European Court of Human Rights

 

 

THIRD SECTION

CASE OF PUKHACHEV v. RUSSIA

(Application no. 24344/17)

 

 

 

 

JUDGMENT

STRASBOURG

7 December 2021

 

This judgment is final but it may be subject to editorial revision.

In the case of Pukhachev v. Russia,

The European Court of Human Rights (Third Section), sitting as a Committee composed of:

          Peeter Roosma, President,
          Dmitry Dedov,
          Andreas Zünd, judges,
and Olga Chernishova, Deputy Section Registrar,

Having regard to:

the application (no. 24344/17) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 4 March 2017 by a Russian national, Mr Igor Yevgenyevich Pukhachev, born in 1980 and detained in Verkhniy Chov (“the applicant”) who was represented by Ms Y.V. Kovaleva, a lawyer practising in Kazan;

the decision to give notice of the application to the Russian Government (“the Government”), represented initially by Mr M. Galperin, Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Vinogradov;

the parties’ observations;

Having deliberated in private on 16 November 2021,

Delivers the following judgment, which was adopted on that date:

SUBJECT-MATTER OF THE CASE

1.  The present case concerns the applicant’s removal from a criminal trial.

2.  The applicant and five other persons were charged with drug trafficking committed as members of an organised group.

3.  On 25 March 2015 the trial of the applicant and his co-accused commenced before the Nizhnekamsk Town Court. The applicant was represented by a court-appointed lawyer, D., who on 15 April 2015 was replaced by another court-appointed lawyer, S.

4.  At the hearing of 21 April 2015 the trial judge issued a warning to the applicant and his co‑accused, F., indicating that they must not speak to each other while the prosecutor was reading the indictment.

5.  At the beginning of the hearing of 28 May 2015 the judge issued a new warning to the applicant and co‑accused F. indicating that they could not speak to each other while he was informing one of the witnesses of his procedural rights. The applicant replied that he was not speaking to F. while the judge was reading the indictment bill. The judge then issued a new warning to the applicant because “after having been warned, [the applicant] started bickering with the judge, raising his voice against him”.

6.  Later on in the hearing of 28 May 2015, the judge removed one of the co‑accused from the courtroom for repeated breaches of order. Immediately after that the judge reminded the applicant and co‑accused F. that they had already received three warnings about their conduct at the trial and that after a fourth warning they would be removed from the courtroom. Sometime later during the same hearing, the applicant was given the possibility to comment on the recusal of the judge submitted by one of the co‑accused. The applicant stated, inter alia, that the judge’s reminder about his conduct had been unfounded as he had not spoken with his co-accused, F. The relevant part of the minutes of this hearing reads as follows:

“The accused Pukhachev uses obscene language, shakes the bars [of the cage].

The presiding judge issues a new warning to the accused Pukhachev about the breach of order in the trial, that is, the use of obscene language, and, pursuant to Article 258 of the Code of Criminal Procedure, decides to remove the accused Pukhachev from the courtroom until the end of the closing arguments (...)”

7.  On 17 August 2015 the applicant himself lodged an appeal against the decision of 28 May 2015. He contested the veracity of the minutes of the hearing of 28 May 2015 in the part concerning the alleged use of obscene language.

8.  On 25 March 2016 the Supreme Court of the Republic of Tatarstan dismissed the applicant’s appeal against the decision of 28 May 2015. It found that the trial judge’s decision to remove the applicant from the courtroom was well-founded. The appeal instance refused to examine the audio recording of the hearing submitted by the applicant, stating that its authenticity could not be verified.

9.  It transpires from the materials submitted by the parties that between 29 May 2015 and 24 May 2016 the trial court held at least forty hearings during which it heard several dozen witnesses and the applicant’s co‑accused, as well as examining voluminous documentary evidence. Lawyer S. was present at those hearings. During the applicant’s absence from the trial, lawyer S. did not visit him in the remand prison or contact him in any other way to inform him about the evidence examined during the trial.

10.  On 18 August, 18 November 2015 and 9 February 2016 the applicant took part in the hearings concerning the extension of his pre-trial detention before the trial judge and behaved properly.

11.  On 27 May 2016, the applicant was provided with the 898 pages of minutes of the trial hearings that had taken place before that date.

12.  On 6 June 2016 the applicant was returned to the courtroom in order to present his final submissions.

13.  On 9 June 2016 the Nizhnekamsk Town Court convicted the applicant as charged and sentenced him to a nineteen-year term of imprisonment. The applicant appealed against this judgment complaining, inter alia, about his removal from the courtroom.

14.  On 1 February 2017, the Supreme Court of the Republic of Tatarstan upheld the applicant’s conviction on appeal. It held that the applicant had been duly removed from the courtroom as “he had committed numerous breaches of order in the trial and had ignored the judge’s warnings”.

15.  Relying on Article 6 §§ 1 and 3 (c) and (d) of the Convention, the applicant complained about his removal from the courtroom. He also complained that the legal assistance provided by lawyer S. was not effective and that he could not question witnesses for the prosecution because of his absence from the trial.

THE COURT’S ASSESSMENT

ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

16.  The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. They must therefore be declared admissible.

17.  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).

18.  The Court 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 can nor should be tolerated (see Idalov v. Russia ([GC], no. 5826/03, § 176, 22 May 2012).

19.  Turning to the circumstances of the present case, the Court observes that the judge based his decision of 28 May 2015 to remove the applicant from the courtroom on the latter’s repeated breach of order in the courtroom. While the applicant disputed the use of obscene language before the domestic courts (see paragraphs 7‑8 above), the Court does not find it necessary to elaborate on this issue for the following reasons.

20.  The Court observes that Article 258 §3 of the CCrP, as interpreted by the Constitutional Court of Russia (ruling no. 1311-O of 23 June 2015), did not oblige the judge to remove a defendant for the entire trial but only for a period which must be proportionate to the acts committed. While the applicant had been previously reprimanded for conversing with another co‑accused, he had never used obscene language prior to the hearing of 28 May 2015 (see paragraphs 4-5 above). Thus, while some form of sanction might have been necessary to restore order and decorum of the trial, the decision to exclude the applicant for the remainder of the trial appears excessive. It could not be said that the applicant intended to persist in his unruly behaviour (contrast, Idalov v. Russia (no. 2), no. 41858/08, § 148, 13 December 2016, in which the applicant burnt pages from the case file and repeatedly insulted and threatened witnesses and other parties throughout the proceedings, and Tuzikis v. Latvia (dec.) [Committee], no. 30006/09, § 42, 25 April 2017, in which the applicant on three occasions interrupted the adjudication of his criminal case by self-harming). The Court does not lose sight of the fact that, after his removal from the trial, the applicant appeared before the same judge on 18 August, 18 November 2015 and 9 February 2016 and behaved properly (see paragraph 10 above). However, the judge did not use this possibility to make any inquiries as to whether the applicant would agree to conduct himself in an orderly manner so as to permit his return to the main trial.

21.  The Court further notes that, after the applicant’s removal, the trial lasted for more than a year with at least forty hearings, during which the judge proceeded to examine the voluminous evidence in the applicant’s absence (contrast, Idalov (no. 2), cited above, § 148, in which the applicant was expelled from the last hearing before the court of first instance, and Kadagishvili v. Georgia, no. 12391/06, § 171, 14 May 2020, in which the applicant was expelled from the last hearing before the appellate court). The Court observes that the judge did not keep the applicant apprised of the progress of his trial in so far as the latter received the minutes of all the hearings only on 27 May 2016, that is after all the evidence had already been examined (see paragraph 11 above). The judge did not verify whether lawyer S. had communicated with the applicant prior to the hearings at which the witnesses were heard in order to obtain the latter’s instructions, for instance, about the questions to be asked. In view of the number of witnesses heard and the complexity of the case (see paragraph 9 above), the Court finds it difficult to believe that, without maintaining the necessary contact with the applicant for a period of one year, lawyer S. was able to conduct his defence effectively and question the witnesses on the applicant’s behalf.

22.  Lastly, the Court notes that the appeal hearing did not remedy the flaws in 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 flaws in the trial proceedings would have been for the appellate court either to re-examine the evidence in the applicant’s presence or to quash the judgement and to refer the matter back to the first‑instance court for a trial de novo. By not doing so, the appellate court failed to redress the violation of the applicant’s right to a fair trial.

23.  There has accordingly been a violation of Article 6 §§ 1 and 3 (c) and (d) of the Convention.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

24.  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

25.  The applicant claimed 10,000 euros (EUR) in respect of non‑pecuniary damage.

26.  The Government submitted that the amount claimed was excessive and unreasonable.

27.  The Court notes that Article 413 of the CCrP provides the basis for the reopening of the domestic proceedings if the Court finds a violation of the Convention (see Sakhnovskiy v. Russia [GC], no. 21272/03, § 112, 2 November 2010). It therefore considers that its finding of a violation constitutes sufficient just satisfaction and makes no award under this head.

B.    Costs and expenses

28.  The applicant claimed 135,000 Russian roubles (RUB) in total for the costs and expenses incurred before the domestic courts and RUB 200,000 for the proceedings before the Court.

29.  The Government submitted that the applicant’s claim was not supported by relevant documents and, thus, had not been necessarily and reasonably incurred.

30.  In the present case, regard being had to the documents in its possession and the above criteria, the Court is unable to allow the totality of the sums claimed and considers it reasonable to award the sum of EUR 1,100 for costs under all heads, plus any tax that may be chargeable to the applicant.

C.    Default interest

31.  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 application admissible;

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

3.      Holds that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicant;

4.      Holds

(a)  that the respondent State is to pay the applicant, within three months, EUR 1,100 (one thousand one hundred euros) plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be converted into the currency of the respondent State 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;

5.      Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 7 December 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Olga Chernishova                                                          Peeter Roosma
Deputy Registrar                                                                President