Постановление ЕСПЧ от 19.04.2016 <Дело Сергей Денисов и другие (Sergey Denisov and Others) против России> (жалобы N 1985/05, 18579/07, 21748/07, 21954/07 и 20922/08) [англ.] Часть 2

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  1. Alleged violation of Article 5 § 3 of the Convention in respect of Mr Denisov

 

  1. Mr Denisov further complained that his detention from 13 February 1999 to 15 February 2006 pending investigation and trial had not been justified and had been in breach of the «reasonable time» requirement. He relied on Article 5 § 3 of the Convention, which reads as follows in the relevant part:

«3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.»

 

  1. Admissibility

 

  1. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

 

  1. Merits
  1. Submissions by the parties

 

  1. The Government claimed that every time the court had extended the term of Mr Denisov’s detention on remand, it had referred to the seriousness of the charges against him as well as other «material and sufficient» factors. Its arguments had not been abstract because they had been based on the relevant criminal case material.
  2. Mr Denisov submitted that during his seven years in the remand prison, the court had extended his time in detention relying only on the seriousness of the pending charges and without considering any other circumstances that might have warranted his release pending trial.

 

  1. The Court’s assessment

 

(a) General principles

  1. In determining the length of detention pending trial under Article 5 § 3 of the Convention, the period to be taken into consideration begins on the day the accused is taken into custody and ends on the day the charge is determined, even if only by a court of first instance (see Wemhoff v. Germany, 27 June 1968, § 9, Series A no. 7, and Labita v. Italy [GC], no. 26772/95, §§ 145 and 147, ECHR 2000-IV).
  2. The presumption is in favour of release. The second limb of Article 5 § 3 of the Convention does not give judicial authorities the choice between either bringing an accused to trial within a reasonable time or granting him provisional release pending trial. Until conviction, he must be presumed innocent, and the purpose of the provision under consideration is essentially to require his provisional release once his continuing detention ceases to be reasonable (see McKay v. the United Kingdom [GC], no. 543/03, § 41, ECHR 2006-X).
  3. The question whether a period of time spent in pre-trial detention is reasonable cannot be assessed in the abstract. Whether it is reasonable for an accused to remain in detention must be assessed on the facts of each case and according to its specific features. Continued detention can be justified in a given case only if there are actual indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the rule of respect for individual liberty laid down in Article 5 of the Convention (see, among other authorities, v. Poland [GC], no. 30210/96, §§ 110 et seq., ECHR 2000-XI).
  4. The existence and persistence of a reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the lawfulness of the continued detention. However, after a certain lapse of time it no longer suffices. In such cases, the Court must establish whether the other grounds given by the judicial authorities continued to justify the deprivation of liberty. Where such grounds are «relevant» and «sufficient», the Court must also ascertain whether the competent national authorities displayed «special diligence» in the conduct of the proceedings (see Labita, cited above, §§ 152 — 53).
  5. The responsibility falls in the first place to the national judicial authorities to ensure that, in a given case, the pre-trial detention of an accused person does not exceed a reasonable time. To this end they must, paying due regard to the principle of the presumption of innocence, examine all the facts arguing for or against the existence of the public interest which justifies a departure from the rule in Article 5 and must set them out in their decisions on the applications for release (see, for example, McKay, cited above, § 43).
  6. Article 5 § 3 of the Convention cannot be seen as unconditionally authorising detention provided that it lasts no longer than a certain period. Justification for any period of detention, no matter how short, must be convincingly demonstrated by the authorities (see Shishkov v. Bulgaria, no. 38822/97, § 66, ECHR 2003-I). When deciding whether a person should be released or detained, the authorities are obliged to consider alternative measures of ensuring his appearance at trial (see v. Poland, no. 33492/96, § 83, 21 December 2000).

(b) Application of the above principles to the present case

(i) Period to be taken into consideration

  1. The Court notes that Mr Denisov was in custody within the meaning of Article 5 § 3 of the Convention from 13 February 1999 (the day of his arrest) to 15 February 2006 (the day of his conviction), that is, seven years and four days. This period appears to be rather long; however, given the principles reiterated above, the Court will need to assess whether there were relevant and sufficient reasons to justify Mr Denisov’s continuing detention on remand.

(ii) Whether there were relevant and sufficient reasons to justify Mr Denisov’s detention

  1. The Court notes that the City Court detained Mr Denisov based on a reasonable suspicion that he had committed serious criminal offences and relied solely on the seriousness of the charges as the main factor for his continuing detention (see paragraph 13 above). In this regard, the Court notes that it has repeatedly held that the seriousness of charges cannot by itself serve to justify long periods of detention (see Avdeyev and Veryayev, cited above, § 64). However, the City Court did not provide any additional reasons in its extension orders, evaluate the specific facts of Mr Denisov’s case or assess the risks associated with his possible release pending trial. The wording of the extension orders throughout the seven years of Mr Denisov’s pre-trial detention were strikingly identical and contained no analysis of the pertinent facts (see paragraph 13 above).
  2. The Court also notes that the domestic authorities, using the same formula, simultaneously extended Mr Denisov and his co-defendants’ detention (see paragraph 13 above). It reiterates its view that this approach is incompatible, in itself, with the guarantees enshrined in Article 5 § 3 of the Convention in so far as it permits the continued detention of a group of persons without a case-by-case assessment of the grounds for holding them or compliance with the reasonable time requirement in respect of each individual member of the group (see Kovaleva v. Russia, no. 7782/04, § 79, 2 December 2010).
  3. The Court further notes that during the entire period under consideration, the City Court did not consider the possibility of ensuring Mr Denisov’s attendance by the use of other «preventive measures» such as a written undertaking or bail, which are expressly provided for by Russian law to secure the proper conduct of criminal proceedings, or, at the very least, by seeking to and explaining in its decisions why such alternatives would not have ensured that the trial would follow its proper course.
  4. Having regard to the above, the Court considers that by relying on the seriousness of charges, repeatedly failing to provide additional and proper grounds for Mr Denisov’s continuing detention, extending his detention in summary fashion together with his co-defendants’, and not considering alternative preventative measures, the City Court cannot be said to have relied on «relevant» and «sufficient» reasons when extending the pre-trial detention. In those circumstances, it is not necessary to examine whether the proceedings were conducted with «special diligence».
  5. The Court therefore finds that there has been a violation of Article 5 § 3 of the Convention on account of the length of Mr Denisov’s pre-trial detention.

 

  1. Alleged violation of Article 6 § 1 of the Convention on account of the composition of the trial Court

 

  1. The applicants complained that the St Petersburg City Court, which had convicted them on 15 February 2006, had not been composed in accordance with the law and had not had power to deal with their case after 1 January 2004. They relied on Article 6 § 1 of the Convention, the relevant part of which reads as follows:

«In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.»

 

  1. Admissibility

 

  1. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

 

  1. Merits

 

  1. Submissions by the parties

 

(a) The Government

  1. The Government submitted that on 22 June 1990 and 10 October 1991 respectively, in accordance with the Soviet Constitution and the Soviet Law on Judges as in force at the material time, Ms I. and Ms M. had been approved by the City Council to serve as lay judges at the City Court. In support of their claim, they submitted, inter alia, the following documents:

(a) a draft decision of the City Council dated 22 June 1990 on the election of lay judges, including Ms. I., to the City Court;

(b) a transcript of a meeting of the City Council on 22 June 1990 containing the agenda and details of a discussion concerning the election of lay judges on that day;

(c) a decision of the City Council dated 10 October 1991 on the election of lay judges to the City Court;

(d) affidavits produced by Ms I. and Ms M., confirming that they had been elected as lay judges on 22 June 1990 and 10 October 1991 respectively.

  1. The Government further submitted that the term of service of Ms I. and Ms M. had been extended by three Presidential Decrees on 25 December 1993, 23 January 1997 and 25 January 2000 and until such time as the regional legislative body ratified the general list of lay judges in accordance with the Lay Judges Act of 2 January 2001. However, the list had never been ratified in St Petersburg.
  2. The Government also alleged that all the lay judges elected from 1990 to 1993 had retained their powers until 5 August 2002, when the 2002 Decree abolished the extension of lay judges’ terms of service.
  3. They further noted that the City Court had started examining the applicants’ case on 1 October 2001, when the provisions on lay judges and their powers had still been in force. The examination of the applicants’ case by lay judges continued after 1 January 2004 in accordance with Article 242 of the Code of Criminal Procedure, which provided that the composition of the court examining the case had to remain unchanged throughout the trial.

(b) The applicants

  1. The applicants claimed that Ms I. had not been selected to serve as a lay judge in the City Court on 22 June 1990. In support of their claim they submitted an extract of an archive record from the St Petersburg Central National Archive stating that the minutes and the transcript of the City Council meeting of 22 June 1990 did not contain a decision on the election of Ms I.
  2. They further alleged that Ms M. could not have served as a lay judge in their case. In particular, they submitted that the Law on the Judicial System, which had been enacted on 31 December 1996, could not possibly extend Ms M.’s powers as a lay judge because her five-year term of service had already expired in October 1996, five years after her original election on 10 October 1991.
  3. In the alternative, the applicants claimed that even if Ms I. and Ms M. had been duly elected as lay judges in the 1990-s and their term of service had been extended three times by Presidential Decrees, they, nevertheless, had not had the power to examine the applicants’ case. In particular, the 2000 Decree had extended their term of service until such time as the lists of lay judges were ratified by the regional legislature and assigned to the relevant federal courts. However, Ms I. and Ms M. took part in the examination of the applicants’ case even though the lists of lay judges in which Ms I. and Ms M.’s names had been included had never been ratified by the St Petersburg Legislative Assembly or distributed to the City Court.
  4. Lastly, the applicants argued that after 1 January 2004, the participation of lay judges Ms I. and Ms M. in their trial had been unlawful, since from that date there had been no basis in domestic law for the further involvement of lay judges in the proceedings.

 

  1. The Court’s assessment

 

  1. The Court notes at the outset that the applicants’ complaint is twofold. Firstly, they challenged the lawfulness of the appointment of the lay judges who sat on the bench in their case and the extension of their term of office; and secondly, they questioned their judicial powers after 1 January 2004.
  2. The Court reiterates that the phrase «established by law» covers not only the legal basis for the very existence of a «tribunal» but also the composition of the bench in each case (see Buscarini v. San Marino (dec.), no. 31657/96, 4 May 2000).
  3. The Court is therefore requested to examine allegations such as those made in the present case concerning an alleged breach of the internal rules for the appointment of judicial officers. The fact that the complaint in the present case concerns lay judges does not make it any less important as, under Article 15 of the Code of Criminal Procedure, in their judicial capacity lay judges enjoy the same rights as a professional judge (see Posokhov v. Russia, no. 63486/00, § 39, ECHR 2003-IV, and paragraph 55 above).
  4. The Court notes that in this regard, it is necessary to carry out a three-step analysis of the composition of the court in the applicants’ case before lay judges were abolished on 1 January 2004. The Court will first determine whether Ms I. and Ms M. were duly elected to their office and whether their term of office was duly extended. The Court will then turn to examine whether Ms I. and Ms M. were empowered to serve as lay judges in the applicants’ case following the adoption of the Lay Judges Act.

(a) Selection and appointment of Ms I. and Ms M. as lay judges under the Law on the Status of Judges in the USSR

  1. The Court observes that from 1990 to 1991 the City Council selected a pool of lay judges (see paragraphs 18, 57 and 103 above). Having examined the documents submitted by the parties, the Court accepts that Ms I. and Ms M. were duly elected as lay judges on 22 June 1990 and 10 October 1991 respectively, for a term of five years.

(b) Extension of Ms I. and Ms M.’s term of service

  1. The Court further observes that in 1993 the term of service of lay judges in Russia was extended by the 1993 Decree until such time as the law governing the judicial system in Russia was enacted (see paragraphs 18 and 66 above). On 31 December 1996 the Law on the Judicial System of Russia was adopted, which provided that lay judges retained their powers until their term of service expired (see paragraph 60 above).
  2. In this regard, it appears that Ms I. and Ms M.’s term of service, originally extended by the 1993 Decree, should have expired on 31 December 1996 when the Law on the Judicial System in Russia was adopted. However, twenty-three days later, the 1997 Decree extended the term of service of lay judges in Russia until such time as the law concerning lay judges was enacted (see paragraph 67 above). The Court cannot but accept that the 1997 Decree was enacted to avoid the systemic problem with the legitimacy of status of lay judges elected in the early 1990-s to examine new cases.
  3. In the Court’s opinion, a brief delay in the renewal of powers of lay judges Ms I. and Ms M., who were in office between the early 1990-s and 2006, was a minor irregularity and did not overall undermine the legitimacy of status of Ms I. and Ms M. or any other lay judge in a similar situation. In particular, Ms I and Ms M. had been elected in accordance with the law and their term of office was otherwise duly and regularly extended in good faith by the authorities in the 1993 and 1997 Decrees which were aimed at safeguarding the status of lay judges in office pending the adoption of the respective law. Moreover, lay judges, including Ms I. and Ms M., formed an integral part of the Russian judicial system and were essential for the proper and uninterrupted administration of justice during its major reform at that time (see paragraphs 59 and 62 — 65 above). The Court therefore concludes that Ms I. and Ms M. lawfully remained in their office as lay judges when the Lay Judges Act was enacted on 2 January 2000.
  4. Accordingly, the Court will turn to examine whether the participation of Ms I. and Ms M. in the examination of the applicants’ case was lawful after 2 January 2000.

(c) Selection and appointment of Ms I. and Ms M. as lay judges under the Lay Judges Act

  1. The Lay Judges Act governed the procedure for electing lay judges (see paragraphs 62 — 65 above). On 25 January 2000 the term of service of appointed lay judges was extended by the 2000 Decree until such time as the lists of lay judges were ratified by the regional legislature and distributed to the relevant federal court in accordance with the Lay Judges Act (see paragraph 68 above).
  2. The Court notes that when Ms I. and Ms M. started examining the applicants’ case on 1 October 2001, the list of lay judges including their names had not yet been ratified by the St Petersburg Legislative Assembly or distributed to the City Court in accordance with section 2 of the Lay Judges Act. Pending the ratification of the lists of lay judges by the regional legislatures, the participation of Ms I. and Ms M. in the applicants’ trial was governed by the 2000 Decree, which extended the term of office of appointed lay judges (see paragraph 68 above). This Decree was set aside on 5 August 2002 (see paragraph 69 above) and the lists of lay judges had still not been ratified at that time (see paragraph 104 above).
  3. The Court notes, however, that on 5 August 2002 the applicants’ trial was under way and Ms I. and Ms M. had been serving as lay judges in it since 1 October 2001. In accordance with the applicable provisions of the Criminal Procedure Code, the composition of the court examining the case had to remain unchanged throughout the judicial proceedings (see paragraphs 56 and 61 above). In the Court’s opinion, the requirement of a permanent composition of the court enshrined in the Criminal Procedure Code of the RSFSR and later Russia ensured continuous and timely examination of the applicants’ case and superseded the failure of the authorities to ratify and distribute the lists of lay judges.
  4. The Court reiterates that it has found violations of Article 6 § 1 of the Convention in a number of cases against Russia in which it was established that the selection of lay judges had been conducted contrary to the requirements of the Lay Judges Act (see Petr Sevastyanov v. Russia, no. 75911/01, §§ 35 — 39, 14 June 2011; Kuptsov and Kuptsova v. Russia, no. 6110/03, §§ 111 — 18, 3 March 2011; Zakharkin v. Russia, no. 1555/04, §§ 146 — 51, 10 June 2010; Ilatovskiy v. Russia, no. 6945/04, §§ 36 — 42, 9 July 2009; Moskovets v. Russia, no. 14370/03, § 99, 23 April 2009; Shabanov and Tren v. Russia, no. 5433/02, § 30, 14 December 2006; and Posokhov, cited above, §§ 40 — 44).
  5. The Court observes, however, that those cases distinctly contrast with the present case, because, unlike in the situation at hand, the Court found in them serious defects in the initial selection of lay judges which irreversibly undermined the fairness of the criminal proceedings against the applicants.
  6. In the light of the above considerations, the Court concludes that Ms I. and Ms M. had the power to examine the applicants’ case before and after 5 August 2002 and also after 1 January 2004, when the provisions on lay judges were permanently abolished. Accordingly, the Court holds that the composition of the court in the applicants’ case was lawful and that there has been no violation of Article 6 § 1 of the Convention on that account.

 

  1. Alleged violation of Article 6 § 1 of the Convention (length of proceedings)

 

  1. The applicants complained that the length of the proceedings against them had been incompatible with the «reasonable time» requirement laid down in Article 6 § 1 of the Convention, which reads as follows:

«In the determination of… any criminal charge against him, everyone is entitled to a… hearing within a reasonable time by [a]… tribunal…»

 

  1. Admissibility

 

  1. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, and that it is not inadmissible on any other grounds. It must therefore be declared admissible.

 

  1. Merits
  1. Submissions by the parties

 

  1. The Government submitted that the case had been complicated as it had combined fourteen criminal cases, involved a large number of victims, witnesses and seventeen accused, and had required a large number of investigative activities conducted in different locations. They claimed that the delays had been attributable to the applicants. In particular, delays during the pre-trial investigation had been caused by the applicants reviewing the case file. Furthermore, they submitted a document detailing the reasons for every hearing adjournment. According to this, between October 2001 and September 2004 the trial was delayed at least eighty-eight times owing to the applicants or their lawyers’ ill health, repeated failure of the applicants’ lawyers to appear and the applicants or their lawyers being removed from the courtroom because of improper behaviour.
  2. The applicants disagreed and claimed in general terms that the Government’s allegations were not substantiated or convincing.

 

  1. The Court’s assessment

 

  1. The Court reiterates that according to its case-law, the period to be taken into consideration under Article 6 § 1 of the Convention must be determined autonomously. It begins at the time when formal charges are brought against a person or when that person has otherwise been substantially affected by actions taken by the prosecuting authorities as a result of a suspicion against him (see G.O. v. Russia, no. 39249/03, § 106, 18 October 2011). The Court observes that the period to be taken into consideration began for each of the applicants the day they were arrested (see paragraph 10 above) and ended on 21 November 2006, when the Supreme Court of Russia issued the final judgment. The proceedings, at three levels of jurisdiction including the pre-trial investigation, lasted approximately seven years and nine months for Mr Denisov, Mr Gimranov, Mr Dodonov and Mr Shutov, and five years and eight months for Mr Filimonov.
  2. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case and the conduct of the applicant and the relevant authorities (see, among many other authorities, and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999-II). In addition, only delays attributable to the State may justify the finding of a failure to comply with the «reasonable time» requirement (see Pedersen and Baadsgaard v. Denmark, no. 49017/99, § 44, 19 June 2003).
  3. The Court notes that the pre-trial investigation of the applicants’ case ran from 10 January 1999 to 26 January 2001 (two years and seventeen days), the proceedings before the City Court ran from 29 January 2001 to 15 February 2006 (five years and eighteen days), and the appeal proceedings before the Supreme Court ran from 16 February to 21 November 2006 (nine months and four days).
  4. The Court finds from the material before it that the length of the pre-trial investigation and appeal proceedings do not appear to have been unreasonable given the complexity of the case and the applicants’ need to review the case material and prepare for the hearings.
  5. The Court considers that the largest gap in the proceedings occurred between 3 October 2001 and 27 September 2004 when the City Court adjourned the hearing at least eighty-eight times because the applicants were ill, lawyers failed to appear for health, personal or professional reasons or for no reason or because the applicants and their lawyers were removed from the courtroom for engaging in disruptive behaviour (see paragraphs 16 and 128 above).
  6. In view of the above, the Court will therefore examine whether the adjournments and ensuing delays unnecessarily extended the proceedings and were attributable to the State.

(a) Complexity of the case

  1. The Court considers that the proceedings at issue were complex given the seventeen defendants and the number and substance of charges against them (see paragraphs 14, 15 and 48 above). However, it cannot accept that the complexity of the case, taken on its own, was such as to justify the overall length of the proceedings.

(b) Conduct of the applicants

(i) The applicants’ illness

  1. The Court accepts that the applicants cannot be blamed for taking advantage of the procedural rights available to them and is satisfied that illness constitutes an objective factor responsible for delays. At the same time, it is of the opinion that the State cannot bear responsibility for this either (see Petr Korolev v. Russia, no. 38112/04, § 61, 21 October 2010).

(ii) Lawyers’ absence

  1. The Court considers that the presence of lawyers during the trial was indispensable for the applicants’ effective defence, and the City Court duly rescheduled hearings on the days lawyers did not appear for various reasons (see paragraph 134 above). However, it finds that the repeated failure of counsel to attend the trial significantly delayed the proceedings and that this was not attributable to the State (see, by contrast, Bakhmutskiy v. Russia, no. 36932/02, § 157, 25 June 2009).

(iii) Disruptive behaviour

  1. The Court also takes note of the applicants and their lawyers’ improper conduct (see paragraph 16 above) and finds that it did not serve the interests of justice and contributed to further and unjustified delays in the proceedings which were not caused by the State authorities.

(c) The conduct of the authorities

  1. As regards the conduct of the authorities, the Court observes from the case material before it that the City Court promptly and systematically rescheduled hearings for reasons outside the control of the domestic authorities. In the absence of any significant periods of inactivity on the part of the State authorities, the Court considers that the length of the proceedings cannot be considered unreasonable (see Petukhov v. Ukraine, no. 43374/02, § 141, 21 October 2010).

(d) Conclusion

  1. Having examined all the material before it, and given that the factors affecting the overall length of the proceedings were not attributable to the State, the Court considers that the length of the criminal proceedings in the present case cannot be considered unreasonable. There has, accordingly, been no violation of Article 6 § 1 of the Convention on that account.

 

VII. Other alleged violations of the Convention

 

  1. The applicants also complained under Article 6 § 1 of the Convention that they had been removed from the courtroom several times, and that the hearing of their case in the remand prison between 26 August 2004 and 17 February 2006 had not been in public. Furthermore, Mr Denisov complained under Article 6 §§ 1 and 3 (b) and (c) that he had not had full access to the case material and that the City Court had refused the request of his newly appointed lawyer K. to adjourn the hearing to review the case documents. Mr Shutov complained that he had not been present during the appeal hearing of his case and that the City Court had refused his request to have another lawyer appointed, contrary to Article 6 §§ 1 and 3 (c) of the Convention. Mr Gimranov complained that he had not been provided with the free assistance of an interpreter, in breach of Article 6 §§ 1 and 3 (e) of the Convention. The Government disagreed with these arguments and submitted detailed documents to refute them.

 

  1. Removal from the courtroom

 

  1. Regarding the removal of the applicants from the courtroom, the Court has established that the applicants and/or some of their lawyers were removed on multiple occasions for interrupting the presiding judge and court clerk, addressing the City Court using obscene language and engaging in other unruly behaviour (see paragraphs 16, 134 and 139 above). Under these circumstances, the removal of the applicants from the courtroom was necessary for maintaining order in the court and it cannot be considered to have curtailed the overall fairness of the proceedings against the applicants, who were represented by lawyers in their absence. The Court therefore rejects this complaint as manifestly ill-founded in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

 

  1. Public hearing

 

  1. As regards the alleged lack of a public hearing in remand prison IZ-47/1 between 26 August 2004 and 17 February 2006, the case documents before the Court convincingly demonstrate that even though the trial was transferred to the remand prison, it was not closed to the public (see paragraphs 29 and 31 above). 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.

 

  1. Mr Denisov’s complaint concerning access to the case material

 

  1. Regarding Mr Denisov’s complaint under Article 6 §§ 1 and 3 (b) and (c) of the Convention of having limited access to the case material, the Court notes from the documents before it and contrary to the applicant’s submissions, that both Mr Denisov and his lawyer K. reviewed and studied the case documents in full and that their access to the file was not restricted (see paragraphs 32 — 38 above). Accordingly, it rejects this complaint as manifestly ill-founded under Article 35 §§ 3 (a) and 4 of the Convention.

 

  1. Mr Shutov’s complaints concerning absence from appeal hearing and access to lawyer

 

  1. As regards Mr Shutov’s complaint about his absence from the appeal hearing, the Court notes that in accordance with the Code of Criminal Procedure of Russia, he should have indicated in his statement of appeal that he wished to participate in the appeal hearing of his case (see paragraph 72 above). However, he neither filed such a request nor explained why he had failed to do so. Furthermore, the Court notes that even though Mr Shutov was notified promptly in advance of the upcoming hearing and had ample opportunity to submit his request already after filing the statement of appeal, his lawyer lodged his request on the day when the appellate court started examining the applicants’ case and provided no reasons as to why it was belated (see paragraph 50 above). In this regard, the Court also notes that unlike Mr Shutov, Mr Dodonov, for example, filed his request for participation in the appeal hearing well in advance of the hearing and that the appellate court granted it (see paragraph 51 above). In these circumstances, and given that Mr Shutov was also represented by three lawyers on appeal (see paragraph 50 above), the Court considers that Mr Shutov’s complaint about his absence from the appeal hearing is manifestly ill-founded and rejects it under Article 35 §§ 3 (a) and 4 of the Convention.
  2. Furthermore, regarding Mr Shutov’s complaint about the refusal of the City Court to dismiss his lawyers Sh. and Z. and have them replaced with different legal counsel, the Court observes that the applicant did not put forward any convincing arguments either before it or the City Court as to how exactly, in his opinion, the services rendered by Sh. and Z. had been ineffective. Moreover, it appears from the case documents that the applicant was not prevented from retaining additional legal counsel if he so wished. 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.

 

  1. Mr Gimranov’s complaint concerning access to interpreter

 

  1. Lastly, regarding Mr Gimranov’s complaint of a lack of free assistance from an interpreter, the documents before the Court demonstrate that he completed his secondary education in a school in Russia and graduated from three military institutions in Russia, and excelled at two of them academically. Russian was the only language of instruction during his studies. Furthermore, Mr Gimranov had a professional long-term career in the Russian army and drafted various procedural documents in Russian in the course of the criminal proceedings against him. The Court therefore concludes that Mr Gimranov was fluent in Russian and did not require the assistance of an interpreter during the examination of his case. Accordingly, the Court rejects his complaint under Article 6 §§ 1 and 3 (e) of the Convention as manifestly ill-founded, in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

 

  1. Other complaints

 

  1. Lastly, the applicants raised certain additional complaints, relying on other Articles of the Convention. However, having regard to all the material in its possession, and in so far as it has jurisdiction to examine these allegations, the Court has not found any appearance of a breach of the rights and freedoms guaranteed by the Convention or its Protocols regarding that part of their applications. It follows that it must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

 

VIII. Application of Article 41 of the Convention

 

  1. 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.»

 

  1. Damage
  1. Pecuniary damage

 

  1. Mr Denisov claimed 100,000 euros (EUR) in respect of pecuniary damage.
  2. The Government contended that the applicant had failed to substantiate his claim for pecuniary damage with documentary evidence.
  3. The Court observes that Mr Denisov did not submit any documents to substantiate his claim for pecuniary damage. It therefore rejects that claim.

 

  1. Non-pecuniary damage

 

  1. Mr Denisov claimed EUR 150,000 in respect of non-pecuniary damage for the unreasonable length of his detention on remand.
  2. The Government submitted that the applicant’s rights had not been violated and that the finding of a violation, if any, would constitute sufficient just satisfaction in the present case. In any event, any assessment of the amount awarded should be made on equitable basis.
  3. The Court considers that an award of just satisfaction must, in the present case, be based on the fact that the length of Mr Denisov’s detention on remand was unreasonably long in violation of Article 5 of the Convention. He undeniably sustained non-pecuniary damage as a result of the violation of his rights. However, the sum claimed by him appear to be excessive. Making its assessment on an equitable basis, the Court awards in respect of non-pecuniary damage EUR 7,000 to Mr Denisov, plus any tax that may be chargeable on those amounts.

 

  1. Costs and expenses

 

  1. Mr Denisov claimed EUR 250,000 in legal costs and expenses.
  2. The Government claimed that the applicant had not substantiated his claim for legal costs and expenses. They also claimed that the expenditure had not been incurred necessarily and was unreasonable as to quantum.
  3. The Court notes that Mr Denisov was represented by Mr Kuzminykh and Ms Liptser. Under the power of attorney given to Ms Liptser by Mr Denisov, she was authorised to receive property and money for his legal representation in the proceedings before the Court. In support of Mr Denisov’s claim for legal costs and expenses, Ms Liptser submitted a copy of the legal services agreement between her and Mr Kuzminykh. According to the agreement, Mr Kuzminykh authorised Ms Liptser to file the application form on Mr Denisov’s behalf with the Court and paid her approximately 229,400 Russian roubles (RUB) (about EUR 2,900).
  4. 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.
  5. The Court notes that the amount claimed by Mr Denisov significantly exceeds the amount indicated in the legal representation agreement submitted by Ms Liptser and appears to be excessive. Mr Denisov did not furnish additional documentation in support of the sum he claimed. The Court further observes that the agreement submitted by Ms Liptser covers only the filing of the application form with the Court and contains no detailed information on the specific services rendered to Mr Denisov during the proceedings before the Court. In this regard, the Court reiterates that pursuant to Rule 60 §§ 2 and 3 of the Rules of Court, itemised particulars of any claim made under Article 41 of the Convention must be submitted, together with the relevant supporting documents or vouchers, failing which the Court may reject the claim in whole or in part (see Buscarini and Others v. San Marino [GC], no. 24645/94, § 48, ECHR 1999-I, and Wilson, National Union of Journalists and Others v. the United Kingdom, nos. 30668/96, 30671/96 and 30678/96, § 68, ECHR 2002-V).
  6. Accordingly, as neither Mr Denisov nor his lawyers furnished details of the work done or the hourly rates charged, it is not possible for the Court to determine whether the costs were necessarily incurred and reasonable as to quantum. In these circumstances, the Court is prepared to award only a total of EUR 1,450 in respect of Mr Denisov’s claim for legal costs and expenses, plus any tax which may be chargeable.

 

  1. Default interest

 

  1. 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 to join the applications;
  2. Holds that Ms Shutova has standing to pursue the present proceedings in Mr Shutov’s stead;
  3. Declares Mr Denisov’s complaint concerning the length of his pre-trial detention and the applicants’ complaints concerning the composition of the court and the length of proceedings admissible, and the remainder of the applications inadmissible;
  4. Holds that there has been a violation of Article 5 § 3 of the Convention in respect of Mr Denisov on account of unreasonable length of his pre-trial detention;
  5. Holds that there has been no violation of Article 6 § 1 of the Convention in respect of all five applicants on account of the composition of the court;
  6. Holds that there has been no violation of Article 6 § 1 of the Convention in respect of all five applicants on account of the length of proceedings in their case;
  7. Holds

(a) that the respondent State is to pay to Mr Denisov, 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 7,000 (seven thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 1,450 (one thousand four hundred and fifty euros), plus any tax that may be chargeable, 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;

  1. Dismisses the remainder of the Mr Denisov’s claim for just satisfaction.

 

Done in English, and notified in writing on 19 April 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Luis Lopez GUERRA President

Stephen PHILLIPS Registrar

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