In the case of Sergey Timofeyev v. Russia,
The European Court of Human Rights (Fifth Section), sitting as
a Chamber composed of:
Peer Lorenzen, President,
Karel Jungwiert,
Anatoly Kovler,
Rait Maruste,
Mark Villiger,
Isabelle Berro-Lefèvre,
Mirjana Lazarova Trajkovska, judges,
and Stephen Phillips, Deputy Section Registrar,
Having deliberated in private on 6 July 2010,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
1. The case originated in an application (no.
12111/04) 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 a Russian national, Mr Sergey Vladislavovich Timofeyev
(“the applicant”), on 10 March 2004.
2. The Russian Government (“the Government”) were
represented by Mr G. Matyushkin, Representative
of the Russian Federation at the European Court of Human Rights.
3. On 28 April 2008 the President of the Fifth
Section decided to give notice of the application to the Government. It was also
decided to examine the merits of the application at the same time as its
admissibility (Article 29 § 1).
4. The Government objected
to the joint examination of the admissibility and merits of the application.
Having considered the Government’s objection, the Court dismissed it.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1968 and lives in the
town of Shakhty, in the Rostov Region.
6. On 10 July 1995 the Shakhty Prosecutor’s Office
instituted criminal proceedings against the applicant and Mr P. for rape and attempted
rape of two victims. On 10 October 1995 the proceedings were terminated for
lack of evidence.
7. On 13 December 1995 the decision of 10 October
1995 was quashed and the case was remitted for a further investigation.
8. On 1 July 1996 the applicant was remanded in
custody on suspicion of rape and attempted rape. On an unspecified date he was
released. A preventive measure in the form of an undertaking not
to abscond was applied both to the applicant and Mr P.
9. On 1 July 1997 the Shakhty Town Court acquitted
the applicant and Mr P. of rape and attempted rape.
10. On 15 January 1998 the Rostov Regional Court quashed the first‑instance judgment on appeal and remitted the
case for a fresh examination.
11. On 6 August 1998 the
Presidium of the Rostov Regional Court quashed the judgment of 15 January 1998
and remitted the case for a new examination in the second instance.
12. On 26 August 1998 a hearing before the Rostov Regional Court was postponed because the applicant’s counsel, Mr K., was occupied.
13. On 9 September, 14 October and
4 November 1998 the Rostov Regional Court postponed appeal hearings because the
applicant was ill.
14. On 9 December 1998 the Rostov Regional Court postponed a hearing because they had received a telegram from an
anonymous sender requesting that the applicant’s case be taken off the list of
appeals to be heard.
15. On 29 December 1998, as well as
on 3 February and 3 March 1999 the Rostov Regional Court postponed appeal
hearings because of the applicant’s illness.
16. On 14 April 1999 the Rostov Regional Court
decided to examine the appeal in the applicant’s absence, quashed the judgment
of 1 July 1997 and remitted the case for a fresh examination in the first
instance. The applicant’s counsel was not present at the hearing.
17. On 11 May 1999 the Shakhty Town Court scheduled
a hearing for 8 June 1999.
18. On 8 June 1999 the Shakhty Town Court ordered Mr
P. to be summoned to a hearing. It appears that Mr P. failed to comply with the
summons.
19. On 2 July 1999 the
criminal proceedings against the applicant and Mr P. were suspended. The
preventive measure in Mr P.’s respect was changed to custodial detention and he
was put on a wanted list. The Shakhty Town Court decided not to proceed with
the examination of the case. The applicant and his lawyer did not appeal
against the decision.
20. On 4 January 2002 the
criminal proceedings were resumed in respect of the applicant.
21. On 10 January 2002 the Shakhty Town Court
postponed a trial hearing owing to the applicant’s failure to appear.
22. On 23 January 2002 a trial hearing was postponed
to 18 February 2002.
23. On 18 February 2002 a hearing was postponed
owing to witnesses’ and the applicant’s counsel’s failure to appear. Mr K. was
absent because of a business trip.
24. On 26 February 2002 a hearing
was postponed because of the applicant’s illness.
25. On 14 March 2002 a hearing
was postponed on a prosecutor’s request in charge of the search for Mr P.
26. On 18 March 2002 a hearing was postponed because
one of the victims failed to attend.
27. On 21 March 2002 a hearing was postponed until
22 March 2002 on the applicant’s request, to allow him to study the case file.
28. On 21 March 2002 the Shakhty Town Court
dismissed Mr K.’s request to suspend the proceedings against the applicant
pending the search for Mr P. The applicant’s counsel appealed against the
ruling on the same day.
29. Between 22 March and 1 April 2002 the Shakhty Town Court held hearings on the applicant’s case every day.
30. On 28 March 2002 the Shakhty Town Court
dismissed the applicant’s request that the proceedings be terminated on the
basis of the Act of Amnesty in Commemoration of the 55th Anniversary of the Victory
in the Great Patriotic War of 1941-45 adopted by the Russian State Duma on 26
May 2000 (“the Amnesty Act”).
31. On 1 April 2002 a hearing was postponed because
the applicant was ill.
32. On 9 April 2002 the criminal
proceedings in respect of the applicant were suspended because of his illness.
33. On 23 April 2002 the Rostov Regional Court
upheld the rulings of 21 and 28 March 2002.
34. On 13 June 2002 the proceedings against the applicant
were resumed and a hearing was scheduled on 27 June 2002.
35. On 27 June 2002 the Shakhty Town Court held a
hearing, dismissed the applicant’s challenge in respect of the composition of
the court and a request for a medical examination and postponed the hearing
until 23 August 2002.
36. On 25 July 2002 the Presidium of the Rostov Regional Court quashed by way of supervisory review the refusal to dismiss the
applicant’s requests of 27 June 2002.
37. On 16 August 2002 the Chief Doctor of the
Shakhty Oncological Dispensary informed the trial court that the applicant had
been diagnosed with malignant lymphoma and had undergone gastrectomy (removal of the stomach) and
hemicolectomy (removal of a part of the colon). He underlined that the
applicant had a first-degree disability and “dumping syndrome” (rapid
fall in blood sugar after eating) which did not allow him to participate in the
hearing; and that any stressful situation could aggravate
his condition.
38. On 19 August 2002 the criminal
proceedings in respect of the applicant were suspended because of his illness.
39. On 1 October 2002 the Rostov Regional Court
quashed the ruling of 19 August 2002 and remitted the case for a fresh examination
to the Shakhty Town Court with a new composition.
40. On 29 October 2002 a hearing was scheduled for
15 November 2002.
41. On 15 November 2002 the
proceedings in respect of the applicant were suspended because of his illness
and then resumed on 27 November 2002.
42. On 10 and 25 December 2002 hearings were
postponed because of the applicant’s absence.
43. On 17 January 2003 the
proceedings in respect of the applicant were suspended because of his illness
and then resumed on 31 January 2003.
44. On 10 February 2003 a hearing was postponed
because the applicant’s counsel, Ms L., was occupied.
45. On 26 February 2003 the Shakhty Town Court heard
the applicant, his counsel, the victim and several witnesses and examined
written evidence.
46. On 28 February 2003 the Shakhty Town Court convicted
the applicant of rape and attempted rape and sentenced him to three years’
imprisonment. The applicant was exempted from serving the sentence under the Amnesty
Act.
47. On 28 February 2003 one of the victims appealed against
the judgment.
48. On 5 and 11 March 2003 the applicant lodged
appeals against his conviction, challenging, inter alia, the court’s
factual findings. According to the applicant, he requested the Rostov Regional Court to examine his appeal in his presence. According to the Government’s
submissions, the applicant did not request to be present at a hearing.
49. On 11 March 2003 the prosecutor appealed against
the judgment of 28 February 2003.
50. On 1 April 2003 the applicant lodged an
additional appeal in which he made detailed complaints alleging deficiencies in
the first-instance proceedings. According to the Government, he also requested that
an appeal hearing be held in his presence.
51. On 20 April 2003 the victim lodged an additional
appeal, which was forwarded to the applicant for comments.
52. On 27 May 2003 the Shakhty Town Court received
the applicant’s comments on the victim’s and prosecutor’s appeals and then
forwarded the case to the Rostov Regional Court. An appeal hearing was
scheduled for 15 July 2003.
53. On 15 July 2003 the Rostov Regional Court postponed an appeal hearing to 5 August 2003 because the applicant was
ill.
54. On 5 August 2003 the applicant
did not appear before the Rostov Regional Court because he was ill. The hearing
was postponed until 26 August 2003.
55. On 26 August 2003 the appeal
hearing was again postponed because of the applicant’s failure to appear in the
court-room due to illness.
56. In August 2003 the President of the Criminal
Chamber of Rostov Regional Court requested the Ministry of Health of Rostov
Region and Chief Doctor of the Shakhty Oncological Dispensary to provide
information on the applicant’s state of health with a view to the possibility
of his participating in an appeal hearing scheduled for 30 September 2003.
57. On 4 September 2003 the Health Department of
Shakhty Administration informed the Rostov Regional Court that the applicant
was suffering from a malignant lymphoma and that between 29 July and 18 August
2003 he had been hospitalised. The applicant was weak; a stressful situation
would have an adverse impact on his state of health. It was not possible to
predict or assume a date when he would be available for an appeal hearing.
58. On 29 September 2003 the applicant sent a telegram
to the Rostov Regional Court, requesting that the hearing be adjourned as he
was in hospital. He also asked if the court was equipped with facilities to
enable wheelchair access.
59. On 30 September 2003 the Rostov Regional Court
decided to reject the applicant’s request to adjourn the appeal hearing. It
referred to the applicant’s serious state of health, and the legislative rule
that the appeal court must start examination of an appeal no later than one
month after it has been lodged.
60. On the same day the Rostov Regional Court
examined the case on appeal. The court heard submissions by the judge
rapporteur and prosecutor, but the applicant’s counsel was not present at the
hearing. The judgment of 28 February 2003 was upheld.
61. On 20 February 2004 the Rostov Regional Court
rejected the applicant’s request for supervisory review proceedings. With
respect to the applicant’s complaint about examination of the case on appeal in
his absence the court found that the applicant had failed to appear “for a far‑fetched
reason”.
II. RELEVANT DOMESTIC LAW
The Code of Criminal Procedure (CCP)
62. An appeal court examines appeals with a view to
verifying the lawfulness, validity and fairness of first-instance judgments (Article
373).
63. An appeal court must start the examination of an
appeal no later than one month after its receipt (Article 374).
64. An appeal court can directly examine evidence,
including additional material submitted by parties (Article 377 §§ 4 and 5).
65. An appeal court may (a) uphold a
first-instance judgment; (b) quash it and terminate criminal proceedings; (c)
quash it and remit the case for a fresh examination in the first-instance; and
(d) amend the judgment (Article 378 § 1).
THE LAW
I. ALLEGED VIOLATIONS OF ARTICLE 6 OF THE
CONVENTION
66. The applicant complained that the criminal proceedings
against him had been excessively long and that that the appeal court had held
the hearing in his absence. He relied on Article 6 of the Convention, which in its
relevant parts reads as follows:
“1. In the determination of ... any criminal charge
against him, everyone is entitled to a fair and public hearing within a reasonable
time by a ... tribunal. ”
A. The parties’ submissions
1. The Government
67. The Government contested the applicant’s
arguments. They claimed at the outset that the applicant had filled in the
application form on 2 June 2004, although 10 March 2004 had been mentioned as the
date of introduction of the application. They emphasised that the proceedings
against the applicant had ended on 30 September 2003, that is more than six
months before 2 June 2004, and concluded that the application had been lodged
out of time.
68. Furthermore, the Government claimed that the
applicant had had the right to attend an appeal hearing but he had not been
obliged to do so. The applicant had requested the Rostov Regional Court to
reschedule hearings on three occasions although he had not been in hospital on
the dates of those hearings. Accordingly, the applicant had lied that he was in
hospital when requesting that hearings be postponed. The Rostov Regional Court
had taken all necessary and lawful measures to ensure the applicant’s
attendance at an appeal hearing. The applicant’s retained lawyer had been duly
informed of the date and time of the hearing of 30 September 2003: first, he
had been present at the hearing of 26 August 2003 when it had been decided to
postpone the examination of the appeal until 30 September 2003; secondly, the
Rostov Regional Court had notified the lawyer of the date of a new hearing by a
letter of 27 August 2003. The lawyer had not attended the hearing of 30
September 2003 for unknown reasons; he had not requested that it be postponed.
In his supervisory review request the lawyer had not claimed that he had been
deprived of an opportunity to be present at the appeal hearing. Furthermore,
the Rostov Regional Court had had reasonable grounds to assume that the
applicant would not attend appeal hearings in the future because he could not
be obliged to do so. The appeal court had had a duty to ensure a reasonable
balance of the rights of the applicant and other parties to the proceedings.
The applicant’s presence at a hearing would imperil his health. Further
postponements of a hearing would render the proceedings lengthier. In sum, the
Government argued that the applicant’s absence at the appeal hearing of 30
September 2003 had not been in breach of Article 6 of the Convention.
69. Lastly, the Government asserted that the
domestic courts had examined the criminal case against the applicant within a “reasonable
time”. A considerable part of the proceedings had taken place prior to the date
of ratification of the Convention by the Russian Federation, namely 5 May 1998.
The criminal case had been rather complicated, as proven by a quashing of the
applicant’s acquittal. The investigation had experienced difficulties when
obtaining and assessing the evidence. In the Government’s submissions, the
applicant had been responsible for four hundred and twenty-six days of delay in
examination of the case, as hearings had been postponed because of his illness.
The lawyers’ inability to appear before the courts had caused in total a delay
of sixteen days. Some delays had occurred because of the victim’s and witnesses’
absence. A delay of two years and six months had been caused by the search for
the applicant’s co-accused. The applicant’s counsel, Mr K., had not appealed
against the decision not to proceed with the case in Mr P.’s absence; on the
contrary, he had requested the first-instance court to suspend the proceedings
until Mr P. could be found. The proceedings had been time-consuming owing to
the need to secure the applicant’s rights to a fair trial.
2. The applicant
70. The applicant maintained his complaints. He
submitted that the Rostov Regional Court had used confidential medical data
concerning his state of health against his interests. Furthermore, the decision
to hold an appeal hearing in his absence had been based on medical information
but not on any legal provision. The applicant emphasised that he had been
deprived of his right to be present at the appeal hearing in the proceedings
against him.
71. The applicant also stated that at some point
during the court proceedings he had been in a wheelchair. The building of the Rostov Regional Court was not equipped with ramps for disabled persons’ access, which had
been one of the reasons for the applicant’s inability to attend the appeal
court’s sessions.
72. The applicant further submitted that the
proceedings against him had been pending from 10 July 1995 until 30 September
2003, that is for more than eight years. He contested the Government’s
assertion that the case was complicated. The charges against Mr P. had been
subject to a separate set of criminal proceedings and thus could not have
influenced the course of the proceedings against the applicant.
73. In sum, the applicant concluded that his right
to a public trial within a reasonable time and his defence rights had not been
respected.
B. The Court’s assessment
1. Admissibility
74. As to the Government’s claim that the
application was introduced out of time, the Court reiterates that, under Rule
47 § 5 of the Rules of Court, “the date of introduction of the application for
the purposes of Article 35 § 1 of the Convention shall as a general
rule be considered to be the date of the first communication from the applicant
setting out, even summarily, the subject matter of the application ...”. The
Court points out in this respect that the applicant presented his complaints
about the alleged violations of his Convention rights in a letter sent to the
Court on 10 March 2004, as confirmed by the postmark. In such circumstances it
accepts that the applicant introduced his application on 10 March 2004 having
complied with the six-month rule. Hence the Government’s objection in this
respect should be dismissed.
75. In so far as the Government may be understood to
claim that the applicant failed to exhaust available domestic remedies, since Mr
K. did not claim in his supervisory review request that he had been deprived of
an opportunity to be present at the appeal hearing, the Court reiterates that,
according to its constant practice, an application for supervisory review is
not a remedy to be used for the purposes of Article 35 § 1 of the
Convention (see Berdzenishvili
v. Russia (dec.), no. 31697/03, 29 January 2004, and Nazarov v. Russia, no. 13591/05, § 94, 26 November 2009). The Government’s
objection in this respect must therefore be dismissed.
76. The Court further notes that this part of the
application is not manifestly ill-founded within the meaning of Article 35 § 3
of the Convention and is not inadmissible on any other grounds. It must
therefore be declared admissible.
2. Merits
(a) The applicant’s absence from the appeal hearing
77. The Court reiterates at the outset that Article
6 of the Convention, read as a whole, guarantees the right of an accused to
participate effectively in his criminal trial. This includes, inter alia,
a right not only to be present, but also to hear and follow the proceedings
(see, for example, Stanford v. the United
Kingdom, 23 February 1994, § 26, Series A no. 282-A, and Barberà, Messegué and Jabardo
v. Spain, 6 December 1988, § 78, Series A no. 146). This right
is implicit in the very notion of an adversarial procedure and can also be
derived from the guarantees contained in sub-paragraphs (c), (d) and (e) of
paragraph 3 of Article 6 – “to defend himself in person”, “to examine or
have examined witnesses”, and “to have the free assistance of an interpreter if
he cannot understand or speak the language used in court” (see Colozza v. Italy, 12 February 1985,
§ 27, Series A no. 89). It is difficult to see how
a person “charged with a criminal offence” could exercise these rights without
being present (see Russu v. Moldova, no. 7413/05, § 26, 13 November
2008).
78. The Court notes at the same time that the
personal attendance of the defendant does not take on the same crucial
significance for an appeal hearing as it does for a trial hearing (see Kamasinski
v. Austria, 19 December 1989, § 106, Series A no. 168). Even where the
court of appeal has jurisdiction to review the case both as to facts and as to
law, Article 6 does not always require a right to a public hearing, still less
a right to appear in person (see Fejde v. Sweden,
29 October 1991, § 31, Series A no. 212-C). In order to decide this question,
regard must be had, among other considerations, to the specific features of the
proceedings in question and to the manner in which the applicant’s interests
were actually presented and protected before the appellate court, particularly
in the light of the nature of the issues to be decided by it and of their
importance to the appellant (see Hermi v. Italy [GC], no. 18114/02, § 62,
ECHR 2006‑XII).
79. As to the specific features of the proceedings
in question, the Court reiterates that criminal appeals in the Russian legal
system deal with both facts and law (see Metelitsa v. Russia, no.
33132/02, § 31, 22 June 2006). When quashing a first-instance judgment, an
appeal court is empowered both to remit a case for a new examination to a lower
court and to amend the judgment (see paragraph 65 above). Given the wide
spectrum of powers accorded to appellate courts under domestic law, the Court
considers that a defending party’s presence at an appeal hearing may be crucial
for securing respect for the right to a fair trial.
80. Turning to the circumstances of the present
case, the Court points out that in the first instance the applicant was
convicted of rape and attempted rape. Even though he was not to serve his
sentence in detention, the fact of being convicted of a violent crime per se
might have had a significant adverse impact on his private and social life. The
Court thus considers that re-examination of the conviction on appeal was of
particular importance for the applicant.
81. As to the manner in which the applicant’s
interests were protected in the second instance, the Court observes that on 30
September 2003, before examining the applicant’s case on appeal, the Rostov Regional Court decided that it could hear the case in the accused’s absence. It is
clear that by then the appeal court was fully aware of the fact that the
applicant’s counsel was not present in the court room that day. Therefore, the Rostov Regional Court knowingly decided to hold an appeal hearing in a criminal case in the
absence of any person capable of bringing arguments in the applicant’s defence.
It is noteworthy in this respect that the prosecutor appeared and pleaded
before the appeal court.
82. The Court is not convinced by the Government’s
argument that the need to avoid protraction of the proceedings could in itself justify
the decision to hold the appeal hearing in the applicant’s, as well as his
counsel’s absence. In view of the serious nature of the crime of which the
applicant had been found guilty at trial and the fact that the defending party was
put in a disadvantageous position vis-à-vis the prosecution at the appeal
hearing of 30 September 2003, the Court considers that the interests of justice
required that the appeal court postpone a hearing so that the applicant be
present in the court room.
83. The Court thus concludes that
the proceedings before the Rostov Regional Court
did not comply with the requirement of fairness.
84. There has accordingly been a violation of
Article 6 § 1 of the Convention on account of the applicant’s absence from the
appeal hearing.
(b) Length of criminal proceedings
85. The Court reiterates that the period to be taken
into consideration in determining the length of criminal proceedings begins
with the day on which a person is “charged” within the autonomous and
substantive meaning to be given to that term (see, among other authorities, Imbrioscia
v. Switzerland, 24 November 1993, § 36, Series A no. 275). It ends
with the day on which a charge is finally determined or the proceedings are
discontinued.
86. The period under consideration in the present
case began on 10 July 1995, when criminal proceedings were instituted against
the applicant, and ended on 30 September 2003, when the applicant was convicted
in the final instance, with the exemption of the period between 10 October and
13 December 1995, during which no proceedings were pending. Accordingly,
the period under consideration amounted to a total of eight years and sixteen
days. This period spanned the investigation stage and the judicial proceedings,
during which the case was remitted for a fresh examination twice at the first level
of jurisdiction and once at the second. The period falling under the Court’s
jurisdiction ratione temporis after the entry into force of the
Convention with respect to Russia on 5 May 1998 in this case amounts to
five years, four months and twenty-seven days. The Court notes at the same time
that it may take into account the state of the proceedings existing on the date
of ratification (see Kalashnikov v. Russia, no. 47095/99, § 124, ECHR
2002‑VI).
87. The Court reiterates that the reasonableness of
the length of the proceedings is to be assessed in the light of the particular
circumstances of the case, regard being had to the criteria laid down in the
Court’s case-law, in particular the complexity of the case, the conduct of the
applicant and that of the authorities before which the case was brought (see Pélissier and Sassi v. France [GC],
no. 25444/94, ECHR 1999-II, § 67, and Pedersen and Baadsgaard v.
Denmark [GC], no. 49017/99, § 45, ECHR 2004‑XI).
88. The Court is disinclined to share the Government’s
view that the criminal case involving the applicant was particularly complex. The
charges against the applicant concerned a single event and nothing in the
materials at the Court’s disposal suggests that the case file was voluminous.
The mere fact that on 1 July 1997 the applicant was acquitted at the first
level of jurisdiction could not complicate the proceedings to an extent which
would justify their dilatory nature. The Court thus considers that it was not
the complexity of the case which accounted for the length of the proceedings.
89. The Court, however, points out that the criminal
proceedings against the applicant were on several occasions suspended because
of his illness (see paragraphs 32, 38, 41 and 43 above). The aggregate period
of such suspensions exceeded four months. Furthermore, numerous hearings were
postponed because of the applicant’s medical condition (see paragraphs 13, 15, 24
and 53 - 55 above). The overall length of these delays amounted to some nine
months. The Court considers that the personal nature of the accusations against
the applicant necessitated his presence in the court-room so that he could
defend himself properly and the interests of justice be respected and accepts
that the delays caused by the applicant’s state of health cannot be said to be
attributable to the State.
90. As regards the conduct of the authorities, the
Court reiterates that only delays attributable to the State may justify a
finding of a failure to comply with the “reasonable time” requirement of
Article 6 § 1 (see Des Fours Walderode v.
the Czech Republic (dec.), no. 40057/98, 4 March 2003). It
points out that in the course of the domestic proceedings there were
substantial periods of inactivity for which the Government have not submitted
any satisfactory explanation and which are attributable to the State. It is not
clear whether any proceedings were pending between 15 January and 6 August
1998 (see paragraphs 10 and 11 above). Even considering that the Convention
entered into force in respect of Russia on 5 May 1998, the Court points
out that the Government have put forward no explanation for an apparent lack of
activity during a three-month period between the ratification date and the date
of the supervisory review.
91. However, the Court points out that the most
significant delay was caused by the suspension of the proceedings on 2 July
1999 until 4 January 2002. It takes note of the Government’s submission that
that suspension was required because it was impossible to examine the case in
the absence of the applicant’s co-accused. The applicant did not object to the
decision on suspension; moreover, on 14 March 2002 the applicant’s counsel
requested to suspend the proceedings for the second time pending the search for
Mr P. (see paragraph 25 above). The Court thus cannot conclude that the period
of inactivity between 2 July 1999 and 24 January 2002 was attributable to the
State.
92. The Court also observes that, save for the
periods when the proceedings were suspended, hearings were scheduled at regular
intervals and the parties’ requests were promptly examined.
93. Having regard to all the circumstances of the case,
the Court considers that there were no excessively lengthy periods of
inactivity attributable to the State and thus Court finds that the “reasonable
time” requirement has been complied with.
94. There has accordingly been no violation of Article 6 §
1 of the Convention on account of the length of proceedings.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
95. Relying on Article 6 §§ 1 and 3 (c) and (d), as
well as on Article 2 of Protocol No. 7 to the Convention, the applicant
complained that the hearing of 14 April 1999 had been held in his absence, that
the domestic courts had erred in their assessment of evidence and application
of law, that he had not been given enough time to prepare his last plea and
that the first-instance court had not questioned a number of important
witnesses.
96. Having
regard to all the material in its possession, and as far as it is within its
competence, the Court finds that the applicant’s submissions disclose no
appearance of violations of the rights and freedoms set out in the Convention
or its Protocols. It follows that this part of the application must be rejected
as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the
Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
97. 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
98. In his application form the applicant claimed 100,000
United States dollars in respect of non-pecuniary damage. In his just
satisfaction claims the applicant left it to the Court to determine the exact
amount to be awarded under this head.
99. The Government found the amount mentioned in the
application form to be excessive.
100. The Court finds it appropriate to award the applicant
5,000 euros (EUR) in respect of non-pecuniary damage.
B. Default interest
101. The Court considers it appropriate that the
default interest 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. Declares the complaints concerning the
applicant’s absence from the appeal hearing and the length of proceedings
admissible and the remainder of the application inadmissible;
2. Holds that there has been a violation of
Article 6 § 1 of the Convention on account of the applicant’s absence from the
appeal hearing;
3. Holds that there has been no violation of
Article 6 § 1 of the Convention on account of the length of proceedings;
4. Holds
(a) that the respondent State is to pay the applicant,
within three months from the date on which the judgment becomes final in accordance
with Article 44 § 2 of the Convention, EUR 5,000 (five thousand
euros), plus any tax that may be chargeable, in respect of non-pecuniary damage,
to be converted into Russian roubles at the rate applicable at the date of
settlement;
(b) that from the expiry of the above-mentioned
three months until settlement simple interest shall be payable on the above
amount at a rate equal to the marginal lending rate of the European Central
Bank during the default period plus three percentage points;
5. Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 2 September
2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Peer
Lorenzen
Deputy Registrar President
