THIRD SECTION

CASE OF SERGEY ZAYTSEV v. RUSSIA

(Application no. 24849/05)

JUDGMENT

STRASBOURG

20 September 2016

This judgment is final but it may be subject to editorial revision.
In the case of Sergey Zaytsev v. Russia,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
	Helena Jäderblom, President,
	Dmitry Dedov,
	Branko Lubarda, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having deliberated in private on 30 August 2016,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 24849/05) 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 Sergey Sergeyevich Zaytsev (“the applicant”), on 19 May 2005.
2.  The applicant, who had been granted legal aid, was represented by Ms O. Preobrazhenskaya, a lawyer admitted to practise in Moscow, Russia. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights.
3.  On 26 February 2010 the application was communicated to the Government.
THE FACTS
Article I.	THE CIRCUMSTANCES OF THE CASE
4.  The applicant was born in 1984 and lives in Volgograd.
5.  On 26 October 2002 the applicant was arrested on a charge of murder. On 28 October 2002 the Traktorozavodskiy District Court of Volgograd authorised his pre-trial detention. The applicant remained in custody during the investigation and pending the trial.
6.  On 24 November 2003 the Volgograd Regional Court scheduled the trial of the applicant and seven other defendants for 24 December 2003. The court also ruled that the trial was to be held in camera.
7.  On 26 April 2005 the Volgograd Regional Court convicted the applicant of murder committed out of national hatred and sentenced him to nine years’ imprisonment. The applicant appealed.
8.  On 22 February 2006 the Supreme Court of the Russian Federation upheld the applicant’s conviction on appeal. The court decided to hear the applicant’s case in his absence. His lawyer was present and made submissions to the court.
9.  On 30 August 2010 the applicant was released on parole.
10.  On 8 December 2010 the Presidium of the Supreme Court quashed the judgment of 22 February 2006 by way of supervisory review and remitted the matter for fresh consideration.
11.  On 1 February 2011 the Supreme Court held a new appeal hearing. The court found that the case had become time-barred under the statute of limitations and discharged the applicant from serving a prison sentence. The applicant’s lawyer was present and made submissions to the court. The applicant did not attend the hearing.
THE LAW
Article II.	I.  ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION
12.  The applicant complained that he had been held in detention during the investigation and trial notwithstanding the absence of relevant and sufficient reasons as provided in 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.”
Section 2.01	A.  The parties’ submissions
13.  By a letter submitted on 22 October 2015, the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by the applicant. They further requested the Court to strike out the application, in accordance with Article 37 of the Convention.
14.  In the declaration, the Government acknowledged that the applicant’s pre-trial detention from 26 October 2002 to 26 April 2005 had been in violation of Article 5 § 3 of the Convention and stated their readiness to pay 3,000 euros (EUR) to the applicant as just satisfaction. The remainder of their declaration provided as follows:
“The sum referred to above, which is to cover any pecuniary and non-pecuniary damage as well as costs and expenses, will be free of any taxes that may be applicable. It will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. In the event of failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.
This payment will constitute the final resolution of the case.”
15.  The applicant was invited to comment on the Government’s unilateral declaration, if he so wished. The applicant submitted no comments in reply.
Section 2.02	B.  The Court’s assessment
16.  The Court reiterates that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified under (a), (b) or (c) of paragraph 1 of that Article. In particular, Article 37 § 1 (c) enables the Court to strike a case out of its list if:
“... for any other reason established by the Court, it is no longer justified to continue the examination of the application”.
17.  It also observes that in certain circumstances, it may strike out an application under Article 37 § 1 (c) on the basis of a unilateral declaration submitted by a respondent Government.
18.  To that end, the Court will carefully examine the declaration in the light of the principles established in its case-law, in particular in Tahsin Acar v. Turkey ([GC], no. 26307/95, §§ 75-77, ECHR 2003-VI; also see WAZA Spółka z o.o. v. Poland (dec.), no. 11602/02, 26 June 2007; and Sulwińska v. Poland (dec.), no. 28953/03, 18 September 2007).
19.  The Court notes at the outset that since its first judgment concerning the excessive length of pre-trial detention in Russia (see Kalashnikov v. Russia, no. 47095/99, §§ 104-121 ECHR 2002-VI), it has found a violation of Article 5 § 3 of the Convention on account of excessively long pre-trial detention without proper justification in more than a hundred cases against Russia (see Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, § 200, 10 January 2012). Accordingly, the complaint raised by the applicant is based on clear and extensive Court case-law.
20.  As regards the nature of the admissions contained in the Government’s declaration, the Court is satisfied that the Government have not disputed the allegations made by the applicant and have explicitly acknowledged that his pre-trial detention was in breach of Article 5 § 3 of the Convention.
21.  As to the intended redress to be provided to the applicant, the Court is satisfied that the amount of compensation proposed is consistent with the amounts awarded in similar cases (see Yuriy Yakovlev v. Russia, no. 5453/08, § 95, 29 April 2010; Valeriy Kovalenko v. Russia, no. 41716/08, § 67, 29 May 2012; and Kislitsa v. Russia, no. 29985/05, § 49, 19 June 2012).
22.  The Court therefore considers that it is no longer justified to continue the examination of this complaint. The Court is satisfied that respect for human rights as defined in the Convention (Article 37 § 1 in fine) does not require it to continue the examination of this part of the application. In any event, the Court’s decision is without prejudice to any decision it might take to restore the application to its list of cases, pursuant to Article 37 § 2 of the Convention, should the Government fail to comply with the terms of their unilateral declaration (see Aleksentseva and 28 Others v. Russia (dec.), nos. 75025/01 et al., 23 March 2006, and Josipović v. Serbia (dec.), no. 18369/07, 4 March 2008).
23.  In view of the above, it is appropriate to strike this part of the application out of the list in accordance with Article 37 § 1 (c) of the Convention.
Article III.	II.  ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION ON ACCOUNT OF THE TRIAL IN CAMERA
24.  The applicant complained that he had not had a public hearing in the criminal proceedings against him, contrary to Article 6 § 1 of the Convention, which, in so far as relevant, reads as follows:
“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing by [a] tribunal ... Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.”
Section 3.01	A.  Admissibility
25.  The Court notes 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.
Section 3.02	B.  Merits
(a)	1.  The parties’ submissions
26.  The Government acknowledged that, contrary to the domestic rules of criminal procedure, the trial court had not furnished any reasons for its decision to conduct the trial in camera. Nevertheless, they considered the lack of a public hearing in the present case had not amounted to a violation of Article 6 § 1 of the Convention. In their opinion, there had been no infringement of the applicant’s procedural rights, including the right to defence. The Government further submitted that the trial court’s decision to conduct the trial in camera had been based on moral and security considerations. The applicant and some other defendants had been members of a gang of skinheads. They had been accused of having murdered K. out of national and racial hatred. K.’s brother had attended the trial. In those circumstances, it had been necessary to prevent other gang members who had been still at large having access to the courtroom.
27.  The applicant maintained his complaint. He argued that the trial court’s decision to exclude the public from the hearing had not been justified. The trial court could have employed other measures to ensure the security of those present in the courtroom, including the victim’s brother.
(b)	2.  The Court’s assessment
28.  The principles concerning the holding of court hearings in public are well established in the Court’s case-law (see, for example, Krestovskiy v. Russia, no. 14040/03, §§ 24-25, 28 October 2010).
29.  Turning to the circumstances of the present case and having regard to the principles established in its case-law, the Court considers that the trial court’s decision to exclude the public from the hearing of the case failed to strike a proper balance between, on the one hand, the applicant’s right to a public hearing of the criminal case against him and, on the other, the other important interests at stake.
30.  Firstly, the Court notes, and this fact is not contested by the Government, that the trial court failed to furnish any reason to justify its decision to hold the trial in camera.
31.  The only explanation offered by the Government as grounds for a closed trial were security concerns. In that connection, the Court reiterates that security problems are a common feature of many criminal proceedings, but cases in which security concerns alone justify excluding the public from a trial are nevertheless rare (see Riepan v. Austria, no. 35115/97, § 34, ECHR 2000‑XII). Admittedly, it was incumbent on the domestic judicial authorities to protect the safety and security of the people present in the courtroom. However, in the Court’s view, security measures should be narrowly tailored and comply with the principle of necessity. The judicial authorities should thoroughly consider all possible alternatives to ensure safety and security in the courtroom and give preference to a less strict measure over a stricter one when it can achieve the same purpose. Moreover, if the trial court had indeed taken into account certain information, that information should have been presented to the parties, in particular the applicant, to permit an open discussion of the matter. However, no such effort was made by the trial court in the present case.
32.  Having regard to the above considerations, the Court concludes that there has been a violation of Article 6 § 1 of the Convention owing to the lack of a public hearing in the applicant’s case.
Article IV.	III.  ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION ON ACCOUNT OF THE APPLICANT’S ABSENCE FROM THE APPEAL HEARINGS
33.  The applicant complained that he had been unable to participate in the appeal hearing held on 22 February 2006 and that the authorities had not provided him with an opportunity to attend the second appeal hearing held on 1 February 2011. He relied on Article 6 § 3 (c) of the Convention, which, in so far as relevant, reads as follows:
“1.  In the determination ... of any criminal charge against him, everyone is entitled to a fair and public hearing ... by [a] ... tribunal ... .
...
3.  Everyone charged with a criminal offence has the following minimum rights:
...
(c)  to defend himself in person or through legal assistance of his own choosing ... .”
34.  The Court notes 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. However, in the circumstances of the case, the Court considers it unnecessary to examine the applicant’s grievances.
Article V.	IV.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION
35.  Lastly, the applicant complained of the length of the criminal proceedings against him, of an infringement of the principle of the presumption of innocence and a number of irregularities in the course of the criminal proceedings. The Court has examined those complaints and considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. Accordingly, the Court rejects them as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
Article VI.	V.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
36.  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.”
Section 6.01	A.  Damage
37.  The applicant claimed 60,000 Russian roubles (RUB) and 38,000 euros (EUR) in respect of pecuniary and non-pecuniary damage respectively.
38.  The Government submitted that there was no causal link between the violation found and the pecuniary damage alleged. They considered the applicant’s claims for non-pecuniary damage excessive.
39.  The Court does not discern any causal link between the violation found and the pecuniary damage alleged and it therefore rejects that claim. On the other hand, it awards the applicant EUR 2,200 in respect of non-pecuniary damage.
Section 6.02	B.  Costs and expenses
40.  The applicant also claimed EUR 1,370 for the costs and expenses incurred before the Court.
41.  The Government did not comment.
42.  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 they have been actually and necessarily incurred and are reasonable as to quantum. In the present case, the Court notes that EUR 850 has already been paid to the applicant by way of legal aid. Having regard to the documents submitted by the applicant in support of their claims, the Court does not consider it necessary to make any additional award under this head.
Section 6.03	C.  Default interest
43.  The Court considers it appropriate that the default interest rate 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,
1.  Decides, having regard to the terms of the Government’s declaration, and the arrangements for ensuring compliance with the undertakings referred to therein, to strike the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention in so far as it concerns the complaint under Article 5 § 3 of the Convention;

2.  Declares the complaints under Article 6 of the Convention concerning the lack of a public hearing and the applicant’s absence from the appeal hearings admissible and the remainder of the application inadmissible;

3.  Holds that there has been a violation of Article 6 of the Convention on account of the conduct of the trial in the applicant’s case in camera;

4.  Holds that there is no need to examine the complaint under Article 6 of the Convention concerning the applicant’s absence from the appeal hearings;

5.  Holds
(a)  that the respondent State is to pay the applicant, within three months, EUR 2,200 (two thousand two hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State 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;

6.  Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 20 September 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Fatoş Aracı	Helena Jäderblom
	Deputy Registrar	President