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FIRST
SECTION
CASE OF KAZYULIN v. RUSSIA
(Application
no. 31849/05)
JUDGMENT
STRASBOURG
25
February 2010
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 Kazyulin v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina Vajić,
President,
Anatoly Kovler,
Elisabeth
Steiner,
Khanlar Hajiyev,
Dean
Spielmann,
Giorgio Malinverni,
George Nicolaou,
judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 4 February 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 31849/05) 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 Vladimir
Viktorovich Kazyulin (“the applicant”), on 5 August 2005.
- The
applicant was represented by Mr A. Zabusov, a lawyer practising in
the Tambov region. The Russian Government (“the
Government”) were represented by Mrs V. Milinchuk, former
Representative of the Russian Federation at the European Court of
Human Rights.
- On
26 March 2007 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. The Court examined and dismissed their
objection.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1962 and lives in Moscow.
- On
14 August 1995 police arrested the applicant on suspicion of
hooliganism and unlawful possession of firearms. On 17 August 1995 he
was placed in custody.
- In
December 1995 the prosecution authorities referred the case to the
Pervomayskiy District Court of the Tambov Region (“the District
Court”) for trial. The case was assigned to Judge V. However,
in January 1996 the District Court returned the case to the
prosecutor for additional investigation.
- In
February 1996 the applicant was released under a written undertaking
not to leave the town.
- According
to the Government, between 1996 and 1999
the proceedings were suspended on several occasions, either because
the applicant was sick or because he had breached the undertaking not
to leave the town. The Government did not provide any details in
respect of those adjournments.
- On
10 February 1999 the applicant was again placed in custody and on 23
February 1999 he was released under an undertaking not to leave the
town.
- On
2 March 1999 the prosecution authorities referred the case to the
District Court for trial. The District Court set the case down for
trial on 25 March 1999 and held that the applicant should remain
under an undertaking not to abscond.
- In
1999 the hearings of 25 March, 15 April were adjourned because the
applicant and the victim did not appear. The hearing of 26 May did
not take place because the witnesses did not appear. On 1 November
the case was postponed until 2 December because the applicant had not
received a copy of the indictment bill. However, on that date the
case was adjourned until 18 January 2000 because the victim and
witnesses did not appear.
- On
18 January 2000 the District Court again referred the case to the
prosecution authorities for additional investigation. On 17 February
2000 the Tambov Regional Court (“the Regional Court”)
quashed that decision on appeal and remitted the matter for fresh
examination to the District Court.
- On
4 October 2000 the case was adjourned until 8 November 2000 because
Judge V. was busy in unrelated proceedings. On the latter date it was
postponed until 14 December 2000 because the applicant was sick. On
that date the case was adjourned until 28 February 2001 because the
applicant, his counsel, but also the victim and witnesses did not
appear.
- In 2001 the case was adjourned on 28 February until 7
July because the applicant’s counsel and witnesses did not
appear, and on that date until 15 November because the applicant did
not appear. The hearing of 15 November did not take place
because the witnesses did not attend the hearing.
- In
2002 the case was adjourned on 28 March and 16 May because the victim
and the witnesses did not appear. On 15 August the case was adjourned
because the applicant and the victim did not appear, but also because
the judge was busy in unrelated proceedings. The hearing of
25 November did not take place because the applicant was sick
and the victim and the witnesses did not appear, and that of 5
December because the applicant’s counsel, the victim and the
witnesses did not appear.
- In
2003 the hearing of 28 March was adjourned because the victim and the
witnesses were absent and that of 24 April did not take place because
the applicant was sick.
- In 2004 the hearings of 28 January and 11 March did
not take place because the victim and the witnesses did not appear,
that of 25 May was adjourned because the applicant and the witnesses
were absent and that of 8 November was adjourned because the
victim and the witnesses did not appear.
- In
2005 the hearing of 23 March did not take place because the
applicant, the victim and the witnesses did not attend, that of 30
May was adjourned because the victim and the witnesses did not
appear, that of 16 June was postponed because the applicant, the
victim and the witnesses did not appear, those of 25 July and 13
September did not take place because the victim and the witnesses
were absent and that of 15 December was adjourned because the
applicant, victim and witnesses did not appear.
- In
2006 the hearing of 28 February was adjourned because the victim and
the witnesses did not appear and that of 23 March was postponed
because the applicant was sick.
- On
an unspecified date in 2006 the President of the District Court
requested the Judiciary Qualification Board of the Tambov Region to
take disciplinary measures in respect of Judge V. for her failure to
comply with procedural time-limits in the examination of cases
assigned to her, including the applicant’s case. In particular,
the President submitted that the proceedings against the applicant
had been adjourned several times due to the applicant’s,
victim’s and witnesses’ failure to attend the hearings.
The verification which had been carried out in that respect
established that Judge V. had not taken due measures to ensure the
presence of the above persons at court hearings.
- On
31 March 2006 the Judiciary Qualification
Board held that Judge V. had not respected procedural time limits in
the examination of cases assigned to her, including the case against
the applicant, and imposed on her a disciplinary sanction. Following
that decision the applicant’s case was reassigned to Judge L.
- On
11 April 2006 the District Court granted the applicant’s
request to have his case examined by a panel of three judges. Since
the District Court was staffed with only two judges the case was
forwarded to the Regional Court to determine the territorial
jurisdiction.
- On
28 April 2006 the Regional Court decided that the applicant’s
case had to be heard by the Michurinskiy District Court of the Tambov
Region. The applicant and his counsel appealed against that decision.
They claimed that the fact that the District Court had only two
judges was not sufficient grounds to change the territorial
jurisdiction. On 21 July 2006 the Supreme Court of the Russian
Federation (“the Supreme Court”) quashed the decision of
28 April 2006 and remitted the case to the District Court for
examination on the merits. The Supreme Court held that the applicant
had requested that his case be examined by a panel of three judges
and not asked for it to be referred to a different court. Therefore,
by referring his case to another court the Regional Court had
violated the applicant’s rights. The Supreme Court further held
that only cases concerning serious or particularly serious offences
fell to be examined by a panel of three judges, whereas the charges
against the applicant did not fall into those categories.
- In
the remainder of 2006 several hearings were adjourned. On 31 August
the District Court set the hearing of the case for 12 September. On
that date the court heard the victim. The applicant submitted that he
wished to give his testimony after the victim and the witnesses.
Since some of the witnesses were absent from the hearing, the case
was adjourned until 26 September. The District Court ordered
those witnesses to be brought to the hearing. However, on 26
September the applicant and his counsel did not appear and the case
was adjourned until 7 November. On that date the case was postponed
until 23 November because one of the applicant’s lawyers did
not appear. The hearings of 23 November and 14 December did not take
place because the applicant and the witnesses did not attend them.
- In 2007 the hearing of 18 January was adjourned
because the applicant and his counsel did not appear. On 13 February
2007 the District Court heard three witnesses. The applicant and his
counsel did not appear after the recess in the
hearing and the case was adjourned until 6 March 2007. The hearings
of 6 and 22 March, 19 April, 3 and 22 May, 6 and 20 June and 17
July 2007 did not take place because either the applicant or his
counsel did not appear.
- The
District Court addressed several notification letters to the
applicant. However, they were not delivered to him since he was not
at his address, and he did not pick them up at the post office. The
bailiffs could not bring the applicant to the hearing either, because
he was never to be found at his address. It appears that the criminal
proceedings are still pending before the first-instance court.
THE LAW
I. ALLEGED VIOLATIONS OF ARTICLES 6 and 13 OF THE
CONVENTION
- The
applicant complained under Articles 6 and 13 of the Convention that
the length of the criminal proceedings against him had been excessive
and that he had not had an effective remedy in that respect. Articles
6 and 13 of the Convention, in so far as relevant, provide as
follows:
“In the determination of ... any criminal charge
against him, everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal ...”
“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. Admissibility
- The
Court notes that those complaints are not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention. It
further notes that they are not inadmissible on any other grounds.
They must therefore be declared admissible.
B. Merits
1. Period to be considered
- The
Court observes that criminal proceedings against the applicant
commenced on 14 August 1995. However, the Court only has competence
ratione temporis to examine the period after 5 May 1998, when
the Convention entered into force in respect of Russia. In assessing
the reasonableness of the time that elapsed after that date, account
must be taken of the state of the proceedings at the time. The period
in question has not ended yet. Therefore, the proceedings have so far
lasted more than eleven years at one level of jurisdiction.
2. Reasonableness of the length of proceedings
- The
Government submitted that the length of the proceedings in the
present case had been reasonable. The examination of the case had
been complicated by the serious nature of the charges against the
applicant and by difficulties in summoning witnesses. The applicant
and his counsel had contributed to delays in the proceedings by
repeatedly failing to attend the hearings. The case had been
adjourned several times on objective grounds, such as failure of
different persons to attend hearings, examination of the applicant’s
motions and remittals of the case for additional investigation. After
lodging his complaint with the Court, the applicant had intentionally
failed to attend the hearings.
- The applicant maintained his complaint. He admitted
that he had not attended several hearings. However, he claimed that
he had informed the District Court of the reasons for his absences.
- 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 complexity of the case and 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).
- 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, and Vachev
v. Bulgaria, no. 42987/98, §§ 86-97, ECHR
2004 VIII (extracts); Chrysoula Aggelopoulou v. Greece,
no. 30293/05, §§ 16-19, 4
December 2008; and Sarantidis v. Greece, no. 23163/07,
§§ 25-27, 5 February 2009).
- 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 of the
Convention.
3. Lack of effective remedy in respect of the length of
the proceedings
- The
Government submitted that the domestic authorities had taken due
measures to protect the applicant’s right to have his criminal
case examined within a reasonable time. In particular, the Judiciary
Qualification Board had imposed a disciplinary sanction on Judge V.
for her failure to ensure the attendance of participants in the
criminal proceedings, including the applicant. The applicant had had
a possibility to complain about the delayed examination of his case
to other judicial bodies, but he had not lodged any requests to speed
up the examination of his case or requested the domestic court to
summon the witnesses and victim to the hearings. He had himself
contributed to the length of the proceedings.
- The
applicant maintained his complaint.
- The
Court reiterates that Article 13 guarantees an effective remedy
before a national authority for an alleged breach of the requirement
under Article 6 § 1 to hear a case within a reasonable time (see
Kudła v. Poland, no. 30210/96, § 156, ECHR
2000-XI). Furthermore, an effective remedy required by Article 13 of
the Convention is intended to be capable of either expediting the
proceedings or providing the applicant with adequate redress for
delays that have already occurred (see Kudła, cited
above, §§ 157-159).
- The
Court finds that even if the decision of the Judiciary Qualification
Board imposing a disciplinary measure on the judge could be
considered as a measure intended to expedite proceedings in the
applicant’s case, it did not provide the applicant with
adequate redress for delays that had already occurred. The Court
notes that the Government did not indicate any other remedy that
could have expedited the determination of the applicant’s case
or provided him with adequate redress for delays that had already
occurred (see Klyakhin v. Russia, no. 46082/99, §§
101-102, 30 November 2004, and Sidorenko v. Russia, no.
4459/03, § 39, 8 March 2007).
- Accordingly,
the Court considers that in the present case there has been a
violation of Article 13 of the Convention in that the applicant
had no domestic remedy under domestic law whereby he could enforce
his right to a hearing within a reasonable time as guaranteed by
Article 6 § 1 of the Convention.
II. 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 10 million Russian roubles in respect of
non-pecuniary damage.
- The
Government contested that claim.
- The
Court considers that the applicant must have sustained non-pecuniary
damage. However, the amount claimed appears to be excessive. Ruling
on an equitable basis, it awards him 6,700
euros under that head, plus any tax that may be chargeable on that
amount.
B. Costs and expenses
- The
applicant did not submit any claim for costs and expenses.
Accordingly, the Court makes no award under that 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 application admissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention in respect of the unreasonable length of
criminal proceedings against the applicant;
- Holds that there has been a violation of Article
13 of the Convention on account of absence of an effective remedy
against the unreasonable length of criminal proceedings;
- 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 6,700
(six thousand seven hundred 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 25 February 2010,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Nina Vajić
Registrar President
