the CCP).
Under Article 258 of the CCP, the penalties
which a judge may impose on any party, including a defendant, who acts in a
manner that disturbs order in the courtroom are (1) a warning, (2) removal from
the courtroom, or (3) a fine. Article 258 § 3 establishes that
the trial, including the parties’ closing arguments, may be conducted in the defendant’s
absence. In such a case, the defendant must be brought back to the courtroom to
make his or her final submissions. The judgment must always be pronounced in
the defendant’s presence.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE
CONVENTION
The applicant complained about the conditions of
his detention in remand prison no. IZ-24/1 in Krasnoyarsk from
12 October 2004 to 3 June 2008. In particular, he alleged that he had
not been afforded sufficient personal space as he had been detained with a
large number of inmates, some of whom had been suffering from tuberculosis. As
a result, he had contracted tuberculosis. He referred to 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 contested that argument. They
submitted that at no time had the applicant been detained together with inmates
suffering from tuberculosis. Once he had been diagnosed with tuberculosis, he
had received proper treatment which had resulted in his recovery. The regional
prison specialised hospital and the remand prison hospital had been provided
with the necessary medicine and equipment. The hospital staff had been
qualified to administer proper anti-tuberculosis treatment. The Government
relied on the certificates prepared by the hospitals’ administration on
25 November 2011.
The Government indicated that the design
capacity of the cells had never been exceeded. In support, they provided
excerpts from the remand prison population registers for 2006-2007. As regards
the initial period of the applicant’s detention, the Government submitted that
the remand prison population registers for 2003-2005 had been destroyed on
6 April 2009.They maintained that the applicant had been detained in
satisfactory conditions. In this connection they relied on the certificates
prepared by the remand prison administration in November 2009.
Admissibility
1. The applicant’s complaint concerning the general
conditions of his detention
The Court notes that the applicant’sstay in the
remand prison was punctuated with short stays in a temporary detention centre.
Furthermore, on three occasions the applicant was transferred to a hospital,
where he underwent treatment for tuberculosis. Nevertheless, the Court does not
consider it necessary to ascertain whether or not the whole period of the
applicant’s detention constituted a “continuing situation” since the complaint
is, in any event, inadmissible for the following reasons.
The general principles concerning the
establishment of facts in respect of the complaints about conditions of
detention are well established in the Court’s case-law and have been summarised
as follows (see Fetisov and Others v. Russia, nos. 43710/07,
6023/08, 11248/08, 27668/08, 31242/08 and 52133/08, 17 January 2012):
“89. The Court reiterates that allegations of
ill-treatment must be supported by appropriate evidence. In assessing evidence,
the Court has adopted the standard of proof “beyond reasonable doubt”.
According to its established case-law, proof may follow from the coexistence of
sufficiently strong, clear and concordant inferences or of similar unrebutted
presumptions of fact. Moreover, the level of persuasion necessary for reaching
a particular conclusion and, in this connection, the distribution of the burden
of proof are intrinsically linked to the specificity of the facts, the nature
of the allegation made and the Convention right at stake (see, among others, Nachova
and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98,
§ 147, ECHR 2005-VII; Ilaşcu
and Others v. Moldova and Russia [GC], no. 48787/99,
§ 26, ECHR 2004-VII; and Akdivar
and Others v. Turkey [GC], 16 September 1996, § 168, Reports
of Judgments and Decisions 1996-IV).
90. The Court is mindful of the objective
difficulties experienced by the applicants in collecting evidence to
substantiate their claims about the conditions of their detention. Owing to the
restrictions imposed by the prison regime, detainees cannot realistically be
expected to be able to furnish photographs of their cell or give precise
measurements of its dimensions, temperature or luminosity. Nevertheless, an
applicant must provide an elaborate and consistent account of the conditions of
his or her detention mentioning the specific elements, such as for instance the
dates of his or her transfer between facilities, which would enable the Court
to determine that the complaint is not manifestly ill-founded or inadmissible
on any other grounds. Only a credible and reasonably detailed description of
the allegedly degrading conditions of detention constitutes a prima facie case
of ill-treatment and serves as a basis for giving notice of the complaint to
the respondent Government.
91. The Court has held on many occasions that cases
concerning allegations of inadequate conditions of detention do not lend
themselves to a rigorous application of the principle affirmanti
incumbit probatio (he who alleges something must prove that
allegation) because in such instances the respondent Government alone have
access to information capable of corroborating or refuting these allegations.
It follows that, after the Court has given notice of the applicant’s complaint
to the Government, the burden is on the latter to collect and produce relevant
documents. A failure on their part to submit convincing evidence on material
conditions of detention may give rise to the drawing of inferences as to the
well-foundedness of the applicant’s allegations (see Gubin
v. Russia, no. 8217/04, § 56, 17 June 2010, andKhudoyorov
v. Russia, no. 6847/02, § 113, ECHR 2005-X
(extracts)).
92. In previous conditions-of-detention cases, the
extent of factual disclosure by the Russian Government was rather limited and
the supporting evidence they produced habitually consisted in a series of
certificates issued by the director of the impugned detention facility after
they had been given notice of the complaint. The Court repeatedly pointed out
that such certificates lacked references to the original prison documentation
and were apparently based on personal recollections rather than on any
objective data and, for that reason, were of little evidentiary value (see,
among other authorities, Veliyev
v. Russia, no. 24202/05, § 127, 24 June 2010; Igor
Ivanov v. Russia, no. 34000/02, § 34, 7 June 2007;
and Belashev,
cited above, § 52).”
The Government’s evidence comprised the
certificates prepared by the remand prison administration and the excerpts from
the remand prison population register covering one day per month within the
period of the applicant’s detention.
As regards the certificates prepared in respect
of the applicant’s detention from 12 October 2004 to 22 October 2006,
the Court observes that they merely affirmed that the conditions of the
applicant’s detention had been in compliance with Article 3 of the
Convention without indicating the actual cell population on any given date or
referring to any evidence on which that affirmation was based. The fact that
they were issued approximately three years after the relevant period of the
applicant’s detention was over further undermined their evidential value: as
the Court has pointed out on many occasions, documents prepared after a
considerable period of time cannot be viewed as sufficiently reliable sources,
given the length of time that has elapsed (see Novinskiy
v. Russia, no. 11982/02, § 105, 10 February 2009, and Shilbergs
v. Russia, no. 20075/03, § 91,
17 December 2009).
As regards the period of the applicant’s
detention from 23 October 2006 to 3 June 2008, the Court observes
that the certificates prepared by the prison administration and concerning the
surface and the number of sleeping places in the cells where the applicant was
detained were not contested by the applicant. Accordingly the Court considers
the information provided by the Government in this respect as credible.
The Court is also satisfied that that the
excerpts from the register were the original documents which had been prepared
during the period under examination, that is, from 23 October 2006 to
3 June 2008, and which showed the actual number of inmates who had been
present in those cells on those dates. The Court considers it regrettable that
the extent of the Government’s disclosure was not complete and reflected the
situation in the applicant’s cell on one day per month.On those dates the
number of detainees in the relevant cells did not exceed the number of sleeping
places,affording at least 3.8 sq. m of personal space per detainee.
The Court also notes that the excerpts from the
prison population register in respect of the period from February to June 2008
demonstrate that the prison was not generally overcrowded.
The applicant did not provide any evidence in
support of his allegations that he had been detained in appalling conditions.
Nor did he describe the conditions of his detention in any detail, confining
himself to the assertion that he had not been afforded sufficient personal
space and that he had been detained with a large number of inmates.
Having assessed the evidence presented by the
parties in its entirety, the Court lends credence to the primary documents
produced by the Government and rejects the applicant’s allegations as
unsubstantiated. It follows that this complaint is manifestly ill-founded and
must be rejected in accordance with Article 35 §§ 3 and 4 of the
Convention.
2. The applicant’s allegations concerning infection
with tuberculosis and subsequent treatment
The Court notes that even if the applicant had contracted
tuberculosis while in detention, this fact in itself would not necessarily
imply a violation of Article 3, provided that he received treatment for it (see
Babushkin
v. Russia, no. 67253/01, § 56, 18 October
2007; and Alver v. Estonia,
no. 64812/01, § 54, 8 November 2005). However, a lack of adequate medical
assistance for serious diseases which one did not suffer from prior to
detention may amount to a violation of Article 3 (see Hummatov
v. Azerbaijan, nos. 9852/03 and 13413/04, § 108 et seq.,
29 November 2007).
The
national authorities must ensure that diagnosis and care in detention
facilitates, including prison hospitals, are prompt and accurate, and that,
where necessitated by the nature of a medical condition, supervision is regular
and involves a comprehensive treatment plan aimed at ensuring the detainee’s
recovery or at least preventing his or her condition from worsening (see Pakhomov
v. Russia, no. 44917/08, § 62, 30
September 2010; and Yevgeniy Alekseyenko v. Russia, no. 41833/04, § 100, 27 January 2011).
In the present case the Court observes that,
according to the Government’s submissions, which are not disputed by the
applicant, the latter was under constant medical supervision and had received
adequate medical assistance when the tuberculosis was detected. The medical
records showed that the applicant was recovering. Nothing in the case file can
lead the Court to the conclusion that the applicant did not receive
comprehensive medical treatment for hisstage of tuberculosis.
In view of the above considerations the Court
finds that this part of the application must be rejected as being manifestly
ill-founded, pursuant to Article 35 §§ 3 and 4 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE
CONVENTION
The applicant complained under Article 6 of
the Convention about the excessive length of the criminal proceedings against
him. Article 6, in so far as relevant, 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 ...”
The Government contested that argument.The
Government submitted that the overall length of the proceedings had been
reasonable. The case had been complex. It had concerned five co-defendants. The
file had comprised sixteen volumes. There had not been any significant delays
in the proceedings attributable to the authorities.
The applicant maintained his complaint. He
considered that the proceedings had been unreasonably long and all the delays
had been attributable to the authorities. In particular, he noted that the
appeal court had twice quashed the verdict and remitted the matter to the trial
court for fresh consideration due to the errors committed by the latter. The
appeal hearings had been held belatedly. Further delay had been caused by
referral of the applicant’s case to the prosecutor to be joined with other
cases. The applicant’s infection with tuberculosis,resulting from inhuman
conditions of detention,had also added to the length of the proceedings.
Lastly, thirty‑eight hearings had been adjourned due to certain
witnesses’ failure to appear, whereas the trial court had done nothing to
ensure their attendance. On three occasions the prison guards had failed to
arrange the co-defendants’ transport to the courthouse.
A. Admissibility
The Court notes that this complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention. It further notes that it is not inadmissible on any other grounds.
It must therefore be declared admissible.
B. Merits
The Court observes that the applicant was first
arrested on 4 July 2003. It takes this date as the starting point of the
criminal proceedings. The final judgment in his case was rendered on
13 May 2008. Accordingly, the proceedings against the applicant lasted
approximately four years and ten and a half months, which spanned an
investigation stage and that of the judicial proceedings, when the case was
reviewed three times at two levels of jurisdiction.
The Court reiterates that the reasonableness of
the length of the 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 conduct of the applicant and the relevant
authorities and what was at stake for the applicant in the dispute (see, among
many other authorities, Pélissier and Sassi v. France [GC], no.
25444/94, § 67, ECHR 1999‑II). In addition, only delays attributable
to the State may justify a finding of failure to comply with the “reasonable
time” requirement (see Pedersen
and Baadsgaard v. Denmark [GC], no. 49017/99, § 49, ECHR
2004-XI).
The Court considers that the proceedings at
issue were of a certain complexity owing to the scope of the charges and the
number of defendants. However, the Court finds that the complexity of the case
alone cannot justify the overall length of the proceedings.
The Court further notes that, apart from the
adjournment of the proceedings for five months in 2007-2008 due to the
applicant’s illness, the applicant himself did not contribute to the length of
the proceedings, and that, in any event, that delay cannot be considered
significant.
As regards the conduct of the authorities, the
Court considers that the prosecutor’s office promptly completed the
investigation and prepared the case for trial. The trial court scheduled and
held hearings at regular intervals without undue delay and cannot be said to
have remained inactive. However, most of the court hearings had to be adjourned
because of the witnesses’ failure to appear. During the
first trial, which lasted slightly over a year and one month, the court had to
adjourn sixteenout of thirty‑nine hearings for that reason. During
the second trial, which lasted eleven months, ten out of nineteen hearings were
similarly adjourned. During the third trial, which lasted approximately a year
and three and a half months, twelve out of thirty-seven hearings were
adjourned,again due to the witnesses’ failure to appear. The Court discerns no
indication in the case file that the trial court availed itself of the measures
existing under national law to discipline the absent
witnesses and obtain their attendance, in order to ensure that the case was
heard within a reasonable time (see Zementova v. Russia,
no. 942/02, § 70, 27 September 2007; Sidorenko v. Russia, no. 4459/03, § 34, 8 March
2007; and Sokolov
v. Russia, no. 3734/02, § 40,
22 September 2005). The Court therefore finds that the delay occasioned by
the witnesses’ failure to attend hearings and the trial
court’s failure to ensure their attendance is attributable to the State.
The Court further observes that the appeal
courts quashed the applicant’s conviction twice. As a result, the applicant had
to stand trial three times. Although the Court is not in a position to analyse
the legal quality of the domestic courts’ decisions, it considers that, since
the remittal of cases for re-examination is frequently ordered as a result of
errors committed by lower courts, the repetition of such orders within one set
of proceedings may disclose a serious deficiency in the judicial system (see, mutatis
mutandis, among other authorities, Wierciszewska v. Poland,
no. 41431/98, § 46, 25 November 2003). The fact that the domestic courts
heard the case several times did not absolve them from having to comply with
the reasonable-time requirement of Article 6 § 1 (see, mutatis
mutandis, Litoselitis
v. Greece, no. 62771/00, § 32, 5 February 2004).
Lastly, the Court notes that the fact that the
applicant was held in custody pending trial and appeal proceedings against him
required particular diligence on the part of the authorities dealing with the
case to administer justice expeditiously (see, among other authorities, Korshunov
v. Russia, no. 38971/06, § 71, 25 October 2007).
In the light of the criteria laid down in its
case-law, and having regard to all the circumstances of the case, the Court
considers that in the instant case the length of the proceedings was excessive
and failed to meet the “reasonable time” requirement. There has accordingly
been a breach of Article 6 § 1 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 100,000 euros (EUR) in
respect of non‑pecuniary damage.
The Government considered that, given that the
applicant’s rights under the Convention had not been infringed, his claims
should be rejected in full. Alternatively, they suggested that a finding of a
violation would constitute sufficient just satisfaction. In any event, they
considered the applicant’s claims excessive.
The Court considers that the applicant must have
sustained some anguish and suffering as a result of the excessive length of the
criminal proceedings against him, and that this would not be adequately
compensated by the finding of a violation alone. However, the amount claimed by
the applicant appears to be excessive. Making its assessment on an equitable
basis, it awards him EUR 2,000 under that head, plus any tax that may be
chargeable on that amount.
B. Costs and expenses
The applicant did not claim costs and expenses.
Accordingly, there is no call to make an award under this head.
C. Default interest
The Court considers it appropriate that the
default interest rate 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
1. Declares the complaint concerning the
excessive length of the criminal proceedings against the applicant admissible
and the remainder of the application inadmissible;
2. Holds that there has been a violation of
Article 6 of the Convention;
3. 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 thousandeuros), 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;
4. Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 24 July 2012,
pursuant to Rule77§§2 and3 of the Rules of Court.
Søren Nielsen Nina
Vajić
Registrar President
