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NEFEDOV v. RUSSIA - 40962/04 [2012] ECHR 435 (13 March 2012)
URL: http://www.bailii.org/eu/cases/ECHR/2012/435.html
Cite as:
[2012] ECHR 435
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FIRST
SECTION
CASE OF NEFEDOV v. RUSSIA
(Application
no. 40962/04)
JUDGMENT
STRASBOURG
13
March 2012
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 Nefedov 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,
Linos-Alexandre Sicilianos,
Erik Møse,
judges,
and Søren Nielsen,
Section Registrar,
Having
deliberated in private on 21 February 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 40962/04) 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 Valeryevich
Nefedov (“the applicant”), on 10 October 2004.
The
applicant, who had been granted legal aid, was represented by Ms G.
Zaksheyeva, a lawyer practising in Irkutsk. The Russian Government
(“the Government”) were represented by Mrs V. Milinchuk,
former Representative of the Russian Federation at the European Court
of Human Rights.
The
applicant alleged, in particular, that neither he nor his lawyer had
been afforded the opportunity to attend an appeal hearing in the
criminal case concerning him.
On
11 October 2007 the application was communicated to the Government.
It was also decided to rule on the admissibility and merits of the
application at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1966 and lives in Irkutsk.
On
24 May 2002 the applicant, the head of the Anti-Drug Trafficking
Department of the North-Eastern Customs Office at the time, was
arrested on suspicion of abuse of position and drug trafficking. An
investigator drew up an arrest record and, in detail, informed the
applicant of his rights as an accused, including the right to have
legal assistance and the right to remain silent. The applicant signed
the record, noting that he clearly understood his rights, but he
refused legal assistance and decided to make a statement.
According
to the applicant, police officers beat him up and threatened him and
his family. They also promised to release him in exchange for a
confession. The applicant wrote a statement confessing to drug
trafficking.
On
the same date the investigator interrogated the applicant in the
absence of counsel, whose assistance the applicant had refused. The
refusal was recorded in a report duly dated and signed by the
applicant.
The
police searched the house of the applicant’s co-accused and
found a parcel of heroin. The applicant claimed that a neighbour, Mr
M., had seen a police officer putting the parcel into the closet.
On
27 December 2002 the applicant was released on a written undertaking
not to leave the town.
On
10 March 2004 the Irkutsk Regional Court found the applicant
guilty as charged and sentenced him to four years and
six months’ imprisonment. In view of the applicant’s
position, the trial hearings were closed to the press and public. The
conviction was based on self incriminating statements made
during the pre-trial investigation, search records, expert
examination reports and witness testimonies. According to the
applicant, the trial court refused to hear Mr M. However, as noted in
a statement of appeal lodged by the applicant’s co-accused, the
trial court had heard Mr M. at least on two occasions: during the
investigation phase of the trial, when he had testified and the
parties had been allowed to ask questions, and when the trial court,
having accepted the parties’ request, had again questioned Mr
M. to clarify certain points.
The
applicant alleged that the judgment of 10 March 2004 had not been
pronounced publicly.
According to the Government, following the public
pronouncement of the judgment, the Regional Court had notified the
applicant of his right to appeal against conviction and had explained
“procedural issues pertaining to lodging an appeal” to
him. The Government provided the Court with typed notes signed by the
applicant and his lawyer and certifying that they had been served
with a copy of the judgment of 10 March 2004 and that the applicant
had been informed of the ten-day time-limit for lodging an appeal.
Another note submitted by the Government was handwritten by the
applicant and showed that he had received a copy of the trial court’s
records.
The applicant and his lawyer appealed against the
conviction, having lodged lengthy appeal statements. They disputed
the applicant’s involvement in the criminal offences he had
been found guilty of and disagreed with the way the trial court had
established the relevant facts, the distribution of roles between him
and his co-defendant and the classification of his own acts. They
submitted, in particular, that the trial court had disregarded the
applicant’s testimony and statements by witnesses which
supported it, in particular, regarding his submissions that he had
committed the alleged act of drug trafficking whilst he had been
undercover and acting within his official functions. In the appeal
statement the applicant did not ask the Supreme Court to ensure his
presence at the appeal hearing.
On 18 June 2004 the head of Detention Facility no. 1
in Irkutsk, where the applicant was detained at the time, received a
telegram from the Supreme Court for the applicant informing him of an
appeal hearing scheduled for 6 July. The Government also provided the
Court with typed summonses not bearing any stamps or signatures. An
official of the Supreme Court allegedly sent those summonses on 16
June 2004 to the Bar Association where the applicant’s counsel
worked in order to confirm his ability to attend the appeal hearing
on 6 July 2004.
On
6 July 2004 the Supreme Court of the Russian Federation upheld
the judgment of 10 March 2004, having endorsed the Regional Court’s
reasoning. The applicant was not brought to the appeal hearing. His
counsel was also absent. The Supreme Court proceeded in their
absence, heard a prosecutor who supported the conviction, and
examined the applicant’s and his lawyer’s statements of
appeal.
II. RELEVANT DOMESTIC LAW
A. Code of Criminal Procedure of the Russian Federation
of 18 December 2001, in force since 1 July 2002 (“CCrP”)
Article 51 of the CCrP provides as follows:
“1. Participation of legal counsel in
criminal proceedings is mandatory if:
(1) the suspect or the accused has not waived
legal representation in accordance with Article 52 of this Code;
(2) the suspect or the accused is a minor;
(3) the suspect or the accused cannot
exercise his right of defence by himself owing to a physical or
mental handicap;
(3.1) the court proceedings are to be
conducted [in the absence of the accused] in accordance with Article
247 § 5 of this Code;
(4) the suspect or the accused does not speak
the language in which the proceedings are [to be] conducted;
(5) the suspect or the accused faces serious
charges carrying a term of imprisonment exceeding fifteen years, life
imprisonment or the death penalty;
(6) the criminal case falls to be examined by
a jury trial;
(7) the accused has filed a request for the
proceedings to be conducted [without a hearing] under Chapter 40 of
this Code;
2. ...
3. In the circumstances provided for by
paragraph 1 above, unless counsel is retained by the suspect or the
accused, or his lawful representative, or other persons on the
request, or with the consent, of the suspect or the accused, it is
incumbent on the investigator, prosecutor or the court to ensure the
participation of legal counsel in the proceedings.”
Article 52 of the Code provides that an accused
can waive his right to legal assistance, but such waiver must be
established in the written form. The waiver can be revoked at any
moment.
Article
360 establishes the scope of the examination of the case by an appeal
court. It provides that the appeal court shall examine the legality,
validity and fairness of the judgment of the trial court only to the
extent to which it has been complained against and only in respect of
those convicted who are concerned by the appeal. The appeal court is
empowered to reduce the sentence imposed on the convicted person or
apply the law of a lesser offence, but shall have no power to impose
a more severe penalty or apply a law of a more serious offence.
Article
375 § 2 provides that if a convicted person wishes to take part
in the appeal hearing, he must indicate that in his statement of
appeal.
Under
Article 376 § 2 parties shall be notified of the date, time and
place of an appeal hearing no later than fourteen days in advance. A
court is to decide whether to summon a convicted person held in
custody. Article 376 § 3 provides that a convicted person
held in custody who expressed a wish to be present at the examination
of his appeal shall be entitled to participate either directly in the
court session or to state his case by video link. The court shall
take a decision with respect to the form of participation of the
convicted person in the court session. A defendant who has appeared
before the court shall be always entitled to take part in the
hearing. Article 376 § 4 states that if persons who have
been given timely notice of the venue and time of the appeal hearing
fail to appear, this shall not preclude the examination of the case.
Article
377 describes the procedure for the examination of cases by the
appeal court. It provides, among other things, that at the hearing
the court shall hear the statement of the party who had lodged the
appeal and the objections of the opposing party. The appeal court
shall be empowered, at the party’s request, to directly examine
evidence and additional materials provided by the parties to support
or disprove the arguments cited in the statement of appeal or in the
statements of the opposing party.
Article
378 establishes which decisions the appeal court may take. It
provides that the appeal court may decide to dismiss the appeal and
uphold the judgment, to quash the judgment and terminate the criminal
proceedings, to quash the judgment and remit the case for a fresh
trial, or to amend the judgment.
Article
379 sets out the grounds for quashing or setting aside judgments on
appeal. In particular, a judgment shall be quashed or amended on
appeal if there is an inconsistency between the conclusions reached
by the trial court in the judgment and the facts established by that
court. Violation of procedural law and wrongful application of
criminal law, as well as unfairness of the judgment, also constitute
grounds for reversing or changing the judgment.
Article
383 provides that the judgment shall be deemed unfair if the sentence
imposed is inconsistent with the seriousness of the offence, the
personality of the convicted person, or if that sentence, although
within the limits of the relevant Article of the Criminal Code, is
unfair in its chosen type or extent, being either disproportionately
lenient or disproportionately severe. A judgment may be reversed in
connection with the necessity to impose a more severe penalty due to
the fact that the penalty imposed by the trial court is deemed unfair
as being disproportionately lenient, but only in instances when there
is either a prosecution request or an application (as a private
prosecution) by the victim or his representative to that effect.
Article 387 provides that where there has been a
violation of the provisions of the Criminal Code, the appeal court
may apply the law of a less serious offence and reduce the sentence,
in accordance with legal reclassification of the acts committed. In
doing so, the appeal court may not apply the law of a more serious
offence or aggravate a sentence imposed. In cases where the trial
court imposed a sentence more severe than that set forth by the
relevant Article of the Criminal Code, the appeal court may reduce
the sentence without changing the legal classification of the
offence.
B. Case-law of the Constitutional Court and of the
Supreme Court of Russia
Examining the compatibility of Article 51 of the Code
of Criminal Procedure with the Constitution, the Constitutional Court
ruled as follows (decision no. 497-O of 18 December 2003):
“Article 51 § 1 of the Code of Criminal
Procedure, which describes the circumstances in which the
participation of defence counsel is mandatory, does not contain any
indication that its requirements are not applicable in appeal
proceedings or that the convict’s right to legal assistance in
such proceedings may be restricted.”
That position was subsequently confirmed and developed
in seven decisions delivered by the Constitutional Court on 8
February 2007. It found that free legal assistance for the purpose of
appellate proceedings should be provided in the same conditions as
for earlier stages in the proceedings and that it was mandatory in
the situations listed in Article 51. It further underlined the
obligation of courts to secure the participation of defence counsel
in appeal proceedings.
On 18 December 2003 the Constitutional Court of Russia
dismissed a constitutional complaint by Mr R. as inadmissible. In its
ruling (определение)
the Constitutional Court held, inter alia, that Article 51 of
the Code of Criminal Procedure, which defined the situations where
participation of a defence lawyer in criminal proceedings was
mandatory, also applied to proceedings before a court of appeal.
In
a number of cases (decisions of 13 October 2004 and 26 January, 9
February, 6 April, 15 June and 21 December 2005, 24 May and
18 October 2006, 17 January 2007, 3 September and 15 October
2008) the Presidium of the Supreme Court of the Russian Federation
quashed judgments of appeal courts and remitted cases for fresh
consideration on the grounds that the courts had failed to secure the
presence of defence counsel in the appeal proceedings, although it
was obligatory for the accused to be legally represented. That
approach was also confirmed by the Presidium of the Supreme Court in
its report concerning cases adopted in the third quarter of 2005
(Decree of 23 November 2005) and by the Decree of the Plenary of the
Supreme Court of 23 December 2008, as amended on 30 June 2009. In the
latter document, the Supreme Court emphasised that an accused could
only waive his right to a lawyer in writing, and that the court was
not bound by that waiver.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
The
applicant complained under Article 6 §§ 1 and 3 (c) of the
Convention that the Supreme Court had failed to ensure his and his
counsel’s presence at the appeal hearing, while the prosecutor
had attended and had made oral submissions. The relevant parts of
Article 6 provide as follows:
“1. In the determination of ... any
criminal charge against him, everyone is entitled to a fair ...
hearing ... by [a] ... tribunal...”
...
3. 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...”
A. Submissions by the parties
The Government built their argument along two lines.
They firstly submitted that neither the applicant nor his lawyer had
petitioned the appeal court for their personal attendance at the
appeal hearing. Relying on Article 376 of the Russian Code of
Criminal Procedure, the Government stressed that in the absence of
such a request the Supreme Court had correctly held the appeal
hearing in the applicant’s and his counsel’s absence. The
Government reminded the Court that Article 6 of the Convention did
not imperatively require the personal attendance of a defendant at
appeal hearings. They further argued that the Russian courts could
not be held responsible for counsel’s failure to attend. The
applicant’s counsel had been retained by him and it was in the
applicant’s best interests to ensure that his lawyer took his
responsibilities seriously.
The
applicant maintained his complaint.
B. The Court’s assessment
1. Admissibility
The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) of the Convention and that it
is not inadmissible on any other grounds. It must therefore be
declared admissible.
2. Merits
(a) General principles
The
requirements of Article 6 § 3 are to be seen as particular
aspects of the right to a fair trial guaranteed by Article 6 §
1, and therefore the applicant’s complaint under paragraphs 1
and 3 of Article 6 should be examined under the two provisions taken
together (see Vacher v. France, 17 December 1996, §
22, Reports of Judgments and Decisions 1996-VI).
The Court reiterates that while Article 6 § 3 (c)
confers on everyone charged with a criminal offence the right to
“defend himself in person or through legal assistance”,
it does not specify the manner of exercising this right. It thus
leaves to the Contracting States the choice of the means of ensuring
that it is secured in their judicial systems, the Court’s task
being only to ascertain whether the method they have chosen is
consistent with the requirements of a fair trial (see Quaranta v.
Switzerland, 24 May 1991, § 30, Series A no. 205). In
that connection it must be borne in mind that the Convention is
intended to “guarantee not rights that are theoretical or
illusory but rights that are practical and effective” and that
assigning counsel does not in itself ensure the effectiveness of the
assistance he or she may afford an accused (see Artico v. Italy,
13 May 1980, § 33, Series A no. 37, and Imbrioscia v.
Switzerland, 24 November 1993, § 38, Series A no. 275).
A person charged with a criminal offence should, as a
general principle based on the notion of a fair trial, be entitled to
be present at the first-instance trial hearing. However, the
attendance of the defendant in person does not necessarily take on
the same significance for an appeal hearing. Indeed, even where an
appellate court has full jurisdiction to review the case on questions
of both fact and law, Article 6 does not always entail a right to be
present in person. Regard must be had in assessing this question to,
inter alia, the special features of the proceedings involved
and the manner in which the defence’s interests are presented
and protected before the appellate court, particularly in the light
of the issues to be decided by it and their importance for the
appellant (see Helmers v. Sweden, 29 October 1991, §§
31-32, Series A no. 212-A; Belziuk v. Poland, 25 March
1998, § 37, Reports 1998-II; Pobornikoff v. Austria,
no. 28501/95, § 24, 3 October 2000; and Kucera v.
Austria, no. 40072/98, § 25, 3 October 2002).
Leave-to-appeal
proceedings and proceedings involving only questions of law, as
opposed to questions of fact, may comply with the requirements of
Article 6, although the appellant was not given the opportunity of
being heard in person by the appeal or cassation court, provided that
he had been heard by a first-instance court (see, among other
authorities, Monnell and Morris v. the United Kingdom, 2 March
1987, § 58, Series A no. 115, as regards the issue of leave
to appeal, and Sutter v. Switzerland, 22 February 1984, §
30, Series A no. 74, as regards courts of cassation). However, where
an appeal court has to make a full assessment of the issue of guilt
or innocence, it cannot determine the issue without a direct
assessment of the evidence given in person by the accused for the
purpose of proving that he did not commit the act allegedly
constituting a criminal offence (see Dondarini v. San Marino,
no. 50545/99, § 27, 6 July 2004).
The
Court further reiterates that the principle of equality of arms is
another feature of the wider concept of a fair trial, which also
includes the fundamental right that criminal proceedings should be
adversarial. 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 made and the
evidence adduced by the other party (see Brandstetter v. Austria,
28 August 1991, §§ 66-67, Series A no. 211).
Lastly, the Court reiterates that a waiver of a right
guaranteed by the Convention – in so far as it is permissible –
must not run counter to any important public interest, must be
established in an unequivocal manner and must be attended by minimum
safeguards commensurate to the waiver’s importance (see
Sejdovic v. Italy [GC], no. 56581/00, § 86, ECHR 2006-II,
and Hermi v. Italy [GC], no. 18114/02, § 73, ECHR
2006 XII). Moreover, before an accused can be said to have by
implication, through his conduct, waived an important right under
Article 6, it must be shown that he could reasonably have foreseen
what the consequences of his conduct would be (see Talat Tunç
v. Turkey, no. 32432/96, § 59, 27 March 2007, and Jones
v. the United Kingdom (dec.), no. 30900/02, 9 September
2003).
(b) Application of the above principles to
the instant case
The
Court would note at the outset that it does not consider it necessary
to decide whether the absence of the applicant and his counsel, taken
separately, would render the proceedings before the appeal court
unfair. Neither of them was present before the Supreme Court of the
Russian Federation, and it is against this background that the Court
will determine the complaint in issue (see Sinichkin v. Russia,
no. 20508/03, § 37, 8 April 2010, with further references).
Having regard to paragraphs 18. Article 52 of the Code provides that an accused can waive his right to legal assistance, but such waiver must be established in the written form. The waiver can be revoked at any moment.-26
above, the Court notes that the jurisdiction of appeal courts in the
Russian legal system extends to both issues of facts and law
(see Sakhnovskiy v. Russia [GC], no. 21272/03,
§ 100, 2 November 2010; Sidorova (Adukevich) v.
Russia, no. 4537/04, § 25, 14 February
2008, and Shulepov v. Russia, no. 15435/03, § 34, 26 June
2008) and that the Supreme Court had the power to fully review the
case and consider additional arguments which had not been examined at
the trial. In his appeal statement the applicant contested his
conviction on both factual and legal grounds, his account of
events differing from those of his co-accused in important aspects
(see paragraph 14 above and compare with Metelitsa v. Russia,
no. 33132/02, § 31, 22 June 2006 and Sinichkin, cited
above, § 38). The appeal court was thus called upon to make
a full assessment of the applicant’s guilt or innocence
regarding the charges against him. In the Court’s view, the
issues raised by the applicant in his appeal statement can reasonably
be considered to have presented a certain degree of factual and legal
complexity. It also cannot disregard that the prosecutor was present
at the appeal hearing and made submissions to the appeal court.
Taking further into account what was at stake for the applicant, who
had been sentenced to four-and-a-half years of imprisonment, the
Court does not consider that the Supreme Court could have properly
determined the issues before it without a direct assessment of the
evidence given by the applicant – either in person or through
some form of legal representation. Neither could it have ensured the
equality of arms between the parties without giving the applicant the
opportunity to reply to the observations made by the prosecutor at
the appeal hearing.
In
so far as the Government may be understood to argue that by failing
to indicate in his appeal statement his wish to participate in the
appeal hearing and to ensure attendance by his lawyer at the hearing
(see paragraph 32 above) the applicant had waived those rights, the
Court considers it necessary to note the following.
As
regards the right to take part in the appeal hearing, the Court
observes that the applicant’s failure to ask to attend did not
constitute an explicit and unequivocal waiver of that right. If
analysed in terms of an implicit waiver, the Court reiterates its
recent finding in another case against Russia raising a similar issue
of a defendant appearing before an appeal court in the criminal case
against him (see Kononov v. Russia, no. 41938/04,
27 January 2011). In that case, having been confronted with a
possible waiver by the applicant of his right to participate in the
appeal hearing, the Court held that, even assuming that it was a part
of the lawyer’s duty to inform the applicant about the
peculiarities of appeal procedure, the presiding judge, being the
ultimate guardian of the fairness of the proceedings, cannot be
absolved of his or her responsibility to explain to a defendant his
procedural rights and obligations and secure their effective
exercise. In the absence of clear and comprehensible instructions
from the trial judge as to the manner in which a defendant’s
appearance before the appeal court could be secured, that defendant
cannot have been expected to appreciate that the failure to make a
special request to ensure his participation in the appeal hearing
would result in his appeal being examined in his absence (see
§§ 40-44). Turning to the circumstances of the present
case, the Court has serious doubts that the applicant, in fact,
received such clear and comprehensible instructions from the trial
court (see paragraph 13 above) and that, accordingly, the necessary
safeguards were in place to make the proceedings satisfy the
Convention requirements (see, among other authorities, Talat Tunç
v. Turkey, cited above, § 60). Nonetheless, the Court need
not resolve that issue, because it considers that the proceedings
before the Supreme Court, in any event, fell short of the
requirements of fairness for the following reasons.
It
follows from the parties’ submissions and the documents at the
Court’s disposal that at trial the applicant was represented by
counsel of his choice. The same counsel joined the applicant in his
appeal against conviction. There is no indication that the applicant
waived, explicitly or implicitly and in accordance with the
above-mentioned requirements (see paragraph 40 above), his right to
be represented by counsel on appeal. This conclusion is supported by
the fact that the Supreme Court had accepted counsel’s appeal
statement and allegedly sent summonses to his Bar Association to
inform him of the appeal hearing.
For
the reasons stated in paragraph 42 and given the wording of Article
51 of the Russian Code of Criminal Procedure (see paragraph 17
above), as well as the Russian Constitutional Court’s
interpretation of that legal provision (see paragraphs 27-28 above),
the Court observes that the applicant’s representation on
appeal was mandatory under domestic law. In so far as the Government
argued that it had been for the applicant to seek leave for his
counsel to appear before the appeal court, the Court notes that,
apart from the fact that the Government did not point to any legal
provision which supported their reading of the applicant’s
obligation, it has already held on a number of occasions that the
effectiveness of the guarantee of legal representation by default
contained in Article 51 of the CCP would be undermined without a
corresponding obligation on the part of the courts to verify in each
individual case whether it is lawful to proceed with a hearing in the
absence of legal counsel for the accused (see Grigoryevskikh
v. Russia, no. 22/03, § 90, 9 April 2009). This
obligation is strengthened in a situation where a prosecutor is
present at the appeal hearing and makes oral submissions to the
court, while the applicant has allegedly waived his right to
participate (see Metelitsa, cited above, § 32).
The
Government claimed that summonses had been sent to the applicant’s
lawyer’s Bar Association in advance and they submitted a typed
version of those summonses. The Court notes that none of the
summonses produced by the Government was post-marked and the
Government adduced no other evidence that they had actually been
sent. There is no indication that the appeal court verified that the
summonses had indeed been served on the applicant’s lawyer and,
if they had not, adjourned the examination of the appeal. The Court
also entertains doubts that the Supreme Court could rely on the
applicant to inform his lawyer about the appeal hearing. While having
sent a telegram to the applicant’s detention facility on 18
June 2004 with notification of the appeal hearing, the Supreme Court
did not receive any confirmation that the notification had, in fact,
been delivered. The Government has also failed to produce any
evidence showing that that notification was given to the applicant or
that the applicant had maintained contact with his lawyer in the
course of the appeal proceedings.
Having
regard to its findings above, the Court therefore concludes that the
proceedings in question fell short of the requirements of fairness.
There has thus been a violation of Article 6 § 1 in conjunction
with Article 6 § 3 (c) of the Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The
Court has examined the other complaints submitted by the applicant.
However, having regard to all the material in its possession, and in
so far as these complaints fall within the Court’s competence,
it finds that they 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
and 4 of the Convention.
III. 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 1,080,000 Russian roubles (RUB) in respect of
pecuniary damage, representing his outstanding salary and expenses
that he and his family had borne during his pre-trial detention and
his serving the sentence. He also claimed RUB 10,000,000 in respect
of non-pecuniary damage.
The
Government stressed that the applicant’s claim for compensation
for pecuniary damage had no causal link to the violations of the
Convention alleged by him. They further submitted that the claim in
respect of non-pecuniary damage was unsubstantiated and unreasonable.
The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim. On
the other hand, it awards the applicant EUR 4,000 in respect of
non pecuniary damage, plus any tax that may be chargeable on
that amount.
B. Costs and expenses
The
applicant did not make any claims for costs and expenses.
Accordingly,
the Court does not award anything under this head.
C. Default interest
The
Court considers it appropriate that the default interest rate 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
applicant’s and his counsel’s absence from the appeal
hearing admissible and the remainder of the application inadmissible;
Holds that there has been a violation of Article
6 § 1 of the Convention taken in conjunction with Article 6 §
3 (c) 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 4,000 (four
thousand euros) in respect of non-pecuniary damage, to be converted
into Russian roubles at the rate applicable on the date of the
settlement, plus any tax that may be chargeable;
(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 13 March 2012,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Nina Vajić
Registrar President
