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FIRST
SECTION
CASE OF YEVGENIY KORNEV v. RUSSIA
(Application
no. 30049/02)
JUDGMENT
STRASBOURG
30
July 2009
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 Yevgeniy Kornev v.
Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina
Vajić,
President,
Anatoly
Kovler,
Elisabeth
Steiner,
Dean
Spielmann,
Sverre
Erik Jebens,
Giorgio
Malinverni,
George
Nicolaou,
judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 7 July 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 30049/02) against the Russian
Federation lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Russian national, Mr Yevgeniy Gennadyevich
Kornev (“the applicant”), on 15 July 2002.
- The
applicant was represented by Ms S. Almukhametova, a lawyer practising
in Kurgan. The Russian Government (“the Government”) were
represented by their Agent, Ms V. Milinchuk, former Representative of
the Russian Federation at the European Court of Human Rights.
- The
applicant alleged, in particular, that he had been beaten up by
policemen and that the supervisory-review proceedings had been unfair
because of the authorities' failure to ensure his presence at the
hearing.
- On
15 May 2007 the President of the First Section decided to give
notice of the application. It was also decided to examine the merits
of the application at the same time as its admissibility (Article 29
§ 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1960 and lives in Kurgan.
A. Criminal proceedings on the charge of kidnapping
- On
27 December 2000 the Ketovskiy District Court of the Kurgan Region
found the applicant guilty of kidnapping for profit and sentenced him
to five years' imprisonment conditional on three years' probation.
Neither the applicant nor the prosecutor appealed.
- On
an unspecified date the applicant asked the Kurgan Regional Court for
supervisory review of the judgment of 27 December 2000. He
alleged that the court had erred in defining his actions as
kidnapping for profit. He further challenged the findings of the
trial court as to the circumstances of the matter. He claimed that he
had freed the kidnapped victim of his own will and should have been
exonerated from the kidnapping charges as provided for in the Russian
Criminal Code.
- By
a letter of 10 October 2003, the Kurgan Regional Court informed the
applicant that the supervisory-review proceedings had been instituted
and that the Presidium would examine his application on 20 October
2003. According to the stamp on the letter, it reached the
penitentiary establishment where the applicant was serving a prison
sentence on 23 October 2003. The applicant indicated that the
letter had been handed over to him on 27 October 2003.
- On
30 October 2003 the applicant sent written submissions to the Kurgan
Regional Court.
- In
December 2003 the applicant received the text of the Presidium's
decision on his application for supervisory review. The hearing had
taken place on 20 October 2003. The court had reviewed the
applicant's case and granted his application in part. It had
reclassified the charges as simple kidnapping. The sentence, however,
had remained unaffected.
B. Criminal proceedings on the charge of extortion
- On
7 August 2001 the applicant was arrested, together with Mr T. and Mr
Z., by officers of the Organised Crime Unit on suspicion of
extortion.
- On
10 August 2001 the applicant was formally charged and remanded in
custody.
- On
21 January 2002 the Kurgan Town Court of the Kurgan Region convicted
the applicant and Mr Z. of extortion and sentenced the former to six
years' imprisonment. The applicant appealed.
- On
26 March 2002 the Kurgan Regional Court upheld the conviction on
appeal.
C. Alleged ill-treatment and ensuing proceedings
- According
to the applicant, on 7 August 2001 during and after the arrest he was
beaten up by the police officers.
- On 8 August 2001 the applicant was placed in the
temporary detention facility (ИВС)
located within the police station. On admission he was examined by an
officer on duty and a paramedic, who did not observe any injuries on
his body. The applicant did not bring an oral or written complaint
about the alleged beatings.
- On 10 August 2001 the applicant was transferred to
remand centre no. 43/1 of Kurgan. On arrival he was examined by a
general practitioner who noted several bruises in the lumbar region
measuring 1 by 1 cm and 3 by 2 cm. A relevant entry was made in the
applicant's medical file.
- It appears that on the same day the administration of
the remand centre prepared a report concerning the applicant's
injuries and forwarded all the relevant materials to the prosecutor's
office for further inquiry. According to a certificate issued by the
remand centre on 16 August 2007, the copies of those materials
stored at the remand prison had been destroyed after the expiry of
the time-limit for their storage on 20 January 2006 and 27 March
2007.
- On
5 March 2002 the applicant complained to the Kurgan Regional
Prosecutor that he had been beaten up by police officers on 7 August
2001.
- On
27 March 2002 the deputy prosecutor of Kurgan issued a decision
refusing to institute criminal proceedings into the applicant's
allegations of ill-treatment. The prosecutor based his findings on
the statements made by the alleged perpetrators, who denied the
applicant's allegations, and the medical documents from the
applicant's file. In particular the prosecutor stated as follows:
“The inquiry conducted did not confirm the
[applicant's] allegations. The police officers Ch., M. and K. ...
denied that they had put any pressure on [the applicant]. Upon
arrival at [the temporary detention facility], he did not complain
that he had been beaten up by the police officers... According to
[the applicant's] medical file, upon his arrival at [the remand
centre]... several bruises were noted in the lumbar spine area.
However, according to the certificate, issued by the head of [the
temporary detention facility], upon his placement [there] [the
applicant] had been examined and questioned by an officer on duty as
to whether he had any injuries. [The applicant] had not complained of
his condition or had any visible injuries. Nor had the results of the
applicant's examination by a paramedic on 8 August 2001 been any
different. When transferred to [the remand centre], [the applicant]
did not complain of his condition either. Accordingly, the injuries
noted at [the remand centre] cannot have been caused by the [police
officers] in the circumstances described by [the applicant].”
- The
applicant complained to a court, claiming that the scope of the
prosecutor's inquiry had been insufficient because he had never been
interviewed by a prosecutor with regard to his allegations of
ill-treatment.
- On
31 December 2002 the Kurgan Town Court upheld the prosecutor's
decision, finding that the scope of the inquiry had been adequate
given the lack of evidence supporting the applicant's allegation of
ill-treatment. In particular, the court found as follows:
“The Kurgan prosecutor's office carried out a
proper investigation into the allegations concerning the use of
unlawful investigation techniques by the police officers. Messrs M.,
Ch., and K. were questioned. They explained that they had not put any
physical or psychological pressure on [the applicant] during his
arrest. [The applicant] did not confess to the crime. It is true that
on [10] August 2001 after his transfer from [the temporary detention
facility] to [the remand prison] bruises on the small of [the
applicant's] back were detected. However, earlier, when [the
applicant] had been brought to [the temporary detention facility], he
had been examined and questioned by an officer on duty. At that time
[the applicant] had no injuries and did not complain of the alleged
ill-treatment or his condition. Having regard to those facts, the
Kurgan prosecutor's office drew a justified conclusion that the
[bruises] detected upon the applicant's arrival at [the remand
prison] could not have been caused by the policemen in the
circumstances described by [the applicant]. There are no other
materials in the court's possession to prove that the policemen had
committed any unlawful acts vis-à-vis [the applicant].”
- On
1 July 2003 the Kurgan Regional Court dismissed the applicant's
appeal against that decision.
II. RELEVANT DOMESTIC LAW
A. Supervisory-review proceedings
- The
parties to the criminal proceedings, including the defendant and his
or her counsel and the prosecutor, may ask a superior court for
supervisory review of judgments rendered by the courts of first or
second levels of jurisdiction (Article 402 of the Code of the
Criminal Procedure (the “CCrP”).
- In the event that the court decides to open
supervisory-review proceedings, it should notify the interested
parties of the date, time and place of the hearing within 30 days.
The parties to the proceedings should inform the court if they wish
to participate in the hearing. The parties present at the hearing may
make oral submissions to the court (Article 407 of the CCrP).
- The
court may uphold, amend or quash any of the earlier judgments on the
matter, discontinue the proceedings or remit the matter for fresh
consideration to a trial or appeal court (Article 408 of the
CCrP). In particular, a judgment will be quashed if there is an
inconsistency between the conclusions reached by the court in the
judgment and the facts established (Articles 409 and 379 of
the CCrP).
- The
court is not bound by the scope of the application for supervisory
review and may consider the matter in its entirety. It may commute
the sentence or reclassify the offence as a less serious one
(Article 409 of the CCrP). It cannot, however, increase the
sentence or reclassify the charges as a more serious offence
(Article 405 of the CCrP).
B. Investigation of criminal offences
- In
response to a complaint of a criminal offence, the investigator is
under obligation to verify the complainant's allegations (Article 144
of the CCrP).
- Should
there be sufficient grounds to believe that a crime had been
committed, the investigator initiates a criminal investigation
(Article 145 of the CCrP).
- The
complainant may appeal against the investigator's refusal to open a
criminal investigation to the investigator's superior, a prosecutor
or a court (Article 148 of the CCrP).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant complained that he had been beaten up by police officers on
7 August 2001. He relied on Article 3 of the Convention, which
reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
- The
Government denied the applicant's allegations. They submitted that he
had not been subjected to any form of ill-treatment while in custody.
They referred to the documents indicating that the applicant had had
a medical examination the day after the alleged incident and that no
injuries had been detected. The bruises the applicant mentioned had
been documented only on 10 August 2001 and a proper investigation had
been instituted to follow up on the applicant's complaint of 5 March
2002. The prosecutor and then the courts had dismissed the
applicant's allegations as unsupported by evidence and found no case
to answer against the alleged perpetrators. The Government opined
that, even though it was impossible to determine the origin of the
bruises, it was certain that they came into being later than 8 August
2008. Given that the applicant had bruises in the lumbar spine area,
they had probably been caused by an accidental fall or a bump into a
blunt object. In any event, they reasoned that the injuries the
applicant had sustained were not sufficiently serious to attain “a
minimum level of severity”. Nor could they amount to “inhuman
or degrading treatment”.
- The
applicant maintained his claims.
A. 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 that the complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 of the
Convention. No other ground for declaring it inadmissible has been
established.
B. Merits
1. Alleged ill-treatment
- The
Court has held on many occasions that the authorities have an
obligation to protect the physical integrity of persons in detention.
Where an individual is taken into custody in good health but is found
to be injured at the time of release, it is incumbent on the State to
provide a plausible explanation of how those injuries were caused
(see Ribitsch v. Austria, 4 December 1995, § 34,
Series A no. 336; see also, mutatis mutandis, Salman v.
Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII). In
assessing evidence, the Court has generally applied the standard of
proof “beyond reasonable doubt” (see Ireland v. the
United Kingdom, 18 January 1978, § 161, Series A no.
25). However, such proof may follow from the coexistence of
sufficiently strong, clear and concordant inferences or of similar
unrebutted presumptions of fact. Where the events in issue lie
wholly, or in large part, within the exclusive knowledge of the
authorities, as in the case of persons within their control in
custody, strong presumptions of fact will arise in respect of
injuries occurring during such detention. Indeed, the burden of proof
may be regarded as resting on the authorities to provide a
satisfactory and convincing explanation (see Ribitsch, cited
above, § 34, and Salman, cited above, § 100).
- Turning
to the circumstances of the instant case, the Court observes that the
parties did not deny the fact that the applicant did sustain the
injuries while he was in custody. Accordingly, the Government were
under an obligation to provide a plausible explanation of how those
injuries were caused.
- The
Court notes that the Government did no more than suggest that the
applicant could have hurt himself after having fallen over or having
bumped into a blunt object. In the absence of any evidentiary basis
for this conjecture, the Court considers that the Government failed
to rebut the presumption of their responsibility for the injuries
inflicted on the applicant while in charge of the State. Accordingly,
the responsibility for the ill-treatment lay with the domestic
authorities.
- The Court further reiterates that the ill-treatment
must attain a minimum level of severity if it is to fall within the
scope of Article 3. The assessment of this minimum is relative: it
depends on all the circumstances of the case, such as the duration of
the treatment, its physical and/or mental effects and, in some cases,
the sex, age and state of health of the victim. In respect of a
person deprived of his liberty, recourse to physical force which has
not been made strictly necessary by his own conduct diminishes human
dignity and is in principle an infringement of the right set forth in
Article 3 (see Assenov and Others v. Bulgaria, 28 October
1998, § 94, Reports of Judgments and Decisions
1998 VIII).
- The
Court considers that the degree of bruising found by the doctor who
examined the applicant and the subsequent decision of the remand
centre administration to report those injuries to the prosecutor's
office (see paragraph 17) indicate that his injuries were
sufficiently serious to amount to ill-treatment within the scope of
Article 3 (cf. Assenov, cited above, § 95).
- It
follows that there has been a
violation of Article 3 of the Convention under its substantive limb.
2. Adequacy of the
investigation
- The Court reiterates that where an individual raises
an arguable claim that he has been seriously ill-treated by the
police or other such agents of the State unlawfully and in breach of
Article 3, that provision, read in conjunction with the State's
general duty under Article 1 of the Convention to “secure to
everyone within their jurisdiction the rights and freedoms defined in
... [the] Convention”, requires by implication that there
should be an effective official investigation. This investigation
should be capable of leading to the identification and punishment of
those responsible (see Assenov and Others v. Bulgaria, 28
October 1998, § 102, Reports of Judgments and Decisions
1998 VIII).
- An
obligation to investigate “is not an obligation of result, but
of means”: not every investigation should necessarily be
successful or come to a conclusion which coincides with the
claimant's account of events; however, it should in principle be
capable of leading to the establishment of the facts of the case and,
if the allegations prove to be true, to the identification and
punishment of those responsible (see Paul and Audrey Edwards v.
the United Kingdom, no. 46477/99, § 71, ECHR 2002-II,
and Mahmut Kaya v. Turkey, no. 22535/93, § 124, ECHR
2000-III).
- An
investigation into serious allegations of ill-treatment must be
thorough. That means that the authorities must always make a serious
attempt to find out what happened and should not rely on hasty or
ill-founded conclusions to close their investigation or as the basis
for their decisions (see Assenov, cited above, §§
103 et seq.). They must take all reasonable steps available to them
to secure evidence concerning the incident, including, inter alia,
eyewitness testimony and forensic evidence (see, mutatis mutandis,
Salman v. Turkey [GC], no. 21986/93, § 106, ECHR
2000-VII; Tanrıkulu v. Turkey [GC], no. 23763/94, ECHR
1999-IV, § 104 et seq.; and Gül v. Turkey,
no. 22676/93, § 89, 14 December 2000). Any deficiency in
the investigation which undermines its ability to establish the cause
of injuries or the identity of the persons responsible will risk
falling foul of this standard.
- Furthermore,
the investigation must be expedient. In cases under Articles 2
and 3 of the Convention, where the effectiveness of the official
investigation is at issue, the Court has often assessed whether the
authorities reacted promptly to the complaints at the relevant time
(see Labita v. Italy [GC], no. 26772/95, § 133 et
seq., ECHR 2000-IV). Consideration was given to the starting of
investigations, delays in taking statements (see Timurtaş v.
Turkey, no. 23531/94, § 89, ECHR 2000-VI, and Tekin
v. Turkey, 9 June 1998, Reports 1998-IV, §
67), and the length of time taken to complete the initial
investigation (see Indelicato v. Italy, no. 31143/96, § 37,
18 October 2001).
- Turning
to the facts of the present case, the Court observes that the
authorities did carry out an inquiry into the applicant's
allegations. It is not convinced, however, that the inquiry was
sufficiently prompt, thorough and effective to meet the requirements
of Article 3.
- The
Court notes that the materials submitted by the Government disclose a
number of significant omissions in the way the inquiry was conducted.
- It
appears that the prosecutor's office was duly notified by the
administration of the remand prison of the seriousness of the
applicant's injuries (see paragraph 18). However, the prosecutor took
no action until the applicant lodged a formal complaint some seven
months later.
- As
regards the scope of the inquiry, the Court notes that the prosecutor
confined himself to the questioning of the police officers involved.
At no point did he talk to the applicant or organise a confrontation
between him and the police officers. Nor did the prosecutor examine
Mr T. and Mr Z., who had been arrested together with the applicant
and could undoubtedly have contributed to establishment of the truth.
- The
Court further observes that no attempt was made to resolve the
inconsistency between the applicant's allegations and the testimonies
of the police officers on the basis of the medical data. The
applicant was subjected only to a brief visual examination upon
arrival at the remand centre. No expert opinion has been commissioned
as to the possibility of the bruises having been caused by the
alleged ill-treatment or to rule out such a possibility.
- The
Court finds it particularly striking that the authorities did not
make any effort to establish the cause of the applicant's injuries.
- Lastly,
the Court observes that the subsequent judicial proceedings did not
remedy the deficiencies of the prosecutor's inquiry. The courts
merely upheld the prosecutor's findings without even ensuring the
applicant's participation in the proceedings.
- Having
regard to the above, the Court finds that the authorities failed to
carry out an effective investigation into the applicant's allegations
of ill-treatment. Accordingly there has been a violation of Article 3
of the Convention under its procedural limb.
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicant complained under Article 6 that, owing to belated
notification, he was denied the opportunity to attend the
supervisory-review hearing before the Presidium of the Kurgan
Regional Court and his submissions were disregarded. The relevant
parts of Article 6 read as follows:
“1. In the determination of ... any
criminal charge against him, everyone is entitled to a fair and
public hearing ... by a ... tribunal established by law...
3. Everyone charged with a criminal offence
has the following minimum rights:
...
(c) to defend himself in person ...”
- The
Government submitted that, when lodging the application for
supervisory review of his case, the applicant did not ask the court
to ensure his presence at the hearing. They further conceded that,
due to postal delays, the applicant belatedly received the
notification of the supervisory-review hearing and was prevented from
applying for participation once the decision to review his case was
made. The Government also noted that, firstly, the State was not
required to provide a perfectly functioning postal system (see
Zagorodnikov v. Russia, no. 66941/01, § 31, 7 June
2007, and, mutatis mutandis, Foley v. the United Kingdom
(dec.), no. 39197/98, 11 September 2001) and that, in any
event, the applicant failed to exhaust the domestic remedies
available to him. He did not make a supervisory-review complaint
against the judgment of 20 October 2003.
- The
applicant maintained his complaint.
A. Admissibility
- The Court notes the Government's argument that
the applicant has failed to exhaust domestic remedies by failing to
apply for supervisory review of the judgment rendered by the
Presidium of the Kurgan Regional Court on 20 October 2003. In
this connection, the Court reiterates that an application for
supervisory review is not a remedy to be exhausted under
Article 35 § 1 of the Convention (see
Berdzenishvili v. Russia (dec.), no. 31697/03,
29 January 2004). Therefore, the Government's objection as to the
non-exhaustion of domestic remedies must be dismissed.
- 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
1. General principles
- The
general principles concerning the right of the accused to participate
in the hearing and waiver of the right to appear are well established
in the Court's case-law and have been summarised as follows (see
Hermi v. Italy [GC], no. 18114/02, ECHR 2006 ...):
“58. In the interests of a fair and
just criminal process it is of capital importance that the accused
should appear at his trial (see Lala v. the Netherlands,
judgment of 22 September 1994, Series A no. 297-A, p. 13,
§ 33; Poitrimol v. France, judgment of 23 November
1993, Series A no. 277-A, p. 15, § 35; and De
Lorenzo v. Italy (dec.), no. 69264/01, 12 February 2004),
and the duty to guarantee the right of a criminal defendant to be
present in the courtroom – either during the original
proceedings or in a retrial – ranks as one of the essential
requirements of Article 6 (see Stoichkov v. Bulgaria, no.
9808/02, § 56, 24 March 2005)...
60. However, the personal attendance of the
defendant does not take on the same crucial significance for an
appeal hearing as it does for the trial hearing (see Kamasinski,
cited above, p. 44, § 106)...
62. ... even where the court of appeal has
jurisdiction to review the case both as to facts and as to law,
Article 6 does not always require a right to a public hearing, still
less a right to appear in person (see Fejde v. Sweden,
judgment of 29 October 1991, Series A no. 212-C, p. 68, § 31).
In order to decide this question, regard must be had, among other
considerations, to the specific features of the proceedings in
question and to the manner in which the applicant's interests were
actually presented and protected before the appellate court,
particularly in the light of the nature of the issues to be decided
by it (see Helmers v. Sweden, judgment of 29 October
1991, Series A no. 212-A, p. 15, §§ 31-32)
and of their importance to the appellant (see Kremzow, cited
above, p. 43, § 59; Kamasinski, cited above, pp. 44-45, §
106 in fine; and Ekbatani, cited above, p. 13,
§§ 27-28)...
64. However, where an appellate court has to
examine a case as to the facts and the law and make a full assessment
of the issue of guilt or innocence, it cannot determine the issue
without a direct assessment of the evidence given in person by the
accused for the purpose of proving that he did not commit the act
allegedly constituting a criminal offence (see Dondarini v. San
Marino, no. 50545/99, § 27, 6 July 2004)...
73. Neither the letter nor the spirit of
Article 6 of the Convention prevents a person from waiving of his own
free will, either expressly or tacitly, the entitlement to the
guarantees of a fair trial (see Kwiatkowska v. Italy
(dec.), no. 52868/99, 30 November 2000). However, such a waiver must,
if it is to be effective for Convention purposes, be established in
an unequivocal manner and be attended by minimum safeguards
commensurate with its importance (see Poitrimol, cited above,
pp. 13-14, § 31)...
76. In view of the prominent place held in a
democratic society by the right to a fair trial (see, among many
other authorities, Delcourt v. Belgium, judgment of 17 January
1970, Series A no. 11, pp. 14-15, § 25 in fine),
Article 6 of the Convention imposes on every national court an
obligation to check whether the defendant has had the opportunity to
apprise himself of the date of the hearing and the steps to be taken
in order to take part where... this is disputed on a ground that does
not immediately appear to be manifestly devoid of merit (see, mutatis
mutandis, Somogyi v. Italy, no. 67972/01, § 72,
ECHR 2004-IV)...”
2. Application of the above principles to the instant
case
- The
Court observes at the outset that on 20 October 2003 the
Presidium of the Kurgan Regional Court re-opened the applicant's
case, reviewed it and reclassified the charges against him. The Court
notes, accordingly, that the supervisory-review proceedings in the
instant case concerned the determination of a criminal charge against
the applicant and finds the above principles applicable (see, among
recent authorities, Alekseyenko v. Russia, no.
74266/01, § 55-57, 8 January 2009).
- In
his application for supervisory review, the applicant contested his
conviction on factual and legal grounds. He claimed, inter alia,
that he should have been exonerated from the kidnapping charges.
Accordingly, the Presidium of the Kurgan Regional Court had to make
an assessment of the question of the applicant's guilt or innocence.
The Court considers that that question could not, as a matter of a
fair trial, have been properly determined without a direct assessment
of the evidence given in person by the applicant, who claimed that he
had liberated the kidnapped victim and was entitled to a non-guilty
verdict on that account.
- As
regards the Government's contention that the applicant waived his
right to appear before the court, the Court cannot accept it. The
applicant's failure to ask the supervisory-review court to ensure his
presence at the time when he lodged his application could not have
been regarded by the domestic authorities as an unequivocal waiver of
his right. Pursuant to the Russian Code of the Criminal Procedure, it
was first incumbent on the supervisory-review court to inform the
applicant that his request for supervisory review had been granted
and communicate to him the time, date and place of the scheduled
hearing (see paragraph 25 above). The Court notes that the Presidium
of the Kurgan Regional Court did send such notice to the applicant.
However, the applicant received it only after the supervisory-review
hearing had already taken place.
- In
this connection, the Court reiterates that the Convention is intended
to guarantee not rights that are theoretical or illusory but rights
that are practical and effective (see, among other authorities, Airey
v. Ireland, 9 October 1979, § 24, Series A no.
32). It considers that the right to a hearing would be devoid of
substance if a party to the case were not apprised of it in such a
way as to have an opportunity to attend it, should he or she decide
to exercise the right to appear established in the domestic law.
- Lastly,
it does not follow from the judgment of 20 October 2003 that the
Presidium of the Kurgan Regional Court even checked whether the
applicant had had an opportunity to apprise himself of the hearing
and the steps to be taken in order to participate in it.
- Having
regard to the entirety of the proceedings before the
supervisory-review court, its role, and the nature of the issues
determined by it, the Court reaches the conclusion that there were no
special features to justify the court's failure to ensure the
applicant's participation in the hearing. Nor can it be said that in
the present case the applicant has waived his right to appear before
the supervisory-review court. Accordingly, there has been a violation
of Article 6 §§ 1 and 3 (c) of the
Convention.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- Lastly,
the applicant complained under Article 5 of the Convention of
the unlawfulness of his arrest on 7 August 2001. He complained
under Articles 6 and 13 of the Convention that the
proceedings on the charge of extortion, which ended with his
conviction on 26 March 2002, were not conducted in accordance
with the applicable laws, that the courts assessed evidence in an
arbitrary manner and that the appeal court failed to rectify the
errors allegedly committed by the trial court.
- However,
having regard to all the material in its possession, the Court finds
that the events complained of 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 must be
rejected as being manifestly ill-founded pursuant to Articles 35 § 3
and 4 of the Convention.
IV. 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 2,000,000 euros (EUR) in respect of non-pecuniary
damage.
- The
Government considered the applicant's claim excessive.
- The
Court considers that the applicant must have suffered distress and
frustration as a result of the police brutality, lack of effective
investigation in response to his complaint about it and the State
authorities' failure to ensure his participation before the
supervisory-review court. However, the Court accepts the Government's
argument that the particular amount claimed appears excessive. Making
its assessment on an equitable basis, it awards the applicant
EUR 6,000 in respect of non-pecuniary damage, plus any tax that
may be chargeable on that amount.
B. Costs and expenses
- The
applicant did not submit a claim for costs and expenses. Accordingly,
the Court considers that there is no call to award him any sum on
that account.
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 complaints concerning the
applicant's ill-treatment by the police and the effectiveness of the
ensuing investigation and the applicant's absence from the
supervisory-review hearing admissible and the remainder of the
application inadmissible;
- Holds that there has been a violation of
Article 3 of the Convention on account of the applicant's
allegations of ill-treatment by the police;
- Holds that there has been a violation of
Article 3 of the Convention on account of the authorities'
failure to carry out an effective and thorough investigation into the
applicant's allegations of ill-treatment by the police;
- Holds that there has been a violation of
Article 6 §§ 1 and 3 (c) 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 6,000 (six thousand euros) plus any tax that may be
chargeable, in respect of non-pecuniary damage, to be converted into
Russian roubles at the rate applicable at the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim for
just satisfaction.
Done in English, and notified in writing on 30 July 2009, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Nina
Vajić
Registrar President
