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BULDAKOV v. RUSSIA - 23294/05 [2011] ECHR 1128 (19 July 2011)
URL: http://www.bailii.org/eu/cases/ECHR/2011/1128.html
Cite as:
[2011] ECHR 1128
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FIRST
SECTION
CASE OF BULDAKOV v. RUSSIA
(Application
no. 23294/05)
JUDGMENT
STRASBOURG
19 July 2011
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 Buldakov v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina Vajić,
President,
Anatoly Kovler,
Peer
Lorenzen,
Elisabeth Steiner,
Khanlar
Hajiyev,
Julia Laffranque,
Linos-Alexandre
Sicilianos, judges,
and Søren Nielsen,
Section Registrar,
Having
deliberated in private on 28 June 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 23294/05) 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 Andrey Vladimirovich
Buldakov (“the applicant”), on 31 May 2005.
The
Russian Government (“the Government”) were represented by
Mr G. Matyushkin, Representative of the Russian Federation at the
European Court of Human Rights.
On
6 November 2009 the President of the First Section decided to give
notice of the application to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1975 and is currently serving a prison sentence
in Chernorechenskiy in the Komi Republic.
A. The applicant’s arrest and trial
On
25 November 2001 the applicant was arrested in connection with a
series of gang robberies that had taken place from September to
November 2001 in a number of St Petersburg massage parlours.
On
27 November 2001 the authorities opened a criminal case and drew up a
record of the applicant’s arrest.
On
28 November 2001 the applicant was charged with robbery and on the
same day he was remanded in detention by the decision of a
prosecutor.
On
an unspecified date in 2001 and later, in 2003, the applicant asked
to be tried by a jury. Both his requests were dismissed.
On
13 June 2002 the applicant was newly charged with banditry and
organised robbery.
On
15 October 2002 the charges against the applicant were finalised, and
now also included charges of organisation and management of a
criminal gang, ten organised robberies with further aggravating
factors, and illegal carrying and storage of arms.
On
17 October 2002 the pre-trial investigation was completed, following
which the applicant and his counsel spent until 21 November 2002
studying the case file.
On
27 November 2002 the case was referred to the St Petersburg City
Court (“the City Court”).
On
10 December 2002 the City Court fixed a preliminary hearing for 12
March 2003. On that date the hearing was postponed to 25 March 2003,
according to the applicant, on account of the prosecutor’s
failure to appear.
At
the hearing of 25 March 2003 the applicant filed a number of requests
for the striking-out of some of the evidence as inadmissible, the
summoning of witnesses, the dropping of the banditry charge, the
transfer of the case to a district court, and the selection of a
non-custodial measure of restraint. These requests were dismissed at
the next hearing on 1 April 2003, which was further adjourned
following a decision to summon the victims and witnesses.
At
the hearings that took place on 29 April, 17 June, 22 August,
1 October and 20 November 2003 the trial court questioned the
victims and witnesses in the case.
The
next two hearings did not take place on account of the unavailability
or illness of counsel.
The
hearings continued on 22 January, 5, 11 and 24 February, and10 and
11 March 2004.
By
a judgment of 25 March 2004 the City Court convicted the applicant of
aggravated robbery and sentenced him to thirteen years’
imprisonment.
The
applicant appealed and his grounds of appeal and two supplements to
it were returned to him for insufficient reasoning. The new grounds
of appeal and a request for the extension of the time-limit for
appeal were also rejected for the same reasons on 24 May 2004. That
decision was overturned on appeal by the Supreme Court of Russia on
16 September 2004, when the time-limit in question was extended.
On
27 January 2005 the Supreme Court of Russia modified the judgment in
the part concerning the legal classification of the criminal acts and
upheld the remainder of the conviction.
B. Decisions concerning application of a custodial
measure
1. Imposition of a custodial measure and ensuing
extension
On
28 November 2001 the prosecutor of the Tsentralnyy District of
St Petersburg authorised the applicant’s pre-trial
detention in accordance with the old Code of Criminal Procedure. This
decision was upheld in a final decision of the City Court of 2 July
2002.
On
an unspecified date the prosecutor extended the applicant’s
detention until 27 August 2002.
2. Extension of the applicant’s detention from 27
August to 27 November 2002
On
20 August 2002 the Kuybyshevskiy District Court of St Petersburg,
citing the gravity of the charges against the applicant, extended his
detention until 27 November 2002. On 15 October 2002 the City Court
upheld the extension order on appeal. However, on 13 October 2004 the
Presidium of the City Court quashed the decisions of the lower courts
by way of supervisory review on the ground that the applicant had not
appeared at the hearing, and ordered the re-examination of his
detention in respect of the above-mentioned period.
On
9 November 2004 the Kuybyshevskiy District Court discontinued the
examination of the request to extend the applicant’s detention
since on 25 March 2004 the applicant had been convicted. On
18 January 2005 the City Court set aside this decision on appeal
and remitted the matter for fresh consideration. On 8 February 2005
the Kuybyshevskiy District Court approved the extension of the
applicant’s detention from 27 August to 27 November 2002
and on 13 April 2005 the City Court upheld that decision.
3. Subsequent extensions of the applicant’s
detention
On
10 December 2002 the City Court held that the measure of restraint
applied to the applicant should remain unchanged. A copy of that
decision was made available to the applicant on 14 February
2003, that is, after the expiry of the statutory time-limit for
lodging an appeal. In March 2005 the applicant sought to have the
time-limit for introducing his appeal extended, but on 25 August 2005
the Supreme Court, at final instance, dismissed his request since by
that time his conviction had become final.
On
13 May, 22 August, 20 November 2003 and 24 February 2004 the City
Court extended the applicant’s detention until 27 August and
27 November 2003, and 27 February and 27 May 2004, respectively.
On 7 August, 5 November 2003 and 16 February and 21 April 2004
the Supreme Court upheld the above extension orders on appeal.
C. Correspondence with the Court
On
29 July 2005 the applicant submitted to the special registry office
(отдел
специального
учета)
of remand centre SIZO-1 of St Petersburg and the Leningrad Region a
completed application form with enclosures of 910 pages addressed to
the Court. On the same day the mailing was registered by the special
registry office and handed over to the dispatch office. However, the
mailing was never dispatched.
The
applicant brought this issue before the prosecutor’s office of
St Petersburg on 9 March 2006. Following an inquiry, the town
prosecutor established that the mailing had never been dispatched and
had subsequently been lost. The prosecutor issued a special statement
addressed to the head of the SIZO-1 remand centre following which,
according to the Government, the official responsible was
disciplined. The Government further submitted that the applicant had
received two new application forms from the officials of the prison
system to compensate him for the loss of his mailing.
In
2009 the applicant brought proceedings against the remand centre and
the federal penitentiary agency seeking compensation for
non-pecuniary damage sustained as result of the loss of the mailing.
By a judgment of 23 June 2009 the Kalininskiy District Court of
St Petersburg dismissed the applicant’s claim, finding that he
had not been irreversibly deprived of the opportunity to lodge a
complaint with the Court. That judgment was upheld on appeal by the
City Court on 15 April 2010.
II. RELEVANT DOMESTIC LAW
Federal
Law no. 68-ФЗ “On
Compensation for Violation of the Right to a Trial within a
Reasonable Time or the Right to Enforcement of a Judgment within a
Reasonable Time” of 30 April 2010 (in force from 4 May
2010) provides that in the case of a violation of the right to trial
within a reasonable time or of the right to enforcement of a final
judgment, Russian citizens are entitled to seek compensation for
non-pecuniary damage. Federal Law no. 69-ФЗ,
adopted on the same day, introduced the pertinent changes into
Russian legislation.
The
transitional arrangements (section 6.2 of Federal Law no. 68 ФЗ)
provided that everyone who had a pending application before the
European Court of Human Rights concerning a complaint of the type
described in the law had six months to lodge the complaint with the
domestic courts.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The
applicant complained that the criminal proceedings against him had
taken too long. He relied on Article 6 § 1 of the Convention,
the relevant part of 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 ...”
A. Admissibility
The
Government argued that the complaint was manifestly ill founded
and should be rejected in accordance with Article 35 § 3 (a) of
the Convention. In their additional observations they contended that
the applicant had not exhausted the new domestic remedy that provided
for compensation for violation of the right to trial within a
reasonable time, available from 4 May 2010.
The
Court takes cognisance of the existence of a new remedy introduced by
federal laws nos. 68-ФЗ
and 69-ФЗ in the wake of
the pilot judgment adopted in the case of Burdov v. Russia (no. 2)
(no. 33509/04, ECHR 2009 ...) and
accepts that the new remedy has been available to the applicant since
4 May 2010. At the same time, it notes that in the pilot judgment
cited above it stated that it would be unfair to request applicants
whose cases had already been pending for many years in the domestic
system and who had come to seek relief at the Court, to bring their
claims again before domestic tribunals (Burdov (no. 2),
cited above, § 144). In line with this principle, the Court
decides to proceed to the examination of the present case.
The
Court further notes that this complaint is not manifestly ill founded
within the meaning of Article 35 § 3 (a) of the Convention, nor
is it inadmissible on any other grounds. It must therefore be
declared admissible.
B. Merits
1. Submissions by the parties
The
Government asserted that the length of the proceedings had been due
to the complexity of the case, which had involved eight volumes of
evidence, three co-defendants, twenty-nine victims and a large number
of witnesses. Most of the victims resided outside St Petersburg or
were foreign citizens, which complicated their participation in the
court hearings. The applicant had filed numerous requests during the
proceedings, while the trial court had done what could have been
reasonably expected of it to balance expedition with the interests of
justice. In one year and four months the trial court had scheduled
twenty-one hearings, the majority of which had taken place as planned
without undue intervals between them. As to the ten-month length of
the proceedings before the appeal court, the Government submitted
that it had been justified since the applicant had failed on several
occasions to submit admissible grounds of appeal, which had later led
to the necessity to consider an extension of the time-limit for
appeal. In addition, the appeal court had had to send copies of the
appeals to all the parties and duly notify them of the appeal
hearing, which also took up some time.
The
applicant contested some of the Government’s submissions. In
particular, he stated, on the date of its arrival at the trial court
the evidence had consisted of only four volumes, which were examined
by the court in one hearing on 10 March 2004. All of the individuals
questioned by the court lived in St Petersburg, and the eleven
victims had been questioned in three hearings. In addition, five of
the hearings had been fixed only to extend his detention.
2. The Court’s assessment
The
Court observes that the criminal proceedings against the applicant
commenced on 25 November 2001 and ended on 27 January 2005.
Accordingly, it took the domestic authorities approximately three
years and two months to examine the case at two levels of
jurisdiction.
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,
the applicant’s conduct and the conduct of the competent
authorities (see, among many other authorities, Pélissier
and Sassi v. France [GC], no. 25444/94, § 67, ECHR
1999 II).
The
Court accepts that the applicant’s case could be characterised
as complex. It notes that the three co-accused were charged with
grave crimes committed in a series of episodes and involving a large
number of victims and witnesses, although their numbers were disputed
between the parties. It can be seen from the text of the judgment
that the trial court questioned no less than twelve victims in the
proceedings.
As
to the conduct of the authorities, the Court is satisfied that the
pre-trial investigation ended within a year of the applicant’s
arrest, which does not appear unreasonable given the number of
individuals involved and the volume of evidence. Regarding the
conduct of the trial, the Court considers that the first-instance
court scheduled regular hearings and did not allow any undue delays.
As to the appeal proceedings, their length was also justified by the
nature of the case and the applicant’s initial failure to
comply with the statutory standards set for grounds of appeal.
In
view of the complexity of the case and the lack of any visible
misconduct on the part of the authorities, the Court concludes that
there has been no breach of the “reasonable time”
requirement in the present case.
There
has accordingly been no violation of Article 6 § 1 of the
Convention.
II. ALLEGED BREACH OF ARTICLE 34 OF THE CONVENTION
The
applicant complained that the prison administration had not
dispatched his mailing of 29 July 2005 to the Court and that the
domestic authorities, having acknowledged the wrongdoing, had not
provided him with any redress. He relied on Article 34 of the
Convention, which reads as follows:
“The Court may receive applications from any
person, non-governmental organisation or group of individuals
claiming to be the victim of a violation by one of the High
Contracting Parties of the rights set forth in the Convention or the
Protocols thereto. The High Contracting Parties undertake not to
hinder in any way the effective exercise of this right.”
A. Submissions by the parties
The Government admitted that the applicant’s mailing to the
Court containing an application form and documents had been lost but
argued that this had not been deliberate and, furthermore, the
authorities had taken certain measures to restore his right of
individual petition and to discipline the official responsible. They
did not provide the name or position of the person who had allegedly
been disciplined, nor did they specify the nature of the disciplinary
measure.
The
applicant stated that, in his opinion, the prison authorities had
removed his application form with the attachments on purpose to
prevent him from communicating with the Court, since the alleged loss
had occurred within the institution where he had been serving his
sentence. He insisted that simply losing a parcel consisting of
almost a thousand pages would have been difficult in those
circumstances. As to the direct consequences of the disappearance of
the mailing, the applicant claimed that the time-limit for some of
the complaints raised in the application form of 29 July 2005 had
been missed. He further contended that the national law did not
provide for the availability of free copies of criminal case
documents after conviction. Had he chosen to pay for such copies, he
could not have had them made as he did not remember which pages of
his criminal case file were concerned. In any event, the lost
documents included not only the material in the case file but also
responses to his complaints from various State bodies which were not
included in the criminal case file.
B. The Court’s assessment
The Court reiterates that the right of individual
petition under Article 34 of the Convention will operate
effectively only if an applicant can interact with the Court freely,
without any pressure from the authorities (see Akdivar and Others
v. Turkey, 16 September 1996, § 105, Reports of Judgments
and Decisions 1996 IV). The expression “any form of
pressure” must be taken to cover not only direct coercion and
flagrant acts of intimidation of applicants or their legal
representatives but also other improper indirect acts or contacts
designed to dissuade or discourage them from pursuing a Convention
remedy or having a “chilling effect” on the exercise of
the right of individual petition by applicants and their
representatives (see Tanrıkulu v. Turkey [GC],
no. 23763/94, § 130, ECHR 1999 IV, with further
references; McShane v. the United Kingdom, no. 43290/98,
§ 151, 28 May 2002; Fedotova v. Russia,
no. 73225/01, §§ 48-51, 13 April 2006; and
Nurmagomedov v. Russia, no. 30138/02, § 6,
7 June 2007).
It
is not in dispute between the parties that the correspondence in
question was not dispatched to the Court as intended and that it was
neither returned to the applicant nor discovered subsequently by
anyone else. The Court, like the applicant, is struck by the fact
that the rather heavy mailing disappeared shortly after it was
submitted to prison authorities which had a special responsibility to
ensure strict control and supervision of detainees’
correspondence. Against this background, the Court finds it difficult
to accept the Government’s assertion that the mailing was
inadvertently misplaced and subsequently lost. To the contrary, the
applicant’s allegation that the prison authorities mislaid the
mailing on purpose does not appear unreasonable.
However,
even assuming that the mailing was lost through negligence, this does
not in itself relieve the authorities of their responsibility under
the Convention, all the more so since the applicant had no other way
to correspond with the Court than through the prison administration.
The Court observes that the Government’s allegations of a
disciplinary action against a prison official responsible were rather
vague and unsupported by any evidence. It also takes into account the
applicant’s argument undisputed by the Government that all or
most of the documents included in the first mailing could not be
restored. In these circumstances the Court takes the view that the
prison administration’s failure to send the first application
form with its voluminous attachments was serious enough to interfere
with the proceedings before the Court and may even be perceived as
discouraging the effective exercise of the right of individual
petition by the applicant.
In
view of the foregoing, and considering in particular the nature of
the applicant’s correspondence and the doubtful manner in which
it disappeared within the penitentiary institution, the Court
concludes that the respondent State failed to comply with its
obligations under Article 34 of the Convention.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The
applicant finally submitted a number of complaints under Article 5
and 6 of the Convention related to his arrest, detention and trial.
Having
regard to all the material in its possession, and in so far as these
complaints fall within its competence, the Court finds that they do
not disclose any appearance of a violation of the rights and freedoms
set out in these provisions. It follows that this part of the
application must be rejected as being manifestly ill-founded,
pursuant to Article 35 §§ 1, 3 (a) 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
The
applicant claimed 10,000 euros (EUR) for the alleged violation of
Article 6 of the Convention and a further EUR 50,000 for the
hindrance of his correspondence with the Court in breach of Article
34 of the Convention. He also claimed compensation for pecuniary
damage resulting from unfair conviction, without specifying the
amount.
The
Government contested both claims.
The
Court reiterates that it has found no violation of Article 6 of the
Convention in respect of the complaint concerning the length of the
proceedings. Furthermore, the Court has dismissed all other
complaints related to the applicant’s trial. It therefore
rejects the applicant’s claims in this part. On the other hand,
the Court accepts that the applicant must have suffered considerable
anxiety and distress as a result of the misplacement of his mailing
by the prison administration. Having regard to this and making an
assessment on an equitable basis, it awards the applicant EUR 3,000
in respect of non pecuniary damage.
B. Costs and expenses
The
applicant also claimed EUR 100 for the postal expenses incurred in
the domestic proceedings and before the Court.
The
Government submitted that the applicant had not provided any
documents supporting his claim.
Regard
being had to the fact that the applicant failed to substantiate his
claim, the Court rejects it.
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 concerning the length of
the proceedings admissible and the remainder of the application
inadmissible;
Holds that there has been no violation of
Article 6 § 1 of the Convention;
Holds that the respondent State has failed to
comply with its obligations under Article 34 of the Convention;
Holds
(a) that
the respondent State is to pay the applicant, within three months of
the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 3,000 (three 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 on 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;
Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 19 July 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Nina Vajić
Registrar President
