THIRD SECTION

CASE OF RATKIN v. RUSSIA

(Application no. 24625/05)

JUDGMENT

STRASBOURG

6 June 2017

This judgment is final but it may be subject to editorial revision.
In the case of Ratkin v. Russia,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
	Branko Lubarda, President,
	Pere Pastor Vilanova,
	Georgios A. Serghides, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having deliberated in private on 16 May 2017,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 24625/05) 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, Viktor Viktorovich Ratkin (“the applicant”), on 25 May 2005.
2.  The applicant was represented by Ms O. Mikhaylova, a lawyer practising in Moscow. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights, and then by Mr A. Fedorov, Head of the Office of the Representative of the Russian Federation to the Court.
3.  On 9 March 2009 the complaints concerning the alleged unfairness of the criminal proceedings against the applicant and infringement of the presumption of innocence were communicated to the Government.
THE FACTS
Article I.	THE CIRCUMSTANCES OF THE CASE
4.  The applicant was born in 1966 and lived, prior to his conviction, in the Tver Region.
Section 1.01	A.  Criminal proceedings on arson charges
5.  On 21 November 2000 a country house which belonged to a district prosecutor was set on fire.
6.  On 8 February 2002 F. confessed that the applicant had conspired with him to set fire to the prosecutor’s summer house. On the same date the applicant was arrested. He was released on 11 February 2002 on an undertaking not to leave his place of residence.
7.  On 10 December 2003 I. and A. stabbed F. to death.
8.  On an unspecified date the applicant was arrested on suspicion of having organised F.’s murder. He remained in custody pending investigation and trial.
9.  On 6 February 2004 the Kashin Town Court found the applicant guilty of arson. On 25 May 2004 the applicant’s conviction became final.
Section 1.02	B.  Criminal proceedings on murder charges
10.  On 23 June 2004 a local newspaper, Veche Tveri, published an article under the headline ‘Vengeance’. According to the article, the applicant had stood for local elections. However, he had been disqualified by a court at the request of the district prosecutor. The applicant had plotted revenge. He had paid F. to set fire to the prosecutor’s country house. The house had completely burned down. When questioned by the investigator, F. had confessed to arson and had testified against the applicant. Shortly thereafter F. had been found stabbed to death. The article then quoted from the official information note issued by the regional prosecutor’s office:
“The investigation has established’, states the information note, ‘that in 2003 [the applicant] and F[.] had an argument ... [;] [the applicant] started to fear that he could no longer control F[.] and that the latter would not only interfere with his plan to protract the trial but would give truthful testimony incriminating him in the arson of [the prosecutor’s] country house ... . [The applicant] organised F.’s murder to silence him.
The murder was carried out by two residents of the town of Kalyazin, who were charged with F.’s murder.”
11.  According to the applicant, several more articles reporting on the arson and murder cases were published in the local press at around the same time. On 15 July 2004 a TV programme “Police unit on duty” (Дежурная часть) broadcast daily on the federal RTR channel, covered the applicant’s case.
12.  The jury trial started on 16 August 2004. At the beginning of the trial the presiding judge asked the jurors whether they had read about the case in newspapers or heard about it from other sources. All the jurors answered in the negative. They also stated that they had not yet formed any opinion about the defendants’ guilt or innocence.
13.  At the hearing of 24 August 2004 the court examined the prosecution witness Sh. At the request of the prosecutor, the written statements he had made during the investigation were read out to the jury. Sh. then explained that his statements to the investigator had been more detailed and precise, as at the time of the investigation he had remembered the events better. The applicant was then allowed to put questions to Sh. The relevant excerpt from the record reads as follows:
“[The applicant asks]: ‘How many times were you questioned? Were your statements to the investigator voluntary?’
The presiding judge rules [the applicant’s] question out of order and warns him that he should not [raise issues] of admissibility of evidence in the presence of the jury as it may be considered an attempt to influence the jury.
[The applicant asks]: ‘What state were you in when giving those statements?’
The presiding judge rules [the applicant’s] question out of order and warns him that if he continues to put questions concerning admissibility of evidence he may be excluded from the hearing room.
[The applicant says]: ‘The witness was drunk, the police officers had given him alcohol, he was made [temporarily] insane.”
The presiding judge interrupts [the applicant] and directs the jury to disregard [his] remarkds about the circumstances in which Sh. was questioned, as this issue is not within the competence of the jury.
[The applicant continues]: ‘All the evidence has been forged and the case does not hold water.’
Taking into account [the applicant’s] repeated attempts to influence the jurors, the presiding judge decides to exclude him from the courtroom.
The presiding judge directs the jurors that they should disregard [the applicant’s statements] ... and should proceed from the understanding that all evidence presented to them ... was collected in accordance with the procedure established by law and was not [declared inadmissible].”
14.  The trial court continued the hearing in the applicant’s absence. Further hearings were held on 25 and 26 August 2004. The applicant was not brought to the courtroom. All hearings were attended by his counsel. During those hearings several witnesses and the applicant’s co-defendants testified. One of the co-defendants pleaded not guilty, while the other confessed to the murder and stated that he had committed it on the applicant’s instructions and had received remuneration from him.
15.  The applicant was brought to the courtroom at the end of the hearing of 26 August 2004 and was allowed to make a closing statement. The applicant pleaded not guilty. The jury delivered a guilty verdict. They found it established that applicant had hired I. and A. to murder F.
16.  The presiding judge indicated in the verdict that (1) the applicant’s actions, as established by the jury, should be characterised as incitement to murder, and (2) the jury had not established that the applicant had been the organiser of the murder or had directed its execution.
17.  On 2 September 2004 the Tver Regional Court found the applicant guilty of incitement to murder and sentenced him to seventeen years’ imprisonment.
18.  The applicant appealed. In particular, he complained that his presumption of innocence had been violated by publications in the press, that he had been removed from the courtroom and that the presiding judge had recharacterised his offence after the jury had delivered the verdict. He also complained that the evidence had been assessed inaccurately and that he had been found guilty of the crime he had not committed.
19.  On 9 February 2005 the Supreme Court of the Russian Federation upheld the judgment on appeal. The court noted, in particular, as follows:
“... as regards the [applicant’s] removal from the courtroom, [the appeal court] finds that the presiding judge’s decision was in full compliance with [the applicable rules of criminal procedure].
[The applicant] repeatedly breached the order in the courtroom and attempted to influence the jurors. The presiding judge repeatedly reprimanded [the applicant], warned him and explained to him the consequences of [his] conduct. However, [the applicant] chose to ignore [the warnings]. Accordingly the decision to remove [the applicant] from the courtroom was justified.
In those circumstances, the counsel’s argument that [the applicant’s] right to participate directly in the examination of the evidence and to defend himself in person was violated is unfounded. [The applicant] waived his rights.
...
[The applicant’s] argument that the publications in the media ... negatively influenced the jurors should be rejected as unfounded.
Before the commencement of the trial all jurors replied in the negative to the question whether they had heard about the case from the media ... .
The defendants’ actions established in the verdict received the correct legal characterisation.
It was permissible to change the legal characterisation of [the applicant’s] actions from organisation of murder to incitement to murder, as the new legal characterisation was based on the same evidence as established in the verdict. [The applicant’s] defence rights were not violated.”
THE LAW
Article II.	I.  ALLEGED VIOLATION OF ARTICLE 6 §§ 1 and 3 OF THE CONVENTION
20.  The applicant complained that the criminal proceedings against him had been unfair. In particular, he complained about his removal from the courtroom, the presiding judge’s refusal to give him access to the minutes of the trial and about the recharacterisation of the charges against him by the presiding judge after the delivery of the verdict by the jury. He relied on Article 6 §§ 1 and 3 of the Convention, which, in so far as relevant, reads as follows:
“1.  In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial 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;
(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...”
21.  The Government contested that argument. They submitted that the presiding judge had removed the applicant from the courtroom to put an end to his attempts to put pressure on the jury. Despite the presiding judge’s repeated warnings, the applicant had persisted in challenging the admissibility of the witness’s statements in front of the jury. His behaviour had disrupted the order in the courtroom and the presiding judge had been constrained to exclude him from the hearing. As to the recharacterisation of the charges against the applicant following the delivery of the verdict by the jury in his case, the Government argued that it had not been detrimental to the applicant’s defence and that, in any event, he had been able to have his case reviewed by the appeal court.
22.  The applicant maintained his complaint.
Section 2.01	A.  Admissibility
23.  The Court notes that this complaint 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.
Section 2.02	B.  Merits
24.  As the requirements of paragraph 3 of Article 6 of the Convention constitute specific aspects of the right to a fair trial guaranteed under paragraph 1, the Court will examine the applicant’s complaints under these provisions taken together (see, among other authorities, Vacher v. France, 17 December 1996, § 22, Reports of Judgments and Decisions 1996‑VI).
25.  The Court will first address the issue of the applicant’s exclusion from the trial. In this connection, the Court reiterates that, in the interests of a fair and just criminal process it is of capital importance that the accused should appear at his trial, and the duty to guarantee the right of a criminal defendant to be present in the courtroom – either during the original proceedings or in a retrial – ranks as one of the essential requirements of Article 6 (see Hermi v. Italy [GC], no. 18114/02, § 58, ECHR 2006‑XII).
26.  It further reiterates that it is essential for the proper administration of justice that dignity, order and decorum be observed in the courtroom as the hallmarks of judicial proceedings. The flagrant disregard by a defendant of elementary standards of proper conduct neither could nor should be tolerated (see Idalov v. Russia [GC], no. 5826/03, § 176, 22 May 2012).
27.  Having examined the material submitted by the parties in the present case, the Court is unable to subscribe to the conclusion reached by the domestic courts. In particular, it is not persuaded that the applicant’s behaviour during the trial was such as requiring his exclusion from it.
28.  The Court notes that the presiding judge ordered the applicant’s removal from the courtroom after the latter, while confronting a witness, had put questions and made statements, which the presiding judge considered to be relating to the admissibility of evidence. The Court takes into account that the presiding judge was able to disallow the applicant’s questions and to direct the jury to disregard his statements in the absence of any disruptive behaviour from the applicant. In the Court’s view, the said measures would be sufficient and commensurate with the applicant’s behaviour and were adequately employed by the presiding judge to further the consideration of the applicant’s case by the jury. They could ensure the due order and decorum in the courtroom and could allow the court to proceed with the trial. In such circumstances, the Court finds the presiding judge’s decision to remove the applicant from the courtroom to be excessive and unjustified.
29.  The Court further observes that, following the applicant’s removal from the courtroom, nothing was done by the presiding judge to enable the applicant to communicate with his lawyer or to keep apprised of the progress of his trial.
30.  Lastly, the Court notes that the appeal hearing did not cure the defect of the trial. The applicant was unable to re-examine the evidence which was taken by the trial court in his absence. In the Court’s view, the only possible means of redressing the defects of the trial proceedings would have been for the appellate court to quash the verdict in its entirety and to refer the matter back for a hearing de novo (compare, Idalov, cited above, § 180). By not doing so, the appellate court failed to redress the violation of the applicant’s right to a fair trial.
31.  Accordingly, there has been a breach of Article 6 §§ 1 and 3 (c) and (d) of the Convention.
32.  In view of the above finding, the Court considers that it is not necessary to examine separately the remainder of the applicant’s grievances raised under the same Convention provisions (compare, mutatis mutandis, Sakhnovskiy v. Russia [GC], no. 21272/03, § 108, 2 November 2010).
Article III.	II.  ALLEGED VIOLATION OF ARTICLE 6 § 2 OF THE CONVENTION
33.  The applicant complained that his right to be presumed innocent had been breached by a hostile press campaign. He relied on Article 6 § 2 of the Convention, which reads as follows:
“2.  Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”
34.  The Government conceded that the applicant’s case had attracted media attention and that the newspaper articles and a television show had portrayed him as a person prone to committing criminal offences and implicated in a number of them. Nevertheless, the media coverage had had no bearing on the criminal proceedings against the applicant. All the prospective jurors, when questioned, had denied having any knowledge about the applicant’s case.
35.  The applicant maintained his complaint.
36.   The Court reiterates that Article 6 § 2, in its relevant aspect, is aimed at preventing the undermining of a fair criminal trial by prejudicial statements made in close connection with those proceedings. The presumption of innocence enshrined in paragraph 2 of Article 6 is one of the elements of the fair criminal trial that is required by paragraph 1 (see Allenet de Ribemont v. France, judgment of 10 February 1995, Series A no. 308, § 35). It prohibits the premature expression by the tribunal itself of the opinion that the person “charged with a criminal offence” is guilty before he has been so proved according to law (see Minelli v. Switzerland, judgment of 25 March 1983, Series A no. 62) but also covers statements made by other public officials about pending criminal investigations which encourage the public to believe the suspect guilty and prejudge the assessment of the facts by the competent judicial authority (see Allenet de Ribemont, cited above, § 41; Daktaras v. Lithuania, no. 42095/98, §§ 41-43, ECHR 2000‑X; and Butkevičius v. Lithuania, no. 48297/99, § 49, ECHR 2002‑II).
37.  Having examined the applicant’s grievances in respect of the prosecutor’s note quoted by one of the newspapers (see paragraph 6 above), the Court considers that, although the wording used in the prosecutor’s note could have been more careful, given the importance of the presumption of innocence, there is nothing in it to suggest the applicant has been regarded as guilty before being proved so according to law. The article clearly referred to the findings of the investigation in the applicant’s case.
38.  As to the other publications and a television programme, the Court discerns nothing in the material submitted by the parties that the media coverage of the applicant’s case amounted to a virulent press campaign aimed at upsetting the fairness of the trial or that it was instigated by the authorities. In the Court’s view, the media coverage of the present case did not extend beyond what can be considered informing the public about a high profile case. Accordingly, the Court rejects the applicant’s allegations as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
Article IV.	III.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION
39.  Lastly, the applicant complained under Article 13 of the Convention about the appeal proceedings in his case. The Court has examined those complaints and considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. Accordingly, the Court rejects them as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
Article V.	IV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
40.  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.”
Section 5.01	A.  Damage
41.  The applicant claimed 20,000 euros (EUR) in respect of non-pecuniary damage.
42.  The Government considered the applicant’s claims unreasonable. In their view, the finding of a violation would constitute sufficient just satisfaction.
43.  Regard being had to its finding that the criminal proceedings against the applicant were not fair, the Court considers that the applicant’s suffering and anguish caused by a violation of his rights cannot be compensated for by the mere finding of a violation. Making its assessment on an equitable basis, the Court awards the applicant EUR 4,000 in respect of non-pecuniary damage. It further refers to its settled case-law to the effect that when an applicant has suffered an infringement of his rights guaranteed by Article 6 of the Convention, he should, as far as possible, be put in the position in which he would have been had the requirements of that provision not been disregarded, and that the most appropriate form of redress would, in principle, be the reopening of the proceedings, if requested (see, mutatis mutandis, Öcalan v. Turkey [GC], no. 46221/99, § 210 in fine, ECHR 2005‑IV, and Popov v. Russia, no. 26853/04, § 263, 13 July 2006). The Court notes, in this connection, that Article 413 of the Russian Code of Criminal Procedure provides the basis for the reopening of the proceedings if the Court finds a violation of the Convention.
Section 5.02	B.  Costs and expenses
44.  The applicant also claimed 50,000 Russian roubles (RUB) for the costs and expenses incurred before the Court.
45.  The Government did not comment.
46.  Regard being had to the documents in its possession and to its case‑law, the Court considers it reasonable to award the sum of EUR 850. covering costs and expenses in the domestic proceedings for the proceedings before the Court.
Section 5.03	C.  Default interest
47.  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,
1.  Declares the complaints under Article 6 §§ 1 and 3 (c) and (d) of the Convention admissible and the remainder of the application inadmissible;

2.  Holds that there has been a violation of Article 6 §§ 1 and 3 (c) and (d) of the Convention;

3.  Holds
(a)  that the respondent State is to pay the applicant, within three months the following amounts, to be converted into the currency of the respondent State, at the rate applicable at the date of settlement:
(i)  EUR 4,000 (four thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii)  EUR 850 (eight hundred and fifty euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
(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;

4.  Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 6 June 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Fatoş Aracı	Branko Lubarda
	Deputy Registrar	President