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FIRST
SECTION
CASE OF KRIVONOSOV v. RUSSIA
(Application
no. 3023/03)
JUDGMENT
STRASBOURG
27
November 2008
This judgment will
become final in the circumstances set out in Article 44 § 2
of the Convention. It may be subject to editorial revision.
In
the case of Krivonosov 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 6 November 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 3023/03) against the
Russian Federation lodged with the Court
under Article 34 of the Convention for the Protection
of Human Rights and Fundamental Freedoms (“the Convention”)
by a Russian national, Mr Yaroslav
Yakovlevich Krivonosov (“the applicant”), on 24 December
2002.
- The
applicant was represented by Mr A. Puchnin, a lawyer practising in
Moscow. The Russian Government (“the Government”)
were represented by Ms V. Milinchuk, former Representative of the
Russian Federation at the European Court of Human Rights.
- On
11 June 2007 the
President of the First Section decided to give notice of the
application to the Government. It was also decided to rule on the
admissibility and merits of the application at the same time
(Article 29 § 3).
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1966 and lives in Barnaul.
- The
applicant is a former President of a private commercial bank and the
owner of several businesses in Barnaul.
- On
27 November 1997 criminal proceedings were opened against him on
suspicion of fraud.
- On
27 November 1997 the applicant was arrested and detained pending
trial.
- On
5 December 1997 charges were brought against the applicant.
- In
1998-1999 the applicant's detention was extended on several
occasions.
- On
21 April 1999 the pre-trial investigation ended and the applicant was
allowed to examine the case file which was made up of 145 volumes –
9 of which contained the summons of the victims, 6 volumes
contained accounting documents and 118 volumes contained the
statements of the victims (seven thousand and thirty-six clients of
the bank). A deadline of 8 November 1999 was given for the
reading of the file. As the applicant had not managed to read all the
volumes by the given deadline, the time was extended to 12 November
1999. No further extensions were granted.
- On
5 January 2000 the trial commenced.
- The
applicant asked the court to send the case file back to the
investigator due to the numerous alleged procedural violations and
the lack of sufficient time given for the examination of the file. On
22 February 2000 his request was granted. However, on 30 March 2000
this decision was quashed and the case was remitted for fresh
consideration. No further documents concerning the outcome of these
proceedings are enclosed in the file.
- On
15 June 2001 the applicant was released on bail due to the expiration
of the time-limits for his pre-trial detention pending court
examination. By that time he spent over three and a half years in
detention.
- On
18 November 2002 the applicant was again detained within the same
proceedings as a result of his alleged attempts to influence
witnesses. He appealed against the detention order, and on 9 January
2003 the Altay Regional Court ordered the applicant's release on
bail.
- According
to the Government, during the period from January 2000 to January
2003 the hearings were adjourned on 38 occasions due to reasons
outside the authorities' control, such as illnesses of the applicant
and his lawyers, their requests for additional examinations, the
lawyers of the applicant and his three co-accused being occupied in
unrelated proceedings, untimely arrivals of victims and witnesses and
the need to examine petitions lodged by the applicant for review of
the alleged violations committed during the expert examinations. The
Government submitted that the proceedings were adjourned due to the
court's actions on one occasion only, i.e. from 13 to 20 January
2003, the presiding judge being on a regular holiday leave.
- As
it appears from the Government's submissions, no actions were taken
by the domestic courts during the periods from 30 March to 31 July
2000, from 10 September 2001 to 11 March 2002 and from 30 September
2002 to 13 January 2003.
- On
30 May 2003 the Oktyabrskiy District Court of Barnaul convicted the
applicant, along with three other accused, of unlawful banking
transactions, unlawful business undertakings, fraud and breach of
professional discretion and sentenced him to thirteen years'
imprisonment with forfeiture of property. The applicant was taken
into custody direct from the courtroom.
- On
13 November 2003 the appeal hearing commenced. However, the applicant
felt unwell and the hearing was postponed until 14 November 2003.
- By
final judgment of 14 November 2003 the Altay Regional Court reduced
the sentence to twelve years with a fine and forfeiture of property.
During the appeal hearing the applicant injured himself and was taken
out of the court room to receive medical help. The hearing was
suspended. After the wound had been treated and it was established
that the applicant was fit for trial, he refused to return to the
court room. The hearing proceeded in the presence of the applicant's
lawyer.
- On
6 February 2004 the Rubtsovskiy Town Court brought the applicant's
sentence into compliance with changes that had been introduced into
Russian legislation in December 2003. The sentence was reduced to ten
years' imprisonment and a fine.
- On
13 October 2004 the Rubtsovskiy Town Court ordered the applicant's
conditional early release.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the proceedings had been
incompatible with the “reasonable time” requirement, laid
down in Article 6 § 1 of the Convention, which 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
proceedings commenced on 27 November 1997 when the applicant was
arrested. However, the period to be taken into consideration did not
begin until 5 May 1998, when the recognition by Russia of the right
of individual petition took effect. In assessing the reasonableness
of the time that elapsed after that date, account must nevertheless
be taken of the state of proceedings at the time. The period in
question ended on 14 November 2003. Thus, it lasted almost six years
for two levels of jurisdiction of which five years, six months and
eleven days fall within the Court's competence.
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- The
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 conduct of the applicant and the relevant authorities (see, among
many other authorities, Pélissier and Sassi v. France
[GC], no. 25444/94, § 67, ECHR 1999-II)
- The
Court observes that the parties agreed that the case had been complex
since it involved a considerable number of witnesses and victims.
However, in the Court's view, the complexity of the case does not
suffice, in itself, to account for the length of the proceedings.
Moreover, the fact that the applicant was held in custody required
particular diligence on the part of the courts dealing with the case
to administer justice expeditiously (see Panchenko v. Russia,
no. 45100/98, § 133, 8 February 2005, and Kalashnikov v.
Russia, no. 47095/99, § 132, ECHR 2002 VI).
- As
to the applicant's conduct, the Government argued that he had
contributed to the length of the proceedings by taking an excessive
period of time to study the file and by filing numerous requests to
the court. They further argued that the hearings had been adjourned a
considerable number of times due to his lawyer's illnesses, holidays,
assistance in unrelated criminal proceedings and requests to adjourn
the hearing due to requests for additional examinations.
- According
to the Government, the delays were also attributable to the
applicant's co-accused and their lawyers, to the late arrival of
victims and witnesses, the number of which amounted to seven
thousand, and by the need to conduct financial and other
examinations.
- The
applicant maintained his complaint. He stressed that, even if
calculated from the date of the ratification of the Convention by
Russia on 5 May 1998, the proceedings lasted around five and a
half years of which almost four years he spent in detention. The
domestic authorities failed to discharge the duty of special
diligence owed to persons kept in detention pending trial. The length
was thus excessive.
- The
Court observes that there were periods of inactivity throughout the
proceedings for which the Government have not submitted any
satisfactory explanation. On the other hand, the Court is not
convinced by the Government's claim that the delays in the
proceedings were primarily caused by the applicant and his lawyers,
although it accepts that certain delays were attributable to them.
- The
Court further notes that throughout the domestic court proceedings
the applicant filed many requests in connection with his case, both
during his trial and between hearings. It reiterates that Article 6
does not require a person charged with a criminal offence to
co-operate actively with the judicial authorities. In particular,
applicants cannot be blamed for taking full advantage of the
resources afforded by national law in their defence (see Yağcı
and Sargın v. Turkey, 8 June 1995, § 66, Series A
no. 319 A,).
- The
Court furthermore notes that the conduct of the applicant's
co-accused, the victims and witnesses was one of the reasons named by
the Government for the prolongation of the proceedings. The Court
reiterates that the delay occasioned by their failure to attend and
the court's failure to discipline them is attributable to the State
(see Kuśmierek v. Poland, no. 10675/02, § 65,
21 September 2004).
- The
Court observes that the criminal proceedings against the applicant
lasted for almost six years for two levels of jurisdiction, of which
five years, six months and eleven days fall within the Court's
competence ratione temporis.
- The
Court has frequently found violations of Article 6 § 1 of the
Convention in cases raising issues similar to the one in the present
case (see Pélissier and Sassi, cited above). Having
examined all the material submitted to it, the Court considers that
the Government have not put forward any fact or argument capable of
persuading it to reach a different conclusion in the present case.
Having regard to its case-law on the subject, 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.
II. OTHER
ALLEGED VIOLATIONS OF THE CONVENTION
- Lastly,
the applicant complained under Article 5 §§ 1 (c) and 3 of
the Convention that his detention had been unlawful and had lasted
for an unreasonably long period of time. He further complained under
Article 6 § 1 about the unfairness of the proceedings against
him. Invoking Article 7 § 1 of the Convention, the applicant
complained that some of the offences for which he was charged had not
constituted criminal offences under national law at the time when
they were committed. Finally, he complained under Article 1 of
Protocol No. 4 about having been deprived of his liberty merely on
the grounds of his inability to fulfil contractual obligations.
- However,
having regard to all the material in its possession, and in so far as
these complaints fall within its competence, the Court finds that
there is no appearance of a violation of the rights and freedoms set
out in the Convention or its Protocols. It follows that this part of
the application must be rejected as being manifestly ill-founded,
pursuant to Article 35 §§ 3 and 4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article
41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 3,458297 American dollars (USD) in respect of
pecuniary damage. He further claimed USD 500,000 for non-pecuniary
damage.
- The
Government submitted that the applicant had claimed compensation for
damage incurred as a result of his criminal prosecution and
conviction. However, it was not the Court's task to assess the
reasonableness of the charges against him. The Government therefore
considered that the applicant's claim should be dismissed. In their
opinion, the finding of a violation would constitute sufficient just
satisfaction.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim. On
the other hand, the Court considers that the applicant must have
sustained non-pecuniary damage for the violation found by the Court
in respect of the excessive length of the criminal proceedings
against him. Ruling on an equitable basis, it awards him EUR 2,000
under that head, plus any tax that may be chargeable on this
amount.
B. Costs and expenses
- The
applicant also claimed USD 75,291 for the costs and expenses incurred
before the domestic courts and the Court.
- The
Government contested these claims.
- 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 were
reasonable as to quantum. In the present case, the applicant
submitted a letter from his wife stating that she had paid the
indicated sum to the applicant's lawyers. However, no receipts or
other documents were enclosed with the submissions. Regard being had
to the information in its possession and the above criteria, the
Court rejects the claim for costs and expenses.
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 excessive
length of the proceedings admissible and the remainder of the
application inadmissible;
- Holds that there has been a violation of Article
6 § 1 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 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 27 November 2008,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
