FIRST SECTION
CASE OF
STAROKADOMSKIY v. RUSSIA (No. 2)
(Application no.
27455/06)
JUDGMENT
STRASBOURG
13 March
2014
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 Starokadomskiy v. Russia (no. 2),
The European Court of Human
Rights (First Section), sitting as a Chamber composed of:
Isabelle Berro-Lefèvre,
President,
Elisabeth Steiner,
Khanlar Hajiyev,
Mirjana Lazarova Trajkovska,
Julia Laffranque,
Paulo Pinto de Albuquerque,
Dmitry Dedov, judges,
and Søren Nielsen, Section Registrar,
Having deliberated in private on 18 February 2014,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
27455/06) 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 Nikolay Anatolyevich
Starokadomskiy (“the applicant”), on 15 May 2006.
The applicant was represented by Ms Y. Liptser
and Mr R. Karpinskiy, lawyers practising in Moscow. The Russian
Government (“the Government”) were represented by Mr G. Matyushkin,
Representative of the Russian Federation at the European Court of Human Rights.
The applicant alleged, in particular, that his
detention from 2 October to 10 November 2004 had been unlawful; that the
domestic authorities had decided to conduct his
criminal trial in camera without a valid reason; and that the criminal
proceedings had been excessively lengthy. He relied on Articles 5 and 6 of the
Convention.
On 9 March 2009 the application was communicated to
the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1971 and lives in Moscow.
A. Criminal proceedings against the applicant
1. Preliminary investigation
On 31 January 1998 the applicant was arrested on
suspicion of murder. On 6 February 1998 he was charged with aggravated murder. Subsequently,
the applicant and a number of other individuals (see Salmanov v. Russia,
no. 3522/04, 31 July 2008) were accused of other violent crimes. The
proceedings in relation to all these offences were joined into one case, which
was investigated by a group of investigators from the Moscow prosecutor’s
office. The investigation was completed in December 1998.
The applicant studied the case file in June and July
1999 and requested a trial by a jury.
2. Determination of the trial venue
On 19 July 1999 the Moscow city prosecutor
approved the indictment and the case was submitted to the City Court for trial.
The applicant was committed to stand trial on charges relating to a number of
offences including conspiracy to commit murder. Fifteen other co-defendants
were committed to stand trial on similar charges.
On 5 August 1999 the City Court noted that the
majority of the defendants had opted to exercise their constitutional right to
a trial by jury. However, as there were no juries in the City Court, it decided
to send an inquiry to the Supreme Court of the Russian Federation as to where
the case should be tried. The Supreme Court referred the case to the
Moscow Regional Court, where juries were available.
On an unspecified date a judge of the Regional
Court sent a request to the Constitutional Court of the Russian Federation,
inviting it to rule on the compatibility of the Supreme Court’s interpretation
of the jurisdictional rules with the Russian Constitution. On 17 February
2000 she suspended the proceedings pending a decision by the Constitutional
Court and held that the defendants were to remain in custody because of the
dangerousness of the criminal offences they had been charged with, which were classified
as serious or particularly serious.
On 13 April 2000 the Constitutional Court issued
a decision to the effect that the decision on the change of venue had been
incompatible with the Russian Constitution.
In accordance with that ruling, on 14 June 2000
the Regional Court returned the case file to the Supreme Court, which decided
on 6 September 2000 that the City Court was competent to try the case.
3. Trial
On 29 September 2000 the City Court
scheduled the first hearing for 13 October 2000 before a bench consisting
of a professional judge and two lay judges, but it was adjourned on the day because
the presiding judge was sitting in another case.
In 2001 and 2002 the presiding judge was
replaced by other judges of the City Court. The lay judges were replaced
several times.
On 24 December 2001 the applicant asked the
judge for additional time to study the case file. His request was left without
reply.
Numerous hearings were scheduled between 2001
and early 2003. They were adjourned for various reasons, mainly because the
prosecutor, interpreter and some of the defence lawyers failed to appear, but also
because the presiding judge was involved in other proceedings in May and October
2001 and May, September and October 2002.
It appears that consideration of the merits
began in March 2003, but hearings scheduled for 4 March and 29 April 2003 were again
adjourned, inter alia, because several of the lawyers failed to appear.
On 12 March 2003 the trial judge ordered that
the applicant be removed from the courtroom “until the closure of the oral
pleadings” for contempt of court during the reading out of the indictment. He
was kept away from the hearings that followed on 17 to 19, 24 and
25 March 2003.
The applicant was taken to a hearing on 9 April
2003, where he asked to be provided with a list of people to be called as
witnesses at the trial. His request was left without reply.
Hearings scheduled for 26 January and 2 February
2004 were also adjourned. From February 2004 onwards the trial hearings were
held in remand centre no. 77/1, where the applicant was being detained. On
11 and 16 February 2004 the trial judge refused to deal with a request
from the applicant to be given reasons for the change of venue and a copy of
the relevant court order.
On 10 March 2004 the trial judge ordered
bailiffs to summons the absent witnesses and victims to a hearing scheduled for
16 March 2004, but not all of them were summonsed. On a number of occasions
between March and July 2004 the judge reiterated his request.
On 1 July 2004 the trial bench (presiding judge
M. and lay judges O. and L.) extended the defendants’ detention until
1 October 2004.
On 12 August 2004 the court closed the trial and
started deliberations.
In October 2004 the governor of remand centre
no. 77/1 wrote to the Moscow City Court on several occasions to say that the
detention order in respect of the applicant had expired on 1 October 2004, and that
a new detention order was required without delay.
On 18 October 2004 the City Court replied that since
the trial bench was deliberating, it could not issue decisions concerning the detention
of any of the defendants, including the applicant.
On 27 October 2004 the trial bench found
the applicant guilty of a number of offences including conspiracy to commit
murder, and sentenced him to ten and a half years’ imprisonment. The court held
that the time he had spent in detention since 31 January 1998 should be counted
towards his sentence.
On 10 November 2004 the court concluded its
delivery of the judgment. It appears from its operative
part of the judgment (dated 27 October 2004) that the trial bench decided
to keep the applicant in detention as a preventive measure until the conviction
became final and enforceable.
The applicant and the other defendants lodged an
appeal. On 15 November 2005 the Supreme Court upheld the conviction, but reduced
the applicant’s sentence to ten years’ imprisonment.
B. Proceedings relating to the applicant’s detention
after 1 October 2004
The applicant instituted proceedings under
Article 125 of the Code of Criminal Procedure (“the CCrP”), alleging inaction
on the part of the governor of the remand centre in failing to release him on 1
October 2004. On 17 January 2005 the Preobrazhenskiy District Court of Moscow
dismissed the complaint, holding that the inaction in question could not be made
the subject of proceedings under Article 125 of the CCrP. On 5 April 2005 the
Moscow City Court set aside that decision and ordered a re-examination of the
case, holding that a complaint in respect of a governor of a remand centre
could not be processed under Article 125 of the CCrP.
According to the Government, on 14 October 2005
the authorities dismissed the applicant’s complaint and refused to initiate
criminal proceedings against the governor of the remand centre for lack of corpus
delicti.
In the meantime, in separate proceedings under
Article 125 of the CCrP, the applicant argued that the prosecutor responsible
for supervising detention facilities had acted unlawfully by failing to deal
with the complaint concerning his detention after 1 October 2004. By a judgment
of 4 February 2005 the Zamoskvoretskiy District Court of Moscow dismissed his
case. On 7 April 2005 the City Court upheld that judgment.
Subsequently, the applicant brought civil
proceedings against the remand centre, arguing that its governor had failed to
release him on 1 October 2004. By that time, the most recent detention order
had expired and thus between 1 October 2004 and the trial judgment there
had been no valid order authorising his continued detention pending trial. By
a judgment of 12 July 2005, the Preobrazhenskiy District Court of Moscow
rejected his claim. On 24 November 2005 the Moscow City Court upheld that judgment.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Detention pending trial
During a trial the court is
empowered to order, vary or cancel a preventive measure in respect of the
defendant (Article 255 § 1 of the CCrP). In particular, “the
court dealing with the case” is empowered to order
extensions of the defendant’s detention (Article 255 § 3). If after the trial
judge has started deliberations in the criminal case the term of detention
meanwhile expires, it is not against the requirements of the CCrP for another
judge of the same court to order an extension of the detention (Appeal Section
of the Supreme Court of Russia decision nos. 47-O09-13 of 16 March 2009 and 44-O09-90
of 14 January 2010).
. Deliberations
take place in the deliberations room (Article 298 § 1), where the trial bench
reaches its judgment and decides on the preventive measure (Article 299 § 1).
After signing the judgment, the trial bench returns to the courtroom so that
the presiding judge can deliver the judgment (Article 310 § 1). If only the
introductory and operative parts of the judgment are read out, the court should
explain the procedure for becoming acquainted with its full terms (Article 310 §
2).
Section 50 of the Custody
Act (Federal Law no. 103-FZ of 15 July 1995) required at the relevant time
that the governor of a detention facility should release a detainee upon
receipt of an order to this effect. The governor should notify the authority in
charge of the case that the authorised period of detention expires within
twenty-four hours. If no extension order is received by the time the authorised
period of detention expires, the governor must release the detainee.
B. Public hearing of criminal
cases
Article 241 of the CCrP provides that criminal
cases should be heard in public. A court may issue an order for a hearing in
camera (i) if a public hearing could result in the disclosure of State secrets or
other sensitive data; (ii) in cases concerning defendants under sixteen years
of age; (iii) if a public hearing could result in the disclosure of information
relating to the private life of the trial participants; or (iv) to guarantee
the safety of the trial participants or their next of kin.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE
CONVENTION
The applicant complained that his detention from
2 October to 10 November 2004 had been unlawful, in breach of Article 5 §
1 of the Convention. The relevant parts read as follows:
“Everyone has the right to liberty and security of person. No
one shall be deprived of his liberty save in the following cases and in
accordance with a procedure prescribed by law:
(a) the lawful detention of a person after
conviction by a competent court; ...
(c) the lawful arrest or detention of a person
effected for the purpose of bringing him before the competent legal authority
on reasonable suspicion of having committed an offence or when it is reasonably
considered necessary to prevent his committing an offence or fleeing after
having done so; ...”
A. The parties’ submissions
The applicant submitted that there had been no
court decision authorising his continued detention between 2 October 2004, the
day after the detention order of 1 July 2004 expired, and 10 November 2004,
when the trial judgment had been delivered. He argued that the governor of the
remand centre had failed to release him in the absence of any legal basis for his
continued detention and in breach of national law (see paragraph 35 above). His situation was aggravated by the fact that the domestic legislation set
forth no specific procedure or time-limits for detention during the
deliberations stage of a trial.
The Government submitted that the term of the
applicant’s detention had been lawfully extended until 1 October 2004. In the
meantime, on 12 August 2004 the court had started deliberations, which had
lasted until 27 October 2004 when the trial judgment had been issued. It had
then been delivered on 10 November 2004. The court could not have dealt with
the detention issue while deliberating in the criminal case. The lawfulness of
the applicant’s detention had been confirmed in the subsequent civil claim
brought by him and by the authorities’ refusal to institute criminal
proceedings against the governor of the remand centre.
B. The Court’s assessment
1. Admissibility
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.
2. Merits
The Court notes that the parties did not take a
clear stance as to whether the applicant’s detention from 2 to 27 October 2004
(between the expiry of the most recent detention order and the issuing of the
trial judgment) and from 27 October to 10 November 2004 (until its delivery) should
be distinguished, in particular in so far as it fell within the scope of
Article 5 § 1 (a) and/or (c) of the Convention.
For its part, the Court observes that it
previously considered that the period of the applicant’s detention that fell within
scope of Article 5 § 3 of the Convention lasted from 31 January 1998 to 10
November 2004, “the date when the City Court gave
judgment in his criminal case” (see Starokadomskiy v. Russia, no.
42239/02, § 68, 31 July 2008). As far as the applicant’s present complaint
relating to the lawfulness of detention is concerned, the Court finds it
sufficient to reiterate that it is possible that detention falls within one or
two subparagraphs simultaneously (see Polonskiy v. Russia, no. 30033/05,
§ 143, 19 March 2009).
. The
Court notes that the most recent detention order of 1 July 2004 expired on 1
October 2004 and could not have, under Russian law, served as a legal basis for
the applicant’s detention after this date. The Government did not submit, and
the Court does not find, any other valid court order which served as a legal
basis for his continued detention. It has not been submitted, and the Court
does not find, that the applicant’s detention was otherwise authorised by the operation
of any specific legal provision regulating detention during the deliberations stage
of a trial.
. The
Government submitted that the court (meaning the trial bench) could not, or
rather was not empowered to, deal with the detention issue while deliberating
on the criminal case against the applicant. Assuming this interpretation of the
domestic law was correct (see, however, more recent examples to the contrary in
paragraph 33 above), the Court cannot but conclude
that the applicant was left in a state of uncertainty as to the legal basis for
his continued detention, at least between 2 and 27 October 2004.
. Furthermore,
the Government have not specified whether the trial judgment started to serve a
legal basis for the applicant’s detention from 27 October 2004. It is
unclear whether on 27 October 2004 the court started delivering the judgment by
announcing his sentence. Also, it appears from the operative part of the
judgment (dated 27 October 2004) that the trial bench decided to keep the
applicant in detention as a preventive measure until the judgment became final
and enforceable. However, it remains unclear whether the court’s ruling concerning
detention pending appeal effectively served as a legal basis for the applicant’s
detention from as early as 27 October 2004. In such circumstances, the
Court is not satisfied that the applicant’s detention from 27 October to 10 November
2004 had a legal basis in domestic law.
In view of the foregoing, the Court concludes
that there has been a violation of Article 5 § 1 of the Convention as regards
the applicant’s detention from 2 October to 10 November 2004.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION (PUBLIC HEARING)
The applicant alleged that the trial in his
criminal case had been held in camera without a valid reason, in breach
of Article 6 § 1 of the Convention. The relevant part reads as follows:
“In the determination of ... any criminal charge against him,
everyone is entitled to a fair and public hearing within a reasonable time ...
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.”
A. The parties’ submissions
The applicant argued that there had been no
formal decision to close the trial to the public. Nor had the court made any
formal order justifying the relocation of the ongoing trial from the courtroom
of the City Court to the premises of remand centre no. 77/1. Since it had been held
in the remand centre’s common room, the general public had been prohibited from
entering. Nothing in the Custody Act or other legislation provided for such
access. This constituted a significant impediment to the public’s presence at
the trial. The national authorities had not provided any sufficient reason
based on verifiable facts. Nor had they put in place any safeguards or measures
to ensure observance of the right to a “public hearing”.
The Government confirmed that no formal decision
had been taken to close the trial to the public. The CCrP did not require the
court to issue any separate decision concerning the relocation of the trial
from the courtroom to another place, this being a “mere matter of logistics”.
The relocation had been necessary because the criminal case had been pending
for a long time, mainly because there had been problems with the prison
transport service in charge of taking the defendants, including the applicant,
to and from the courthouse. The relocation of the trial had been aimed at
remedying this problem. Holding the hearings in the remand centre had not
impinged upon the public character of the trial. The witnesses could gain access
and aside from the applicant, none of the witnesses, defendants or counsel had raised
any concerns or objections about the public character of the trial. No one had
been refused access to the premises of the remand centre. In any event, the
City Court itself had had security checks in place which
required people to report to the court ushers in order to gain access. The
Government concluded that there had been no violation of the right of “access
to a court”, and that the proceedings had been adversarial.
B. The Court’s assessment
1. Admissibility
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.
2. Merits
(a) General principles
. The
Court reiterates that the holding of court hearings in public constitutes a
fundamental principle enshrined in Article 6 § 1 of the Convention. It protects
litigants against the administration of justice in secret with no public scrutiny.
It is also one of the means whereby confidence in the courts can be maintained.
The administration of justice, including trials, derives legitimacy from being
conducted in public. By rendering the administration of justice transparent,
publicity contributes to fulfilling the aim of Article 6 § 1, namely a fair
trial (see Gautrin and Others v. France, 20 May 1998, § 42, Reports
of Judgments and Decisions 1998-III, and Pretto and Others v. Italy,
8 December 1983, § 21, Series A no. 71). There is a high expectation of
publicity in criminal proceedings (see Campbell and Fell v. the United
Kingdom, 28 June 1984, § 87, Series A no. 80).
. The
requirement to hold a public hearing is
subject to exceptions. This is apparent from the text of Article 6 § 1 itself,
which contains the provision that the press and public may be excluded from all
or part of the trial in the interests of national security in a democratic
society, or to the extent strictly necessary in the opinion of the court in
special circumstances where publicity would prejudice the interests of justice.
Thus, it may on occasion be necessary under Article 6 to limit the open and
public nature of proceedings for a valid reason (see B. and P. v. the
United Kingdom, nos. 36337/97 and 35974/97, § 37, ECHR 2001-III, with further references).
The mere fact that the trial took place in the premises
of a detention facility does not necessarily lead to the conclusion that it had
not been held in public. Nor does the fact that witnesses, other participants
in the trial and potential spectators would have had to undergo identity or
security checks in itself deprive the hearing of its public nature (see Riepan
v. Austria, no. 35115/97, § 28, ECHR 2000-XII, referring to
Allen v. the United Kingdom, no. 35580/97, Commission decision of 22
October 1998, unreported).
Having said this, it must be borne in mind that
the Convention is intended to guarantee not rights that are theoretical or
illusory but rights that are practical and effective (see Hummatov v. Azerbaijan, nos. 9852/03 and 13413/04, § 144, 29 November 2007). A trial complies with
the requirement of publicity only if the general public is able to obtain
information about the date and place of the hearings and if the place is easily
accessible to them (see Riepan, cited above, § 29). In many
cases these conditions will be fulfilled by the simple fact that a hearing is
held in a regular courtroom large enough to accommodate spectators. However, conducting
a trial outside a courtroom, in places like a detention facility, to which the
general public in principle has no access, presents a serious obstacle to its
public character. In such cases, the State is under an obligation to take compensatory
measures to ensure that the public and the media are duly informed about the
place of the hearing and are granted effective access (ibid., § 30).
(b) Applications of the principles to
the present case
. Turning
to the present case, the Court observes that the City Court did not issue a
decision to hold a trial in camera but relocated the trial to the remand centre.
The Court reiterates in this connection that hindrance in fact can
contravene the Convention just like a legal impediment (see Airey v. Ireland,
9 October 1979, § 25, Series A no. 32). The Court’s task
in the present case therefore is to establish whether the practical
arrangements for hearing the applicant’s criminal case in the remand centre were
such as to allow the public to be present at the trial; and, if not, whether
the resulting adverse effect on the publicity of the trial was justified by a
compelling interest.
. Firstly,
it has not been suggested that the national authorities took any measures to
inform the public and the media about the time and place of the
hearings. In fact, the domestic court gave no proper
consideration to any domestic legislation regarding the public’s access to the
remand centre, the matter also being treated by the Government as a “mere
matter of logistics”. The Government referred to the restricted access measures
at the City Court in support of their submission that it was only natural that such
measures applied in the remand centre.
. In the
absence of any information concerning domestic legislation relating to the
public’s ability to obtain information and access to a criminal trial in a
detention facility, the Court concludes that no compensatory measures were taken
in that regard and that the public were not granted effective access.
The Court thus finds that the national
authorities failed to take adequate compensatory measures to counterbalance the
detrimental effect which holding the applicant’s trial in a restricted area of the
detention facility had on its public character.
. Secondly,
the Court considers that the resulting failure to conduct the trial in
public was unjustified for the reasons set out in the second sentence of
Article 6 § 1. No compelling
interest was shown to be at stake in the present case. For its part, the
Court does not overlook that in the applicant’s previous application (see Starokadomskiy
v. Russia, no. 42239/02, § 56, 31 July 2008) it took note of the
national authorities’ acknowledgement that in 2002 there had been problems
relating to existing breaches by the prison transport service (late return from
the courts, overcrowded prison vans, use of unauthorised routes). However, no reasoned
decision was taken as to the relocation of the trial to the
premises of the remand centre. In this context, there is no indication that the
Government’s explanation for this relocation, delays caused by the prison
transport service, was part of the reasoning guiding the City Court.
Similarly, there is no indication that the
“reasonable time” requirement was part of the domestic court’s reasoning. Indeed,
Article 6 commands that judicial proceedings be completed within a reasonable
time, but it also lays down the more general principle of the proper
administration of justice (see Boddaert v. Belgium, 12
October 1992, § 39, Series A no. 235-D). However, in the circumstances of
the case, the Court is not satisfied that the authorities succeeded in
maintaining the fair balance between various aspects of this fundamental
requirement.
. Furthermore,
it is noted that the parties did not specify whether the appeal hearing before
the Supreme Court was in camera and whether the appeal proceedings remedied the
failure to conduct the trial before the City Court in public.
. Lastly,
the Court accepts that there is some affinity between the requirement under
Article 6 § 1 relating to a “public hearing” and other related but separate matters
concerning the notions of an oral and fair hearing, including the question of
the defendant’s presence during the determination of the criminal charge
against him (see Göç v. Turkey [GC], no. 36590/97, § 46, ECHR 2002-V, and cases cited in paragraph 51 above). However, with due regard to the
considerations in the preceding paragraphs, the Court finds that the Government’s
reference to the oral hearing and the admittedly adversarial nature of the
proceedings in which the trial court heard both parties, did not by itself resolve
the matter of the criminal trial being conducted in public, which is precisely the
issue before the Court in the present case.
. There
has accordingly been a violation of Article 6 § 1 of the Convention because of the
lack of a public hearing at the applicant’s
criminal trial.
III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION (LENGTH OF PROCEEDINGS)
The applicant also argued that the length of the
criminal proceedings against him had violated the “reasonable time” requirement
under Article 6 § 1 of the Convention (cited above).
A. The parties’ submissions
The applicant argued that he had not contributed
to the length of proceedings. He invited the Court to endorse the findings in
relation to the remaining relevant factual and legal issues as made by the
Court in the case of Salmanov v. Russia (no. 3522/04, 31 July 2008),
which concerned the applicant’s co-defendant in the same domestic proceedings.
The Government argued that the applicant had
intentionally protracted the proceedings at the stage when he had been given an
opportunity to study the case file before the criminal case could be submitted to
the City Court for trial. The case had been particularly complex and had required,
inter alia, determination of a complex jurisdictional issue. There had
been numerous adjournments owing to the absence of the defendants’ lawyers for
various valid and invalid reasons, or for no reason. In late 2003 a number of
hearings had had to be adjourned because the defendants had not been taken to
the courthouse from the detention facility.
B. The Court’s assessment
1. Admissibility
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.
2. Merits
The Court reiterates that the period under
consideration in the present case began on 31 January 1998, when the applicant
was arrested, and ended on 15 November 2005, when the appellate court upheld
the conviction. The overall length of the proceedings was thus seven years and
ten months, of which seven years and six months fall within the Court’s
competence ratione temporis.
It has not been alleged, and the Court does not
consider, that there were any significant periods of inactivity attributable to
the State during the preliminary investigation. Thus, the Court has examined the applicant’s complaint bearing
in mind that it essentially concerned the court proceedings in his case.
Furthermore, in the Salmanov case (§§
84-90) cited by the applicant, the Court made the following findings concerning
the length of the relevant proceedings:
“84. The Court accepts that the case revealed a
certain degree of complexity; it concerned a large number of defendants who had
been charged with several counts of serious criminal offences. While admitting
that the task of the trial court was rendered more difficult by these factors,
the Court cannot accept that the complexity of the case, taken on its own, was
such as to justify the overall length of the proceedings ... It took more than
one year to determine which court was competent to try the case; however, the
procedural complexity because of the need to transfer the case between various
courts cannot justify the delay either ...
85. As to the applicant’s conduct, the Court recalls
that an applicant cannot be required to co-operate 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 ... It has not been alleged by the Government that the applicant
defaulted, went beyond the limits of legitimate defence by lodging frivolous
petitions or unsubstantiated requests or otherwise contributed to the length of
the proceedings ... It appears that the absence or illness of the applicant’s
counsel was a cause of delay on only four occasions. On balance, the Court
finds that the applicant did not contribute significantly to the length of the
proceedings.
86. On the other hand, the Court considers that
certain delays were attributable to the domestic authorities. The Court has
already noted the one-year delay in resolving the jurisdictional issue. After
the case had been assigned to the City Court in September 2000 there were
unjustified gaps in the proceedings between May and September 2001, April and
June 2002, July and September 2002. It was not in dispute between the parties
that many hearings had been adjourned, in particular because the presiding
judge had been sitting in another case or because other defendants’ lawyers had
defaulted. The actual examination of the case started only in March 2003, that
is two years and five months after the case had been listed for trial. It also
transpires from the case file that on several occasions in 2004 the trial judge
ordered the bailiffs to bring the defaulting witnesses, victims and the
interpreter.
87. Although the State cannot be held responsible
for every shortcoming on the part of a legal-aid lawyer and,
even less, of a privately-retained lawyer (see Hermi v.
Italy [GC], no. 18114/02, § 96,
ECHR 2006-...), that does not absolve the State from the duty to organise
its legal system in such a way that its courts can meet the obligation to hear
cases within a reasonable time (see Sürmeli v. Germany [GC], no. 75529/01, § 129,
8 June 2006). The Government submitted no explanation as to whether the orders
given to the bailiffs had been complied with. No evidence was adduced as to
whether any measures available under national law to discipline the defaulting
participants in the proceedings had been taken ...
88. Nor have the Government provided any convincing
explanation for temporarily replacing the presiding judge and lay judges in the
course of the proceedings, which undeniably contributed to their overall
duration ...
89. Finally, the Court takes into account that
throughout the proceedings the applicant remained in custody, so that
particular diligence on the part of the authorities was required. The Court
also does not lose sight of its conclusions in relation to the applicant’s
complaint about the conditions of his transport and confinement on the days of
the court hearings, most of which resulted in adjournment ...
90. 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.”
The Government in the present case have not
substantiated their argument that the applicant or his counsel significantly
contributed to the length of the proceedings. The Court also notes that throughout
the proceedings the applicant, like Mr Salmanov, remained in custody, so
particular diligence on the part of the authorities was required.
Having examined the parties’ submissions, the
Court finds no reason to depart from the remaining findings made in the Salmanov
judgment.
. The
Court concludes that in the circumstances of the case the “reasonable time”
requirement has not been respected. There has accordingly also been a violation
of Article 6 § 1 of the Convention on this account.
IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
Lastly, the applicant complained that another
period of his detention had been unlawful and that the criminal proceedings had
been unfair for a variety of reasons.
The Court has examined the above complaints as
submitted by the applicant. However, in the light of all the material in its
possession, and in so far as the matters complained of are within its
competence, the Court finds that they 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 is manifestly
ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4
of the Convention.
V. 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 45,000 euros (EUR) in
respect of non-pecuniary damage.
The Government contested this claim as excessive
and unsubstantiated.
Having regard to the nature of the violations
and making assessment on an equitable basis, the Court awards the applicant EUR
7,500 in respect of non-pecuniary damage, plus any tax that may be chargeable
on this amount.
B. Costs and expenses
The applicant also claimed EUR 3,000 for legal fees
for representation before the Court by two lawyers.
The Government contested this claim as
excessive.
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, regard being had to the
documents in its possession, the above criteria and that certain complaints
were declared inadmissible, the Court considers it reasonable to award the sum
of EUR 1,500 for the proceedings before the Court, plus any tax that may
be chargeable to the applicant.
C. Default interest
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. Declares the complaints concerning the lawfulness
of the applicant’s detention from 2 October to 10 November 2004, the lack of a public
hearing and the length of the criminal proceedings admissible and the remainder
of the application inadmissible;
2. Holds that there has been a violation of
Article 5 § 1 of the Convention in relation to the applicant’s detention from 2
October to 10 November 2004;
3. Holds that there has been a violation of
Article 6 § 1 of the Convention on account of the lack of a public hearing;
4. Holds that there has been a violation of
Article 6 § 1 of the Convention on account of the length of the criminal
proceedings;
5. 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, the following
amounts, to be converted into the currency of the
respondent State at the rate applicable at the date of settlement:
(i) EUR 7,500 (seven thousand five hundred euros),
plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 1,500 (one thousand five hundred euros),
plus any tax that may be chargeable to the applicant, in respect of costs and
expenses;
(b) that from the expiry of the above-mentioned
three months until settlement simple interest shall be payable on the above
amounts 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 13 March 2014,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Isabelle
Berro-Lefèvre
Registrar President
