BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
FIRST
SECTION
CASE OF ZEMENTOVA v. RUSSIA
(Application
no. 942/02)
JUDGMENT
STRASBOURG
27
September 2007
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Zementova v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Mr C.L. Rozakis, President,
Mrs N.
Vajić,
Mr A. Kovler,
Mrs E. Steiner,
Mr K.
Hajiyev,
Mr D. Spielmann,
Mr S.E. Jebens, judges,
and Mr
S. Nielsen, Section Registrar,
Having
deliberated in private on 6 September 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 942/02) against the
Russian Federation lodged with the Court
under Article 34 of the Convention for the Protection
of Human Rights and Fundamental Freedoms (“the Convention”)
by a Russian national, Mrs Tatyana Nikolayevna Zementova, on
7 June 2001. She was represented before the Court by
Mr V. Yevdokimov, a lawyer practising in London.
- The
Russian Government (“the Government”) were represented by
Mr P. Laptev, Representative of the Russian Federation at the
European Court of Human Rights.
- On
5 September 2005 the
Court decided to communicate the complaint concerning the length of
the proceedings. Applying Article 29 § 3 of the Convention, it
decided to rule on the admissibility and merits of the application at
the same time.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1952 and lives in the village
of Lopatinskiy in the Moscow Region.
A. Initial criminal investigation by the prosecutor's
office
- It
appears that the applicant was a labour inspector in the Voskresensk
supervisory district of the State labour inspectorate of the Moscow
Region (Государственная
инспекция
труда
в Московской
области).
- On
29 December 1999, acting upon a complaint from a third party that the
applicant was exacting a bribe from him, the authorities carried out
an operation in the course of which the applicant was arrested and
remanded in custody.
- In
a decision of the same date an investigator of the Voskresenk Town
Prosecutor's Office of the Moscow Region referred to the materials
obtained from the police and brought criminal proceedings against the
applicant and her colleague on suspicion of bribery.
- On
31 December 1999 the applicant was released from custody. It does not
appear that she challenged her arrest and detention before the
domestic courts.
- On
29 June 2000 the time-limits for preliminary investigation were
extended until 29 September 2000.
- By
a decision of 14 September 2000 the investigator suspended the
investigation because of the applicant's treatment at a hospital. On
25 October 2000 the investigation resumed. The applicant submits
that she was unaware of the said decisions and was fully available.
- On
31 October 2000 the investigator charged the applicant with bribery
and several counts of abuse of power as a public servant and imposed
on her an undertaking not to leave her place of residence.
- It
appears that on 27 April 2001 the bill of indictment was sent to the
Voskresensk Town Court (“the Town Court”) together with
the case file.
B. First set of court proceedings
- The
Government submitted that the criminal case reached the court on 23
May 2001.
- On
17 May 2001 the prosecutor seized the applicant's property. There is
no indication that the applicant challenged this decision in a court.
- In
a decision (постановление)
of 5 June 2001 the Town Court pointed out several shortcomings in the
conduct of the investigation and remitted the case to the
investigator.
- On
25 July 2001 the Moscow Regional Court (“the Regional Court”)
quashed this decision upon the prosecutor's appeal and remitted the
case to the first-instance court.
- The
case file reached the Town Court on 23 August 2001.
- The
court decided to hold the next hearing in the case on
24 October 2001. Since most of the witnesses failed to
appear, the court adjourned the hearing until 1 November 2001 and
decided to secure attendance of the witnesses by force.
- On
5 November 2001 the Town Court again remitted the case to the
prosecutor for an additional investigation.
- This
decision was upheld on appeal on 19 February 2002.
- On
5 June 2002 the applicant was apparently furnished with a new bill of
indictment and from 10 June to 3 July 2002 she and her counsel had
access to the case file.
- On
22 June 2002 the case file was returned for examination on the merits
to the trial court.
- The
case file reached the Town Court on 25 July 2002.
- In
a decision of 29 July 2002 the court decided to hold the first
hearing in the case on 12 August 2002. Since the authorities failed
to serve the bill of indictment on the applicant's co-defendant in a
timely fashion, the hearing of 12 August 2002 was delayed until
2 September 2002.
- In
a decision of 2 September 2002 the court scheduled a hearing for 21
October 2002. Apparently the applicant failed to appear on that date
and the hearing was adjourned.
- On
26 October 2002 the hearing did not take place because of the need to
carry out an expert examination. The case was postponed until
20 February 2003.
- The
hearings of 20 February and 27 March 2003 did not take place in view
of the absence of a defendant, the victim and the need to summon some
witnesses.
- Between
17 and 28 April 2003 the court examined the applicant's criminal case
and on the latter date it rendered a 50-page judgment, convicting the
applicant on six counts of abuse of power and one count of bribery.
The court sentenced her to three years and nine months' imprisonment
and prohibited her from holding administrative and supervisory posts.
By the same judgment the applicant's co-defendant was convicted on 19
counts of abuse of power. The court referred to oral evidence from
some 45 witnesses and the victim, records of confrontations and a
considerable bulk of other documentary evidence, such as money
transfer orders, invoices, audit records, etc.
- By
the same decision the court lifted the seizure of the applicant's
property.
- The
applicant was detained in the court room.
- Both
the prosecution and the applicant appealed against the judgment.
- On
1 July 2003 the Regional Court quashed the trial-court judgment and
remitted the case to the court below. It also ordered the applicant's
release pending trial.
- The
applicant was released on 4 July 2003.
C. Second set of court proceedings
- Between
September 2003 and November 2004 the examination of the case was
delayed in the Town Court with reference to various reasons, such as
the absence of witnesses, the applicant's illnesses, the failure of
the accused and the defence to attend as well as the decision to
grant a challenge by the defence directed against the prosecution.
- On
8 November 2004 the court decided to hold the next hearing on
11 November 2004. The hearing did not take place as the
prosecution failed to attend.
- The
hearing of 12 November 2004 was adjourned because of the court's
failure properly to summon the prosecution.
- According
to the Government, between 15 November 2004 and 15 March 2005
the court examined the case.
- On
15 March 2005 the court concluded that the bill of indictment
contained deficiencies warranting the remittal of the case to the
prosecutor for an additional investigation. It remitted the case to
the prosecutor for rectification of the shortcomings within five
days.
- On
18 May 2005 the applicant's case was returned to the court.
- The
court decided to hold a preliminary hearing in the case on 13 June
2005.
- It
appears that the co-accused changed his lawyer. As a result, the
hearing was postponed until 11 July 2005 and then until 29 August
2005. The hearing of 29 August 2005 did not take place because of the
failure of counsel to appear. The hearing was adjourned until 7
September 2005.
- In
a decision of 9 September 2005 the Town Court discontinued the
proceedings against the applicant in respect of some of the facts,
with reference to the statutory time bar.
- Thereafter
the examination of the case was adjourned in order “to give the
prosecution some time to study the case”.
- On
26 October 2005 the applicant was ill and failed to appear. As a
result, it was decided to hold the next hearing on 5 December 2005.
- In
a judgment of 27 December 2005 the Town Court acquitted the applicant
on all charges. The court also recognised the applicant's right to
rehabilitation in connection with wrongful criminal prosecution under
Article 134 of the Code of Criminal Procedure.
- The
judgment was upheld on appeal by the Moscow Regional Court on 9 March
2006. On the same date the Regional Court made a separate ruling in
which it referred to the delays in the proceedings and acknowledged
that the applicant's right to trial within a reasonable time had been
breached. The ruling called on the President of the Regional Court to
take appropriate measures in respect of the judges responsible.
- In
addition, on 4 April 2006 the President of the Moscow Regional Court
applied to the Qualification Board of the Moscow Region for leave to
discipline the judge of the Town Court who had been responsible for
delays in the proceedings.
D. Court proceedings for rehabilitation
- On
an unspecified date the applicant applied to the court for
compensation in connection with her acquittal. She also requested the
court to order the prosecutor's office to make apologies to her in
this connection.
- In
a judgment of 24 July 2006 the Town Court examined and rejected the
applicant's claims for compensation in connection with the wrongful
prosecution. The court noted that the proceedings in respect of some
of the charges against her had been discontinued on 9 September 2005
on account of time-limits. Since the statutory time bar was not a
“rehabilitating” ground for discontinuance of the
proceedings, it could not be said that the applicant had been fully
acquitted on the entirety of the charges against her. The court noted
that under the domestic law only those acquitted on the entirety of
the charges against them could apply for compensation in connection
with wrongful prosecution under Article 134 of the Code of Criminal
Procedure and rejected the applicant's claims for compensation
accordingly.
- This
judgment was upheld by the Moscow Regional Court on appeal on 4
October 2006.
- In
a decision of 21 August 2006 the Town Court granted the applicant's
request for apologies and ordered the prosecutor to apologise to the
applicant on behalf of the State in so far as her acquittal was
concerned. The court noted that the apologies should be limited to
the charges in respect of which the acquittal had been pronounced and
that they would not concern the charges in respect of which the
proceedings had been discontinued on account of the statutory time
bar. This decision was not appealed against by the parties and
entered into force on 1 September 2006.
- In
a letter of 14 September 2006 the Prosecutor of the town of
Voskresensk made the requested apologies to the applicant and thus
complied with the decision of 21 August 2006.
- In
a decision of 16 October 2006 the Town Court rejected the applicant's
claim in respect of pecuniary damage as unfounded. The court ruled
that the applicant had failed to substantiate her demands.
- The
applicant appealed against this decision. The outcome of these
proceedings is unclear.
E. The applicant's attempts to prosecute the police
officers
- On
9 June 2004 the applicant informed the Prosecutor's Office of
Voskresensk that the police officers who took part in the
investigation of her criminal case had acted unlawfully and requested
that they be prosecuted.
- In
a letter dated 4 June 2004 she was advised that the criminal
proceedings in her case were pending and that the prosecutor's office
was not entitled to intervene.
- On
9 September 2004 the Moscow City Court confirmed that the
prosecutor's office was not entitled to intervene.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the proceedings in her case
had been incompatible with the “reasonable time”
requirement laid down in Article 6 § 1 of the Convention, which
reads:
“In the determination of ... any criminal charge
against him, everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
- The
Government conceded that the duration of the proceedings in the case
had been excessive. They also argued that the domestic courts had
acknowledged the violation of Article 6 on account of the excessive
length of the proceedings, that the applicant had been acquitted and
that she was entitled to receive compensation in connection with her
wrongful prosecution which would eventually cover her
length-of-proceedings complaint. They referred to the applicant's
right to rehabilitation under the relevant provisions of the Code of
Criminal Procedure. Finally, they argued that the matter would have
been settled at the domestic level had the applicant applied to the
domestic courts for such compensation.
- The
applicant maintained her complaints.
A. Admissibility
- The
Court notes that the Government seem to have raised the argument of
non-exhaustion. In particular, they submitted that the domestic
courts had acknowledged the unjustified delays in the criminal
proceedings against the applicant and that since the applicant was
acquitted, she should have applied to the domestic courts for
compensation in connection with her wrongful prosecution. The Court
finds that it need not decide whether on the facts the procedure
referred to by the Government constituted a remedy for purposes of
exhaustion within the meaning of Article 35 § 1 of the
Convention, since from the case file it is clear that the applicant
availed herself of that procedure and was ultimately unsuccessful
(see paragraphs 49-50 and 53-54). Accordingly, the Court rejects
the Government's argument.
- The Court further reiterates that an acquitted
defendant can no longer claim to be a victim of alleged violations of
the Convention during the proceedings (see X.
v.
Austria, no. 5575/72, Commission decision of 8 July 1975,
Decisions and Reports (DR) 1, p. 44, and X. v. the United Kingdom,
no. 8083/77, Commission decision of 13 March 1980, DR 19, p. 223).
This conclusion, however, can only be drawn where the applicant is no
longer affected at all, having been relieved of any effects to his or
her disadvantage (see Jón Kristinsson v. Iceland,
judgment of 1 March 1990, Series A no. 171-B, opinion of
the Commission, p. 48, § 36, and Correia de Matos v. Portugal
(dec.), no. 48188/99, 15 November 2001).
- In
the present case the domestic authorities and the courts, whilst
acknowledging the delays in the proceedings (see paragraph 46 above)
and making apologies for wrongful prosecution in respect of some of
the charges (see paragraph 51), rejected her claims for damages in
this connection partly for being unsubstantiated and partly because
the applicant's acquittal did not concern the entirety of the
charges. It cannot thus be said that the applicant has been relieved
of all of the effects of the criminal proceedings to her
disadvantage. The Court concludes accordingly that the applicant can
still claim to be the victim of a breach of Article 6 of the
Convention on account of the allegedly excessive length of the
proceedings.
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- The Court notes at the outset that the period to be
taken into consideration began on 29 December 1999 when the
investigator laid charges against the applicant (see, among many
other authorities, Kalashnikov v. Russia,
no. 47095/99, § 124, ECHR 2002-VI) and ended on 9
March 2006 with the appeal decision of the Moscow Regional Court.
- It
follows that the period to be taken into consideration lasted for six
years, two months and eleven days.
- The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the following criteria: the complexity of the case,
the conduct of the applicant and the conduct of the relevant
authorities (see, among many other authorities, Pélissier
and Sassi v. France [GC], no. 25444/94, § 67, ECHR
1999-II, and Frydlender v. France [GC], no. 30979/96, §
43, ECHR 2000-VII).
- The
Court notes that the case was one of some complexity as it concerned
charges of bribery and abuse of power allegedly committed by a group
of people, including the applicant. However, in the Court's view, the
complexity of the case does not suffice, in itself, to account for
the length of the proceedings.
- Nor
does it appear that the applicant's conduct contributed substantially
to the length of the proceedings or that throughout the proceedings
she went beyond the limits of legitimate defence or lodged any
frivolous petitions or unsubstantiated requests with the investigator
or the courts. In any event, the Court reiterates that Article 6 does
not require a person charged with a criminal offence to cooperate
actively with the judicial authorities. In particular, applicants
cannot be blamed for taking full advantage of the resources afforded
by national law in their defence (see Yağcı and Sargın
v. Turkey, judgment of 8 June 1995, Series A
no. 319-A, § 66).
- The Court finds, on the other hand, that many of the
delays in the proceedings were occasioned by acts of the domestic
authorities or rather by their failure to act. In this connection it
notes that the considerable delay of one year and almost two months
between 27 April 2001 and 22 June 2002 resulted from the mistakes and
deficiencies of the investigating authority at the initial stage of
the investigation. Furthermore, it is clear that during three weeks
from 12 August 2002 to 2 September 2002 the examination of the
case could not continue because of the authority's failure to serve a
copy of the bill of indictment on the applicant's co-defendant. The
Court also notes that the conduct of the defence and witnesses was a
principal reason for the delay of one year and two months between
September 2003 and November 2004. In this respect, the Court finds
nothing in the case file or in the Government's submissions to
suggest that the domestic courts availed themselves of the measures
available to them under national law to discipline the participants
to the proceedings and to ensure that the case be heard within a
reasonable
time (see, mutatis
mutandis, Kuśmierek v. Poland, no. 10675/02, § 65,
21 September 2004). It therefore finds this delay attributable
to the authorities. Further delays in the proceedings were caused by
the deficiencies in the prosecution file which required the trial
court to adjourn the proceedings for two months between 15 March and
18 May 2005 and the need “to give the prosecution some time to
study the case file” which led to the adjournment of the
hearings for another month and two weeks from 9 September to
26 October 2005. Finally, the Court notes that the failure
to comply with domestic time-limits was acknowledged by a special
ruling of the Moscow Regional Court of 9 March 2006.
- Regard being had to the foregoing and in view of the
Government's admission that the duration of the case had been
excessive, the Court considers that the length of the proceedings did
not satisfy the “reasonable time” requirement.
Accordingly, there has been a breach of Article 6 § 1 of the
Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant also complained that the criminal proceedings against her
had been unfair. In addition, she complained about the poor
conditions of her detention from 29 to 31 December 1999 and from 28
April to 4 July 2003 (the complaints about the second period were
lodged with the Court on 27 April 2004), that the detention itself
had been incompatible with Article 5 and that the seizure of her
property in connection with the criminal proceedings against her had
been unjustified.
- In
so far as the applicant is dissatisfied with the criminal proceedings
against her and even assuming that despite her acquittal the
applicant has victim status to complain in this connection, the Court
is not called upon to examine alleged errors of fact and law
committed by the domestic judicial authorities, provided that there
is no indication of unfairness in the proceedings. On the basis of
the material submitted by the applicant, the Court notes that she was
able to present her arguments as she wished and that the judicial
authorities gave them due consideration. Having
regard to the facts, as submitted by the parties, the Court has not
found any reason to believe that the proceedings did not comply with
the fairness requirement of Article 6 of the Convention. This part of
the application is therefore manifestly ill-founded within the
meaning of Article 35 § 3 of the Convention.
- As
regards the conditions of her detention and the complaint concerning
the lawfulness of that detention, the Court recalls that the
applicant's two periods of detention ended on 31 December 1999
and 4 July 2003 respectively, whilst the
complaints about them were lodged on the respective dates of 7 June
2001 and 27 April 2004, that is more than six months later. It
follows that these complaints were introduced out of time.
- Finally,
as to the prosecutor's decision of 17 May 2000 concerning the seizure
of the applicant's property, the Court notes that she never attempted
to challenge this decision in the courts. Thus, she did not exhaust
domestic remedies in this respect.
- Having
regard to the conclusions reached in paragraphs 73-75 above, it
follows that this part of the application must be rejected pursuant
to Article 35 § 4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
- The
applicant claimed 5,000,000 Russian roubles (equivalent to
143,334 euros (EUR)) in respect of pecuniary and non-pecuniary
damage.
- The
Government did not comment on these claims.
- The
Court does not discern any causal link between the violation found
and the amount of pecuniary damage alleged; it therefore rejects this
aspect of the claim. However, on an equitable basis, it awards the
applicant EUR 3,000 in respect of non-pecuniary damage, plus any
tax that may be chargeable on that amount.
B. Costs and expenses
- The applicant did not claim reimbursement of her costs
and expenses incurred before the domestic authorities and the Court.
Accordingly, the Court need not make any award under this head.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning the excessive
length of the proceedings admissible and the remainder of the
application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 3,000
(three thousand euros) in respect of non-pecuniary damage to be
converted into Russian roubles at the rate applicable at the date of
settlement, plus any tax that may be chargeable;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 27 September 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
