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FIRST
SECTION
CASE OF TIMOSHIN v. RUSSIA
(Application
no. 41643/04)
JUDGMENT
STRASBOURG
7
February 2012
This
judgment is final but it may be subject to editorial revision.
In the case of Timoshin v. Russia,
The
European Court of Human Rights (First Section), sitting as a
Committee composed of:
Mirjana Lazarova Trajkovska,
President,
Anatoly Kovler,
Linos-Alexandre
Sicilianos, judges,
and André Wampach,
Deputy Section Registrar,
Having
deliberated in private on 17 January 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 41643/04)
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 Vladimir Alekseyevich Timoshin (“the
applicant”), on 3 October 2004.
2. The
Russian Government (“the Government”) were represented by
Mr G. Matyushkin, the Representative of the Russian
Federation at the European Court of Human Rights.
- On
30 April 2010 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.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1952 and lives in
Ussuriysk, Primorye Region.
- The
applicant served in the military.
- On
20 March 2001 the authorities opened criminal proceedings on account
of a single incident of theft of the rare-earth metal palladium from
certain military equipment.
- A
week later by a decision of the investigator in accordance with the
procedural law at the time, the applicant was remanded on suspicion
of participation in the above crime.
- The
applicant was served with a bill of indictment for the first time on
5 April 2001, and on the following day he was released from
detention with an undertaking not to leave the town. He was
subsequently issued with several amended bills of indictment.
- The
Government submitted that the applicant and his counsel had studied
the material of the case between 7 March and 25 September 2002.
According to the applicant, such a long period was granted to him
because the prosecutor in the case was out of town and the
proceedings could not advance in his absence.
- The
criminal case against the applicant and his co-accused arrived at the
Military Court of the Spassk-Dalniy Garrison on 8 October 2002.
- Between
1 May and 13 June 2003 the applicant had been out of town.
- By
a decision of the trial court of 9 September 2003 the applicant was
again remanded. However, on an unspecified date he appears to have
been released on bail.
- On
4 June 2004 the trial court considered the case against the applicant
and his co-defendant. By a judgment of the same date it convicted the
applicant of aggravated theft and sentenced him to three years’
imprisonment, with a subsequent one-year bar on holding managerial
office and forfeiture of his military rank and the State awards.
- On
18 August 2004 the Military Court of the Far-East Circuit changed the
legal qualification of the criminal act and sentenced the applicant
to one year and six months’ imprisonment, a fine of 3,000
Russian roubles, and forfeiture of his military rank and the State
awards.
II. RELEVANT DOMESTIC LAW
- Federal
Law № 68-ФЗ “On
Compensation for Violation of the Right to a Trial within a
Reasonable Time or the Right to Enforcement of a Judgment within a
Reasonable Time” of 30 April 2010 (in force as of 4 May
2010) provides that in case of a violation of the right to trial
within a reasonable time or of the right to enforcement of a final
judgment, the Russian citizens are entitled to seek compensation of
the non-pecuniary damage. Federal Law № 69-ФЗ
adopted on the same day introduced the pertinent changes in the
Russian legislation.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the length of the
criminal proceedings against him had breached the “reasonable
time” requirement as provided in Article 6 of the Convention,
which reads, as far as relevant, 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
- Referring
to the introduction of the national remedy against excessive length
of proceedings (see paragraph above), the Government argued that the
applicant had failed to exhaust the available domestic remedies, in
breach of Article 35 § 1 of the Convention.
- The
Court is aware of the existence of a new remedy introduced by federal
laws nos. 68-ФЗ and
69-ФЗ in the wake of the
pilot judgment adopted in the case of Burdov v. Russia (no. 2)
(no. 33509/04, ECHR 2009 (extracts))
and accepts that the new remedy has been available to the applicant
since 4 May 2010. At the same time, it notes that in the pilot
judgment cited above it stated that it would be unfair to request
applicants whose cases had already been pending for many years in the
domestic system and who had come to seek relief at the Court, to
bring their claims again before domestic tribunals (Burdov
(no. 2), cited above, § 144). In line with this
principle, the Court decides to proceed with the examination of the
present case (see, mutatis mutandis, Utyuzhnikova v.
Russia, no. 25957/03, § 52, 7
October 2010).
- The
Court considers that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 (a) of the Convention. It
further notes that it is not inadmissible on any other grounds. It
must therefore be declared admissible.
B. Merits
- The
Government disagreed that examination of the criminal
case against the applicant had been excessively long. They firstly
stated that the length of the pre-trial investigation, amounting to
ten months, had been conditioned by a large number of investigative
actions held in different locations, disruption of the investigation
by the co-accused, in particular, through their attempts to influence
the witnesses, length of the expert examinations and studying of the
case by the defence. As to the length of the trial, the Government
asserted that it had been warranted due to the location of the
accused, their counsel, the witnesses and the material evidence in
different towns within the same region. The court had questioned
sixteen individuals whose examination had sometimes continued during
two or three hearings and had waited for the results of a repeated
expert examination, which had taken one month. Examination of the
case had also been delayed due to the involvement of the counsel in
different proceedings and their illness. Overall, thirteen court
hearings had had to be rescheduled due to the applicant’s or
his counsel’s failure to attend for various reasons. The
Government added that the trial court had disciplined the defaulting
parties by fining the counsel and replacing them with other lawyers
and had attempted to expedite the proceedings by moving the hearings
temporarily to another town for examination of the witnesses residing
there and by re-detaining the applicant on remand.
- The
applicant countered by stating that the Government had not submitted
any evidence of the applicant’s default in appearance or other
disruption of the investigation and trial. The thirteen hearings that
had not taken place had not contributed to any significant extent to
the overall length. He added that at the stage of the pre-trial
investigation the prosecutor had been out of town for six months, and
the proceedings could not have advanced without him.
- 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, Pélissier
and Sassi v. France [GC], no. 25444/94, § 67, ECHR
1999 II).
- The
Court observes that the criminal proceedings against the applicant
commenced on 27 March 2001, when he was arrested, and ended on 18
August 2004 with his final conviction. Their total length amounts
approximately to three years and five months, during which period the
authorities considered the case at two levels of jurisdiction.
- The
Court further observes that the parties chose not to submit a
detailed description of the course of the events, nor did they submit
evidence in support of their arguments, for example, copies of trial
records. In these circumstances it will base its analysis on the
parties’ statements and the available documents.
- As
regards the length of the pre-trial investigation, the Court notes
that the parties disagree with each other as to the reason of the
six-month delay and have not submitted anything that would allow it
reaching an independent conclusion. While the total length of the
investigation, amounting approximately to eighteen months, may appear
somewhat excessive in a relatively simple case as the present one, it
does not suffice alone to conclude that the authorities failed to
conduct the proceedings in an expeditious manner.
- As
to the trial, the Court considers that the criminal case against the
applicant was not complex, having concerned a single incident. On the
other hand, it is cognisant of the fact that the participants in the
proceedings, the material evidence and the trial court were located
in different towns, and extra time was needed to summon or deliver
them to the hearings. Furthermore, the applicant did not dispute the
Government’s allegation that thirteen hearings had not taken
place due to his or his counsel’s failure to attend.
- Deciding
on the strength of the evidence before it, the Court cannot establish
any unjustifiable delay in the actions of the authorities. It also
notes that the applicant was not in detention for the most part of
the proceedings. In view of the foregoing, the Court cannot conclude
that the overall length of the criminal proceedings in the present
case amounts to a breach of the “reasonable time”
requirement of Article 6 § 1 of the Convention.
- There
has accordingly been no violation of Article 6 § 1 of the
Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant also complained under Articles 5 §
1 and 6 of the Convention of unlawful arrest and detention, about the
outcome of the proceedings and assessment of evidence by the courts.
- Having
regard to all the material in its possession, and in so far as these
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 §§ 3 (a) and 4 of the
Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning length of the
criminal proceedings admissible and the remainder of the application
inadmissible;
- Holds that there has been no violation of
Article 6 § 1 of the Convention.
Done in English, and notified in writing on 7 February 2012, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Mirjana
Lazarova Trajkovska
Deputy Registrar President
