In the case of Yefimenko v. Russia,
The European Court of Human Rights (First Section), sitting as
a Chamber composed of:
Isabelle Berro-Lefèvre, President,
Elisabeth Steiner,
Khanlar Hajiyev,
Mirjana Lazarova Trajkovska,
Julia Laffranque,
Ksenija Turković,
Dmitry Dedov, judges,
and Søren Nielsen, Section Registrar,
Having deliberated in private on 22 January 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
152/04) against the Russian Federation lodged with the Court under Article 34
of the Convention for the Protection of Human Rights and Fundamental Freedoms
(“the Convention”) by a Russian national, Mr Sergey Aleksandrovich Yefimenko
(“the applicant”), on 30 October 2003.
The applicant, who had been granted legal aid,
was represented by Ms Anna Borisovna Polozova, a lawyer practising in
Moscow. The Russian Government (“the Government”) were represented by Mr G.
Matyushkin, Representative of the Russian Federation at the European Court of
Human Rights.
On 16 June 2008 the 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).
On 28 September 2009 and 14 September 2011 the
parties were requested to submit further observations under Rule 54 § 2 (c) of
the Rules of Court.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1969 and is serving a prison
sentence in the Chelyabinsk Region.
A. Criminal proceedings against the applicant
1. The applicant’s arrest and trial in 2001-03
The applicant was arrested on 13 March 2001 on
suspicion of having murdered his aunt. He refused to testify until legal-aid
counsel had been appointed. On 16 March 2001 he was also accused of
having unlawfully deprived Mr P. of his liberty. He subsequently retained
Mr M. as counsel in the proceedings. Thereafter, the applicant refused Mr
M.’s services for unspecified reasons. On an unspecified date,
legal-aid counsel D. was appointed to defend the applicant. The applicant and
his co-accused were charged with fraud, abduction and several counts of murder.
Between October and December 2001 the applicant was studying the case file.
In December 2001 the case was sent to the Chelyabinsk Regional Court for trial. The applicant’s request for trial by jury was
rejected. A professional judge and two lay judges (Ms G. and Ms Y.) were
assigned to try this case.
Throughout the proceedings the
applicant was kept in detention. The trial court extended his detention on
several occasions. The applicant appealed, alleging that the lay judges had
been sitting in his case unlawfully because, against the statutory requirement
of the Lay Judges Act, they had served as lay judges more than once a year
between 1998 and 2002. The Supreme Court of Russia dismissed the applicant’s
appeals against the detention orders. In particular, on 22 November 2002
the Supreme Court upheld the extension order of 1 October 2002 issued by
the presiding judge and the lay judges. The appeal court stated as follows:
“It appears from a note submitted by the Regional Court that
new lists of lay judges in the region had not yet been compiled when the
[applicant’s] trial date was set ...”
On an unspecified date the applicant retained Mr
Zh. as his counsel in the criminal proceedings.
The examination of the case started in February
2003. At the court hearing on 13 February 2003 the applicant unsuccessfully
objected to the participation of the lay judges in his case and asked for trial
by jury. Later on, for unspecified reasons, Ms Y. was replaced by Ms Ch. in the
composition of the trial court.
On 18 February 2003 the presiding judge ordered the
replacement of counsel Zh. due to his illness. Since 20 February 2003 the
applicant had been assisted by legal-aid counsel Z. It appears that at certain
stages in the proceedings the applicant was assisted by legal-aid counsel P.
The trial court refused to admit a Ms K. as a lay defender.
By a judgment of 24 April 2003 the trial
court (the presiding judge and lay judges Ms G. and Ms Ch.) convicted the
applicant of several offences (fraud, abduction, extortion, theft and several
counts of murder) and sentenced him to twenty-two years’ imprisonment.
Apparently, the last day of the trial was shown
and commented upon by local television in April, August and September 2003.
The applicant appealed against the trial
judgment to the Supreme Court of Russia. He argued, inter alia, that Z.
had failed to lodge a statement of appeal “despite an earlier promise to do so”
and that the composition of the trial court had been unlawful. The prosecutor
also appealed against the trial judgment.
On 19 September 2003 the applicant made
submissions before the appeal court by video link. According to the applicant,
the appeal hearing lasted seven minutes, while the deliberations took only two
minutes. The appeal court amended the judgment on appeal and reduced the applicant’s
sentence to twenty-one years’ imprisonment. The appeal court made no specific
findings regarding the composition of the trial court and observance of the
applicant’s defence rights in the appeal proceedings.
2. Subsequent events in 2004-07
By letters of 19 March and 12 April 2004 the
President of the Regional Bar Association rejected the applicant’s complaints
against counsel Z.
In October 2005 and then on 21 December 2006 the
Russian Supreme Court reduced the applicant’s term to twenty years and six
months.
In reply to the applicant’s
request for information, the Regional Court and the Regional Parliament stated
that they had no information concerning lists of lay judges or whether any lists
had been destroyed (see also paragraph 24 below).
On 8 February 2007 the Constitutional Court
of the Russian Federation examined the applicant’s complaint and ruled that
legal-aid counsel should have been appointed for the appeal proceedings.
Although it declared the applicant’s constitutional complaint inadmissible, it
found as follows:
“...2. The decisions taken in [the applicant’s]
case, which were based on an unconstitutional interpretation of Article 50 § 1
(1) and 5 and § 3, should be re-examined pursuant to the applicable procedure,
if there are no obstacles to doing so”.
On 13 June 2007 the vice-president
of the Supreme Court rejected the applicant’s renewed complaint about his
conviction, stating that “the mere fact that the lay judges had served more
than once in a year could not raise doubts as to the legitimacy of their
mandate and, by implication, the lawfulness of the trial panel”.
3. Subsequent events in 2009-11
On 10 June 2009 the Presidium of the Supreme
Court re-examined the criminal case against the applicant by a supervisory
review, set aside the appeal decision of 19 September 2003, and ordered a new
appeal hearing. Referring to Articles 97, 108 and 255 of the Code of Criminal
Procedure, the Presidium ordered the applicant’s detention pending the appeal
proceedings.
On 3 September 2009 an appeal hearing was held
before the Supreme Court, which set aside the trial judgment of 24 April 2003
against the applicant. The appeal court stated, inter alia, that there had
been no lists of lay judges in the Regional Court at the material time; that the
lay judges had sat in other cases in 2002-03; that there had been a “violation
of [the applicant’s] defence rights and his right to a jury trial”. The appeal
court required a retrial before the Chelyabinsk Regional Court. The appeal
court maintained the applicant in custody until 10 November 2009 awaiting the
retrial.
The retrial started in September 2009. However,
on 6 April 2010 it was stopped because the Presidium of the Supreme Court was
asked to carry out a supervisory review in respect of the appeal decision of 3 September
2009.
On 1 September 2010 the
Presidium of the Supreme Court set aside the appeal decision of 3 September
2009 and ordered a retrial. However, unlike the court decision of 3 September
2009, the Presidium removed any reference to (i) the absence of a list of lay
assessors in the Regional Court; (ii) whether the lay assessors had sat in
other cases in 2002-03; (iii) “the violation of [the applicant’s] defence
rights and his right to a jury trial”. As a result, the Presidium quashed the
trial judgment of 24 April 2003 in the following terms:
“... As explained by the deputy President of the Regional Court, the lists of lay assessors for district and town courts in the region had
been approved between 29 June 2000 and 29 November 2001 ... The lists for
eight district courts in the region were not submitted for approval. The lay
assessors in [the applicant’s] case were registered as residing in Chelyabinsk. There is no indication that their names were added to the list of lay assessors
... In those circumstances the trial court was not established by law. Under
Article 381 § 2 (2) of the Code of Criminal Procedure (CCrP) the unlawful
composition of the court is the ground for quashing the judgment in all
circumstances...”
The Presidium also quashed several detention orders issued by
the trial court during the trial in 2002. Lastly, with reference to Articles
108 and 255 of the CCrP, the Presidium maintained the applicant in custody awaiting
retrial.
The retrial took place between October 2010 and
February 2011. At the preliminary stage of the retrial, the applicant was
assisted by legal-aid counsel B. and subsequently, at his own request, by legal-aid
counsel D. In the meantime, in December 2010, having consulted his lawyer, the
applicant waived the opportunity for trial by jury and agreed that the case
should be examined by a professional judge.
New counsel K. was appointed in
January 2011 to replace counsel D., who had to participate in another trial. At
a hearing on 11 January 2011, in reply to a question from the presiding judge,
the applicant replied that he “had not yet fully discussed the defence
position” with his counsel. At a hearing on 12 January 2011 the applicant
stated that he had talked to his counsel and that they had discussed the
defence position, which prompted the applicant to amend his earlier strategy,
leading the applicant to plead guilty to the murder of his aunt. It also
appears that (at this or a subsequent hearing) counsel K. supported the
applicant’s and his co-defendant’s request for the prosecution to be discontinued
due to the expiry of the time-limits on one of the charges. The applicant also
stated that, having talked to his counsel, he accepted that there was no longer
any need to call the remaining witnesses or victims. Thus, the applicant
accepted that it could be appropriate to rely on the relevant material from the
case file.
At a hearing on 13 January 2011
the presiding judge noted that the applicant had lodged an appeal against an
earlier procedural order, also requesting the appointment of Mr D. as counsel.
In that connection, the presiding judge asked whether the applicant was
dissatisfied with counsel K. The applicant replied that he was satisfied, that counsel
was sufficiently qualified to defend him and that he did not want him replaced.
On 1 February 2011 the Regional Court
discontinued the case on one of the charges. On 16 February 2011 the Regional Court issued a judgment convicting the applicant of murder, kidnapping and
extortion. The court sentenced him to a term of imprisonment of nineteen years
and six months. As required under Article 72 of the Russian Criminal Code, this
term was to be counted from 13 March 2001, to take into account the preceding
periods of the applicant’s detention pending trial and under the trial judgment
of 24 April 2003.
The applicant and counsel K. appealed to the
Supreme Court of Russia.
The applicant complained about counsel K. to the
President of the local bar association. The latter replied that the applicant
had not raised during the trial the issue of counsel’s attendance at the remand
centre; that he had discussed the defence position with counsel on several
occasions before the court hearings and in the convoy room in the court-house.
In March 2011 the Supreme Court appointed Ms
Polozova as defence counsel. Both Ms Polozova and Mr D. were notified of
the date and time of the appeal hearing. Mr D. informed the court that he had
no authority to assist the applicant in the appeal proceedings, nor was he retained
as counsel by the applicant or his family. Ms Polozova also informed the court
that she had no contract with the applicant, besides which she was busy and
thus unable to accept the case as legal-aid counsel. Therefore, the Supreme
Court appointed lawyer Chi. as defence counsel. The study schedule indicates
that she studied the case file between 26 April and 5 May 2011. Counsel Chi. also
attended the appeal hearing on 12 May 2011. The applicant participated in the
appeal hearing by way of a video link from a detention facility. The applicant
refused to be assisted by counsel Chi. The appeal dismissed this refusal and
counsel Chi. continued to assist the applicant.
On 12 May 2011 the Supreme Court
upheld the judgment of 16 February 2011 on appeal. The appeal court held
as follows:
“[The applicant] was assisted by counsel K. at the trial; no
challenge was lodged against her. The information in the trial verbatim record is
contrary to the allegation concerning the alleged ineffectiveness of the
defence counsel. There is also an indication that counsel did not meet [the
applicant] in the remand centre. However, the question of the need for such a meeting
was not raised before the court. While stating at the beginning of the trial
that the defence position had not been fully discussed, [the applicant] did not
ask for additional time. Subsequently, [the applicant] confirmed on numerous
occasions that counsel had provided advice and discussed the defence position
with him ... During the preliminary hearing the court had granted [the
applicant’s] request to be assisted by advocate D. He was replaced during the
trial due to his participation in another criminal trial ... ”
B. Conditions of detention
1. Kurchatovskiy temporary detention centre
According to the applicant, from
13 to 30 March 2001 he was detained in Kurchatovskiy temporary detention centre
in the town of Chelyabinsk (ИВС Курчатовского
района). The applicant was not provided
with a mattress, bedding or any items for hygiene. He had no access to a shower.
The cell was dirty, damp and cold, and had no ventilation. The applicant had no
out-of-cell activity and was confined to his cell twenty-four hours a day.
2. Remand centre
From 30 March 2001 to 28 October 2003 the
applicant was detained in Chelyabinsk remand centre no. 74/1 (ФБУ ИЗ-74/1
ГУФСИН РФ по Челябинской области).
Apparently, he was also kept in this remand centre for some time in 2005.
(a) The applicant’s account
The applicant provided the following description
of his conditions of detention in the remand centre in 2001-03.
From 17 April 2001 to 29 April 2003 he was
kept in cell no. 77, which measured 7-8 square metres and was designed for
six inmates (for four inmates, “later on”). It accommodated three to seven
detainees. Hence, at times they had to sleep in shifts. Artificial light was on
day and night. Between 30 March and 20 April 2001 the applicant was not
provided with bedding in the remand centre; a blanket was provided only in late
2002. No towels or tableware were provided.
From 29 April to 28 October 2003 the applicant
was kept in cell no. 80, which measured 7-8 square metres and was designed
for four inmates. It actually housed up to five inmates. Hence, at times they
had to sleep in shifts.
In respect of all the cells the applicant
alleged that the lavatory pan situated in the corner was only separated from
the living area by a partition. A table was placed one metre from the pan. The
cells were not ventilated, and the lack of ventilation was exacerbated by the
fact that other detainees smoked. Until January 2003 the cell windows were
covered with metal shutters in addition to slanted bars. There was no access to
hot water in the cells.
Throughout his detention in the remand centre
the applicant had no out-of-cell activity other than a daily one-hour walk in
the courtyard of the remand centre. The remainder of the day he was confined to
his cell. Catering and medical services were unsatisfactory. During the summer
period the applicant had no access to a hot shower.
(b) The Government’s account
The Government submitted the
following data concerning the cell measurements and population. Cell
no. 77 measured 9.3 square metres and accommodated, at the relevant period
of time, four detainees; cell no. 80 measured 9.3 square metres for four
detainees; cell no. 83 was 9.3 sq. m for four detainees; cell no. 91 was
30.2 sq. m for twelve detainees; cell no. 96 was 9.3 sq. m for four
detainees; cell no. 154 was 23.1 sq. m for eight detainees; and cell no. 1
was 20.8 sq. m for six detainees.
The Government concluded from the above data
that the statutory requirement for floor space per detainee (four square
metres) had not been respected in cells nos. 77, 80, 83 and 96. The
remaining material conditions of detention (lights, ventilation, an individual
bed and bedding, food) were decent. There were no metal shutters on the cell
windows. There were some metal bars on the windows, which did not impede
natural light. The toilets were separated from the main area by a partition,
approximately one to one and a half metres in height.
The above submissions were
based on the information provided by the head of the detention facility in
2008, as well as on various supporting statements allegedly made by the prison
staff (but signed by the chief prison officer). The Government also submitted
copies of schedules relating to “sanitary measures” for detainees between 2001
and 2003.
3. The applicant’s complaints
The applicant complained about his detention to
various public authorities. Allegedly, on 26, 28 March and 2 April 2001 the
applicant and his counsel complained to the Prosecutor’s Office of the
Chelyabinsk Region that the conditions of detention in the temporary detention
centre were unacceptable. On 10 September 2001 a prosecutor refused to
institute criminal proceedings in relation to the allegation of unlawful
detention in the temporary detention centre.
C. Correspondence with the Regional Bar Association,
the International Protection Centre and the European Court
The applicant states that several letters from the
European Court to the applicant in 2004-05 were inspected by staff of prison
no. 1 in the Chelyabinsk Region. The majority of these letters were
standard correspondence relating to the first introduction letter or
acknowledging receipt of the applicant’s correspondence. A letter dated 19
March 2004 requested the applicant to further substantiate his complaint about the
conditions of detention in the Chelyabinsk remand centre.
Each letter bore a stamp indicating its
registration number and the date of receipt by the detention facility.
Subsequently, the applicant argued that the practice of monitoring
correspondence continued to apply, and submitted copies of the Court’s letters
to the applicant between 2006 and 2008 which also bore similar stamps of
various detention facilities.
Correspondence sent by the
applicant to the European Court in 2003-08 was accompanied by cover letters
compiled by the staff of various detention facilities. Some cover letters
indicated the nature of the correspondence (for instance, submission of
additional materials, notification of changes in the applicant’s case) and/or
the number of pages submitted by the applicant for dispatch. Some of the
applicant’s own letters also had a prison stamp indicating the date when each
letter had been submitted to the “special unit”. For instance, in his letter of
7 June 2011 the applicant informed the Court of new developments in the
proceedings at the national level and of his intention to complain of new
violations of the Convention. This letter bore the stamp of Chelyabinsk remand
centre no. 74/3 and the date of receipt in the “special unit”. In July
2011 the Court forwarded this letter to the applicant’s representative before
the Court. In August 2011 the representative lodged a complaint before the
Court in relation to the inspection of this letter by prison authorities.
Subsequently, the applicant argued that he had handed over the letter of 7 June
2011 to a prison officer, intending to ask this officer to provide him with an
envelope. The officer reported to the superior that, despite her explanation to
the applicant about the need for presenting letters to the Court in a sealed
envelope, the applicant insisted on dispatching the letter and did not ask for
an envelope. The officer was reprimanded for summarising the contents of the
letter in the cover letter.
The applicant also wrote to the International
Protection Centre (IPC), which is a non-governmental organisation in Moscow which, inter alia, provides information about Convention proceedings and
assists applicants before the Court. In reply to the applicant’s letter, on 28
April 2004 the IPC informed him of the procedure following the lodging of an
application form and provided advice as to how obtain copies of documents in
support of the application pending before the Court. The IPC’s letter bore the stamp
of prison no. 1, indicating the internal registration number of the correspondence
and its receipt date.
Lastly, the applicant wrote several letters to
the regional bar association. By letters of 19 March and 12 April 2004 the vice-president
of the bar association dealt with his complaint against counsel Z., in
particular as regards his failure to lodge a statement of appeal in 2003. In a
letter of 22 December 2004, the vice-president informed the applicant that
he was unable to assist the applicant as counsel or to provide any further consultation
regarding the provisions of the criminal law and procedure. All the letters
from the bar association bore the stamp of prison no. 1, indicating the
internal registration number or the receipt date.
The applicant unsuccessfully complained to the
Regional prosecutor’s office that his correspondence with the regional bar association
and the IPC had been inspected by the prison administration, despite the
allegedly privileged status of such correspondence.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Lay Judges
Pursuant to the Lay Judges Act,
in force at the material time, lay judges sat as non-professional judges in
civil and criminal cases (section 1 § 2 of the Lay Judges Act). Lists
of lay judges for district courts were compiled by local authorities and were
validated by the regional legislature (section 2). The president of a district
court drew at random from the list lay judges to be called to sit on a panel
(section 5). Lay judges were called to serve for a period of fourteen days, or
as long as the proceedings in a given case lasted. Lay judges could not be
called more than once a year (section 9).
A new Code of Criminal Procedure entered into
force on 1 July 2002. Pursuant to its Article 30 § 2 (3), criminal cases concerning
serious and particularly serious offences are examined by a panel of three
professional judges. However, according to the transitional rules, until 1 January
2003 such criminal cases should have been examined by a single judge. That
provision was amended in May 2002, and read as follows:
“...until 1 January 2004 criminal cases which concern serious
and particularly serious offences should be examined by a single judge or, at
the request of the accused prior to a court hearing, - by a [professional]
judge sitting with two lay judges.”
B. Legal representation in criminal proceedings
Article 48 of the Russian Constitution provides
that everyone has a right to adequate legal assistance. Under the Code of
Criminal Procedure, in force at the material time, a suspect or accused shall
be afforded a right to defend himself or be defended by counsel and/or his
legal representative (Article 16). A court, prosecutor or investigator shall
advise the suspect or accused of his rights. In certain cases the authority in
charge of the case shall ensure mandatory representation of the suspect or accused
by counsel or his legal representative. In certain circumstances such
representation is free of charge.
A suspect or accused or his
legal representative, or any other person instructed by the suspect or accused
may retain counsel (Article 50). The suspect or accused may retain several
lawyers. At the request of the suspect or the accused, the investigator or
court ensures participation of counsel. If counsel fail to appear within five
days of the request, the investigator or court may invite the suspect or accused
to retain another counsel or, in the event of refusal to do so by the suspect
or accused, to appoint counsel for them. If within twenty-four hours of arrest
or detention privately retained counsel does not appear, the investigator or
court appoints new counsel. If the person has waived his right to counsel, a
pending investigative measure may be carried out without counsel, except in
certain circumstances. If counsel is appointed by the
investigator or court his fees are paid by the State.
Representation by counsel is mandatory if the
suspect or accused has not waived his right to legal representation (Article 51).
Representation by counsel is mandatory if the suspect or accused has not
reached the age of majority; if he is unable to represent himself because of a
physical or mental handicap; if he has no proficiency in the language used at
the trial; if he has been charged with a criminal offence punishable by more
than fifteen years’ imprisonment, life imprisonment or death; if he is tried by a jury. If the suspect or accused
has not retained counsel, the investigator or court shall appoint counsel for
him.
In a decision dated 18 December 2003
(no. 497-O), the Constitutional Court held that nothing in the wording of
Article 51 suggested that it had not been applicable to the appeal proceedings.
That position was subsequently confirmed and developed in seven decisions
(nos. 251, 252, 253, 254, 255-О-П,
257-О-П, 276-O-П) delivered by the Constitutional Court on 8 February
2007. It found that free legal assistance for the purpose of appeal proceedings
should be provided on the same conditions as during the earlier stages of the
proceedings. No limitation of the right of an accused to legal assistance is
allowed unless the person has waived his or her right to such representation.
According to the Advocates Act 2002, an advocate
shall comply with the legal provisions concerning compulsory representation by counsel
in criminal proceedings, when appointed by an investigating authority or a
court (section 7). An advocate is not allowed to revoke his agreement or assignment
to represent a person (section 6 § 4 (6)).
Pursuant to the 2003 Code of Advocates’
Professional Ethics, an advocate shall rescind his agreement to represent, if,
after having agreed to represent a client (except during a preliminary
investigation and trial proceedings) it becomes clear that he cannot represent
that client. The advocate shall notify his client thereof in advance, if at all
possible (section 10). An appointed or privately retained advocate in criminal
proceedings cannot revoke his agreement to represent a client, and shall
represent him or her until the stage of drafting and lodging a statement of
appeal against the trial judgment (section 13 § 2). An advocate shall appeal
against a trial judgment at the client’s request, or if (i) there are legal
grounds for a reduction in the sentence, (ii) the client is a juvenile or has a
mental handicap, and the trial court disagreed with counsel and imposed a
heavier sentence or convicted his client of a more serious offence (section 13
§ 4). An advocate shall, as a rule, appeal against a trial judgment if (i) the
client is a juvenile or has a mental handicap; (ii) the trial court disagreed
with counsel and imposed a heavier sentence; (iii) the advocate considers that
there are legal grounds for a reduction in the sentence (section 13 § 4 in
fine). These provisions were amended in 2005 and 2007 and read as follows:
“2. An appointed or privately retained advocate in
criminal proceedings cannot revoke his agreement to represent a client, except
in cases indicated by the law, and shall defend the client, including, if
necessary, by drafting and lodging an appeal on points of law against the trial
judgment ...
4. An advocate shall appeal against a trial judgment (i)
if so requested by his client, (ii) if there are grounds for setting that
judgment aside or for amending it in favour of his client, (iii) as a rule, if
the court disagreed with the advocate and imposed a heavier sentence on or
convicted the juvenile of a more serious offence ...”
Legal-aid counsel in a criminal case should be
paid between 275 and 1,100 Russian roubles (RUB) per day for their services,
including for meeting clients in a detention facility (order no. 199/87н of 15 October 2007 by the Federal Ministries of Justice
and Finances; decisions of 16 March and 20 July 2011 by the Presidium of
the Supreme Court of Russia).
C. Conditions of detention
Under the 1996 internal regulations for temporary
detention centres (Chapter 3), in force at the material time, each detainee
shall be provided free of charge with an individual bed (if possible),
individual bedding and tableware. Each cell should have a table and seating, a
lavatory pan, and access to tap water. Detainees should be allowed to have a shower
no less than once a week. Each detainee should be afforded four square metres
of cell space (Rule 3.3 of the Regulations).
Under the 2000 internal regulations for remand centres,
in force at the material time, each detainee should be provided free of charge
with a bed, bedding, towel, and tableware (Rule 42). Each cell should have a
table and seating, a lavatory pan, and access to tap water (Rule 44). Detainees
are provided free of charge with three hot meals a day (Rule 46). Detainees
should be allowed to have a shower no less than once a week; bedding is to be
changed weekly (Rule 47). Detainees are to have one hour’s daily exercise in
the courtyard of the remand centre (Rule 138).
D. Convicts’ correspondence
Article 91 § 2 of the Code of
Execution of Sentences, as amended on 8 December 2003,
provides that detainees’ correspondence is subject to monitoring by the prison authorities.
Correspondence with courts, prosecutors, prison officials, the Ombudsman, the
public monitoring board and the European Court is not subject to monitoring.
Correspondence between a convict and counsel (or another authorised
representative) is not subject to monitoring, except when the administration
has good reasons to believe that it is aimed at criminal ends. In that event the
correspondence is monitored on the basis of a reasoned decision by the prison
governor or his deputy.
Under the 2001 Internal Prison
Regulations, as amended in 2004, all detainees’ correspondence was to be processed
by the prison authorities. Correspondence was to be placed into mailboxes or
handed over to staff unsealed (Chapter 12). On 3 November 2005 new Regulations
were adopted. Rule 50 thereof provides that detainees should put their unsealed
letters into mailboxes or give them to prison staff, except for correspondence
which is not subject to monitoring.
THE LAW
I. ALLEGED VIOLATIONS OF ARTICLES 3 AND 13 OF THE
CONVENTION
The applicant complained under Article 3 of the
Convention that he had been detained in appalling conditions in Kurchatovskiy
temporary detention centre and Chelyabinsk remand centre no. 74/1 from
March 2001 to October 2003.
Article 3 of the Convention reads as follows:
“No one shall be subjected to torture or to inhuman or
degrading treatment or punishment.”
The applicant also argued that he did not have effective
remedies for the complaints detailed above, in breach of Article 13 of the
Convention:
“Everyone whose rights and freedoms as set forth in [the]
Convention are violated shall have an effective remedy before a national
authority notwithstanding that the violation has been committed by persons
acting in an official capacity.”
A. The parties’ submissions
1. The Government
The Government argued that the applicant had
been detained in the temporary detention centre in March 2001, whereas the
complaint before the Court had been raised in 2003. Thus, he had failed to
comply with the six-month rule. The temporary detention centre and the remand
centre were supervised by different authorities and thus there was no reason to
consider the applicant’s detention in both facilities as a continuing
situation.
The Government argued that the applicant had not
lodged any complaint relating to the conditions of detention in the temporary
detention centre. The applicant had not challenged the authorities’ replies
relating to his lengthy and allegedly unlawful detention in this centre. Nor
did he appeal to the supervising prosecutor’s office against the decision of
10 September 2001 on the refusal to institute criminal proceedings in
respect of the allegation of unlawful detention in this centre. Subsequently,
the Government admitted that the applicant had also complained about the
conditions of detention in the above proceedings. The applicant had lodged no
complaints relating to the conditions of his detention in the remand centre.
Concerning the complaint under Article 13 of the
Convention, the Government argued that the applicant would have some prospect
of success if he lodged a civil claim for compensation on account of
unsatisfactory conditions of detention. A prosecutor’s office was also
empowered under Russian law to take measures in relation to this issue.
The Government admitted that during some periods
of detention in the remand centre the statutory requirement for floor space of
four square metres per detainee had not been respected. However, this should
not have necessarily entailed a violation of Article 3 of the Convention. The
other material conditions of detention (such as an individual bed, ventilation,
access to natural light, and food,) complied with the requirement of Russian
law (see for details paragraphs 40-42 above).
2. The applicant
The applicant argued that the conditions of
detention in both facilities had been similarly bad and thus should be treated
as a continuous situation. The Government adduced no evidence in relation to
the temporary detention centre and should not be absolved from responsibility
merely with reference to the expiry of the period for keeping relevant records
and logbooks.
The applicant submitted that the regional
prosecutor’s office had not dealt with his complaints relating to the temporary
detention centre. His other complaints had not been dispatched by the staff of
the detention facility.
B. The
Court’s assessment
1. Admissibility
. The Court reiterates that a period
of an applicant’s detention should be regarded as a “continuing situation” as
long as the detention has been effected in the same type of detention facility
in substantially similar conditions (see Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, § 78,
10 January 2012). Short periods of
absence during which the applicant is taken out of the facility for interviews
or other procedural acts would have no influence on the continuous nature of
the detention. However, the applicant’s release or transfer to a different type
of detention regime, both within and outside the facility, would put an end to
the “continuing situation”. Complaints about the conditions of detention must
be lodged within six months of the end of the situation complained about or, if
there is an available domestic remedy, of the final decision in the
process of exhaustion (ibid.).
The Court observes that the applicant was kept
in the temporary detention centre for several days in March 2001 (see paragraph
33 above). Complaints about the conditions of detention there and in the remand
centre, and about the absence of effective remedies, were first raised in
substance before the Court in the application form dated 2 February 2004.
It has not been suggested that during his
detention in the temporary detention centre and later on the applicant made
recourse to any remedies which could have offered a reasonable prospect of
success or otherwise affected the application of the six-month rule in favour
of the applicant (see, for comparison, Pavlenko v.
Russia, no. 42371/02, § 75, 1 April
2010; Roman Karasev v. Russia, no. 30251/03, §§ 40-43, 25 November 2010; and Orlov v. Russia, no. 29652/04, §§ 64-65, 21 June 2011). It
is also noted that after his detention in the temporary detention centre the
applicant was transferred to a different type of detention facility, a remand
centre, where he was kept until October 2003. Thus, there was no continuing
situation in the present case. It follows that the complaint in respect
of the temporary detention centre has been introduced out of time and must be
rejected in accordance with Article 35 §§ 1 and 4 of the
Convention (see also Fetisov and Others v. Russia, nos. 43710/07,
6023/08, 11248/08, 27668/08, 31242/08 and 52133/08, §§ 73-79, 17 January 2012).
As regards the conditions of detention in the remand
centre in 2001-03, the Court considers that the issue of exhaustion of domestic
remedies is closely linked to the merits of the applicant’s complaint that he
did not have at his disposal an effective remedy for complaining about inhuman
conditions of detention. Thus, the Court finds it necessary to join the
Government’s objection to the merits (see Ananyev and Others, cited
above, § 70). The Court further
considers that this part of the application is not manifestly ill-founded
within the meaning of Article 35 § 3 (a) of the Convention. No other ground for
declaring it inadmissible has been established. Thus, it should be declared
admissible.
2. Merits
(a) Article 13 of the Convention
In Ananyev and Others (cited above, §§ 93-119)
the Court carried out a thorough analysis of domestic remedies in the Russian
legal system in respect of a complaint relating to the material conditions of
detention in a remand centre. The Court concluded in that case that it was not shown
that the Russian legal system offered an effective remedy that could be used to
prevent the alleged violation or its continuation and provide the applicant
with adequate and sufficient redress in connection with a complaint of
inadequate conditions of detention. Accordingly, the Court dismissed the
Government’s objection as to the non-exhaustion of domestic remedies and found
that the applicants did not have at their disposition an effective domestic
remedy for their grievances, in breach of Article 13 of the Convention.
Having examined the Government’s arguments, the
Court finds no reason to depart from this conclusion in the present case. Noting
that the applicant raises an “arguable” complaint under Article 3 of the
Convention, the Court finds that there has been a violation of Article 13 of
the Convention.
(b) Article 3 of the Convention
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 the material conditions of detention may
give rise to the drawing of inferences as to the well-foundedness of the
applicant’s allegations (see Ananyev and Others, cited above, § 123).
The Court notes that the Government’s observations
contain enclosures, mostly consisting of certificates issued in 2008. However,
these documents contain no clear references to original sources for determining
the design capacity and the actual cell population in the relevant periods in
2001-03.
However, even taking into account the data
provided by the Government, it appears that at times there were only two square
metres of floor space per detainee in the cell, which included both the living
space and the amenities (such as the furniture and lavatory pan). Nor did the
Government provide a convincing refutation of the applicant’s argument
concerning the shortage of individual beds.
In the light of the parties’ submissions and the
available material, the Court also considers the following additional elements
to have been established. Both the dining tables and the lavatory pans were
located inside the cells, sometimes as close to each other as one or one and a
half metres. A partition, approximately one to one a half metres in height,
separated the toilet on one side.
Thus, it has been established that the applicant
was kept in cramped conditions for a considerable period of time between 2001
and 2003. The applicant had to have his meals and answer the calls of nature in
these conditions. He remained inside the cell all the time, except for a one-hour
period of daily outdoor exercise. It has not been argued that the difficulty of
the applicant’s situation was in any significant way attenuated for some reason,
for instance on account of the time spent out of the remand centre during the
trial.
The Court therefore considers that the applicant
was subjected to inhuman and degrading treatment in breach of Article 3 of the
Convention. In view of the findings under Article 13 of the Convention,
the Government’s argument concerning exhaustion of domestic remedies should be
dismissed.
In the circumstances, the Court concludes that
there has been a violation of Article 3 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE
CONVENTION
The applicant argued that there had been a
violation of Article 5 § 1 of the Convention on account of his detention after
conviction under the judgment of 24 April 2003 by the trial court, which had
not been “established by law”. The relevant parts of Article 5 of the
Convention read as follows:
“1. Everyone has the right to liberty and security
of person. No one shall be deprived of his liberty save in the following cases
and in accordance with a procedure prescribed by law:
(a) the lawful detention of a person after
conviction by a competent court; ...”
A. The parties’ submissions
The applicant stated that the Presidium of the
Supreme Court acknowledged the unlawful composition of the trial court. The
resumption of the criminal proceedings, the quashing of the judgment of 24
April 2003 and the retrial resulting in his conviction by a judgment of
16 February 2011 had not remedied the defects of the first trial and did
not suffice in order to deprive him of the victim status. No compensation had
been paid to the applicant for the period of his detention under the trial
judgment of 24 April 2003 until 3 September 2009, when it was quashed.
Thereafter, the applicant remained in detention pending the retrial. The
calculation of the prison term under the judgment of 16 February 2011 was
based on the general requirements of the criminal law and procedure, and did
not relate to any findings of unlawfulness. Thus, it could not constitute any
redress in relation to a complaint under Article 5 § 1 (a) of the
Convention. Taking into account the above, and the length of the retrial
proceedings, the applicant insisted that he had not lost his victim status in
respect of the present complaint.
The Government first argued that the lay judges
had lawfully been part of the trial court in the applicant’s criminal case in
2002-03. Following the resumption of the proceedings at the national level, the
Government argued that the violation of his rights had been acknowledged and
the impugned judgment of 24 April 2003 had been quashed. The applicant’s
detention since 10 June 2009 had been lawfully ordered and extended by the
national courts. A new and lawful judgment was issued in February 2011. The
prison term imposed under this new judgment took into account the period of detention
already served under the judgment of 24 April 2003. Thereby, the authorities
had removed all negative effects the judgment could have on the applicant. Thus,
he lost his victim status in respect of the present complaint.
B. The Court’s assessment
1. Admissibility
The Court considers, in the light of the parties’
submissions, that the complaint raises serious issues of fact and law under the
Convention, the determination of which requires an examination of the merits.
The Court concludes therefore that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 (a) of the Convention. No other ground for
declaring it inadmissible has been established. Thus, it should be declared
admissible.
2. Merits
By a judgment of 24 April 2003 the applicant was
sentenced to twenty-two years’ imprisonment. On 19 September 2003 the appeal
court upheld his conviction and reduced the sentence to twenty-one years’
imprisonment. In 2009 the criminal proceedings were reopened by way of
supervisory review. On 3 September 2009 the Russian Supreme Court quashed
the judgment of 24 April 2003 and ordered a retrial. In September 2010 the
Presidium of the Supreme Court amended the grounds of the decision of 3
September 2009 while confirming the quashing of the trial judgment of
24 April 2003 in respect of the applicant. The applicant was kept in
detention pending the retrial. The retrial ended in 2011 with the applicant’s sentencing
to a term of imprisonment of nineteen years and six months.
Referring to the trial judgment of 24 April 2003
the applicant raised two related but distinct complaints. He alleged that the
trial court in his criminal case had not been “established by law” in breach of
Article 6 § 1 of the Convention (see paragraphs 112-129 below). He also argued
that the period of imprisonment he had served under this trial judgment had not
complied with the requirements of Article 5 § 1 of the Convention.
The Court will first examine whether serving the
sentence of imprisonment following the conviction in 2003 complied with Article
5 (see, for comparison, Menesheva v. Russia, no. 59261/00, §§ 91-93, ECHR
2006-III).
(a) The applicant’s victim status following the
reopening of the criminal case at the national level
The Court should first deal with the Government’s
argument suggesting that, as for the Article 6 complaints, the applicant lost
his victim status on account of the quashing of the impugned judgment of
24 April 2003 and the retrial.
It is the settled case-law of the Court that the
word “victim” in the context of Article 34 of the Convention denotes the person
directly affected by the act or omission in issue, the existence of a violation
of the Convention being conceivable even in the absence of prejudice; prejudice
is relevant only in the context of Article 41. Consequently, a decision or
measure favourable to an applicant is not in principle sufficient to deprive
him of his status as a “victim” unless the national authorities have
acknowledged, either expressly or in substance, and then afforded redress for,
the breach of the Convention (see, among other authorities, Sakhnovskiy v. Russia [GC], no. 21272/03, § 67, 2
November 2010). Only
when these conditions are satisfied does the subsidiary nature of the
protective mechanism of the Convention preclude examination of an application (see
Arat v. Turkey, no. 10309/03, § 46, 10 November 2009). The alleged
loss of the applicant’s victim status involves an examination of the nature of
the right in issue, the reasons advanced by the national authorities in their decision
and the persistence of adverse consequences for the applicant after the
decision (see Freimanis and Līdums v. Latvia, nos. 73443/01 and
74860/01, § 68, 9 February 2006).
It is clear that in the present case the authorities
acknowledged the original violation of the applicant’s right to a court
“established by law” under Article 6 § 1 of the Convention. However, having
examined the available material including the decision of 1 September 2010
(see paragraph 24 above), the Court is not convinced that the national
authorities in the present case acknowledged, either expressly or in substance,
that the applicant’s detention (the sentence) under the judgment issued by the
trial court had not been “lawful”.
In any event, the Court notes that the applicant
was not provided with adequate redress. The Court reiterates that the
European system for the protection of human rights is founded on the principle
of subsidiarity. The States should be given a chance to put right past
violations before the complaint is examined by the Court; however, “the principle
of subsidiarity does not mean renouncing all supervision of the result obtained
from using domestic remedies” (see Giuseppe Mostacciuolo v. Italy (no.
2) [GC], no. 65102/01, § 81, 29 March 2006). Moreover, the principle of
subsidiarity should not be construed as allowing States to evade the Court’s
jurisdiction (see Sakhnovskiy [GC], cited above, § 76).
It is clear that the applicant in the present
case had become a victim before he lodged the application with the Court. It
was for the State to provide the applicant with adequate and sufficient redress
in respect of this complaint in a timely manner, that is to say before the
Court examined the case. In the Court’s opinion, the mere reopening of the case
was not sufficient to deprive the applicant of his victim status.
For comparison, in respect of the complaints
under Article 6 of the Convention, the Court considered in Sakhnovskiy [GC]
(cited above, § 83) that the
reopening of proceedings by itself could not automatically be regarded as
sufficient redress capable of depriving the applicant of his victim status.
Turning back to Article 5 of the Convention, the
Court considers that the reopening of the criminal case and the retrial failed
to provide appropriate and sufficient redress for the applicant in respect of
his complaint under Article 5 § 1 (a) of the Convention. Having spent over
six years in detention following the judgment of 24 April 2003, the applicant
sustained a significant interference with his right to liberty and received no
compensation or
another appropriate and sufficient redress. Indeed, it has not been suggested
by the Government that the applicant was entitled to any compensation under
Russian law in the circumstances of the case.
The Court notes that the calculation of the
prison term imposed under the judgment of 16 February 2011 from the date of the
applicant’s arrest on 13 March 2001 was prescribed by a general provision
of the Criminal Code. That calculation was not intended to, and did not,
constitute an acknowledgement and redress in respect of the present complaint
(see Lebedev v. Russia, no. 4493/04, § 47, 25 October 2007).
Having regard to the nature of the right in
issue and the persistence of adverse consequences for the applicant after the quashing
of the trial judgment, the Court concludes that he may still claim to be a victim
within the meaning of Article 34 of the Convention. The Court therefore rejects
the Government’s objections under this head.
(b) Assessment of the period of detention under the
trial judgment of 24 April 2003
The Court has to determine whether the disputed
detention was “lawful”, including whether it complied with “a procedure
prescribed by law”. The Convention essentially refers back to national law, and
states the obligation to conform to the substantive and procedural rules
thereof, but it requires in addition that any deprivation of liberty should be
consistent with the purpose of Article 5, namely to protect individuals from
arbitrariness. It is in the first place for the national authorities, notably
the courts, to interpret and apply domestic law. However, since under Article 5
§ 1 failure to comply with domestic law entails a breach of the Convention, it
follows that the Court can and should exercise a certain power to review
whether this law has been complied with (see Benham v. the United Kingdom,
10 June 1996, §§ 40-41, Reports of Judgments and Decisions 1996-III).
A period of detention will in principle be
lawful if it is carried out pursuant to a court order. A subsequent finding
that the court erred under domestic law in making the order will not
necessarily retrospectively affect the validity of the intervening period of
detention. For this reason, the Court has consistently refused to uphold
applications from individuals convicted of criminal offences who complain that
their convictions or sentences were found by the appellate courts to have been
based on errors of fact or law (ibid, § 42).
In Menesheva (cited above, § 92) the
period of detention had been carried out on the order of a judge who was in
principle competent to take the decision in issue. However, the Court stated
that the judge had exercised his authority in manifest opposition to the
procedural guarantees provided for by the Convention. Therefore, the ensuing
detention order was inconsistent with the general protection from arbitrariness
guaranteed by Article 5 of the Convention.
More recently, the Court held in Mooren v.
Germany [GC] (no. 11364/03, § 75,
9 July 2009) that unless defects in a detention order constitute a gross
and obvious irregularity, such defects may be remedied by the domestic
appeal courts.
For instance, in Kolevi v. Bulgaria (no. 1108/02, §§ 175-179, 5 November
2009) the Supreme Court of Cassation acknowledged that the applicant’s deprivation
of liberty had been unlawful under domestic law because the criminal
proceedings against him had been inadmissible at the outset, as he had enjoyed
immunity from prosecution at all the relevant times. This Court considered that
the situation disclosed a gross and obvious irregularity, given that domestic
law prohibited in absolute and sufficiently clear terms the institution of
criminal proceedings and the deprivation of liberty in respect of individuals
who have immunity from prosecution.
106. In another case, the Court
considered that a detention order contained a gross and obvious irregularity
when it had been set aside (with a remittal of the matter for re-examination by
a lower court) because of the absence of defence counsel and of the
prosecutor from the detention hearing, and because of the detention court’s
failure to assess the relevant material in the case file and to give reasons. The
Court took into consideration that a fresh detention order was issued more than
a month later to validate the preceding period of detention, and that neither
the appeal decision nor this fresh detention order concerning this period of
detention contained reasons (see Romanova v. Russia, no. 23215/02, §§ 108-112, 11 October 2011).
The Court found no violation of Article 5 § 1 of the Convention in a situation where a pre-trial detention
order was quashed (and remitted for re-examination) on
the ground that this order had been given by a two-judge bench, although
the applicable procedural rules required that the decision be taken by a single
judge (see Riccardi v. Romania, no. 3048/04, § 54, 3 April 2012). The Court
considered that the above defect was of a procedural nature and could
not be regarded to amount to a gross and obvious irregularity that would render
null the applicant’s detention. The Court noted in this connection that when
quashing the detention order the appeal court had not declared it void and had
not retrospectively declared the applicant’s detention under this detention order
unlawful. It was also noted that a fresh detention order had been issued
promptly and in compliance with the applicable procedural rules concerning the
composition of the bench of judges (ibid.).
Turning to the present case, the Court observes
that the present complaint concerns the prison term of twenty-two years which was
imposed under the trial judgment issued by the Chelyabinsk Regional Court. It
is common ground between the parties that the regional court had in principle jurisdiction
to take the decision in issue. It is noted, however, that both during and after
the trial the applicant sought to substantiate and obtain confirmation of his
allegations on the basis of the alleged non-observance of the Lay Judges Act in
relation to the actual composition of the trial court (see paragraphs 8, 18, 20 and 50 above). Under Russian law, in force at the material time, lay judges
sat as non-professional judges in criminal cases; lists of lay judges were
compiled by local authorities and were validated by the regional legislature
(see paragraph 50 above).
Having obtained no prompt and adequate redress
in ordinary appeal proceedings in relation to the complaint relating to the lay
judges, the applicant was required to serve the sentence of imprisonment
imposed by the trial court on 24 April 2003. As acknowledged by the
Supreme Court in the supervisory review proceedings years after the trial
judgment, the composition of the trial court had not been “established by law” in
so far as lay judges Ms G. and Ms Ch. were concerned. There was no indication
that they had received any authority to sit as lay judges in the applicant’s
criminal case, which ended with a heavy prison sentence of imprisonment.
The Court considers that in the circumstances
of the present case there was a gross and obvious irregularity in respect of
the period of the applicant’s detention under the trial judgment of 24 April
2003 (see, for comparison, Riccardi, cited above, § 54).
Thus, the court which convicted the applicant
was not “competent” and the applicant’s detention was not “lawful” within the
meaning of Article 5 § 1 (a) of the Convention. In view of the gravity of
the violation and noting the absence of adequate acknowledgment and redress,
the Court concludes that the applicant’s detention on the basis of the trial
judgment was in breach of Article 5 § 1 of the Convention. It follows that
there has been a violation of this provision.
III. ALLEGED VIOLATIONS OF ARTICLE 6 OF THE
CONVENTION
The applicant complained under
Article 6 of the Convention that the criminal proceedings against him in 2003
had been unfair, that the composition of the trial court had been unlawful, and
that no legal assistance had been provided to him in the appeal proceedings.
The relevant parts of Article 6 of the
Convention read as follows:
“1. In the determination of ...of any criminal
charge against him, everyone is entitled to a fair and public hearing within a
reasonable time by an independent and impartial tribunal established by law...
3. Everyone charged with a criminal offence has the
following minimum rights:
... (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;
...”
A. The parties’ submissions
1. The applicant
The applicant alleged that the lay judges had
been admitted to the trial panel in breach of the Lay Judges Act. He also
argued that the trial court had arbitrarily removed his counsel, Zh., and had refused
to admit a lay defender; legal-aid lawyers Z. and P. had been inefficient; Z.
had failed to draft a statement of appeal and to take part in the appeal
proceedings, despite his promise to do so; thus the applicant had not had legal
assistance in the appeal proceedings.
Subsequently, the applicant argued that the
retrial resulting in his conviction by a judgment of 16 February 2011 had
not remedied the defects of the first trial. The resumption of the criminal
proceedings and the quashing of the judgment of 24 April 2003 did not suffice.
The Presidium of the Supreme Court had modified the scope of acknowledged
violations and limited them to the unlawful composition of the trial court. So,
even though the 2003 trial and appeal decisions had been quashed, there had
been no acknowledgment of the alleged violations in the decision of 1 September
2010, in particular as regards the ineffective legal assistance during the
trial. In any event, the retrial in 2011 had given rise to further violations
of Article 6 of the Convention because of the deficient legal assistance by
counsel K., who had been imposed on the applicant instead of counsel D. The
applicant had had no opportunity to communicate with counsel in confidence, in
particular because K. had not come to talk to him in the remand centre. In view
of the above alleged violations and the length of the retrial, he had not lost
victim status in respect of the initial complaints relating to the trial in
2001-03.
2. The Government
The Government argued that there had been a
violation of Article 6 of the Convention on account of the absence of legal
assistance in the appeal proceedings in 2003, and no violation of that
provision on account of the composition of the trial court and the legal
assistance provided to the applicant during the trial.
The Government submitted that the trial
judgment of 24 April 2003 had been set aside because of the unlawful
composition of the trial court. The Russian court thereby acknowledged that
there had been violations relating to the trial. This acknowledgment, together
with the fair retrial the applicant received, constituted adequate redress. The
applicant received proper legal advice from counsel K. The applicant
unequivocally waived jury trial and agreed to be tried by a judge. Thus, the
applicant was no longer a victim of the initial alleged violations under
Article 6 of the Convention in relation to the criminal proceedings against
him.
B. The Court’s assessment
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,
26 March 1996, § 67, Reports
1996-II, and Van Mechelen and Others
v. the Netherlands, 23 April 1997, § 50, Reports 1997-III).
Bearing in mind the above principles, the Court
has first examined the initial grievances presented by the applicant concerning
the preliminary investigation in his criminal case. It has not been shown that
the applicant was not afforded an adequate opportunity to present his arguments
and evidence and to contest the prosecution’s arguments and evidence in
adversarial proceedings. The available material before the Court in the present
case does not disclose that any alleged violation was such as to impair the
overall fairness of the proceedings under Article 6 of the Convention. Equally,
the Court notes that the applicant had legal assistance at the trial and that
it has not been convincingly substantiated that that assistance was manifestly
ineffective or otherwise in breach of the Convention.
As to the grievances specifically concerning
the composition of the trial court and the issue of legal assistance, as
confirmed by the Russian Supreme Court, his complaints relating to the
composition of the trial court and the lack of legal assistance in the appeal proceedings
in 2003 were justified (see, by contrast, Posokhov v. Russia, no. 63486/00, § 36, ECHR 2003-IV). The Court first has to examine the
Government’s argument suggesting that the applicant lost his victim status because
of the retrial in 2011.
The Court will carry out its analysis in the
light of the principles set out in Sakhnovskiy [GC] (cited above, §§
66-71 and §§ 76-84) and with reference to the parties’ specific submissions
concerning the resumed proceedings.
Having examined the available material, the
Court observes that the applicant’s case was re-examined by a tribunal
“established by law”. It remains to be established whether the applicant’s
right to legal assistance was respected during the retrial.
The Court also reiterates that assigning
counsel does not in itself ensure the effectiveness of the assistance counsel may provide to his client (see Czekalla
v. Portugal, no. 38830/97, § 60, ECHR 2002-VIII). A State
cannot be held responsible for every shortcoming on the part of a lawyer
appointed for legal-aid purposes. It follows from the independence of the legal profession from the State that the conduct of the defence is
essentially a matter between a defendant and his counsel, whether appointed
under a legal-aid scheme or financed privately. The relevant national
authorities are required under Article 6 § 3 (c) to intervene only if a failure by
legal-aid counsel to provide effective legal assistance is manifest, or is brought sufficiently to their attention in another
way (ibid).
The right of an accused to communicate with his
legal representative out of earshot of third parties is part of the basic
requirements of a fair trial in a democratic society, and follows from Article
6 § 3 (c) of the Convention. If a lawyer is unable to confer with his client
and receive confidential instructions from him without such surveillance, his
assistance loses much of its usefulness, whereas the Convention is intended to
guarantee rights that are practical and effective (see Sakhnovskiy [GC],
cited above, § 97). Restrictions may be imposed on contact between an
accused and his lawyer if good cause exists (see Öcalan v. Turkey
[GC], no. 46221/99, § 133, ECHR 2005-IV). The Court reiterates that
there are inherent time and place constraints on meetings between a detained
person and his lawyer. Any limitation on relations between clients and lawyers,
whether inherent or express, should not thwart the effective legal assistance
to which a defendant is entitled (see Orlov v. Russia, no. 29652/04, § 106, 21 June 2011).
It is uncontested that legal-aid counsel
appointed for the retrial did not meet the applicant in the remand centre.
However, it is common ground between the parties that counsel spoke with the
applicant on several occasions before or after court hearings, including in the
court-house (see also paragraph 32 above).
The Court observes that the trial judge in the
present case paid attention to the effective exercise of defence rights (see
paragraphs 26, 27 and 32 above). The Court considers that there are
insufficient elements in the case file to allow the conclusion that the
applicant’s right to legal assistance was not respected during the retrial. It
has not been substantiated that the practical arrangements of meeting(s) with
counsel in the court-house did not ensure communication out of the hearing of
third parties.
Therefore, while noting that the proceedings
were resumed in June 2009 and the retrial lasted until February 2011, the Court
finds it possible to accept in the circumstances of the present case that the retrial
remedied the defects of the first trial in 2001-03, which were at the origin of
the present application before the Court.
It follows that this part of
the application is manifestly ill-founded and must be rejected in accordance
with Article 35 §§ 3 (a) and 4 of the Convention.
IV. ALLEGED VIOLATIONS OF ARTICLES 8 AND 34 OF THE
CONVENTION
The applicant stated that the correspondence
between him and the Court, as well as several letters to and from a Regional
Bar Association and a non-governmental organisation, had been inspected by the staff
of the detention facilities.
A. The
parties’ submissions
1. The
applicant
The applicant argued that the presence of
prison stamps on the letters (rather than on the envelopes) confirmed that the
Court’s letters to the applicant in 2004-05 and all other similar letters had
been inspected by prison staff. The applicant’s letters to the Court had been
accompanied by cover letters from the prison with a brief indication of the
contents of his letters or the number of pages. Being aware of this practice,
the applicant felt intimidated and also obliged to exclude certain parts of his
complaints, those relating to the prison, from his application to the Court. The
applicant’s letters to the Court had been dispatched with delays varying
between four and five days.
The applicant raised similar arguments in
relation to inspection of his correspondence at the national level.
2. The Government
The Government argued that there had been no
hindrance to the applicant’s complaints before national authorities and the
Court. He had lodged over 200 complaints, of which twenty-eight had been to the
Court. In 2009 the prisons personnel had been trained and informed that they
had to inform detainees of the need to hand over privileged correspondence for
dispatch in sealed envelopes.
Subsequently, as regards the applicant’s letter
of 7 June 2011 to the Court, the Government argued that the applicant should
have brought proceedings under Chapter 25 of the Code of Civil Procedure. The
applicant’s letter of 7 June 2011 had been handed over by the applicant to
the prison officer without an envelope. The applicant had been told about the
procedure for dispatching correspondence to the Court, that it had to be
submitted in a sealed envelope, which could be obtained free of charge if the sender
had no money. The applicant, who had money on his account, had refused to
purchase an envelope. He had also refused to accept a free envelope. To avoid
any delay, the prison staff had put the letter in an envelope and dispatched it
to the Court.
B. The
Court’s assessment
1. As
regards the applicant’s correspondence at the national level
As regards inspection of the applicant’s correspondence
at the national level (the Regional Bar Association and the International
Protection Centre), the Court considers
that the matter falls to be examined under Article 8 of the Convention,
which reads as follows:
“1. Everyone has the right to respect for ... his
correspondence.
2. There shall be no interference by a public
authority with the exercise of this right except such as is in accordance with
the law and is necessary in a democratic society in the interests of national
security, public safety or the economic well-being of the country, for the
prevention of disorder or crime, for the protection of health or morals, or for
the protection of the rights and freedoms of others.”
(a) Admissibility
The Court observes that the Government made no
specific arguments relating to the admissibility of the present complaint. The
Court would, however, observe at this juncture that the applicant’s grievance
relates to the statutory monitoring framework applied to the correspondence of
detainees in Russia (see paragraph 61 above). It has not been alleged, and the
Court does not consider, that the applicant had at his disposal any remedies
which offered any reasonable prospects of success, given that the national
authorities enjoyed, as it appears, unfettered discretion in the routine
monitoring of non-privileged correspondence (see, for comparison, Belyaev
and Digtyar v. Ukraine, nos. 16984/04 and 9947/05, § 45, 16 February 2012).
The Court considers that this complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention. No other ground for declaring it inadmissible has been established.
It should thus be declared admissible.
b) Merits
The Court observes, and it is not in dispute
between the parties, that the applicant’s correspondence was inspected by the
prison staff. In the Court’s view, the inspection amounted to an “interference”
under Article 8 of the Convention. Such an interference will contravene Article
8 unless it is “in accordance with the
law”, pursues one or more of the legitimate aims referred to in paragraph 2,
and is “necessary in a democratic society” in order to achieve those aims (see,
among other authorities, Szuluk v. the United Kingdom, no. 36936/05,
§ 43, ECHR 2009).
The Government argued that the interference was
in accordance with Article 91 of the Code of Execution of Sentences (CES), containing
the requirement for the monitoring of the incoming and outgoing non-privileged correspondence
of a convicted prisoner (see paragraph 61 above). As the Court has already had
occasion to observe (see Boris Popov v. Russia, no. 23284/04, § 100, 28 October 2010), Article
91 of the CES made a distinction between ordinary, privileged mail of a
convicted prisoner and his correspondence with a person providing legal
assistance.
In the absence of any specific argument and
substantiation, the Court accepts that the general rule under Article 91 of the
Code for ordinary correspondence applied in the present case and served as the
legal basis for monitoring of the correspondence between the applicant and his
correspondents at the national level. It is also noted that the parties did not
submit that any other legislation regulated this matter at domestic level.
Thus, the interference in the present case was in accordance with the “law”.
In cases arising from individual petitions the
Court’s task is not to review the relevant legislation or a particular practice
in the abstract. Instead, it must confine itself as far as possible, without
losing sight of the general context, to examining the issues raised by the case
before it. Here, therefore, the Court’s task is not to review, in abstracto,
the compatibility with the Convention of the above procedure, but to determine,
in concreto, the effect of the interference on the applicant’s right to
respect for his correspondence (see, as a recent authority, Nejdet
Şahin and Perihan Şahin v. Turkey [GC], no. 13279/05,
§§ 68-70, 20 October 2011). In the present case the Court will focus on
proportionality, as regards the monitoring of the applicant’s correspondence.
The notion of necessity implies that the
interference corresponds to a pressing social need and, in particular, that it
is proportionate to the legitimate aim pursued. In determining whether an
interference is “necessary in a democratic society” regard may be had to the
State’s margin of appreciation (see, amongst other authorities, Dickson v.
the United Kingdom [GC], no. 44362/04, § 77, ECHR 2007-V). While it
is for the national authorities to make the initial assessment of necessity, the final evaluation as to whether the reasons
cited for the interference are relevant and sufficient remains subject to
review by the Court for conformity with the requirements of the Convention.
Some measure of control over prisoners’
correspondence is called for, and is not of itself incompatible with the
Convention, regard being had to the ordinary and reasonable requirements of
imprisonment (see, among others, Silver and Others v. the United Kingdom,
25 March 1983, § 98, Series A no. 61, and Boris Popov, cited above, § 106). In assessing the
permissible extent of such control, the fact that the opportunity to write and
to receive letters is sometimes the prisoner’s only link with the outside world
should, however, not be overlooked (see Campbell v. the United Kingdom,
25 March 1992, § 45, Series A no. 233).
The assessment of the proportionality of the
interference also takes into account the nature of the correspondence concerned.
For instance, the Court has considered that the need for confidentiality is essential
in respect of a prisoner’s correspondence with a lawyer concerning contemplated
or pending proceedings, particularly where such correspondence relates to
claims and complaints against the prison authorities. For such correspondence to
be susceptible to routine scrutiny, particularly by individuals or authorities
who may have a direct interest in the subject matter contained therein, is not
in keeping with the principles of confidentiality and professional privilege
attaching to relations between a lawyer and his client (see Campbell,
cited above, § 47). The Court also considered
that, as a rule, correspondence between an actual or prospective applicant and
his or her representative before the Court should be privileged (see Boris
Popov, cited above, § 112).
The Court also pays attention to the precise
nature of the interference in a given case. For instance, in Szuluk v. the
United Kingdom, cited above, the prison governor informed the applicant
that he had been advised that it was necessary to examine his medical
correspondence for illicit enclosures. All correspondence between the applicant
and his external medical specialist would be directed, unopened, to the prison
medical officer. The latter would examine the content of the envelope in order
to ascertain its medical status and then reseal it (§ 11).
As already stated, the present case concerns
the application of monitoring rules for all non-privileged correspondence. All
non-privileged correspondence was to be processed by the prison administration.
Such correspondence was to be placed into mailboxes or handed over to staff
unsealed (see paragraph 62 above). The monitoring under the rule of Article 91
of the CES was non-selective and routine; it was not limited as to its length
or scope. This provision did not specify the manner of its exercise. No reasons
were required to warrant its application. The CES made no provision for an
independent review of the scope and duration of monitoring measures (see Enea
v. Italy [GC], no. 74912/01, §§ 141-143, ECHR 2009, and Onoufriou
v. Cyprus, no. 24407/04, §§ 109-113, 7 January 2010).
The above explains that the national
authorities were not required to refer, and did not refer, to any legitimate
aim within the meaning of Article 8 § 2 of the Convention. The monitoring of the applicant’s correspondence was not linked
to the criminal proceedings against him, thus it is questionable that the
interference with his correspondence could be regarded as being justified by
“the prevention of disorder or crime” (see, for comparison, Piechowicz
v. Poland, no. 20071/07, § 238,
17 April 2012).
In their turn, the Government did not put
forward any convincing argument to justify the routine monitoring of the
correspondence or to show that sufficient safeguards were in place to avoid any
excessive effect of the interference on the applicant’s right to respect of
correspondence.
The Court does not discern any justification
for routinely inspecting the applicant’s correspondence in the present case.
Indeed, there was no question of security risks or collusion between the
applicant and his correspondent(s), for instance in relation to any pending
proceedings at the national level, or of any criminal activity or conduct (see
also Alekseyenko, § 88, and Boris Popov, § 108, both cited
above).
It follows from the above considerations that
the provisions of Russian law failed to afford a measure of legal protection
against arbitrary interference by public authorities with the applicant’s right
to respect for his correspondence (see, for a similar approach, Moiseyev v.
Russia, no. 62936/00, § 266, 9 October 2008, concerning monitoring of
detainees’ correspondence under the Custody Act).
There has therefore been a violation of Article
8 of the Convention on account of the inspection of the correspondence between
the applicant and his correspondents at the national level.
2. As regards the correspondence between the applicant
and the Court
The Court has previously examined complaints specifically
concerning the inspection of correspondence between applicants and the Court under
Article 8 of the Convention (see Idalov v. Russia [GC], no. 5826/03, § 199, 22 May 2012; Boris Popov, cited
above, §§ 93-94; and Alekseyenko
v. Russia, no. 74266/01, § 68, 8
January 2009), under its Article 34 (see Trosin v. Ukraine, no. 39758/05, § 49, 23 February 2012,
and Fetisov and Others, cited
above, § 144) or
under both provisions (see Belyaev and Digtyar, cited above, §§ 50-63).
Being the master of the characterisation to be
given to the facts of the case, and having regard to the nature of the
interference and contents of the applicant’s submissions (see Scoppola v. Italy (no. 2) [GC], no. 10249/03, § 54, 17 September 2009), the Court considers
that the matters relating to the correspondence between the applicant and the
Court raise issues under both Articles 8 and 34 of the Convention.
(a) Article 8 of the Convention
As to Article 8 of the Convention (quoted
above), the Court reiterates that at the relevant time Article 91 of the CES
expressly prohibited inspection of correspondence between a detainee and the
European Court. In such circumstances, the related grievance could be raised
before courts in order to obtain an examination of the substance of such
complaint, at least as regards the confidentiality of the Court’s letters sent
to the detained applicant (see Alekseyenko, cited above, § 90). It
follows that this complaint must be rejected under Article 35 §§ 1
and 4 of the Convention for non-exhaustion of domestic remedies.
As to the applicant’s letters to the Court,
noting that it was unlikely that the applicant could be aware of the possible
inspection of his letters by the prison staff before their actual dispatch, the
Court raised this matter proprio motu. Subsequently, the applicant
maintained this complaint, also referring to the alleged inspection of his
letter of 7 June 2011 (see paragraph 46 above). The Court declares this matter
admissible. However, in view of the findings below under Article 34 of the
Convention, the Court does not find it necessary to pursue the examination of
this complaint separately.
(b) Article 34 of the Convention
Article 34 of the Convention 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 Court reiterates that, unlike for instance
Article 8 of the Convention, a complaint under Article 34
of the Convention does not give rise to admissibility
issues under the Convention (see Juhas Đurić v. Serbia, no. 48155/06, § 72, 7 June 2011, with further references). Article 34
of the Convention imposes an obligation on a Contracting State not to hinder
the right of the individual to present and pursue a complaint effectively with
the Court. While the obligation imposed is of a procedural nature
distinguishable from the substantive rights set out in the Convention and
Protocols, it flows from the very essence of this procedural right that it is
open to individuals to complain of alleged infringements of it in Convention
proceedings (see Manoussos v. the Czech Republic and Germany (dec.), no. 46468/99,
9 July 2002).
It is of the utmost importance for the
effective operation of the system of individual application instituted by
Article 34 that applicants should be able to communicate
freely with the Court without being subjected to any form of pressure from the
authorities to withdraw or modify their complaints. In this context, “pressure”
includes not only direct coercion and flagrant acts of intimidation, but also
other improper indirect acts or contacts designed to dissuade or discourage
applicants from using a Convention remedy (see, among others, Konstantin
Markin v. Russia [GC], no. 30078/06, § 158, ECHR 2012 (extracts)).
The Court considers that detainees may find
themselves in a vulnerable position when they are dependent, as in the present
case in their communication with the Court, on the staff of the detention
facility. However, the Court does not consider that any delays in the processing
of correspondence in the present case were such as to amount to a breach of the
State’s obligation under Article 34 of the Convention (see Shchebetov v. Russia,
no. 21731/02, § 84, 10 April
2012).
At the same time, the Court reiterates the
importance of respecting the confidentiality of correspondence between the
Court and applicants, since that correspondence may concern allegations against
prison authorities or prison officials (see Peers v. Greece, no. 28524/95, § 84, ECHR 2001-III). The opening and inspection of letters from the
Court or addressed to it gives rise to the possibility that they will be read,
and may conceivably, on occasion, also create the risk of reprisals by prison
staff against the prisoner concerned (see Belyaev and Digtyar, cited
above, § 62).
It is uncontested that the Court’s letters were
clearly identifiable as to their sender. As to the applicant’s letters to
the Court, except for the letter of 7 June 2011, it has not been argued
that the applicant had to hand over or did hand over any letters without an
envelope or in an unsealed envelope. It appears that he indicated clearly that
the correspondence was addressed to the Court.
The parties disagreed as to whether the prison
officers read the texts of the incoming or outgoing letters. However, the Court
notes that these letters were stamped by the detention facility. Moreover, the
applicant’s submissions to the Court were accompanied by cover letters from the
detention facility indicating the nature of the correspondence dispatched or
the number of enclosures. These facts suggest that at least some of the
applicant’s communications with the Court were subject to inspection by State
officials.
It is noted that, while one of the impugned
letters contained a request by the Court for further information concerning the
applicant’s complaint about the conditions of detention in a remand centre, the
other letters mentioned by the applicant were standard or mere
acknowledgement-of-receipt letters. However, this could not have been known in
advance by the prison authorities and should not in itself deprive the
applicant of the procedural protection provided by the Convention.
The Court concludes that the correspondence
between the applicant and the Court was subject to monitoring by the staff of
the detention facilities without any valid reason. Furthermore, such monitoring
could not pass for a sporadic act or an excusable mistake. In addition, this
monitoring constituted a breach of the express confidentiality rule contained
in Article 91 of the CES. It was incumbent on the national authorities to
put in place a framework for avoiding any unjustified “chilling” effect on the
effective exercise of a right of individual application before the Court and for
avoiding the risk of various forms of direct or indirect
influence on the prisoner impairing his opportunities to communicate with the
Court.
. The
above elements, taken cumulatively, have led the Court to conclude that Russia has failed to comply with its obligations under Article 34 of the Convention in
the present case.
V. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
Furthermore, the applicant complained about the
conditions of his detention in 2005. He also raised a number of complaints relating
to his arrest and detention in 2001-02 and 2009. Lastly, the applicant complained
that local television had covered the trial and treated him as a criminal.
The Court has examined these complaints as
submitted by the applicant. However, in the light of all the material in its
possession, and in so far as the matters complained of are within its
competence, the Court finds that they do not disclose any 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 is manifestly
ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4
of the Convention.
VI. 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 246,200 euros (EUR) in compensation
for non-pecuniary damage.
The Government contested this claim.
The Court considers that the applicant
sustained some suffering and frustration on account of the conditions of
detention in the remand centre and the unlawful detention following his
conviction in 2003. The Court considers that the above cannot be compensated
for by a mere finding of a violation. The Court finds it appropriate to award
the applicant EUR 20,000, plus any tax that may be chargeable.
B. Costs and expenses
The applicant also claimed EUR 2,460 for legal
costs incurred before the Court, to be paid to the applicant’s representative, Ms A. Polozova.
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. The Court observes that the applicant had already been
granted legal aid in the amount of EUR 850. In the present case, regard being
had to the documents in its possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 1,000 in respect of the
proceedings before the Court, to be paid into Ms Polozova’s bank account.
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
1. Joins to the merits unanimously the
Government’s argument concerning exhaustion of domestic remedies in respect of
the complaint about conditions of detention and dismisses it;
2. Declares unanimously admissible the
complaints concerning conditions of detention in Chelyabinsk remand centre and
the alleged lack of effective remedies in this connection; the lawfulness of
the applicant’s detention under the judgment of 24 April 2003; monitoring of
the applicant’s correspondence with the Court and at the national level;
3. Declares unanimously the remainder of the
application inadmissible;
4. Holds unanimously that there has been a
violation of Article 3 of the Convention;
5. Holds unanimously that there has been a
violation of Article 13 of the Convention;
6. Holds by six votes to one that there has
been a violation of Article 5 § 1 of the Convention;
7. Holds unanimously that there has been a
violation of Article 8 of the Convention on account of the monitoring of the
applicant’s correspondence with correspondents at the national level;
8. Holds unanimously that there is no need to
examine separately under Article 8 of the Convention the issue relating to the
monitoring of the applicant’s letters to the Court;
9. Holds unanimously that the respondent
State has not complied with its obligation under Article 34 of the Convention
on account of the monitoring of the correspondence between the applicant and
the Court;
10. Holds by six votes to one
(a) that the respondent State is to pay the applicant,
within three months of the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention, EUR 20,000
(twenty thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary
damage, to be converted into the currency of the respondent State at the rate
applicable at the date of settlement;
(b) that the respondent State is to pay the
applicant, within the same time-limit, EUR 1,000 (one thousand euros), in
respect of costs and expenses, to be converted into the currency of the
respondent State at the rate applicable at the date of settlement and to be
paid into the bank account of Ms Anna Polozova;
(c) that from the expiry of the above-mentioned
three months until settlement simple interest shall be payable on the above
amounts at a rate equal to the marginal lending rate of the European Central
Bank during the default period plus three percentage points;
11. Dismisses unanimously the remainder of
the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 12 February
2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Isabelle
Berro-Lefèvre
Registrar President
In accordance with Article 45 § 2 of the Convention and
Rule 74 § 2 of the Rules of Court, the partly dissenting opinion of Judge D.
Dedov is annexed to this judgment.
I.B.L.
S.N.
PARTLY DISSENTING OPINION OF JUDGE DEDOV
My opinion concerns the violation of Article 5 § 1 of the
Convention (see paragraphs 88-111 of the judgment): I cannot share the Court’s
conclusion that there was no adequate acknowledgement and redress afforded to
the applicant.
The Court has made reference to its case-law, including Menesheva
v. Russia (§§ 91-93) and Sakhnovskiy v. Russia (§ 67). In the
case of Sakhnovskiy, the Court held that “it is a well-established
principle of the Court’s case-law that an applicant may lose his victim status
if two conditions are met: first, the authorities must have acknowledged,
either expressly or in substance, the breach of the Convention and, second, they
must have afforded redress for it”.
It seems that in the present case the Court goes even further,
stating in paragraph 93 of the judgment that “a decision or measure favourable
to an applicant is not in principle sufficient to deprive him of his status as
a victim”. As this position requires interpretation in accordance with the
Court’s established case-law (if it is not merely to be a routine execution of
the individual’s rights), it means, as I understand it, that such a measure
should be based on recognition of a particular violation and that it should
eliminate adverse consequences for the applicant.
It follows that the measures taken by the authorities in the
applicant’s favour must be examined.
In September 2009 the Russian Supreme Court set aside the
trial judgment of 24 April 2003 and recognised that there had been a violation
of the applicant’s right to a trial by court properly “established by law”.
Under the commonly recognised rules of court procedure, such an error of law (a
most serious procedural omission) itself constitutes a basis for annulment of
the lower-court decision, without any additional conditions. The Court has
considered such a measure as appropriate in Ponushkov v. Russia
(no. 30209/04, 6 November 2008, §§ 70-71); in Ryabov v.
Russia (no. 3896/04, 31 January 2008, § 51); and the Court refers
to these examples in Sakhnovskiy.
As regards the present case, I conclude from the text of the
judgment that if there is “no prompt and adequate redress in ordinary appeal
proceedings” (§ 109), then a recognition of the
violation by the Supreme Court cannot be treated as an adequate redress. Such
an interpretation is not convincing, unless one can (again) presume that over
six years the applicant raised the issue before the upper domestic courts, but
the authorities were reluctant to respond to his request.
Only these circumstances may constitute “a gross and obvious
irregularity” (see paragraph 110) if the Court wishes to find something more
serious than the violation of Article 5 or Article 6 of the Convention. But the
issue concerns a violation of Article 5 § 1 and concerns the unlawful detention
of the applicant.
Moreover, evaluating the circumstances of the present case as
a whole, I should note that the national court (in the retrial of the case)
came to the same conclusions and upheld the initial charges against the
applicant, who did not raise any complaints before the Court about the evidence
produced against him, and the Court considered the alleged violation of Article
6 as manifestly ill-founded. Thus, I have no reason to conclude that throughout
all those six years the applicant suffered because of his innocence. I
therefore have doubts about the applicant’s status as a victim.
I also believe that the applicant has received adequate
redress, given that - within the re-examination of his case - the national
court reduced the term of the applicant’s sentence by four years, taking into
account that he had served a long prison sentence “as [to do] otherwise would
be unfair” to the applicant.
I started my opinion by citing the Court’s case-law, according
to which the authorities must have acknowledged, either expressly or in
substance, the breach of the Convention. Although the decision was poorly
motivated, I believe that the national court has acknowledged, not expressly
but in substance, that the above omission was not fair with respect to the
applicant. It was an act of humanity by a Russian judge in relation to a
criminal convicted of murder, kidnapping and extortion. I am convinced that
such an act should not be ignored by the Court.
