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NEVSKAYA v. RUSSIA - 24273/04 [2011] ECHR 1598 (11 October 2011)
URL: http://www.bailii.org/eu/cases/ECHR/2011/1598.html
Cite as:
[2011] ECHR 1598
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FIRST
SECTION
CASE OF NEVSKAYA v. RUSSIA
(Application
no. 24273/04)
JUDGMENT
STRASBOURG
11 October
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 Nevskaya v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina Vajić,
President,
Anatoly Kovler,
Peer Lorenzen,
Khanlar
Hajiyev,
Julia Laffranque,
Linos-Alexandre
Sicilianos,
Erik Møse, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 20 September 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 24273/04) 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, Ms Olga Aleksandrovna
Nevskaya (“the applicant”), on 30 May 2004.
The
applicant was represented by Mr G.I. Zhuravlev, a lawyer practising
in Moscow. The Russian Government (“the Government”) were
represented by Ms V. Milinchuk and then by Mr G. Matyushkin,
former and current Representatives of the Russian Federation at the
European Court of Human Rights respectively.
On
3 December 2008 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 application at the same
time (Article 29 § 1).
In
June 2010 the President of the Chamber, to which the case was
assigned, invited the respondent Government under Rule 54 § 2
(a) of the Rules of Court, to submit further documents concerning the
application. The President of the Chamber also acceded to the
Government’s request and held that pursuant to Rule 33 § 1
the above documents should not be made available to the public.
THE FACTS
The
applicant was born in 1978 and lives in Moscow.
On
1 November 1998 an explosion destroyed the monument to Tsar Nicolas
II in Podolsk of the Moscow Region.
On
13 August 1998 and on 4 April 1999 two night explosions in Moscow
damaged the façade of the Federal Security Service (“FSB”).
Criminal
investigations into acts of terrorism were opened following the above
events. Responsibility for the above explosions was attributed to an
anarchist movement “New Revolutionary Alternative” (NRA).
On
23 February 2000 the applicant was arrested. Her detention was
subsequently extended on a number of occasions. In November 2000 the
applicant was released.
The
preliminary investigation was completed on 22 May 2001. Subsequently,
the applicant studied the case file until 16 July 2001. In December
2001 the investigating authority ordered the defence (the co-accused)
to complete its study of the case file before 5 February 2002.
On
21 February 2002 the criminal case was submitted to the Moscow
City Court for trial. The case was assigned to judge Ko.. On 6 March
2002 judge Ko. refused to relinquish jurisdiction in favour of the
Moscow Regional Court for holding a trial by jury. The judge
determined that the nature of the charges and the need to ensure
security of the trial participants required a non-public trial. On an
unspecified date the case file was classified as “secret”.
Apparently, despite the above decision, the trial was filmed with a
video camera, while the defence was refused permission for an audio
recording of the trial. On 25 April 2002 the Supreme Court
upheld the decision of 6 March 2002 in the part concerning the
trial in camera.
On
26 April 2002 two lay assessors were appointed to sit with the
presiding judge. It appears that the applicant and one of her
co-accused retained new counsel, who were given time to study the
case file.
It
appears that since April 2002 at least twenty adjournments were
ordered, mostly due to one or several defence lawyers’ absence
for medical reasons, due to annual leave or unspecified reasons. In
January 2003 judge Ko. sent a letter to the Moscow Bar Association
complaining that the defence lawyers had obstructed the trial by
failing to appear on a number of occasions. The judge indicated, for
instance, that the applicant’s co-accused lawyer Mr Ka. had not
been present on 21 May and 25 June 2002 owing to his involvement
in another trial; had been on sick leave from 23 November to 11
December 2002; had been absent on 18 July and 16 December 2002 and on
9 January 2003 without a valid excuse supported by proof; and between
19 and 27 December 2002 had apparently been admitted to
hospital, allegedly until 23 January 2003. Ms Ka. (also the
co-accused’s lawyer) had not been present on 26 April 2002
owing to alleged illness and had been absent on 18 July and
27 December 2002 and on 23 January 2003 without a valid
excuse supported by proof.
On
14 February 2003 the City Court rejected a motion the defence had
submitted seeking to have the trial conducted in public. The court
held that the case was “secret” for the purposes of
Article 241 § 2 of the Code of Criminal Procedure and the
anti-terrorist legislation. On 14 March 2003 the trial court
examined a number of requests submitted by the defence. The court
considered that the RSFSR Code of Criminal Procedure, which had been
applicable before the trial, did not require that the defence should
be provided with both the bill of indictment and any “annexes”
to it. In any event, the defence had been provided with the annexes,
including the list of persons to be called as witnesses at the trial.
At
trial, the applicant was kept in a metal cage guarded by convoy
officers.
On
14 May 2003 the Moscow City Court convicted the applicant of several
counts of handling explosives and terrorism. She was sentenced to six
years’ imprisonment. Referring to written depositions by Ms V.
and Mr St. made at the pre-trial investigation stage, the City
Court established that the bomb targeted a public building, the FSB
office. The court also relied on written depositions by Mr N. and
oral testimony by witnesses Mr R., Mr K., Mr S. who had received
information about the defendants’ anarchist activities and
details of the explosions either directly from them or other persons,
including Mr Biryukov.
On
4 December 2003 the Supreme Court, sitting in camera, upheld
the judgment in respect of the applicant.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION (LENGTH OF CRIMINAL PROCEEDINGS)
The
applicant complained that the length of the criminal proceedings
against her had exceeded the “reasonable time” in breach
of Article 6 § 1 of the Convention, 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
Court considers that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 (a) of the Convention. No
other ground for declaring it inadmissible has been established. It
must therefore be declared admissible.
B. Merits
The
Government submitted that the applicant and her co-accused delayed
proceedings, in particular in late 2001 when they studied the case
file. The trial proceedings, which had started in February 2002, were
completed with a reasonable time, given the complexity of the case
(several episodes and several defendants). A number of delays were
attributable to the applicant, her co-accused or counsel.
The
applicant maintained her complaint, considering that no significant
delays during the trial had been attributable to her or her counsel.
1. Period under consideration
The
Court observes at the outset that the period under consideration
started on 23 February 2000, when the applicant was arrested. It is
common ground that these proceedings ended on 4 December 2003.
Thus, they took three years, nine months and eleven days for the
investigative stage and the trial at two levels of jurisdiction.
2. Assessment of the period
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 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 has examined the applicant’s complaint, bearing in mind
that it essentially concerned the court proceedings, which lasted
from 22 February 2002 to 4 December 2003, that is, one year and
slightly over nine months at two levels of jurisdiction. It is noted
that the applicant was at liberty during this period of time.
It
has not been alleged that there were any significant periods of
inactivity attributable to the State during the preliminary
investigation (see Shenoyev v. Russia, no. 2563/06, § 63,
10 June 2010).
The Court accepts that the case was relatively
complex. The Court reiterates that an applicant cannot be required to
cooperate actively with the judicial authorities, nor can he or she
be criticised for having made full use of the remedies available
under the domestic law in the defence of his or her interests (see,
among others, Rokhlina v. Russia, no. 54071/00, § 88,
7 April 2005). However, the Court agrees with the Government
that certain periods of inactivity could be attributable to the
defence in this case. At the same time, the applicant did not
substantiate that any specific significant periods of inactivity were
imputable to the State.
Making
an overall assessment the Court concludes that in the circumstances
of the case the “reasonable time” requirement was
respected.
There
has accordingly been no violation of Article 6 § 1 of the
Convention.
II. OTHER ALLEGED VIOLATIONS OF ARTICLE 6 OF THE
CONVENTION IN RELATION TO THE TRIAL
The
applicant complained that the criminal proceedings against her had
been unfair and had not been conducted in public, in breach of
Article 6 of the Convention, which reads in the relevant parts s
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 an independent and
impartial tribunal established by law. Judgment shall be pronounced
publicly but the press and public may be excluded from all or part of
the trial in the interests of morals, public order or national
security in a democratic society, where the interests of juveniles or
the protection of the private life of the parties so require, or to
the extent strictly necessary in the opinion of the court in special
circumstances where publicity would prejudice the interests of
justice.
2. Everyone charged with a criminal offence
shall be presumed innocent until proved guilty according to law.
3. Everyone charged with a criminal offence
has the following minimum rights:
(a) to be informed promptly, in a language
which he understands and in detail, of the nature and cause of the
accusation against him;
(b) to have adequate time and facilities for
the preparation of his defence;
(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;
(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;...”
A. The parties’ submissions
1. The applicant
The
applicant submitted numerous complaints under Article 6 of the
Convention, alleging, inter alia, that the trial court was not
impartial and independent; it was not “established by law”,
made erroneous findings of fact, misapplied national law and made an
inadequate assessment of the evidence.
The
applicant also alleged that the trial was held in camera;
there had been no objective grounds for closing the trial to the
public. There had been no media coverage of the trial; nor did the
matter involve any sensitive information or considerations.
Lastly,
the applicant complained that she had not been given access to the
video surveillance recording of the site of the explosion which the
FSB allegedly had in its possession. She had been restricted in her
ability to prepare her defence because of limited access to the case
file. In the courtroom the applicant had been kept in a poorly-lit
metal cage and had not been allowed to give instructions to her
counsel.
2. The Government
The
Government argued that the criminal proceedings against the applicant
had been fair. They submitted in particular that the authorities had
aimed at ensuring the safety of the trial participants. The decision
to close the trial to the public was justified because the case file
had been classified as “secret”.
B. The Court’s assessment
1. Admissibility
The
Court notes that this part of the application is not manifestly
ill-founded within the meaning of Article 35 § 3 (a) of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
2. Merits
(a) Public hearing
The
Court reiterates that the holding of court hearings in public
constitutes a fundamental principle enshrined in Article 6 § 1
of the Convention. It protects litigants against the administration
of justice in secret with no public scrutiny. It is also one of the
means whereby confidence in the courts can be maintained.
Administration of justice, including trials, derives legitimacy from
being conducted in public. By rendering the administration of justice
transparent, a public hearing contributes to fulfilling the aim of
Article 6 § 1, namely, a fair trial (see Gautrin and
Others v. France, 20 May 1998, § 42, Reports of
Judgments and Decisions 1998-III, and Pretto and Others v.
Italy, 8 December 1983, § 21, Series A no. 71).
There is a high expectation of publicity in ordinary criminal
proceedings, which may well concern dangerous individuals,
notwithstanding the attendant security problems (see Campbell and
Fell v. the United Kingdom, 28 June 1984, § 87,
Series A no. 80).
The requirement to hold a public hearing is subject to
exceptions. This is apparent from the text of Article 6 § 1
itself, which contains the provision that the press and public may be
excluded from all or part of the trial in the interests of national
security in a democratic society, or to the extent strictly necessary
in the opinion of the court in special circumstances where publicity
would prejudice the interests of justice. Thus, it may on occasion be
necessary under Article 6 to limit the open and public nature of
proceedings in order, for example, to protect the safety or privacy
of witnesses, or to promote the free exchange of information and
opinion in the pursuit of justice (see B. and P. v. the United
Kingdom, nos. 36337/97 and 35974/97, § 37, ECHR
2001-III, with further references). The Court’s task in
the present case is to establish whether the exclusion of the public
from the trial in the City Court was justified.
The
Court observes that in the applicant’s criminal case the City
Court ordered a trial in camera, referring to the nature of
the charges and the need to ensure the security of the trial
participants. Subsequently, the court rejected the defence’s
objection to a non-public trial, with reference to the “secret”
status of the case file under the Code of Criminal Procedure and
unspecified anti-terrorist legislation.
In
the Court’s view, it was not convincingly shown that national
security concerns served as a valid basis for the decision to exclude
the public from the trial. However, even assuming that the City Court
endorsed the prosecutor’s argument pertaining to the presence
of classified information in the criminal case file, the Court does
not concur with the Government’s submission that the mere
presence of such information in a case file automatically implies a
need to close a trial to the public, without balancing openness with
national security concerns. The Court observes that it may be
important for a State to preserve its secrets, but it is of
infinitely greater importance to surround justice with all the
requisite safeguards, of which one of the most indispensable is the
guarantee that proceedings are open to the public. Before excluding
the public from criminal proceedings, courts must make specific
findings that closure is necessary to protect a compelling
governmental interest and limit secrecy to the extent necessary to
preserve such an interest (see, mutatis
mutandis, Hummatov v. Azerbaijan, nos. 9852/03
and 13413/04, 29 November 2007, § 149, and Moser v.
Austria, no. 12643/02, 21 September 2006, §§
96 and 97).
There
is no evidence to suggest that either of the two conditions was
satisfied in the present case. The City Court did not elaborate on
the reasons for holding the trial in camera. It did not even
indicate what documents in the case file, if any, were considered to
contain State secrets or how they were related to the nature and
character of the charges against the applicant. The Court further
observes that the City Court did not take any measures to
counterbalance the detrimental effect that the decision to hold the
trial in camera must have had on public confidence in the proper
administration of justice for the sake of protecting the State’s
interest in keeping its secrets. The Government did not argue –
and there is no indication to the contrary in the documents submitted
by the parties – that it was not open to the City Court to hold
the trial publicly subject to clearing the courtroom for a single or,
if need be, a number of non-public sessions to deal with classified
documents or information. The Court therefore finds it striking that
in such a situation the Moscow City Court preferred to close the
entire trial to the public (see Belashev v. Russia, no.
28617/03, § 84, 4 December 2008).
Turning to the Government’s second argument to
the effect that the exclusion of the public was necessary in the
interests of justice, in particular, for the safety of the “trial
participants”, including the defendants, the Court considers
that it would have been preferable to have expanded this element to
explain in more detail why the City Court was worried about the
vulnerability of certain persons or whether and why it was concerned
that those persons could have been deterred. It was also important to
explain why the concern for the safety of the persons involved in the
trial outweighed the importance of ensuring the public nature of the
trial (see Porubova v. Russia, no. 8237/03, § 34, 8
October 2009). Moreover, if the trial court had indeed taken into
account certain information, this should have been presented to the
parties, in particular the applicant, so that an open discussion of
the matter could have occurred (see Volkov v. Russia,
no. 64056/00, § 31, 4 December 2007).
The Court notes that the gravity of the charges cannot
by itself serve to justify the restriction of such a fundamental
tenet of judicial proceedings as their openness to the public. The
Court observes that a danger which defendants may present to other
parties to the proceedings cannot be gauged solely on the basis of
the gravity of the charges and severity of the sentence faced. It
must be assessed with reference to a number of other relevant factors
which may confirm the existence of a danger justifying the denial of
public access to a trial. In the present case the decisions of the
domestic courts gave no reasons why they considered the risk to the
safety of the “participants” to be decisive. Nor did any
relevant information transpire from the other material before the
Court, including the documents from the criminal case file produced
by the parties. Consequently, the Court finds that dispensing with a
public hearing was not justified in the circumstances of the present
case.
Lastly,
the Court observes – and the Government did not argue to the
contrary – that the appeal hearing before the Supreme Court of
the Russian Federation was not open to the public either. It
therefore follows that the appeal proceedings before the Supreme
Court did not remedy the non-public nature of the trial before the
City Court (see Belashev, cited above, § 87).
Having regard to these considerations, the Court
concludes that there has been a violation of Article 6 § 1 of
the Convention owing to the lack of a public hearing in the
applicant’s case.
(b) Other grievances
As to the remaining grievances in relation to the
pre-trial and trial proceedings in the applicant’s criminal
case, the Court first reiterates that, in accordance with Article 19
of the Convention, its only task is to ensure the observance of the
obligations undertaken by the Parties to the Convention. In
particular, the Court is not competent to deal with an application
alleging that errors of law or fact have been committed by the
domestic courts, except where it considers that such errors might
have involved a possible violation of any of the rights and freedoms
set out in the Convention (see, among other authorities, Schenk v.
Switzerland, 12 July 1988, § 45, Series A no. 140).
Furthermore,
as regards Article 6 of the Convention, the Court also reiterates
that the admissibility of evidence is primarily a matter for
regulation by national law and as a general rule it is for the
national courts to assess the evidence before them. The guarantees in
paragraph 3 of Article 6 are specific aspects of the right to a fair
trial set out in paragraph 1. In the circumstances of the case it
finds it unnecessary to examine the applicant’s allegations
separately from the standpoint of paragraph 3 (b), since they amount
to a complaint that she did not receive a fair trial. It will
therefore confine its examination to the question of whether the
proceedings in their entirety were fair (see Rowe and Davis v. the
United Kingdom [GC], no. 28901/95, § 59, ECHR 2000-II).
It is a fundamental aspect of the right to a fair trial that criminal
proceedings, including the elements of such proceedings which relate
to procedure, should be adversarial and that there should be equality
of arms between the prosecution and defence. The right to an
adversarial trial means, in a criminal case, that both prosecution
and defence must be given the opportunity to have knowledge of and
comment on the observations filed and the evidence adduced by the
other party. In addition Article 6 § 1 requires that the
prosecution authorities disclose to the defence all material evidence
in their possession for or against the accused (see, among others,
Natunen v. Finland, no. 21022/04, § 39,
31 March 2009).
Bearing
in mind the above principles, the Court has examined the applicant’s
remaining grievances relating to the preliminary investigation in her
criminal case and the fairness of the trial. The applicant, who was
assisted by counsel, was afforded an adequate opportunity to present
her arguments and evidence, as well as to contest the prosecution’s
arguments and evidence, in adversarial proceedings. The applicant’s
allegation concerning unjustified limitations on her ability to have
knowledge of the material in the criminal case file lacks
substantiation. The Court also considers that the time afforded by
the authorities to study the case file was not as such insufficient
and that the applicant’s rights under Article 6 have not been
breached in this respect.
The
available material before the Court does not disclose that any other
alleged violations were such as to impair the overall fairness of the
proceedings under Article 6 § 1 of the Convention. There has
therefore been no violation of Article 6 § 1 of the Convention
on this account.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The
applicant complained under Articles 3 and 5 of the Convention that
she had been detained in appalling conditions; that she had been
compelled through threats, unjustified detention and psychological
pressure to make admissions. She also raised a number of other
complaints under Article 6 of the Convention concerning the trial and
post-trial proceedings. Lastly, she alleged under Articles 9, 10 and
11 of the Convention that she had been prosecuted and convicted due
to her political opinions and activities.
The
Court has examined these complaints as submitted by the applicant.
However, having regard to all the material in its possession, and in
so far as they fall within its jurisdiction, the Court finds that
these complaints do not disclose any appearance of a violation 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 (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 30,000 euros (EUR) in respect of non-pecuniary
damage.
The
Government contested this claim.
The
Court awards the applicant EUR 4,800 in respect of non-pecuniary
damage, plus any tax that may be chargeable.
B. Costs and expenses
The
applicant also claimed reimbursement of her costs and expenses.
The
Government contested this claim.
According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum. In the absence of any specific claim and
supporting documents, the Court rejects the claim for costs and
expenses.
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 complaints concerning length and
fairness of the criminal proceedings admissible and the remainder of
the application inadmissible;
Holds that there has been no violation of
Article 6 § 1 of the Convention on account of the length of the
criminal proceedings;
Holds that there has been a violation of Article
6 § 1 of the Convention on account of the lack of a public
hearing;
Holds that there has been no violation of
Article 6 § 1 of the Convention in relation to the applicant’s
other grievances concerning the criminal trial;
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 4,800 (four
thousand eight hundred 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;
Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 11 October 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Nina Vajić
Registrar President
