FIRST SECTION

CASE OF POLOMOSHNOV v. RUSSIA

(Application no. 33655/04)

JUDGMENT

STRASBOURG

21 October 2010

This judgment is final but it may be subject to editorial revision.

In the case of ,
The European Court of Human Rights (First Section), sitting as a Committee composed of:
	Nina Vajić, President,
	Anatoly Kovler,
	Dean Spielmann, judges,
and André WampachDeputy Section Registrar,
Having deliberated in private on 30 September 2010,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 33655/04) 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 Viktor Vladimirovich Polomoshnov (“the applicant”), on 9 August 2004.
2.  The Russian Government (“the Government”) were represented by Mrs V. Milinchuk, former Representative of the Russian Federation at the European Court of Human Rights.
3.  On 26 March 2007 the President of the First Section decided to give notice of the application to the Government. In accordance with Protocol No. 14, the application was allocated to a Committee. It was also decided that the Committee would rule on the admissibility and merits of the application at the same time (Article 29 § 1 of the Convention).
THE FACTS
THE CIRCUMSTANCES OF THE CASE
4.  The applicant was born in 1973 and lives in Biysk of the Altay Region.
5.  On 2 March 1995 the applicant and other individuals were arrested on suspicion of causing lethal injury to Mr B. They were remanded in custody.
6.  On 9 June 1995 the case against the applicant, Mr K. and Mr S. was referred for trial to the Priobskiy District Court of the Altay Region (“the District Court”).
7.  Before 5 May 1998 when the Convention entered into force in respect of Russia, trial hearings were adjourned on many occasions for carrying out a psychiatric examination of Mr S., Mr K.’s illness, obtaining the attendance of the victim and the witnesses, the legal counsels’ default in appearance, and the judge’s involvement in different proceedings. The case was also once remitted to the prosecutor for further investigation. On 5 December 1997 the Altay Regional Court (“the Regional Court”) asked the president of the District Court to take measures to ensure compliance with the procedural time-limits.
8.  From 25 May to 4 June 1998 the court examined the case at regular hearings. On the latter date the applicant was released from custody on an undertaking not to leave the town.
9.  Two other hearings scheduled in 1998 and 1999 did not take place due to Mr S.’s representative’s failure to appear and Mr K.’s illness. In late 1999 the case was handed over to judge D.
10.  By letter of 22 November 1999, the Regional Court reported to the applicant’s mother that delays in the examination of the case were due to a substantial number of pending cases.
11.  On 24 January 2000 the hearing was postponed to 14 August 2000 following the witnesses’ failure to appear.
12.  On 11 April 2000 the case was remitted to the prosecutor for lack of competence of the investigative body. Upon return of the case, the trial court held two hearings in August 2000 and stayed the proceedings to carry out another psychiatric examination of Mr S.
13.  Once the proceedings resumed, the next hearing was scheduled for 5 February 2001. However, it did not take place on that date as the authorities had failed to deliver Mr K., who was serving his sentence out of town, to the court.
14.  On 22 February 2001 the case was once again remitted to the prosecutor to remedy certain procedural defects. Upon return of the case, it was examined at regular hearings from 13 to 20 August 2001.
15.  On 20 August 2001 the District Court handed down conviction by which the applicant was acquitted.
16.  On 4 October 2001 the Regional Court quashed the judgment on procedural grounds and remitted the case for a new trial.
17.  On 2 November 2001 the trial court adjourned the proceedings to carry out another psychiatric examination of Mr S. citing the significant period of time that had elapsed since the previous examination and taking into account new medical data in his respect. Once the proceedings resumed, two hearings were adjourned due to the failure to obtain the case file back from the medical institution and the applicant’s counsel’s default in appearance.
18.  On 17 January 2002 the District Court gave a new judgment by which it again acquitted the applicant.
19.  On 21 March 2002 the Regional Court set aside the judgment, finding that the District Court had failed to evaluate several witnesses’ statements. A new hearing was required.
20.  On 22 April 2002 the trial court adjourned the hearing due to Mr K.’s illness. On 20 May 2002 the case was remitted to the prosecutor for unspecified reasons.
21.  On 8 August 2002 the court suspended the proceedings pending the convalescence of Mr S.
22.  On 15 October 2002 the court ordered another psychiatric examination in respect of Mr S. following a newly established diagnosis. After resumption of the proceedings, two hearings did not take place due to the failure to obtain the case file back from the medical institution and then due to Mr. S.’s illness.
23.  Between 14 and 18 March 2003 the case was examined in regular hearings. On 18 March 2003 the District Court appointed another psychiatric examination of Mr S. on account of inconsistency of the previous results and adjourned the proceedings.
24.  The case was examined between 19 and 25 August 2003. On 27 August 2003 the hearing was adjourned due to the illness of Mr S.’s representative. On 5 September and 7 October 2003 the case was remitted to the prosecutor to remedy certain defects in the bill of indictment.
25.  On 11 December 2003 the District Court found the applicant and his co-defendants guilty of causing grievous bodily injuries to Mr B. The applicant was sentenced to six years’ imprisonment and taken into custody.
26.  On 12 February 2004 the Regional Court upheld the conviction on appeal.
THE LAW
I.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
27.  The applicant complained that the length of the criminal proceedings against him had been incompatible with the “reasonable time” requirement as provided in Article 6 § 1 of the Convention, the relevant part of which reads as follows:
“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”
A.  Admissibility
28.  The Government submitted that this complaint should be rejected as inadmissible in accordance with Article 35 §§ 3 and 4 of the Convention. They did not further elaborate on this argument.
29.  The Court notes that this complaint does not appear to be 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
30.  The Government admitted that the proceedings that had taken place before 23 January 2001 had not met the “reasonable time” requirement enshrined in Article 6 of the Convention. At the same time, they contended that the length had been justified by the objective factors, such as the complexity of the case, multiple referrals to the prosecutor’s office and orders for Mr S.’ psychiatric examinations, the applicant’s co-defendants’ illnesses and Mr K.’s remote location. They further stated that the delays had not had an adverse effect on the applicant as he had not been detained pending trial.
31.  The applicant maintained his complaints.
32.  The Court observes that the criminal proceedings against the applicant lasted from 2 March 1995 to 12 February 2004 spanning the investigation stage and the judicial proceedings, during which the courts reviewed the applicant’s case three times at two levels of jurisdiction. Taking into account that the Convention entered into force in respect of Russia on 5 May 1998, the aggregate length of the proceedings at issue amounted approximately to five years and nine months.
33.  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 applicant’s conduct and the conduct of the competent authorities (see, among many other authorities,  [GC], no. 25444/94, § 67, ECHR 1999-II).
34.  The Court accepts that the criminal proceedings against the applicant bore a certain degree of complexity having involved three co-defendants and a grave criminal charge. However, it cannot accept that the complexity of the case, taken on its own, was such as to justify the overall length of the proceedings (see, among others, Antonov v. Russia (dec.), no. 38020/03, 3 November 2005).
35.  Insofar as the applicant’s behaviour is concerned, the Court does not discern any delays attributable to him.
36.  Turning to the conduct of the authorities, the Court notes firstly that in assessing the reasonableness of the time that elapsed after entry of the Convention into force in respect of Russia, account must be taken of the state of proceedings at the time (see Belashev v. Russia, no. 28617/03, § 68, 4 December 2008). In this respect it recalls that by 5 May 1998 the proceedings had already continued for over three years and their length had been remarked on by a higher court (see paragraph 7 above).
37.  Regarding the period after 5 May 1998, the Court observes that a large portion of the time was taken up by five referrals of the case to the prosecutor’s office and four psychiatric examinations in respect of one of the defendants. While the Court is not in a position to assess the need for such repeated assignments, it recalls that they were necessitated by the defects and inconsistencies of the investigative actions, as well as the significant lapse of time that invalidated their results. The Court also observes that on two occasions the hearings had to be adjourned due to the failure of the State medical institution to promptly return the case file to the trial court, and on one occasion due to the authorities’ failure to deliver the applicant’s detained co-defendant to the trial. Taking into further account the large intervals between the sequences of hearings, it considers that the authorities did not display sufficient promptness and care in dealing with the applicant’s case.
38.  The Court takes cognisance of the Government’s admission of the unreasonable length of the proceedings prior to the first judgment produced by the trial court but considers that their subsequent course did not exhibit sufficient expedition capable of remedying this defect.
39.  Regard being had to the various delays attributable to the authorities, the Court considers that the length of the criminal proceedings against the applicant was in breach of the “reasonable time” requirement.
40.  There has accordingly been a violation of Article 6 § 1 of the Convention on this account.
II.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION
41.  The applicant also complained under Article 3 of the Convention that his pre-trial detention, the obligation to remain in town and unlawful conviction had amounted to inhuman treatment; under Article 6 § 3 (b) that he had not had access to the victim’s medical records used in the trial; under Articles 7, 17 and 53 that the witnesses’ testimonies had been forced by the police and that his conviction had not had a solid evidentiary basis.
42.  Having regard to all the materials in its possession, and in so far as this complaints fall within its competence, the Court finds that there is no appearance of a violation of the rights and freedoms set out in these provisions in that respect. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 1, 3 and 4 of the Convention.
III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
43.  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.”
44.  The applicant claimed a total amount of 194,397 Russian roubles (app. 4,913 euros) in respect of pecuniary damage. He did not submit any claim for non-pecuniary damage.
45.  The Government disputed the claim as irrelevant and ill-founded.
46.  The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1.  Declares the complaint concerning unreasonable length of the proceedings admissible and the remainder of the application inadmissible;

2.  Holds that there has been a violation of Article 6 § 1 of the Convention on account of the length of the proceedings;

3.  Dismisses the applicant’s claim for pecuniary damage.
Done in English, and notified in writing on 21 October 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	André Wampach	Nina Vajić
	Deputy 	President