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FIRST
SECTION
CASE OF SHENOYEV v. RUSSIA
(Application
no. 2563/06)
JUDGMENT
STRASBOURG
10
June 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 Shenoyev v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis, President,
Nina
Vajić,
Anatoly Kovler,
Khanlar
Hajiyev,
Sverre Erik Jebens,
Giorgio
Malinverni,
George Nicolaou, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 20 May 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 2563/06) 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 Anton Igorevich Shenoyev
(“the applicant”), on 31 October 2005.
- The
applicant was represented by Mr B. Ilyunov, a lawyer practising
in Ulan-Ude. The Russian Government (“the Government”)
were represented by Mr G. Matyushkin, Representative of the
Russian Federation at the European Court of Human Rights.
- On
30 January 2009 the President of the First Section decided to give
priority treatment to the application and to give notice of it to the
Government. It was also decided to examine the merits of the
application at the same time as its admissibility (Article 29 §
3 of the Convention).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1971 and is serving a prison sentence in colony
no. 18 in the Yamalo-Nenetskiy Region.
A. Preliminary investigation
- The applicant was arrested on 27 March 2003. He was
suspected of unlawful possession of firearms and two robberies of
local post offices, as well as robbery, triple murder and attempted
murder of security officers transporting money. It appears that the
applicant was informed of his procedural rights, including the
privilege against self-incrimination. The investigator interviewed
him in the presence of a lawyer; the applicant made admissions in
relation to the above offences. A search was carried out of the
applicant's garage and another location indicated by the applicant;
certain evidence such as coins, guns and gun cartridges were seized.
On 28 March 2003 one of the victims identified the applicant in
a line-up procedure as the alleged perpetrator.
- On 29 March 2003 the applicant was brought before a
judge of the Oktyabrskiy District Court of Ulan-Ude. Having heard the
parties, the district judge authorised the applicant's continued
detention on account of the admissions, the identification of the
applicant by one of the victims and the evidence seized. The judge
excluded any less intrusive preventive measure on account of the
number and gravity of the offences of which the applicant was
suspected and the risk that he would reoffend or abscond.
- The
applicant's detention was examined again on 17 April 2003 and he was
remanded in custody on the same grounds. The judge also referred to
the applicant's personality and that he “had committed several
criminal offences within a short period of time”. Lastly, the
judge noted that the period asked for (more than two months) by the
investigating authority was justified by the need to carry out
specific investigative measures and to obtain ten expert reports.
- According to an out-patient psychiatric report dated 26
May 2003, the applicant had symptoms of “an accentuated
personality” prone to gambling; however, this condition was not
considered as requiring treatment or entailing any legal consequences
(see also paragraph 22 below).
- At a remand hearing on 19 June 2003 the applicant chose
to remain silent; his counsel made no comment on the prosecution's
extension request. The judge extended the applicant's detention with
reference to the number and gravity of the charges, and the risk that
he would abscond or interfere with the course of the investigation.
- The
investigator applied for a further extension on 15 August 2003. The
judge heard the applicant and his counsel, none of whom objected to
the remand request, referring to their wish to continue the study of
the case file. The judge granted the prosecutor's request, referring
to the gravity of the charges and the risk that the applicant would
abscond, reoffend or interfere with the course of the proceedings. A
further detention order was issued on 17 September 2003. The
applicant and his counsel raised no objection to the extension
request.
B. First trial
- On
14 October 2003 the criminal case against the applicant was listed
for trial before the Supreme Court of the Buryatiya Republic (“the
Regional Court”). The selection of a jury panel was carried out
between 27 November and 9 December 2003. Between 11
December 2003 and 23 March 2004 the jury heard evidence and
witnesses. On an unspecified date the applicant retracted statements
that he had made previously. On 23 March 2004 the jury found the
applicant guilty as charged.
- On
13 April 2004 the Regional Court approved the applicant's detention
for a further three months, referring to the gravity of the charges
and the need to complete the trial.
- On
20 April 2004 the trial judge sentenced the applicant to life
imprisonment. Thereafter and until July 2004 the parties studied the
trial record and submitted their objections to it.
- The
applicant appealed against the verdict, considering that the
composition of the jury panel had been unlawful because the next of
kin of some jurors had criminal records, which under the applicable
legislation should have prevented those jurors from sitting on a
panel.
- In
August 2004 the case was sent to the Supreme Court of Russia. Between
October 2004 and February 2005 the applicant submitted further
statements of appeal. After the applicant's unsuccessful attempts, in
February 2005 the Supreme Court itself sought to obtain further
particulars on the criminal records of jurors' next of kin.
- On
8 June 2005 the Supreme Court set the verdict aside on account
of irregularities in the jury selection procedure, including the
above issue of next-of-kin convictions. However, the appeal court
rejected the remaining points of appeal as unfounded. Lastly, it
indicated without further reasons that “the preventive measure
(detention) in respect of the applicant should be maintained”.
C. Second trial
- The retrial started on 17 August 2005. The Regional
Court held a hearing and decided that “the applicant should
remain in custody”. Subsequently, the Supreme Court held that
there had been no need for the decision of 17 August 2005. Noting
that the applicant did not challenge his detention, the Supreme Court
stated that, in any event, the question of remand had already been
determined in the decision of 8 June 2005.
- In the meantime, on 7 September 2005, the Regional
Court held a remand hearing. It appears that the applicant and his
counsel made no comment on the prosecution's request, leaving the
matter to the Court's discretion. The judge granted an extension with
reference to the gravity of the charges and the risk that the
applicant would abscond or interfere with the course of the
proceedings.
- Further
extensions were issued on 7 December 2005, 22 February and 23
May 2006. On each occasion the Regional Court considered that the
reasons referred to since the order of 29 March 2003 remained valid,
namely, the risk that the applicant would abscond, reoffend or
interfere with the course of the proceedings, supported by the
gravity of the charges against the applicant.
- On
22 February 2006 the trial judge ordered a further extension. He
rejected the applicant's arguments that were based on the
considerable length of detention, his permanent residence and the
need to take care of an underage child. The judge stated that the
length of detention was not a matter to be taken into account for the
remand, and that the reasons for it were still valid. Another remand
decision in similar terms was issued on 23 May 2006.
- The
jury selection procedure lasted from 27 March to 4 April 2006. On 27
June 2006 the jury returned a guilty verdict on all counts except for
unlawful procurement and possession of gun cartridges.
- On 13 October 2006 an in-patient psychiatric report
was commissioned. Remand orders were issued on 28 August and
21 November 2006. The report was issued in February 2007.
- On
21 February 2007 the Supreme Court held a remand hearing. The
applicant did not attend because he had been admitted to a Moscow
hospital for the in-patient forensic examination. However, he was
represented at that hearing by counsel who consented to proceed
without the applicant being present. The remand judge extended the
applicant's detention indicating that “the applicant had been
charged with and found guilty by a jury of particularly serious
offences and risked a heavy sentence of imprisonment”. Thus,
the judge concluded that the applicant would abscond if at large and
would thus obstruct the proceedings.
- On 22 May 2007 the trial judge upheld the jury verdict
and sentenced the applicant to life imprisonment. As follows from the
trial judgment, the applicant underwent an in-patient examination by
psychiatrists who concluded that he had a serious addiction to
gambling; that at the time of the offences he had been unable to
fully comprehend the dangerousness of his actions; and that at the
time of the psychiatrists' report he had needed no compulsory medical
treatment (see also paragraphs 8 and 22 above). While accepting the
report in evidence, the trial judge considered that the applicant was
legally liable for the relevant offences.
- On
14 June 2007 the Supreme Court upheld the extension order of 21
February 2007. It refused the applicant leave to be present at the
appeal hearing or to participate in it by way of a video link.
- On
27 February 2008 the Supreme Court examined the parties' appeals
and ordered a retrial because one of the jurors had a mental illness,
which under the applicable legislation prevented him from sitting as
a juror. Referring to the gravity of the charges, the appeal court
held that the applicant should remain in detention pending the
retrial.
D. Third trial
- On 8 April 2008 the Regional Court extended the
applicant's detention noting that the retrial was pending. It
considered that there was a risk of the applicant fleeing justice on
account of (i) the gravity of the criminal offences leading, if
convicted, to long custodial sentences or life imprisonment; (ii) the
fact that the applicant had been previously subject to criminal
prosecution for unspecified offences. The judge also referred to the
2007 psychiatric report concluding that the applicant had a serious
addiction to gambling which had led to changes in his social, family
and professional behaviour and to his being prone to unlawful
conduct. In addition to the above, the judge held as follows:
“On the facts of the case, including the nature of
the offences (several robberies and murders)...related to the [the
applicant's] passion for gambling, which in its turn led to the
incurring of debts and misappropriation of property, the Court
concludes that a less intrusive preventive measure would allow the
applicant to resume his criminal activity and the damage caused to
the public interest would manifestly exceed the damage related to the
limitation inherent in the deprivation of liberty.
The Court has taken due account of the fact that [the
applicant] has a permanent place of residence, provided positive
accounts from his employer and has an underage child in his care.
This detention order is based on the persistence of the
circumstances justifying the initial arrest and detention. No
sufficient reasons for varying the preventive measure have been
adduced.”
- On
29 April 2008 the trial judge returned the case to the prosecutor to
amend the list of evidence to be presented at the trial. The judge
also upheld the applicant's continued detention on account of the
risk that he would reoffend (based on the gravity of the offences and
eventual sentences, as well as the previous prosecution against the
applicant). On 9 July 2008 the Supreme Court set aside the part of
the decision of 29 April 2008 relating to the remittal but upheld the
detention.
- On
27 June and 24 September 2008 the Regional Court extended the
applicant's detention on the same grounds as were given in the order
of 8 April 2008.
- The
trial resumed on 14 August 2008. On 14 December 2008 the jury
convicted the applicant as charged. On 29 December 2008 the trial
judge sentenced the applicant to life imprisonment.
- On
4 June 2009 the Supreme Court quashed the conviction on one count and
upheld the remainder of the verdict and the sentence. It appears that
the applicant obtained a copy of the appeal decision on an
unspecified date in July 2009.
II. RELEVANT DOMESTIC LAW
- Pursuant
to Article 109 § 1 of the Code of Criminal Procedure, detention
of an accused pending investigation should not exceed two months. It
may, however, be extended to six months. Further extensions to up to
twelve months are possible only in relation to persons accused of
serious or very serious criminal offences, in view of the complexity
of the case and if there are grounds justifying detention. An
investigator's request for extension must be approved by the regional
prosecutor (§ 2). Further extension of detention beyond twelve
months and up to eighteen months may be authorised only in
exceptional circumstances in respect of persons accused of very
serious offences, upon an investigator's request approved by the
Prosecutor General or his deputy (§ 3). Extension of detention
beyond eighteen months is prohibited and the detainee must be
released, unless the court decides to extend his detention to the
date when the accused has finished studying the case file and the
case has then been submitted for trial (§§ 4 and 8 (1)).
After the completion of the investigation, an accused kept in
detention must be provided with access to the case file no later than
thirty days preceding the expiry of the maximum period of detention
indicated in paragraphs 2 and 3 (§ 5). If such access was given
later than that, the detainee must be released after the expiry of
the maximum period of detention (§ 6). If the thirty-day
time-limit was complied with, but was insufficient for the accused,
the investigator, with the approval of the regional prosecutor, may
request the court to extend the accused's detention. Such a request
should be submitted no later than seven days before the expiry of the
maximum detention period (§ 7).
- Under Article 255 of the Code, after a criminal case
has been submitted for trial to a court, the latter may, on the
party's request or proprio motu, vary or annul a measure of
restraint in respect of the defendant, including placement in custody
or detention pending trial. The period of detention pending trial
cannot normally exceed six months from the date when the case was
submitted to a court and up to delivery of a judgment in the case.
However, after the expiry of that period the trial court may extend
the detention of a defendant charged with a serious or very serious
offence. Each extension must not exceed three months.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE
CONVENTION
- The
applicant complained that his detention before and during the first
trial and the retrials had been in breach of Article 5 § 3 of
the Convention, which reads as follows:
“Everyone arrested or detained in accordance with
the provisions of paragraph 1 (c) of this Article shall be
... entitled to trial within a reasonable time or to release pending
trial. Release may be conditioned by guarantees to appear for trial.”
- The
Government submitted that the authorities' initial and persisting
reasonable suspicion against the applicant had been based on his
admissions and his subsequent retraction, which indicated that he
would abscond or tamper with evidence or witnesses, if at large. At
the remand hearings before the start of the trial the defence adduced
no evidence to suggest that the initial circumstances justifying
detention had changed. Equally, the applicant's detention pending
trial was also based on relevant considerations such as the nature of
the offences, the fact that he had committed murder motivated by his
gambling addiction, the fact that the offences had been planned and
that he had destroyed any evidence of them.
- The
applicant maintained his complaint.
A. Admissibility
- 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. Periods under consideration
- The
Court observes that the applicant was arrested on 27 March 2003 and
convicted on 20 April 2004, the date on which the sentence was
pronounced by the trial judge after the jury verdict. The Court
reiterates in that connection that detention comes to an end for the
purposes of Article 5 §§ 1 (c) and 3 of the Convention
with the finding of guilt and the sentence imposed at first instance
(see Solmaz v. Turkey, no. 27561/02, § 26, ECHR
2007 II (extracts)).
- The
applicant's subsequent detention until 8 June 2005 was
authorised under Article 5 § 1 (a) of the Convention. The
periods from 8 June 2005 to 22 May 2007 and from 27 February
to 29 December 2008, when the proceedings were resumed and were
pending, also fall under Article 5 §§ 1 (c) and 3.
- The
Court further observes that the first period of the applicant's
detention under Article 5 § 1 (c) ended on 20 April 2004, while
the applicant first applied to the Court in October 2005. The Court
considers, however, that all three periods of the applicant's
detention falling within the scope of Article 5 § 1 (c), and
thus also paragraph 3, should be taken as a whole (see Solmaz,
cited above, §§ 34-37, and Bordikov v. Russia,
no. 921/03, §§ 76-85, 8 October 2009). The six-month
time-limit should only start to run from the end of the last relevant
period, namely 29 December 2008, when the trial judge adopted
the most recent jury verdict and pronounced the sentence.
- The
Court will thus make a global evaluation of the applicant's detention
for the purposes of Article 5 § 3 of the Convention between 2003
and 2009. Consequently, the Court concludes that, after deducting the
periods when the applicant was detained after conviction for the
purposes of Article 5 § 1 (a) of the Convention from
the total time that he was deprived of his liberty, the cumulative
period to be taken into consideration in the instant case is three
years and nearly ten months.
2. The Court's assessment
- The
applicant was arrested on suspicion of murder and robbery following a
search of his flat and the seizure of evidence (see paragraphs 5 and
6 above). Moreover, he made admissions in connection to the above
criminal offences. The Court is satisfied in the circumstances that
the suspicion against the applicant was a reasonable one and that the
existence of this suspicion justified the applicant's arrest and the
initial period of detention. The jury verdicts were quashed on
appeal. In the Court's view, the appeal court, having full knowledge
of the case, could be said to have made its decision on both
occasions on the basis of the facts before it, that there was still a
case for the applicant to answer and one sufficient to warrant a
retrial. The persistence of reasonable suspicion may therefore be
said to have derived from the same basis as the decision to order a
retrial. It has not been alleged that this suspicion was
dispelled at any point in the subsequent proceedings or ceased to be
“reasonable” on account of any change in the relevant
circumstances. The Court finds no reason to reach a different
conclusion.
- The
Court further reiterates that while the persistence of reasonable
suspicion that the person arrested has committed an offence is a
condition sine qua non for the lawfulness of the continued
detention, with the lapse of time this no longer suffices. Thus, the
Court must establish whether the other grounds given by the judicial
authorities continued to justify the deprivation of liberty (see
McKay v. the United Kingdom [GC], no. 543/03, § 44,
ECHR 2006-...). Where such grounds were “relevant” and
“sufficient”, the Court must also be satisfied that the
national authorities displayed “special diligence” in the
conduct of the proceedings.
- The
Court further observes that the main thrust of the applicant's
grievance before the Court relates to the second (8 June 2005 to 22
May 2007) and third (27 February to 29 December 2008)
periods of his detention. It is also noted that at least until
September 2005 the applicant did not put forward any specific
arguments relating to the subject of his remand, leaving the matter
to the judges' discretion (see paragraphs 9, 17 and 18 above).
However, it did not absolve the national authorities from
establishing specific indications of a genuine requirement of public
interest which, notwithstanding the presumption of innocence,
outweighed the rule of respect for individual liberty laid down in
Article 5 of the Convention (see, among other authorities, Bykov
v. Russia [GC], no. 4378/02, §§ 62 and 63, ECHR
2009 ...).
(a) The risk of perverting the course of
proceedings
- The
Court observes that the applicant was arrested in relation to violent
offences and that the domestic courts referred to the risk that he
would pervert the course of proceedings mainly in relation to the
preliminary investigation and the first trial. This matter is not,
however, without relevance in the subsequent proceedings in so far as
the courts referred back to the persistence of the grounds, including
that risk, which justified the applicant's arrest in 2003 and the
extension of his detention.
- The
Court observes that the national authorities did not specify any form
in which the above risk could materialise, despite the applicant's
admissions made after the arrest in 2003. Nor did they have regard to
pertinent factors such as the advancement of the investigation or
judicial proceedings and their resumption or any other specific
indications justifying the fear that he might abuse his regained
liberty by carrying out acts aimed, for instance, at the
falsification or destruction of evidence (see W. v. Switzerland,
26 January 1993, § 36, Series A no. 254-A).
- It
is not apparent that the reasoning of the remand judges was based on
certain other arguments put forward by the respondent Government
before this Court, for instance that the offences had been planned
and that he had destroyed any evidence of them (cf. Boyle v. the
United Kingdom, no. 55434/00, §§ 38 and 42, 8 January
2008). The Court reiterates in that connection that it is not its
task to take the place of the national authorities who ruled on the
applicant's detention (see Ilijkov v. Bulgaria, no. 33977/96,
§ 86, 26 July 2001).
- Thus,
the Court is not satisfied that the risk was established that the
applicant would pervert the course of proceedings.
(b) The risk of reoffending
- The
risk of reoffending, if convincingly established, may lead the
judicial authorities to place and leave a suspect in detention in
order to prevent any attempts to commit further offences. It is
however necessary, among other conditions, that the danger be a
plausible one and the measure appropriate, in the light of the
circumstances of the case and in particular the past history and the
personality of the person concerned (see Clooth v. Belgium,
judgment of 12 December 1991, § 40, Series A
no. 225, and Paradysz v. France, no. 17020/05, § 71,
29 October 2009).
- The
domestic courts mentioned that the applicant had previously been
prosecuted for unspecified criminal offences. The Court accepts that
such matters may be relevant in assessing the danger of reoffending.
However, the national courts did not attempt to assess the relevant
risk, including whether the previous facts and charges were
comparable, either in nature or in the degree of seriousness, to the
charges in the pending proceedings (ibid; see also Popkov v.
Russia, no. 32327/06, § 60, 15 May 2008, and
Shteyn (Stein) v. Russia, no. 23691/06, § 115, 18 June
2009).
- In
2008 the courts also referred to the applicant's gambling addiction
to support their conclusion on the risk of reoffending. The Court
does not exclude that this consideration could be relevant to the
question of remand. The Court observes that the psychiatric report
dated back to February 2007 and concluded that the applicant's
psychiatric condition had required no compulsory treatment at that
time (see paragraph 24 above). The conclusions of the report in the
part relating to the events of 2003 are not sufficient for justifying
the risk that the applicant would reoffend in 2008 (see Richet v.
France, no. 34947/97, § 64, 13 February 2001, and,
by contrast, Bouchet v. France, no. 33591/96, § 46, 20
March 2001). In any event, any preventive measure against the
applicant could have been accompanied by the appropriate medical
supervision. The parties did not inform the Court whether the
applicant received any relevant treatment during his detention.
- Thus,
the Court is not convinced that the risk of reoffending was
sufficiently established.
(c) The risk of flight
- The
national courts considered that there was a risk of flight on account
of (i) the gravity of the criminal offences leading, if convicted, to
long custodial sentences or life imprisonment; (ii) the fact that the
applicant had previously been prosecuted for unspecified criminal
offences.
- The
Court reiterates that the risk of flight should be assessed with
reference to various factors, especially those relating to the
character of the person involved, his morals, his home, his
occupation, his assets, his family ties and all kinds of links with
the country in which he is being prosecuted (see Neumeister v.
Austria, 27 June 1968, § 10, Series A no. 8).
- While there is no clear indication of the way in which
any alleged previous criminal record was capable of confirming that
risk, the Court cannot but note that the applicant was accused of
serious offences and made admissions. While the applicant retracted
during the first trial, the jury found him guilty (in 2004 and 2007)
and the maximum sentence (life imprisonment) was imposed on both
occasions. It is also noted that while setting aside the first
verdict on account of irregularities in the jury selection procedure,
the appeal court rejected the remaining points of appeal as
unfounded. In the particular circumstances of the case the Court is
ready to accept that at the time the relevant factors disclosed a
heightened risk of flight (cf. Gault v. the United Kingdom,
no. 1271/05, § 22, 20 November 2007).
(d) Special diligence
- The
finding in paragraph 55 notwithstanding, the Court is not satisfied
that the national authorities displayed due diligence in the conduct
of the proceedings. The Court fully appreciates that the right of an
accused in detention to have his case examined with particular
expedition should not unduly hinder the efforts of the courts to
carry out their tasks with proper care (see Tomasi v. France,
27 August 1992, § 102, Series A no. 241 A). The available
material shows, nevertheless, that in this case the national courts
did not act with the necessary promptness. The Court observes in that
connection that the applicant spent more than three years in
detention on remand and that there were considerable delays before
the start of the second trial, as well as between the guilty verdict
in June 2006 and the pronouncement of the sentence in May 2007. At
the same time, the length of the contested detention would not appear
to be essentially attributable either to the complexity of the case
or to the applicant's conduct. Thus, the Court considers that the
applicant's right to trial within a reasonable time was not complied
with.
- There
has accordingly been a violation of Article 5 § 3 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicant complained that the length of the criminal proceedings
against him had exceeded a reasonable time, in breach of Article 6 §
1 of the Convention, 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 ...”
- The
Government submitted that the proceedings were complex on account of
the number and nature of the charges, as well as given the inherent
complexity of jury trials. There had been no significant periods of
inactivity attributable to the State. The re-examination of the case
on several occasions had been directed at rendering justice and
correcting errors. The applicant had delayed the study of the case
file during the preliminary investigation; he had studied it again on
seven occasions during the court examination of the case; his
numerous requests (examination of additional witnesses, replacements
of counsel, personal participation in appeal hearings in Moscow) had
required additional time; counsel had failed to attend hearings on
several occasions; and the applicant had changed his versions of the
events.
- The
applicant maintained his complaint.
A. Admissibility
- 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
proceedings started on 27 March 2003, when the applicant was
arrested, and ended on 4 June 2009. Thus, they took more than six
years and two months for the pre-trial proceedings and the court
proceedings at two levels of jurisdiction.
- 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 relevant authorities (see, among
many other authorities, Pélissier and Sassi v. France
[GC], no. 25444/94, § 67, ECHR 1999-II). The Court has examined
the applicant's complaint, bearing in mind that it essentially
concerned the proceedings before national courts (see Dawson v.
Ireland (dec.), no. 21826/02, 8 July 2004).
- The
Court is not convinced that the case was particularly complex, inter
alia, given that the applicant made admissions at the initial
stage of the investigation. While it is true that jury trials may
entail certain difficulties, they were not such as to justify the
overall length of the proceedings.
- As to the applicant's conduct, the Court reiterates
that an applicant cannot be required to cooperate actively with the
judicial authorities, nor can he be criticised for having made full
use of the remedies available under the domestic law in the defence
of his interests (see, among others, Rokhlina v. Russia,
no. 54071/00, § 88, 7 April 2005). It is not apparent
from the material in the case file that the applicant or his counsel
defaulted, went beyond the limits of legitimate defence by lodging
frivolous petitions or unsubstantiated requests or otherwise
significantly contributed to the length of the proceedings (see
Komarova v. Russia, no. 19126/02, § 50,
2 November 2006).
- On
the other hand, the Court considers that certain delays were
attributable to the domestic authorities. In addition to certain
specific delays such as between August 2005 and March 2006 or between
October 2006 and May 2007, the length of the proceedings was due to
the re-examination of the case on several occasions on account of the
defects in the composition of the jury panels. Although the Court is
not in a position to analyse the juridical quality of the domestic
courts' decisions, it considers that, since the remittal of cases for
re-examination is frequently ordered as a result of errors committed
by lower courts, the repetition of such orders within one set of
proceedings may disclose a serious deficiency in the judicial system
(see Oblov v. Russia, no. 22674/02, § 28, 15 January
2009, with further references).
- Lastly,
the Court takes into account that during the proceedings the
applicant remained in custody and thus particular diligence on the
part of the authorities was required.
- Making
an overall assessment, the Court concludes that in the circumstances
of the case the “reasonable time” requirement has not
been respected. There has accordingly been a violation of Article 6 §
1 of the Convention.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant also complained under Article 3 of the Convention that he
had been subjected to inhuman treatment and deprived of food. He
complained under Article 5 of the Convention that there had been no
judicial authorisation of his detention from 14 July 2004 to 8 June
2005; that he had not been afforded an opportunity to be present at
the remand hearing on 21 February 2007 and on appeal on 14 June 2007.
- The
Court has examined these complaints as submitted by the applicant.
However, having regard to all the material in its possession, it
finds that these complaints 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 Article 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 monetary compensation in respect of non-pecuniary
damage, leaving its amount to the Court's discretion.
- The
Government contested this claim, indicating that the applicant should
have applied to the Russian courts for relief.
- There
is no indication that the internal law of the respondent State
allowed or allows for reparation in respect of the violations found
(see, among others, Korshunov v. Russia, no. 38971/06, §§
61-63, 25 October 2007, and Borzhonov v. Russia, no. 18274/04,
§§ 34-37, 22 January 2009). Having regard to the nature of
the violations, the Court awards the applicant 4,000 euros (EUR)
in respect of non-pecuniary damage, plus any tax that may be
chargeable to him.
B. Costs and expenses
- The
applicant submitted copies of various receipts without claiming any
specific amount or explaining its relevance to the case.
- The
Government considered that no claim had been made.
- According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, the Court does not
consider it necessary to make any award on 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 complaints concerning the length of
the detention and the length of the criminal proceedings against the
applicant admissible and the remainder of the application
inadmissible;
- Holds that there has been a violation of Article
5 § 3 of the Convention;
- 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 of
the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 4,000 (four
thousand euros), plus any tax that may be chargeable to the
applicant, in respect of non-pecuniary damage, to be converted into
Russian roubles at the rate applicable on 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 10 June 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
