AS TO THE ADMISSIBILITY OF
by Nikolay Yakovlevich KUPREYANOV
The European Court of Human Rights (First Section), sitting on 12 February 2009 as a Chamber composed of:
Christos Rozakis, President,
Sverre Erik Jebens, judges,
and Søren Nielsen, Section Registrar,
Having regard to the above application lodged on 5 April 2005,
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 applicant, Mr Nikolay Yakovlevich Kupreyanov, is a Russian national, who was born in 1960 and lives in Moscow. He was represented before the Court by Ms A.I. Panicheva, a lawyer practising in Moscow. The Russian Government (“the Government”) were represented by Mrs V. Milinchuk, the former Representative 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.
The applicant was born in 1960 and lives in Moscow.
On 6 August 2002 the prosecutor’s office of the Khamovnicheskiy district of Moscow instituted criminal proceedings against the applicant upon an application lodged by his father on suspicion of fraudulent acquisition of property rights over a collection of works of art of the applicant’s grandfather, a Russian graphic artist.
On 6 October 2002 the proceedings were suspended since “the person accused [had] not [been] identified”.
On 10 October 2002 the prosecutor quashed this decision, relying on the fact that criminal proceedings had been initiated against a specific person (the applicant). It extended the investigation deadline until 10 November 2002 and remitted the case for additional investigation.
On 6 November 2002 the police for the first time questioned the applicant as an accused.
On 10 November 2002 the proceedings were again suspended “since the accused [had] not [had] a real opportunity to participate in the investigation”. The police referred to the fact that the applicant could not be found at his home address over a public holiday weekend (7 November).
On 11 November 2002 the proceedings were resumed and the investigation deadline was extended until 10 December 2002. On 18 November 2002 charges were brought against the applicant and an undertaking not to leave his place of residence was imposed on him.
On 10 December 2002 the case was sent for trial to the Khamovnicheskiy District Court of Moscow.
At least twenty-seven hearings were scheduled, fourteen of which were adjourned: six times due to the fact that the judge was busy in unrelated proceedings; three times due to the failure to attend by the prosecution and the victim (the applicant’s father); twice due to the failure of the applicant’s lawyer to appear; once due to the failure of both the applicant and his lawyer to appear; once due to the change of prosecutor in the case; and three times due to requests, apparently lodged by both parties, to consult the case file. From 25 July 2003 to 19 September 2003 no hearings were held as an expert examination was being carried out. From the beginning of October to the end of December 2003 no hearings took place.
On 18 June 2004 the Khamovnicheskiy District Court of Moscow returned the applicant’s criminal file to the prosecutor’s office for additional investigation. It found that an additional investigation was needed to clarify certain points and that breaches of the rules of procedure had taken place during the investigation. In particular, the applicant had not been properly charged. Accordingly, the court remitted the case to the prosecution authorities with instructions to rectify this shortcoming and also to gather additional evidence.
The applicant appealed against this decision, but on 7 October 2004 the Moscow City Court refused to entertain the applicant’s complaint, since the domestic law did not provide for the possibility of appeal against this kind of decision.
On 15 October 2004 the prosecutor’s office returned the file to the police for additional investigation and correction of the procedural defects.
On 15 November 2004 the proceedings were suspended. This decision was later declared unfounded and unlawful by the Khamovnicheskiy District Court of Moscow, and on 23 March 2005 the proceedings were resumed.
Following the additional investigation, the file was again submitted to the prosecutor’s office, which on 11 May 2005 once again sent it back to the police for additional investigation.
On 27 May 2005 the investigative authorities terminated the criminal proceedings against the applicant because there was no indication of a criminal offence and informed him about his right to rehabilitation and compensation for damage. The undertaking not to leave his place of residence was lifted accordingly.
The applicant complained under Article 6 § 1 of the Convention about the length of criminal proceedings in his case and under Article 13 about the absence of effective remedy in respect of the above complaint.
He also complained under Articles 6 § 1 and Article 2 of Protocol No. 7 to the Convention about the refusal of the domestic court to deal with his appeal against the decision of 18 June 2004.
“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”
The Government rejected the allegation, arguing, in particular that the applicant and his lawyer had contributed to the length of the proceedings by failing to attend at least three hearings and “by the way in which they used their procedural rights”.
The applicant averred that he had failed to attend only on one occasion, when he had learned that his lawyer could not participate in the proceedings. He also pointed out that during the proceedings he was bound by the undertaking not to leave his place of residence, which should have prompted the authorities to show particular diligence in his case.
The Court notes that in the present case the preliminary investigation was opened on 6 August 2002 but the applicant’s situation has not been affected until he was questioned for the first time in relation to the case, thus having been “charged” for the purposes of Article 6 § 1 (see Deweer v. Belgium, 27 February 1980, § 46, Series A no. 35; Wemhoff v. Germany, 27 June 1968, § 19, Series A no. 7; Neumeister v. Austria, 27 June 1968, § 18, Series A no. 8; and Ringeisen v. Austria, 16 July 1971, § 110, Series A no. 13). Thus the Court considers that 6 November 2002 is the date from which to calculate the length of the proceedings. The criminal proceedings against the applicant were terminated on 27 May 2005. Accordingly, it lasted for two years, six months and twenty one days which covered preliminary investigation and one judicial instance.
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, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999-II).
The Court does not consider the proceedings to have been particularly complex. On the other hand, no special circumstances could be observed that required special diligence. In particular, the applicant was not a minor and he was not in detention (cf. Abdoella v. the Netherlands, 25 November 1992, § 24, Series A no. 248-A; Nakhmanovich v. Russia, no. 55669/00, § 89, 2 March 2006; and Taylor v. the United Kingdom (dec.), no. 48864/99, 3 December 2002).
As to the conduct of the national authorities, the Court notes that between 10 December 2002 and 18 June 2004 at least 13 hearing were held. Despite having observed a number of adjournments and intervals between the hearings, the Court cannot conclude that the domestic courts were inactive in the present case. It notes that the remittal of the case for additional investigation caused a delay in the proceedings; however, this decision, in view of the subsequent closure of the file by the investigating authority, appears justified. As regards the suspension of the criminal proceedings between 15 November 2004 and 23 March 2005, this delay, although unnecessary, was not long enough by itself, or in combination with other, lesser, delays, to affect the applicant’s right to have the case heard within a “reasonable time”. Nor does the overall length of the proceedings infringe the reasonableness requirement of that provision.
Accordingly this part of the application should be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
The Government contested this allegation.
In view of the Court’s finding above that the overall length of proceedings in the applicant’s case did not exceed “reasonable time”, the court concludes that he had no arguable claim to a remedy for that complaint under Article 13 (see Powell and Rayner v. the United Kingdom, 21 February 1990, § 33, Series A no. 172).
Accordingly this part of the application should also to be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
In view of the above, it is appropriate to discontinue the application of Article 29 § 3 of the Convention.
For these reasons, the Court by a majority
Declares the application inadmissible.
Søren Nielsen Christos Rozakis