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KONASHEVSKAYA AND OTHERS v. RUSSIA - 3009/07 [2010] ECHR 796 (3 June 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/796.html
Cite as:
[2010] ECHR 796
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FIRST
SECTION
CASE OF KONASHEVSKAYA AND OTHERS v. RUSSIA
(Application
no. 3009/07)
JUDGMENT
STRASBOURG
3
June 2010
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 Konashevskaya and Others v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis,
President,
Anatoly Kovler,
Elisabeth
Steiner,
Dean Spielmann,
Sverre Erik
Jebens,
Giorgio Malinverni,
George Nicolaou,
judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 11 May 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application
(no. 3009/07) 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”)
on 5 December 2006 by four Russian nationals, Nina Vatslavna
Konashevskaya, Margarita Vasilyevna Belikova, Oktyabrina Sergeyevna
Zharkova and Lyubov Spiridonovna Gorokhova (“the applicants”).
The Russian Government (“the Government”)
were represented by Mr G. Matyushkin, the representative of the
Russian Federation at the European Court of Human Rights.
The
applicants complained that the authorities had failed to examine a
criminal case against them within a reasonable time and to ensure
their right to defend themselves in person or through legal
assistance of their own choosing.
On
9 January 2009 the
President of the First Section decided to give notice of the
application to the Government. It was also decided to rule on the
admissibility and merits of the applications at the same time
(Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicants were born in 1919, 1930, 1939 and 1941 respectively and
live in Moscow.
Mrs
Zharkova filed the application also on behalf of her husband,
Mr Evsey Matveyevich Pisman, who had died on 17 January 2005.
A. Criminal proceedings against Ms Konashevskaya, Ms
Belikova, Mrs Zharkova and Ms Gorokhova
On
12 April 2002 the applicants were charged with aggravated fraud, a
serious offence punishable with up to ten years’ imprisonment
at the material time. On 25 June 2002 the pre-trial investigation was
concluded and on 12 July 2002 the case was allocated to the
Babushkinskiy District Court of Moscow for judicial examination. The
first hearing was scheduled for 11 August 2003.
By
a decision of 5 May 2004, the trial court suspended the criminal
proceedings in respect of Ms Konashevskaya and Ms Gorokhova owing to
their serious illnesses.
On
21 February 2006 the court ordered an expert psychiatric examination
of Mr G., the applicants’ co-defendant, and suspended the
examination of the case. The date when the proceedings were resumed
is unknown.
By
a decision of 29 May 2007, the court suspended the proceedings in
respect of Ms Belikova and Mrs Zharkova owing to their illnesses.
On
25 February 2008, at the requests of Ms Belikova, Mrs Zharkova and Ms
Gorokhova, the court resumed its examination of the case.
On
31 March 2008 the Babushkinskiy District Court of Moscow delivered a
judgment by which applicants Belikova, Zharkova and Gorokhova were
acquitted of the charges. On 25 June 2008 the Moscow City Court
upheld the acquittal on appeal.
The
criminal proceedings in respect of Ms Konashevskaya are still
pending. On 25 December 2008 the presiding judge telephoned a
competent hospital in order to establish the actual state of her
health and was informed that the latter suffered from multiple
illnesses, including stenocardia, post-infarct cardiosclerosis and
chronic cerebral ischemia.
B. Criminal proceedings against Mr Pisman
Mr
Pisman was charged with aggravated fraud and forgery of documents on
12 April 2002. He stood trial alongside the applicants. On
17
January 2005 he died.
On
two occasions the trial court suspended the criminal proceedings
against him, that is from 5 May 2004 to 17 May 2005 owing to his
illness and his subsequent death and from 29 May 2007 to 25 February
2008 owing to the illness of his widow, Mrs Zharkova.
The
decision of 17 May 2005 to resume the proceedings against
Mr
Pisman was rendered by the trial court at the request of his widow
for the purpose of restoring his reputation.
By
judgments of 31 March 2008 and 25 June 2008, he too was acquitted of
the charges.
C. The applicants’ right to defend themselves in
person or through legal assistance of their own choosing
By
a procedural decision of 25 July 2003, the trial court appointed
legal-aid lawyers to represent the applicants.
On
12 August 2003 the applicants filed applications where they refused
to accept the assistance of the lawyers. By a decision of 12 August
2003, the trial court declined to discharge the appointed legal
representatives.
During
the hearing of 24 September 2003, Ms Belikova and Mrs Zharkova did
not object to the assistance of the lawyers.
During
the hearing of 27 September 2003, Mrs Zharkova did not object to the
assistance of the lawyer. The trial court, however, dismissed her
request to appoint a representative of her own choosing.
By
a decision of 26 May 2005, the trial court admitted Mr M., a lawyer
called upon by Ms Belikova, to the proceedings.
During
the hearing of 12 March 2008, Ms Belikova, Mrs Zharkova and Ms
Gorokhova agreed to accept the assistance of the appointed lawyers.
II. RELEVANT DOMESTIC LAW
Russian Code of Criminal procedure
The
aim of criminal court proceedings is the protection of the rights and
lawful interests of victims of criminal offences and the protection
of a person from unlawful and ungrounded accusation, conviction and
restriction of his, or her, rights and freedoms (Article
6).
Where
the defendant absconds or his “psychiatric disorder”, or
other serious illness, precludes his appearance in court, the court
shall suspend the proceedings until he has been found or has
recovered and shall continue the proceedings in respect of other
defendants. If the separation of the proceedings impedes the
examination of the criminal case, the entire trial shall be suspended
(Article 253 § 3).
In
the cases stipulated in paragraph 5 of Article 247 of the Code, at
the request of the parties, the examination of the case shall be
conducted in the absence of the defendant (Article
253 § 4). In
exceptional cases the examination of the case concerning “serious”
or “particularly serious” criminal offences may be
conducted in the absence of a defendant who is not in the territory
of the Russian Federation and/or declines to appear in court,
provided that this person has not been held accountable for the
criminal offence in question in the territory of a foreign state
(Article 247 § 5). The participation
in a hearing of a defence lawyer called upon by the defendant or
appointed by the court is mandatory (Article 247 § 6).
THE LAW
I. LOCUS STANDI OF THE PERSONS CONCERNED
The
application was lodged on 5 December 2006 by four Russian nationals.
One of the applicants, Mrs Zharkova, in addition to alleging a
violation of her own rights, stated that she wished to complain also
on behalf of her husband, Mr Evsey Matveyevich Pisman, who had died
on 17 January 2005.
The Court reiterates that the existence of a victim of
a violation, that is to say, an individual who is personally affected
by an alleged violation of a Convention right, is indispensable for
putting the protection mechanism of the Convention into motion,
although this criterion is not to be applied in a rigid,
mechanical and inflexible way throughout the proceedings (see
Karner v. Austria, 40016/98, § 25, ECHR 2003-IX).
In the present case Mr Pisman had died before the
application was introduced, and the case is therefore to be
distinguished from cases in which an applicant’s heirs were
permitted to pursue an application which had already been introduced
(see Fairfield and Others v. the United Kingdom, (dec.), no.
24790/04, 8 March 2005, with reference back to Dalban v.
Romania [GC], no. 28114/95, § 39, ECHR 1999-VI).
Individuals,
who are the next-of-kin of persons who have died in circumstances
giving rise to issues under Article 2 of the Convention, may apply as
applicants in their own right under that provision; this is
a particular situation governed by the nature of the violation
alleged and considerations of the effective implementation of one of
the most fundamental provisions in the Convention system. However
complaints brought under, inter alia, Article 6 § 1 do
not in principle fall within this category (see Grădinar v.
Moldova, no. 7170/02, § 91, 8 April 2008; Biç and
Others v. Turkey, no. 55955/00, § 22, 2 February 2006 and
Georgia Makri and others v. Greece (dec.), no. 5977/03, 24
March 2005).
Accordingly,
since Mr Pisman died prior to the introduction of the application,
the Court cannot accept his standing as an applicant for the purposes
of Article 34 of the Convention. It follows that the application in
his respect is incompatible ratione personae with the
provisions of the Convention within the meaning of Article 35 § 3
and must be rejected in accordance with Article 35 § 4.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The
applicants complained that the length of the proceedings had been
incompatible with the “reasonable time” requirement, laid
down in Article 6 § 1 of the Convention, which reads:
“In the determination of ... any criminal charge
against him, everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal ...”
A. Admissibility
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.
B. Merits
1. Submissions by the parties
The Government submitted that the period under
consideration had begun on 10 October 2002, when the applicants had
refused to receive the bill of indictment, and had ended on 25 June
2008, when the appeal court had delivered its judgment. They argued
that the examination of the case had been slowed down by the
illnesses of the elderly applicants and the numerous consequent
suspensions of the proceedings. The criminal case in question had
been particularly complex owing to the large number of documents in
the case file (sixty-four volumes) and the large number of witnesses
and victims. Mr G. had been the main defendant and for this reason
the necessity to examine his psychological state entailed the
suspension of the case in respect of the applicants. In the
Government’s opinion, the length of the proceedings in the
present case was mostly attributable to their conduct and did not
breach the “reasonable time” requirement set out in
Article 6 § 1 of the Convention.
In
the Government’s submissions, the national authorities had
emphasised their willingness to proceed with the examination of the
charges against Ms Konashevskaya. However, apart from her age, she
had suffered from multiple illnesses which had prevented her from
travelling to the courthouse in order to be present at the trial. The
trial court “had examined the possibility of a visiting hearing
in her home” but the applicant’s relatives had refused to
cooperate with the officials in this respect. A commissioned bailiff
had tried and failed to contact Ms Konashevskaya, and for that reason
her opinion regarding the “visiting hearing” had remained
unknown.
The
applicants maintained their complaint. They asserted that the period
to be taken into consideration had started on 12 April 2002, when
they had been charged with the criminal offences in question. They
further argued that the national authorities had significantly
delayed the examination of the proceedings. Six judges had been
appointed to hear the case. The decision to suspend the criminal
proceedings in respect of all the applicants owing to the necessity
to conduct the psychiatric examination of their co-defendant G. had
been unjustified. After the criminal proceedings had been resumed in
2008, it had taken the trial court only three weeks to complete the
examination of the case and to deliver its judgment. Therefore, the
length of the proceedings was attributable to the national
authorities.
2. The Court’s assessment
(a) The period to be taken into
consideration
The
Court reiterates that in criminal matters, the “reasonable
time” referred to in Article 6 § 1 begins to run as soon
as a person is “charged”; this may occur on a date prior
to the case coming before the trial court (see, for example, Deweer
v. Belgium, judgment of 27 February 1980, Series A no. 35, §
42), such as the date of arrest, the date when the person concerned
was officially notified that he or she would be prosecuted, or the
date when preliminary investigations were opened (see Wemhoff v.
Germany, judgment of 27 June 1968, Series A no. 7, § 19;
Neumeister v. Austria, judgment of 27 June 1968, Series A no.
8, § 18; and Ringeisen v. Austria, judgment of 16 July
1971, Series A no. 13, § 110). “Charge”, for the
purposes of Article 6 § 1, may be defined as “the
official notification given to an individual by the competent
authority of an allegation that he has committed a criminal offence”,
a definition that also corresponds to the test whether “the
situation of the [suspect] has been substantially affected”
(see Deweer, cited above, § 46).
According
to the applicants, they were charged with the criminal offences on 12
April 2002. The Government have not provided any comments in this
connection. Therefore, the Court takes the above date as the starting
point of the criminal proceedings in the present case.
By
the judgment of 31 March 2008 the trial court acquitted Ms Belikova,
Mrs Zharkova and Ms Gorokhova of the charges. On 25 June 2008 the
appeal court upheld their acquittal in the final instance. It follows
that in respect of these applicants the period to be taken into
consideration lasted for six years, two months and fifteen days. This
period spanned the investigation stage and two levels of
jurisdiction.
The
criminal proceedings in respect of Ms Konashevskaya are still
pending. Accordingly, they have been lasting for eight years.
(b) General principles
The
Court reiterates that Article 6 § 1 imposes on the Contracting
States the duty to organise their legal systems in such a way that
their courts can meet each of the requirements of that provision,
including the obligation to hear cases within a reasonable time (see
Ledonne v. Italy (no. 2), no. 38414/97, §
23, 12 May 1999; Agga v. Greece (no. 1), no. 37439/97, § 26,
25 January 2000; and Majarič v. Slovenia, no. 28400/95, §
39, 8 February 2000).
It
further refers to its settled case-law to the effect 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
applicants and the relevant authorities (see, among many other
authorities, Pélissier and Sassi v. France [GC], no.
25444/94, § 67, ECHR 1999-II). What is at stake for the
applicant also has to be taken into consideration (see, Kudła
v. Poland [GC], no. 30210/96, § 124, ECHR 2000 XI).
It
lastly reiterates that an accused in criminal proceedings should be
entitled to have his case conducted with special diligence and
Article 6 is, in criminal matters, designed to avoid a situation in
which an accused should remain too long in a state of uncertainty
about his fate (see Nakhmanovich v. Russia, no.
55669/00, § 89, 2 March 2006).
(c) Application of the general principles
to the present case
The
Court accepts that the number of defendants, the seriousness of the
charges against them and the large volume of documents must have made
the trial rather complex. However, the complexity of the case does
not suffice in itself to account for the length of the proceedings
(see Golovkin v. Russia, no. 16595/02, § 39, 3 April
2008). Therefore, the Court will concentrate on the other factors.
(i) The conduct of the national
authorities
As
regards the conduct of the national authorities, the Court observes,
firstly, that the Government have not submitted any satisfactory
explanation for the period of one year and one month that it took the
trial court to schedule the first hearing.
It
is also noted that they submitted rather an inaccurate account of the
judicial activity. It is unclear how many court hearings were
scheduled and how many of them took in fact place. The applicants’
assertion that six judges were appointed to hear their case has
remained unanswered by the Government.
Furthermore,
on 21 February 2006 the court suspended the trial due to the
necessity to examine the applicants’ co-defendant G.’s
psychological state. According to the Government, it was impossible
to proceed to determine the charges against the applicants while the
psychological state of their co-defendant G. was being examined by
experts. The Court, however, is not convinced by this argument. From
the judgment of 31 March 2008 it follows that it concerned only
the applicants. In other words, at one point the trial court
separated the proceedings against the applicants from the proceedings
against their co-defendant G. In these circumstances, it does not
transpire that the suspension of the trial on 21 February 2006
was required in the interests of the fair administration of justice.
In
the light of these facts, the Court cannot but conclude that the
national authorities do not appear to have acted with due diligence.
(ii) The conduct of applicant
Konashevskaya
The
criminal proceedings against Ms Konashevskaya have been suspended
since 5 May 2004. Though the national authorities express their
willingness to proceed with the examination of the charges against
the applicant, her advanced age and the serious multiple illnesses
have prevented her from travelling to the courthouse in order to
appear before the trial court.
The
Court has taken note of the Government’s arguments that a
bailiff attempted to obtain contact with the applicant and that her
relatives had omitted to cooperate in organising a “visiting
hearing” in her home. However, having regard to the
circumstances of the case, in particular Ms Konashevskaya’s
advanced age (90), the state of her health, what has been at stake
and the failure of the State officials to contact her directly, the
Court cannot accept that the national authorities took all
appropriate measures available to them under domestic law in order to
ensure an expeditious trial in respect of this applicant.
Having
regard to the foregoing, the Court considers that the length of the
proceedings have gone beyond what may be considered reasonable in
this particular case.
There
has accordingly been a breach of Article 6 § 1 of the
Convention.
(iii) The conduct of applicants Belikova
and Zharkova
The
criminal proceedings in respect of Ms Belikova and Mrs Zharkova
were suspended from 29 May 2007 to 25 February 2008. The court
decisions to suspend the proceedings were grounded on the serious
illnesses of the applicants, which precluded their presence in the
court room. The proceedings were resumed when the applicants informed
the court that they were fit to stand trial. Nothing in the submitted
materials indicates that there were other delays which could be
attributed to their conduct. It follows that owing to factors
pertaining to the applicants, the proceedings had been delayed for
eight months and twenty-eight days which appears rather insignificant
compared to their overall length. On the other hand, it has been
established that the authorities did not demonstrate the requisite
diligence in handling the case (see paragraphs 45-48 above).
The
Court finds that much was at stake for the applicants as they
suffered a feeling of uncertainty about their future, especially
bearing in mind their age, frail health and that they risked a
long-term imprisonment for the serious criminal offence.
Having
regard to its case-law on the subject and all the material submitted,
the Court considers that in the instant case the length of the
proceedings was excessive and failed to meet the “reasonable
time” requirement.
There
has accordingly been a breach of Article 6 § 1 of the
Convention.
(iv) The conduct of applicant Gorokhova
The
criminal case against Ms Gorokhova was opened on 12 April
2002 and was determined on 25 June 2008. During the period from
5 May 2004 to 25 February 2008, the proceedings were
suspended. This delay of three years, nine months and twenty-two days
is to be attributable to the applicant as the suspension was caused
by her illness.
Taking
into account that the criminal proceedings took approximately two
years prior to the applicant’s illness and four months after
she recovered, the Court considers that the actual length of the
proceedings can be regarded as reasonable.
There
has accordingly been no violation of Article 6 § 1
of the Convention.
III. ALLEGED VIOLATION OF
ARTICLE 6 § 3 (c) OF THE CONVENTION
The
applicants complained that during the court proceedings they had been
denied their right to defend themselves through legal assistance of
their own choosing. They relied on Article 6 § 3 (c) of the
Convention which provides as follows:
“1. In the determination of ... any
criminal charge against him, everyone is entitled to a fair ...
hearing ... by [a] ... tribunal ...
...
Everyone
charged with a criminal offence has the following minimum rights:
...
(c) to
defend himself in person or through legal assistance of his own
choosing or, if he has not sufficient means to pay for legal
assistance, to be given it free when the interests of justice so
require.”
The
Government contested that argument.
The
Court observes that, from the materials submitted by the parties, it
appears that during one of the last hearings, on 12 March 2008,
Ms
Belikova, Mrs Zharikova and Ms Gorokhova were represented by lawyers
whose assistance they had accepted.
It
follows that this part of the application must be rejected as
manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of
the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
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
Each
applicant claimed 200,000 euros (EUR) in respect of non-pecuniary
damage.
The
Government contested the claim.
The
Court observes that it has found a violation of Article 6 § 1 of
the Convention in respect of the first, second and third applicants.
The
Court considers that the applicants must have sustained non-pecuniary
damage. Having regard to the circumstances of the case and ruling on
an equitable basis, it finds it appropriate to award EUR 6,000 to the
first applicant and EUR 2,400 to the second and third applicant each
under that head.
B. Costs and expenses
The
applicants did not make any claims for costs and expenses incurred
before the domestic courts and the Court.
Accordingly,
the Court does not award anything under this head.
C. Default interest
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
Declares the complaint about the excessive
length of the proceedings concerning the four applicants admissible
and the remainder of the application inadmissible;
Holds that there has been a violation of Article
6 § 1 of the Convention on account of the length of the criminal
proceedings against the first, second and third applicants;
Holds that there has been no violation of
Article 6 § 1 of the Convention on account of the length of the
criminal proceedings against the fourth applicant;
Holds
(a) that
the respondent State is to pay, 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
Russian roubles at the rate applicable at the date of settlement:
EUR 6,000 (six
thousand euros) to Ms Nina Vatslavna Konashevskaya, plus any
tax that may be chargeable, in respect of non-pecuniary damage;
EUR 2,400 (two
thousand four hundred euros) to Ms Margarita Vasilyevna
Belikova, plus any tax that may be chargeable, in respect of
non-pecuniary damage;
EUR 2,400 (two
thousand four hundred euros) to Mrs Oktyabrina Sergeyevna
Zharkova, plus any tax that may be chargeable, in respect of
non-pecuniary damage;
(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;
Dismisses the remainder of the applicants’
claim for just satisfaction.
Done in English, and notified in writing on 3 June 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
12
