CHAUSHEV AND OTHERS v. RUSSIA - 37037/03 (Judgment (Merits and Just Satisfaction) : Court (Third Section)) [2016] ECHR 929 (25 October 2016)

In the case of Chaushev and others v. Russia,

The European Court of Human Rights (Third Section), sitting as a Chamber composed of:

          Luis López Guerra, President,
          Helena Jäderblom,
          Helen Keller,
          Dmitry Dedov,
          Branko Lubarda,
          Pere Pastor Vilanova,
          Alena Poláčková, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having deliberated in private on 4 October 2016,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in three applications (nos. 37037/03, 39053/03 and 2469/04) 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 Russian nationals, Mr Osman Borisovich Chaushev, Mr Valeriy Aliyevich Aybazov, and Mr Timur Kazbekovich Shamanov (“the applicants”), on 13 November 2003.

2. The applicants were represented by Ms Z. Korkmazova, a lawyer practising in the town of Ust-Dzheguta. The Russian Government (“the Government”) were represented by Ms V. Milinchuk and Mr G. Matyushkin, representatives of the Russian Federation at the European Court of Human Rights.

3. The applicants complained, in particular, about having been tried behind closed doors.

4. On 7 January and 7 February 2008 this complaint was communicated to the Government.

5. The Government objected to the joint examination of the admissibility and merits, but the Court dismissed the objection.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

6. The applicants were born in 1977, 1969, and 1975 respectively and at the time the case was introduced were imprisoned in Kochubeyevskoye and Aleksandria.

7. They were among 17 people facing assorted charges related to the so-called Karachay-Circassian Jamaat, a militant Islamist underground movement active in the North Caucasus in the late 1990s and early 2000s.

8. When the case came to trial before the Stavropol Regional Court, on 12 April 2002 a judge ordered - without giving any explanation - that the trial be held behind closed doors in remand prison IZ-26/2 in Pyatigorsk.

9. On 11 July 2002 the court sentenced the applicants to ten, five, and six years respectively. The applicants lodged an appeal with the Supreme Court, complaining, among other things, that the trial had been closed to the public. On 14 May 2003 the Supreme Court upheld the judgment without replying to the complaint.

II. RELEVANT DOMESTIC LAW

10. The Code of Criminal Procedure 1960, as in force at the material time, read as follows:

Article 18 Publicity of hearing

In all courts hearings shall be public, save for when this may endanger State secrets.

A closed hearing is also possible, on a reasoned ruling of a court or order of a judge, in trials of persons younger than 16, in trials of sex crimes, or in other trials in order to preserve the confidentiality of participants’ intimate lives.

A closed hearing shall respect all procedural rules.

Judgments shall in all cases be proclaimed publicly.

11. The Law on Combatting Terrorism 1998, as in force at the material time, read as follows:

Article 24 Peculiarities of criminal and civil trials of terrorism

Criminal terrorist trials ... may, on a ruling of a court, be heard in closed hearings that respect all procedural rules.

THE LAW

I. JOINDER OF THE APPLICATIONS

12. The three applications share the facts and legal issue and must be joined, pursuant to Rule 42 § 1 of the Rules of Court.

II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

13. The applicants complained under Article 6 § 1 of the Convention about having been tried behind closed doors for no good reason. As far as relevant, this Article reads:

“In the determination of ... any criminal charge against him, everyone is entitled to a ... public hearing....”

A. Admissibility

1. The Government

14. The Government submitted that this complaint was inadmissible.

15. It was unclear to them whether the applicants had complied with the six-month rule as they had no confirmation that the complaint had been lodged before 14 November 2003.

16. The complaint was manifestly ill-founded. The public might be excluded from a trial for security reasons (see Riepan v. Austria, no. 35115/97, § 34, ECHR 2000-XII, and Campbell and Fell v. the United Kingdom, 28 June 1984, § 88, Series A no. 80). The trial had had to be secured because the accused had belonged to a well organised and dangerous international jihadist insurgency. The charges had been serious and the number of the accused had been high. Of the 300-strong gang, only 17 had gone on trial and their cohorts could have tried to organise an escape from the courtroom for publicity, thus endangering guards’ lives. Unknown persons had already several times intimidated one of the witnesses.

17. An open trial would have given the accused a chance to preach their immoral and harmful cause. They might have called for revolt and, if broadcast by the media, that call could have threatened public order. The public had received updates on the trial from press releases of the Ministry of the Interior.

18. The closed-door trial had done the applicants no harm as their sentence had been lawful, even if passed away from the public eye. The applicants had not appealed against the decision to conduct a closed trial, nor had they objected at the trial itself. The Law on Combatting Terrorism did authorise closed trials in respect of terrorism-related charges lest the accused or their accomplices at large break the law.

2. The applicants

19. The applicants maintained their complaint. In defiance of the law, the trial court had given no reasons for the decision to try them in private. The media had misinformed the public about the trial and had depicted them as guilty.

3. The Court

20. The Court is satisfied that the applicants have complied with the six-month rule as the final decision was taken on 14 May 2003 and their application forms were dated 13 November 2003 and posted without undue delay. The date of the receipt of the forms by the Court is immaterial (see Kemevuako v. the Netherlands, no. 65938/09, § 19, 1 June 2010, and Biblical Centre of the Chuvash Republic v. Russia, no. 33203/08, § 46, 12 June 2014).

21. This complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

22. The Court reiterates that the holding of court hearings in public constitutes a fundamental principle enshrined in Article 6 § 1. This public character of proceedings 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. 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, the guarantee of which is one of the fundamental principles of any democratic society, within the meaning of the Convention (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 ordinary criminal proceedings, which may well concern dangerous individuals, notwithstanding the attendant security problems (see Campbell and Fell v. the United Kingdom, 28 June 1984, § 87, Series A no. 80).

23. 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 in order, for example, to protect the safety or privacy of witnesses, or to promote the free exchange of information and opinion in the pursuit of justice (see B. and P. v. the United Kingdom, nos. 36337/97 and 35974/97, § 37, ECHR 2001-III, with further references).

24. The Court agrees with the Government that the publicity of a trial may at times have to give way to the need to maintain courtroom security, but cases in which security concerns justify excluding the public from a trial are rare (see Riepan, cited above, § 34). In the present case, neither the first instance nor the appeal court gave any reasons for closing the trial to the public, even though Article 18 of the Code of Criminal Procedure obliges the trial judge to do so. Therefore, the Government are prevented from developing those reasons before the Court (see, in the context of reasons for detention on remand, Dolgova v. Russia, no. 11886/05, § 46, 2 March 2006).

25. There has accordingly been a violation of Article 6 § 1 of the Convention by the lack of a public hearing.

III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

26. The applicants referred to Articles 6, 7, and 9 of the Convention in complaining of the prosecution’s allegedly inadmissible and unreliable evidence, the fact that the applicants’ guilt was unproven, the harsh sentences, the hostile media coverage of the trial, the bias of the trial court, the invasive questions about their religion, the impediment to their worshipping in prison, and discomforts suffered there.

27. 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. Accordingly, 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.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

28. 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

29. Each applicant claimed 500,000 euros in respect of non-pecuniary damage. The Government found that claim excessive. The Court considers that the finding of a violation should suffice (see Osinger v. Austria, no. 54645/00, § 58, 24 March 2005).

B. Costs and expenses

30. As the applicants claimed no costs and expenses, the Court awards none.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Decides to join the applications;

2. Declares the complaints concerning the closed doors trial admissible and the remainder of the applications inadmissible;

3. Holds that there has been a violation of Article 6 § 1 of the Convention by the lack of a public hearing;

4. Holds that the finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicants.

Done in English, and notified in writing on 25 October 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Fatoş Aracı Luis López Guerra
Deputy Registrar President

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