European Court of Human Rights

FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 31755/03
by Svetlana LOBANOVSKAYA
against Russia

The European Court of Human Rights (First Section), sitting on 16 December 2008 as a Chamber composed of:

Christos Rozakis, President,
Nina Vajić,
Anatoly Kovler,
Elisabeth Steiner,
Khanlar Hajiyev,
Giorgio Malinverni,
George Nicolaou, judges,

and André Wampach, Deputy Section Registrar,

Having regard to the above application lodged on 9 September 2003,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Ms Svetlana Vasilyevna Lobanovskaya, is a Russian national who was born in 1959 and lives in the Krasnodar Region. She was represented before the Court by Mr V. Shamshurov, a lawyer practising in the Krasnodar Region. The respondent Government were represented by Mr P. Laptev and Ms V. Milinchuk, former Representatives of the Russian Federation at the European Court of Human Rights.

The facts of the case, as submitted by the parties, may be summarised as follows.

On 19 November 2002 the police arrested a person codenamed by the authorities “Fyodor” for possession of drugs. The arrest was conducted in the presence of two lay witnesses, Mr G. and Mr P. “Fyodor” submitted that he had bought the drugs from the applicant earlier that day and agreed to participate in a test purchase organised by the police.

On 20 November 2002 “Fyodor” bought drugs from the applicant. She was arrested on the spot in the presence of two lay witnesses, Mr Z. and Mr S., and the marked money given to her by “Fyodor” for the drugs were found on her. On the same day she was charged with drug trafficking.

During the investigation “Fyodor” testified that he had purchased the drugs from the applicant on 19 and 20 November 2002. Mr G., Mr P., Mr Z., and Mr S. also gave written depositions to the investigator, describing the circumstances of “Fyodor’s” and the applicant’s arrests.

As neither of the witnesses appeared at the hearing, the prosecutor requested the court’s permission to read out their statements. The applicant and her counsel did not object and the witnesses’ statements made during the pre-trial investigation were read out.

On 19 June 2003 the Dinskoy District Court of the Krasnodar Region found the applicant guilty of drug trafficking on 19 and 20 November 2002 and sentenced her to four years and six months’ imprisonment with forfeiture of estate. The conviction was based on the pre-trial testimonies of “Fyodor” and the lay witnesses, and the material evidence, including the marked money found on the applicant.

The applicant appealed. It follows from the summary made by the appeal court that she protested her innocence, alleged that the investigation had been procedurally flawed and complained about inaccurate assessment of evidence by the trial court.

On 23 July 2003 the Krasnodar Regional Court upheld the conviction on appeal. The applicant and her counsel were absent, while the prosecutor attended the hearing and pleaded before the court.

On 9 August 2006 a deputy Prosecutor General lodged an application for supervisory review with the Presidium of the Krasnodar Regional Court. He submitted that the Krasnodar Regional Court had infringed the applicant’s right to attend the appeal hearing.

On 5 July 2007 the Presidium of the Krasnodar Regional Court granted the prosecutor’s application, finding that the failure to bring the applicant before the appeal court had violated the rights of the defence. It quashed the appeal judgment of 23 July 2003 and remitted the case for a fresh examination before the Krasnodar Regional Court.

On 31 October 2007 the Krasnodar Regional Court held a new appeal hearing and upheld the conviction. Counsel for the applicant attended the hearing.

COMPLAINTS

THE LAW

“1.  In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ...by [a] ... tribunal ...

...

3.  Everyone charged with a criminal offence has the following minimum rights:

...

(d)  to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him...”

The Government submitted that the applicant had not asked the investigator to organise a confrontation with the witnesses, had not objected to the reading out of their statements during the trial and had not complained about the failure to obtain the attendance of the witnesses before the appeal court. Therefore, she had not exhausted domestic remedies. In the alternative, the Government argued that the complaint was manifestly ill-founded as, by failing to ask for a confrontation and to object to the reading out of the witnesses’ testimony, the applicant had waived her right to have the witnesses questioned.

The applicant maintained her claims.

The Court observes that the applicant did not complain in her appeal submissions about the trial court’s reliance on the statements by the witnesses whom she had had no opportunity to question. Therefore, she did not afford the appeal court an opportunity to examine the alleged breaches of her right to question the witnesses against her and, if appropriate, to offer redress. The applicant has not provided any adequate explanation of why this complaint was not raised before the appeal court. The Court considers that the applicant has failed to exhaust domestic remedies in respect of this complaint, as required by Article 35 § 1. Accordingly, the said complaint must be rejected pursuant to Article 35 § 4 of the Convention.

The Government submitted that the Presidium of the Krasnodar Regional Court had acknowledged a violation of the applicant’s rights and quashed the appeal judgment of 23 July 2003. The applicant could no longer claim to be a victim.

The applicant maintained her claims.

The Court reiterates that “a decision or measure favourable to the applicant is not in principle sufficient to deprive him of his status as a ‘victim’ unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention” (see Dalban v. Romania [GC], no. 28114/95, § 44, ECHR 1999-VI, and Constantinescu v. Romania, no. 28871/95, § 40, ECHR 2000-VIII).

In the instant case, the Presidium of the Krasnodar Regional Court explicitly acknowledged that the applicant’s right to attend the appeal hearing had been infringed, quashed the appeal judgment and ordered a new appeal hearing.

Therefore, having regard to the contents of the Presidium’s decision of 5 July 2007, the Court finds that the national authorities have acknowledged, and then afforded redress for, the alleged breach of the Convention (see, for similar reasoning, Davidchuk v. Russia (dec.), no. 37041/03, 1 April 2008, with further references).

It follows that the applicant can no longer claim to be a “victim” of the alleged violation of Article 6 § 1 of the Convention within the meaning of Article 34 of the Convention and that this complaint must be rejected pursuant to Articles 34 and 35 §§ 3 and 4.

For these reasons, the Court unanimously

Decides to declare the application inadmissible.

André Wampach Christos Rozakis
Deputy Registrar President