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FIRST
SECTION
CASE OF KOLCHINAYEV v. RUSSIA
(Application
no. 28961/03)
JUDGMENT
STRASBOURG
17
December 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 Kolchinayev v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis, President,
Nina
Vajić,
Anatoly Kovler,
Elisabeth
Steiner,
Khanlar Hajiyev,
Giorgio
Malinverni,
George Nicolaou, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 26 November 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 28961/03) against the
Russian Federation lodged with the Court
under Article 34 of the Convention for the Protection
of Human Rights and Fundamental Freedoms (“the Convention”)
by a Russian national, Mr Nikolay
Konstantinovich Kolchinayev (“the applicant”), on 14 July
2003.
- The
applicant was represented by Ms O.V. Preobrazhenskaya, a lawyer
living in Strasbourg. The Russian Government (“the
Government”) were represented by Mr P. Laptev and Mrs V.
Milinchuk, the former Representatives of the Russian Federation at
the European Court of Human Rights.
- On
5 December 2006 the
President of the First Section decided to give notice of the
application to the Government. It was also decided to rule on the
admissibility and merits of the application at the same time (Article
29 § 3).
-
The Government objected to the joint examination of the admissibility
and merits of the application. Having examined the Government’s
objection and having regard to the subject matter of the application
and the Court’s case-law, the Court dismissed the Government’s
objection.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1961 and is now serving his sentence in prison
UP-288/T of Minusinsk, the Krasnoyarsk Region.
- On
14 August 1989 seven teenagers were found dead near Kazynet railway
station of the Askizskiy District of the Republic of Khakassia. On an
unspecified date in 1989 the competent authorities opened an
investigation into the case. On 24 July 1992 the applicant was
arrested on suspicion of having committed murder. By a judgment of 24
March 1995, the Kemerovo Regional Court convicted him as charged and
sentenced him to capital punishment. By a judgment of 11 October
1995, the Supreme Court of Russia upheld the conviction on appeal. On
4 September 1996 the Presidium of the Supreme Court of Russia, by way
of supervisory review proceedings, quashed the judgments of 24 March
1995 and 11 October 1995 and remitted the case for an additional
investigation.
- On
17 February 1997 the case file was transferred to the General
Prosecutor’s Office and the criminal proceedings were reopened.
On
3 April 1997 the applicant was released from custody on an
undertaking not to leave his town of residence. On 18 August 2000 he
was officially charged.
- On
an unspecified date the pre-trial investigation was completed and on
30 November 2000 the case file was submitted to the trial court for
judicial examination.
- On
18 September 2001 the Supreme Court of the Republic Khakasia
convicted the applicant of murder and sentenced him to 15 years’
imprisonment. The applicant was detained in the court room
immediately after the pronouncement of his sentence. By a judgment of
12 February 2003, the Supreme Court of Russia upheld the
conviction on appeal.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the proceedings had been
incompatible with the “reasonable time” requirement, laid
down in Article 6 § 1 of the Convention, which, in so far as
relevant, reads as follows:
“In the determination of ... any criminal charge
against him, everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
- The
Government contested that argument.
A. Admissibility
- The
Court considers 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.
Submissions by the parties
-
The Government submitted that the period under consideration had
begun on 18 August 2000, when the applicant had been charged in the
course of the additional investigation, and had ended on 18 September
2001, when the first-instance court had delivered its judgment. They
argued that the criminal proceedings had been particularly complex in
view of the remoteness of the events (the murder took place in 1989),
the large number of victims and defendants (seven and three
respectively) and the large number of documents in the case file
(twenty-nine volumes). The Government also asserted that the studying
of the case documents by the defendants’ legal counsel,
including the applicant’s lawyer, and repeated applications put
forward by the defence in the course of the court’s proceedings
had somewhat impeded the examination of the case.
-
According to the applicant, the whole period from 4 September 1996
until 12 February 2003 should be assessed by the Court. He further
argued that though the events that had triggered the additional
investigation had indeed taken place in 1989, they had already been
examined by the domestic courts in 1992-1996. The studying of the
case documents had taken only twenty-one days out of the ten-month
trial. The applications of the defence had been decided by the trial
court very quickly. Finally, it had taken the appeal court more than
one year and four months to examine his appeal. Therefore, all the
delays were attributable to the authorities.
2.
The Court’s assessment
(a) Period to be taken into consideration
-
The Court reiterates that in criminal matters, the “reasonable
time” referred to in Article 6 § 1 begins to run as soon
as a person is “charged”; this may occur on a date prior
to the case coming before the trial court (see, for example, Deweer
v. Belgium, judgment of 27 February 1980, Series A no. 35, §
42), such as the date of arrest, the date when the person concerned
was officially notified that he would be prosecuted, or the date when
preliminary investigations were opened (see Wemhoff v. Germany,
judgment of 27 June 1968, Series A no. 7, § 19; Neumeister v.
Austria, judgment of 27 June 1968, Series A no. 8, § 18; and
Ringeisen v. Austria, judgment of 16 July 1971, Series A no.
13, § 110). “Charge”, for the purposes of Article 6
§ 1, may be defined as “the official notification given to
an individual by the competent authority of an allegation that he has
committed a criminal offence”, a definition that also
corresponds to the test whether “the situation of the [suspect]
has been substantially affected” (see Deweer, cited
above, § 46).
16. In
the present case, the Court reiterates that the applicant was finally
convicted by the Supreme Court of Russia on 11 October 1995 which is
prior to 5 May 1998, the date on which the Convention was ratified by
Russia. This period cannot therefore be taken into consideration. As
regards the new trial which ended with the final judgment of the
Supreme Court of 12 February 2003, the Court considers in this
connection that the applicant was “notified” of the
charge against him on the day when the Presidium of the Supreme Court
of Russia quashed his conviction, that is on 4 September 1996.
However, the period to be taken into account began only on 5 May
1998, the date when the Convention was ratified by Russia. It ended,
as indicated, on 12 February 2003 with the final judgment of the
appeal court. Yet, in assessing the reasonableness of the time that
elapsed after the ratification date, due regard must be had to the
state of proceedings at the material time. At the ratification date
the criminal proceedings had been pending for approximately one year
and eight months.
-
Thus, the period to be assessed in the present case lasted for six
years, five months and ten days altogether for two levels of
jurisdiction, of which four years, ten months and eight days fall
within the Court’s competence.
(b) Reasonableness of the length of the proceedings
18. The Court reiterates that an accused in criminal proceedings
should be entitled to have his case conducted with special diligence.
The Convention institutions have consistently taken the approach that
Article 6, in respect of criminal matters, was designed to avoid that
a person charged should remain too long in a state of uncertainty
about his fate (see Nakhmanovich v. Russia, no. 55669/00,
§ 89, 2 March 2006).
-
The Court further reiterates that the reasonableness of the length of
proceedings must be assessed in the light of the circumstances of the
case and with reference to the following criteria: the complexity of
the case, the conduct of the applicant and the relevant authorities
(see, among many other authorities, Pélissier and Sassi v.
France [GC], no. 25444/94, § 67, ECHR 1999-II).
- As
to the complexity of the present case, the Court accepts that, in
principle, the remoteness of the events may cause certain
difficulties in establishing and assessing facts related to the
criminal offence. It should be noted, however, that the events in
question had already been subject to judicial examination in
1992-1995, and were thus not completely unknown to the investigative
and judicial authorities. Moreover, in the Court’s view, the
complexity of the case does not suffice, in itself, to account for
the length of the proceedings and regard should be had to the other
factors (see Golovkin v. Russia, no. 16595/02, § 39, 3
April 2008).
-
As to the conduct of the applicant, the Court is not convinced by the
Government’s argument that there were any delays which could be
attributed to him and his counsel. Nothing in the submitted materials
shows that their conduct at the hearings had been obstructive. The
Court reiterates that at all events applicants cannot be blamed for
taking full advantage of the resources afforded by national law in
their defence (see Yağcı and Sargın v. Turkey,
8 June 1995, § 66, Series A no. 319 A). It should thus be
concluded, that studying the case documents and lodging applications,
even in large numbers, during the course of the trial cannot be
viewed as factors justifying the length of the proceedings at issue.
-
As regards the conduct of the authorities, the Court observes that
there were substantial periods of inactivity for which the Government
have not submitted any satisfactory explanation and which are
attributable to the domestic authorities. In particular, the
Government failed to explain why it had taken more than three years
and nine months, of which two years, nine months and twenty-seven
days fall within the Court’s competence
ratione temporis, to
conduct the additional investigation of the case, which had already
been investigated in 1989-1995. Furthermore, no justification was
provided for the period of one year and four months which elapsed
while the appeal court examined the applicant’s appeal.
-
The Court has frequently found violations of Article 6 § 1 of
the Convention in cases raising issues similar to the one in the
present case (see Pélissier and Sassi, cited
above). Having examined all the material submitted to it,
the Court considers that the Government have not put forward any fact
or argument capable of persuading it to reach a different conclusion
in the present case. Having regard to its case-law on the subject,
the Court considers that, in the instant case, the length of the
proceedings was excessive and failed to meet the “reasonable
time” requirement.
There
has accordingly been a breach of Article 6 § 1.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
A. Complaints related to the period from 1992 to 1995
-
The applicant lodged several complaints related to the events of
1992-1995. He complained, in particular, of ill-treatment by the
police and an ineffective investigation in this respect, of the
unlawfulness of his arrest and of numerous procedural violations
during the pre-trial and the trial proceedings.
-
The Court reiterates that it is only competent to examine complaints
of violations of the Convention arising from events that have
occurred after the Convention entered into force with respect to the
High Contracting Party concerned. The Convention entered into force
in respect of Russia on
5 May 1998.
26. It follows that these complaints are incompatible ratione
temporis with the provisions of the Convention within the
meaning of Article 35 § 3 and must be rejected in accordance
with Article 35 § 4.
B. Complaints related to the period from 2001 to 2003
-
The applicant further complained that the domestic courts had failed
to assess correctly the facts and evidence in the case.
28. The Court observes that it is not its task under the Convention
to act as a court of appeal, or a so-called court of fourth instance,
where decisions taken by domestic courts may be contested. It is the
role of the latter to apply the domestic law and assess the evidence
before them (see, amongst many authorities, Vidal v. Belgium
judgment of 22 April 1992, Series A no. 235-B, pp.
32-33, § 33, and Edwards v. the United Kingdom judgment
of 16 December 1992, Series A no. 247-B, § 34).
-
It follows that this part of the application must be rejected as
being manifestly ill-founded, pursuant to Article 35 §§ 3
and 4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article
41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 1,500,000 euros (EUR) in respect of non-pecuniary
damage.
-
The Government contested the claim as unsubstantiated.
-
The Court considers that the applicant must have sustained
non-pecuniary damage, which would not be adequately compensated by
the findings of a violation alone. However, the amount claimed by the
applicant appears to be excessive. Ruling on an equitable basis, the
Court awards the applicant EUR 1,500 plus any tax that may be
chargeable on that amount.
B. Costs and expenses
- The
applicant did not claim reimbursement of his costs and expenses
incurred before the domestic authorities and the Court. Accordingly,
the Court does 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
- Declares the complaint concerning the excessive
length of the proceedings admissible and the remainder of the
application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
3. Holds
(a) that
the respondent State is to pay the applicant, within three months of
the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 1,500 (one
thousand five hundred 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 17 December 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
