EUROPEAN COURT OF HUMAN RIGHTS
CASE OF SERGEY DENISOV AND OTHERS v. RUSSIA
(Applications nos. 1985/05, 18579/07, 21748/07, 21954/07 and 20922/08)
<*> 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 Sergey Denisov and Others v. Russia,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
Luis Guerra, President,
Alena , judges,
and Stephen Phillips, Section Registrar,
Having deliberated in private on 22 March 2016,
Delivers the following judgment, which was adopted on that date:
- The case originated in five applications (nos. 1985/05, 18579/07, 21748/07, 21954/07 and 20922/08) 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 five Russian nationals, Mr Sergey Aleksandrovich Denisov (no. 1985/05), Mr Ayrat Kavyyevich Gimranov (no. 18579/07), Mr Dmitriy Vladimirovich Filimonov (no. 21748/07), Mr Aleksey Valeryevich Dodonov (no. 21954/07) and Mr Yuriy Titovich Shutov (no. 20922/08) («the applicants»), on 1 December 2004 and 31 January, 1 April, 11 April and 19 April 2007 respectively.
- The applicants were represented by Mr M. Gafarov, Mr K. Kuzminykh, Ms E. Liptser and Ms K. Moskalenko, lawyers practising in St Petersburg and Moscow. The Russian Government («the Government») were represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights.
- The applicants alleged, in particular, that they had been convicted by a «tribunal» not established by law, that their trial had not been in public, that their right to a fair trial had been violated when they had been removed from the courtroom, and that the criminal proceedings against them had been unreasonably long. Mr Denisov also complained that the conditions of his pre-trial detention had been inhuman and degrading, that that detention had been unreasonably long and that his rights to have adequate time to prepare his defence and to defend himself through legal assistance of his own choosing had been violated. Mr Gimranov also complained that he had not been provided with the free assistance of an interpreter throughout the proceedings. Mr Shutov also complained that his right to defend himself through legal assistance of his own choosing had been violated.
- On 14 September 2010 the above complaints were communicated to the Government.
- On 12 December 2014 one of the applicants, Mr Shutov, died. In a letter of 16 July 2015 the applicant’s widow, Ms Shutova, expressed her wish to pursue the application on her late husband’s behalf.
- In a letter of 2 September 2015 the Government disagreed, stating that the proceedings before the Court in respect of Mr Shutov should be discontinued because of his death, and that his wife did not have a sufficient legitimate interest to justify further examination of his case.
- The circumstances of the case
- The applicants were born in 1957, 1961, 1966, 1970 and 1946 respectively and lived until their arrest in St Petersburg.
- Background of the case
- At the end of the 1990-s a criminal gang was operating in St Petersburg. It was named after one of the applicants as «Shutov’s Gang». Its members were involved in multiple serious and violent crimes including aggravated murders, kidnappings, armed robberies and extortion. At the time, Mr Shutov was serving as a member of the St Petersburg Legislative Assembly. He was later accused and convicted of orchestrating the gang’s activities.
- The applicants’ arrest and pre-trial detention
- On 20 January 1999 a criminal investigation into the gang’s activities was opened.
- The applicants were arrested on the following dates:
— Mr Gimranov and Mr Dodonov on 26 January 1999;
— Mr Denisov on 13 February 1999;
— Mr Shutov on 16 February 1999; and
— Mr Filimonov on 7 March 2001.
- They were placed in pre-trial detention on suspicion of participating in a number of serious crimes as members of a criminal group allegedly led by Mr Shutov.
- The St Petersburg City Court (hereinafter «the City Court») extended the period of the applicants’ pre-trial detention several times.
- It transpires from the wording of the decisions that the City Court relied solely on the seriousness of the charges as grounds for the continuing detention and rejected a complaint made by the applicants concerning the composition of the bench. The City Court did not examine in detail the need or grounds for continuing detention and extended the applicants’ pre-trial detention by repeating the contents of earlier orders. In the last extension order, made on 6 December 2005, the City Court relied in addition on the need «to secure execution of a conviction». All of the extensions were upheld on appeal.
- On 26 January 2001 the preliminary investigation was completed. Mr Denisov, Mr Gimranov, Mr Dodonov, Mr Shutov and twelve other individuals implicated in the gang’s activities were charged with multiple counts of aggravated murder, kidnapping, armed robbery and extortion. The bill of indictment and material from the applicants’ case (no. 7806) were transmitted to the City Court, where it reached on 29 January 2001.
- On 13 April 2001 Mr Filimonov was indicted in separate proceedings for similar offences and his criminal case was transmitted to the City Court and consolidated with case no. 7806.
- The first hearing was scheduled for 1 October 2001, but the City Court adjourned it at least eighty-eight times between that date and 27 September 2004 for the reasons summarised as follows: (i) some lawyers failed to appear for no reason; (ii) some of the lawyers excused their absence for health, professional or personal reasons; (iii) the applicants were not escorted to the court on the days they were ill; or (iv) the applicants and/or their lawyers were removed from the courtroom for interrupting the presiding judge and court clerk, addressing the City Court using obscene language and engaging in other unruly behaviour.
- On 28 September 2004 the City Court began to examine the case on the merits by inviting the prosecution to read out the bill of indictment. The trial continued, with few interruptions, until 15 February 2006.
- Challenges to the bench
- The City Court was composed of a professional judge and two lay judges, Ms I. and Ms M., who in 1990 and 1991 respectively had been elected by St Petersburg (then Leningrad) City Council of People’s Deputies (City Council) to serve as lay judges at the City Court. Their terms of service were extended by three presidential Decrees.
- On 15 May 2002 and 27 March 2003 the defence unsuccessfully challenged the professional judge, alleging that he was biased against the applicants.
- On 12 February 2004 the applicants applied to have their case examined by a jury. Their request was not considered by the court because Mr Shutov was not present in court.
- On 27 May and 23 August 2004 the defence unsuccessfully challenged the lay judges Ms I. and Ms M., on the grounds that they lacked the requisite credentials. In particular, they submitted that Ms I. had never been selected as a lay judge, and that Ms M.’s term of office had expired in 1996. They further alleged that subsequent extensions of Ms M.’s term of office by Presidential Decree had been unlawful, and that in any event she could no longer serve in her office following the adoption in January 2000 of a law governing the selection and service of lay judges and the entry into force in July 2002 of the new Code of Criminal Procedure, which had abolished lay judges in the Russian judicial system. In support of their argument, they submitted a letter from the president of the St Petersburg Legislative Assembly stating that their archives contained no decisions by City Council dated 22 June 1990, the date Ms I. had allegedly been selected.
- On 24 September 2004 the applicants unsuccessfully challenged the professional judge and applied for an examination of their case by a jury.
- The applicants challenged the bench up to forty-seven times in total during the proceedings.
- Presence in the courtroom during the proceedings
- Mr Denisov was excluded from the courtroom for misconduct from 17 September 2003 to 17 March 2004, 16 April to 24 September 2004, 27 September 2004 to 19 July 2005 and 21 July to 9 December 2005 after repeatedly challenging the bench and requesting to be tried by jury and engaging in unruly behaviour.
- On 27 September 2004 the other four applicants were removed from the courtroom prior to the start of examination of the case on the merits until the end of the submissions, on the same grounds as Mr Denisov.
- Mr Gimranov submitted that after the prosecution had finished presenting its evidence, he had been called to the courtroom and invited to testify. He had been removed again after asking about the witnesses’ testimonies or for access to the hearing transcript and an interpreter.
- Location of the hearings
- On 26 August 2004 the prosecutor requested the City Court to have the trial moved from the City Court to Kresty remand prison IZ-47/1 in St Petersburg («IZ-47/1»). The prosecutor explained to the court that Mr Shutov suffered from different health ailments and constantly required medical supervision which was not possible in the courtroom as there was no on-site medical stuff present in the court building, unlike in the remand prison which had a permanent medical post. The prosecutor further submitted that the removal of the trial to IZ-47/1 was also aimed at ensuring the safety of the presiding judge, lay judges and three co-defendants of the applicants who started receiving physical threats in connection with the proceedings and asked for state protection.
- On the same day the City Court granted the prosecutor’s request despite protests by the defence, who complained that there would be no access to the public.
- According to the documents in the case-file, the members of the general public could attend the hearings in IZ-47/1 after they presented their identity document to the security personnel and obtained a security pass. Between 27 August 2004 and 17 February 2006 thirty-seven individuals were admitted to attend the hearings taking place in IZ-47/1. The City Court allowed video and audio recording during the trial in the remand prison. The journalists were allowed to observe the trial on a television screen in the press-room organised specifically for them in IZ-47/1.
- On 28 September 2004 and 2 November 2005 the defence applied to have the trial moved back to the City Court, alleging poor working conditions. Both requests were rejected.
- On 16 and 17 February 2006 the representatives of four television channels and six newspapers were present during the trial.
- Review of the case documents by Mr Denisov and his lawyer K. during the proceedings
- On 15 June 2000 Mr Denisov and G., the lawyer representing him at the time, signed a form acknowledging that they had received sixty-five files of the criminal case for review.
- On 16 August 2000 the head of the criminal investigation unit gave Mr Denisov a formal warning for delaying the review of the case documents for no valid reason and notified him that the time allocated to him for studying the case material might be reduced. Mr Denisov signed the warning and explained in writing that he had regularly reviewed the case documents and had done so as quickly as he could.
- On 6 September 2000 the head of the criminal investigation unit reported that because Mr Denisov had intentionally delayed the review of the case documents and had refused to review them on several occasions, he and his lawyer had been given eighty days to finish the review, and by 15 January 2001 at the latest.
- According to the trial transcript of 28 September 2004, the City Court refused a request by Mr Denisov’s new lawyer, K., to adjourn the hearing in order to review the case documents. The court explained that since Mr Denisov’s lawyer G. remained on the case and was familiar with the material, K.’s request for adjournment was not justified.
- On 29 September 2004 the City Court informed the applicants’ lawyers, including K., that they could study the case documents every afternoon after the hearings and during working hours on Fridays.
- On 10 November 2004 the City Court ruled that Mr Denisov would be allowed to review the transcript of the hearings from which he had been removed at the end of the deliberations.
- On 2 December 2004 Mr Denisov’s lawyer K. informed the City Court that he had reviewed the case documents and had digital copies of them.
- Conditions of Mr Denisov’s detention in the remand prison
- From 24 February 1999 to 17 March 2006 Mr Denisov was detained in IZ-47/1.
- On 21 May 2007 he complained to the Court that the conditions of his detention there had been inadequate. In particular, he stated that each detainee in his cell had only been allocated 1.5 square metres of space. The cell had not been heated in winter or properly ventilated in summer, and there had been no privacy in the toilet area.
- Mr Denisov’s submissions regarding the trial
- The applicant submitted that on 4 March 2002 and 20 July 2003 the court had refused his request to study certain case material even though he had only studied thirty-two of the sixty-eight files produced by the end of the preliminary investigation.
- On 28 September 2004 the City Court had refused to allow his second legal counsel K., who had entered the proceedings that day, time to study the case file.
- On 30 September 2004 his counsel had requested that he be allowed time to study the case material and the trial transcript. The City Court had refused, noting that he had had ample opportunity to study the case in advance, and that the trial transcript would be distributed at the end of the proceedings.
- On 2 December 2004 and 27 June 2005 his remaining legal counsel K. had requested access to certain evidence and procedural documents. The request had been granted only in part.
- On 20 July 2005 his counsel had unsuccessfully asked to be allowed time to study the statements certain witnesses, victims and co-accused had made during the preliminary investigation, and to familiarise himself with transcripts of the hearings held while the applicant had been excluded from the courtroom.
- Mr Gimranov’s submissions regarding the trial
- The applicant submitted that even though his native language was Tatar and he was not completely fluent in Russian, he had not been provided with an interpreter despite his requests both during the pre-trial and trial stages of the proceedings. On several occasions the City Court had refused his requests for translations and to allow his partner, Ms. Ch., to act as his non-legal representative in the proceedings, on the grounds that she was not fluent in Tatar. He had also been unable to lodge an appeal against his conviction, as the appellate court had refused to consider his statement of appeal written in Tatar.
- Mr Shutov’s submissions regarding the trial
- The applicant submitted that on 3 November 2005 he had terminated his agreement for legal assistance with his two counsels Z. and Sh. He had informed the City Court that he wished to retain new counsel, but it had refused his request on the grounds that he had not given sufficient reasons why he no longer wished to be represented by Z. and Sh. They had continued to represent him, but according to the applicant, they had not effectively participated in the defence.
- Conviction and appeal proceedings
- On 15 February 2006 the City Court convicted the applicants and twelve other defendants of multiple counts of organising a criminal group, murder and assault, preparing explosive devices and unlawfully storing and carrying firearms. Mr Denisov, Mr Gimranov and Mr Shutov were sentenced to life imprisonment, while Mr Filimonov and Mr Dodonov received sentences of nine and eighteen years respectively.
- According to the judgment, the applicants could request to participate in person in the appeal hearing of their case. The applicants appealed.
(a) Mr Shutov’s request to participate in appeal proceedings
- On 27 February 2006 Mr Shutov filed a statement of appeal against his conviction. He did not request to be present during the hearing. On 30 August 2006 he was informed that the hearing of his case on appeal would start on 16 November 2006 in the Supreme Court of Russia (hereinafter «the appellate court»). On the day of the hearing Mr Shutov’s lawyer, S., lodged a request for him to personally participate in the hearing but it was refused. In addition to S., Mr Shutov was represented by two other lawyers at the hearing.
(b) Mr Dodonov’s request to participate in appeal proceedings
- On 29 June 2006 the appellate court granted Mr Dodonov’s request to participate in the appeal hearing of his case.
(c) Appeal judgment
- On 21 November 2006 the Supreme Court of Russia upheld the applicants’ conviction on appeal. Mr Denisov, Mr Dodonov, Mr Gimranov and their lawyers participated in the hearing, as did Mr Shutov’s three lawyers and Mr Filimonov’s lawyer.
- Relevant domestic law
- Conditions of detention
- The relevant domestic law and international material regarding the conditions of pre-trial detention in Russian custodial facilities are summarised in the case of Ananyev and Others v. Russia (nos. 42525/07 and 60800/08, §§ 25 — 60, 10 January 2012).
- Pre-trial detention
- For a comprehensive summary of the domestic provisions on pre-trial detention and time-limits for trial in Russia, see Avdeyev and Veryayev v. Russia (no. 2737/04, §§ 22 — 34, 9 July 2009).
- Composition of courts in criminal proceedings
- Code of Criminal Procedure of the RSFSR of 27 October 1960 (in force up to 1 July 2002)
- Article 15 provided that hearings in first-instance courts dealing with criminal cases were to be conducted, subject to certain exceptions, by a single professional judge or by one professional and two lay judges. In their judicial capacity, lay judges enjoyed the same rights as professional judges.
- Article 241 provided that every case must be examined by one and the same composition. If one of the judges is no longer able to take part in the proceedings he must be replaced by another judge, and the court proceedings must restart from the beginning, expect in cases described in Article 242.
- Law on the Judicial System of the RSFSR of 8 July 1981
- Section 29 provided that lay judges at the regional courts were to be elected by the relevant council of people’s deputies for a term of five years (the relevant provisions remained in force until 10 January 2000, date of the official publication of the Federal Law on lay judges at the federal courts of general jurisdiction in the Russian Federation).
- Law on the Status of Judges in the USSR of 4 August 1989
- Section 10 (5) provided that lay judges were elected for a term of five years.
- Federal Law of 31 December 1996 on the Judicial System of Russia
- Section 1 provided that judicial authority in the Russian Federation was vested exclusively in courts comprising professional judges, jurors, lay judges and arbitration judges appointed or elected in accordance with the procedure laid down by federal law.
- Section 37 established that lay judges elected to serve in the courts before 1 January 1997 should remain in office until the expiry of the term of office for which they had been elected.
- Code of Criminal Procedure of Russia of 18 December 2001
- Article 242 provided that the composition of the court that started examining the case had to remain unchanged throughout the trial.
- Lay judges
- Federal Law of 2 January 2000 on Lay Judges of the Federal Courts of General Jurisdiction in the Russian Federation («the Lay Judges Act» — in force between 10 January 2000 and 1 January 2004)
- Section 1 provided that Russian citizens were entitled to participate in the administration of justice as lay judges. Lay judges were persons entitled by law to hear civil and criminal cases as part of the court bench and carry out their judicial duties on a non-professional basis.
- Section 2 provided that local self-government bodies selected lay judges for a given district court from the electoral roll of the district located within that court’s jurisdiction. Regional legislative bodies then approved the lists of lay judges and distributed them to the relevant district court.
- Section 5 set out the procedure for selecting lay judges for the examination of cases in the district courts. It provided that the president of a district court had to draw at random from the list a certain number of lay judges to be called to that district court. The reserve number of lay judges assigned to every professional judge had to be at least three times the number of persons needed for a hearing.
- Section 6 provided that lay judges for a regional court or other court at the same level had to be drawn by lot from the lists for all the district courts in the area.
- Decrees issued by the President of the Russian Federation
(a) Presidential Decree no. 2289 of 25 December 1993 (the 1993 Decree)
- This decree extended the term of service of lay judges (elected under the «old» procedure) until such time as the law governing the judicial system was enacted (see paragraphs 59 — 60 above).
(b) Presidential Decree no. 41 of 23 January 1997 (the 1997 Decree)
- This decree extended the term of service of lay judges (elected under the «old» procedure) until such time as the law concerning lay judges was enacted.
(c) Presidential Decree no. 103 of 25 January 2000 (the 2000 Decree)
- This decree extended the term of service of lay judges (elected under the «old» procedure) until such time as the relevant federal courts received the lists of lay judges ratified by the regional legislative body in accordance with the Lay Judges Act.
(d) Presidential Decree no. 855 of 5 August 2002 (the 2002 Decree)
- This decree set aside the 2000 Presidential Decree.
- Regulation on the appointment of lay judges
- On 14 January 2000 the Presidium of the Supreme Court of Russia, on the basis of section 5 of the Lay Judges Act, issued a regulation on the procedure for selecting lay judges. It provided that for each judge, the president of a district court had to draw 156 names at random from the general list of lay judges. The lay judges for a particular case were to be drawn by lot by the judge to whom the case had been assigned.
- Federal Law of 18 December 2001 (No. 177-FZ) on the Introduction of the Code of the Criminal Procedure of Russia
- Section 2(1) (as in force from 29 May 2002) provided that the Lay Judges Act (cited above), in so far as it applied to criminal proceedings, would no longer be in force from 1 January 2004 onwards.
- Personal participation in the appeal proceedings
- Article 375 § 2 of the Code of Criminal Procedure of Russia as in force at the material time provided that a convicted person wishing to participate in the appeal proceedings had to indicate it in his statement of appeal.
- Locus standi of Ms Shutova
- The Court takes note of Mr Shutov’s death and of the wish of Ms Shutova, his widow, to pursue the proceedings he initiated.
- The Court reiterates that where an applicant dies during the examination of a case, his or her heirs may in principle pursue the application on his or her behalf (see v. Lithuania, no. 34578/97, § 41, ECHR 2000-IX). It further reiterates that in a number of cases in which applicants have died in the course of the proceedings, it has taken into account the statements of their heirs or close family members expressing their wish to pursue the proceedings before the Court (see Latif Fuat v. Turkey, no. 54673/00, § 27, 2 February 2006, and Hanbayat v. Turkey, no. 18378/02, § 20, 17 July 2007). In the present case, the Court considers that apart from explicitly expressing her wish to do so, the applicant’s widow has a sufficient legitimate interest in pursuing the proceedings on his behalf, given the nature of the complaints brought by Mr Shutov.
- The Court therefore considers that the applicant’s widow has standing to continue the present proceedings in the applicant’s stead. Consequently, it rejects the Government’s objection that the proceedings should be discontinued.
- Joinder of the applications
- In accordance with Rule 42 § 1 of the Rules of Court, the Court decides to join the applications, given their similar factual and legal background.
III. Alleged violation of Article 3 of the Convention — conditions of Mr Denisov’s detention in the remand prison
- Mr Denisov complained that the conditions of his detention in the remand prison IZ-47/1 in St Petersburg had been in breach of Article 3 of the Convention, which reads as follows:
«No one shall be subjected to torture or to inhuman or degrading treatment or punishment.»
- The Government claimed that Mr Denisov had not exhausted domestic remedies, because he had not sought compensation in the civil courts for the allegedly inadequate conditions of his detention in IZ-47/1. They further submitted that the conditions from 24 February 1999 to 17 March 2006 had been compatible with the requirements of Article 3 of the Convention.
- Exhaustion of domestic remedies
- The Court reiterates its well-established position that in the Russian legal system, a civil claim for compensation for inadequate conditions of detention is not considered an effective remedy (see Norkin v. Russia (dec.), no. 21056/11, §§ 17 and 19, 5 February 2013, with further references).
- It therefore considers that the applicant could not have been expected to lodge a civil claim for compensation with the domestic courts and rejects the Government’s objection as to non-exhaustion of domestic remedies.
- Compliance with the six-month limit
- The Court further observes that the Government did not submit any arguments concerning whether or not the applicant complied with the six-month limitation period for lodging his complaint.
- In this regard, the Court refers to the case of Ananyev and Others (cited above, §§ 71 — 72) and notes that, in contrast to an objection as to non-exhaustion of domestic remedies, which must be raised by the respondent Government, it cannot set aside the application of the six-month rule solely because a government have not made a preliminary objection to that effect. As a rule, the six-month period runs from the date of the final decision in the process of exhaustion of domestic remedies. Where no effective remedy is available to the applicant, the period runs from the date of the acts or measures complained of or from the date of the knowledge of that act or its effect on or prejudice to the applicant. In cases featuring a continuing situation, the six-month period runs from the cessation of that situation.
- The Court observes that according to the case material, the applicant was held in IZ-47/1 from 24 February 1999 to 17 March 2006. Given the fact that no effective remedy was available to him, he should have lodged his complaint on 17 September 2006 by the latest. However, he only brought his complaint to the Court for the first time on 21 May 2007 (see paragraph 40 above), more than a year after his detention in the remand prison ended.
84. It therefore follows that this complaint is inadmissible for non-compliance with the six-month rule set out in Article 35 § 1 of the Convention, and must be rejected pursuant to Article 35 § 4.