CASE OF BAZANOVA AND MUKHACHEV v. RUSSIA

THIRD SECTION

CASE OF BAZANOVA AND MUKHACHEV v. RUSSIA

(Applications nos. 23493/12 and 32397/12)

JUDGMENT

STRASBOURG

30 October 2018

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

In the case of Bazanova and Mukhachev 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 Stephen Phillips, Section Registrar,

Having deliberated in private on 9 October 2018,

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

PROCEDURE

1. The case originated in two applications (nos. 23493/12 and 32397/12) 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 two Russian nationals, Ms Yelena Yuryevna Bazanova and Mr Anton Yuryevich Mukhachev (“the applicants”), on 11 April 2012 and 16 May 2012 respectively.

2. Ms Bazanova was represented by Mr I. Ogorodnikov, a lawyer practising in the Moscow Region. Mr Mukhachev was represented by Mr A. Vasilyev, a lawyer practising in Moscow. The Russian Government (“the Government”) were represented by Mr M. Galperin, Representative of the Russian Federation to the European Court of Human Rights.

3. On 30 October 2017 the Government were given notice of the complaints concerning the lack of public hearing and the remainder of the applications was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

THE FACTS

THE CIRCUMSTANCES OF THE CASE

A. Application no. 23493/12

4. Ms Bazanova (“the first applicant”) was born on 4 December 1964 and lives in Serpukhov.

5. On 6 October 2009 the first applicant, deputy head of the municipal administration at the time, was arrested on the charges of abuse of power and bribery. Ts. and K. alleged that they had bribed the first applicant in order to facilitate the purchase of plots of land.

6. On 19 November 2010 the Moscow Regional Court opened the trial in the first applicant’s case.

7. On 23 March 2011 K. complained to the court that certain publications about the trial had an adverse effect on his private life. The information disclosed had been damaging to his reputation. His statements had been taken out of context and misconstrued. He also alleged that unknown persons had followed and threatened him in the courthouse.

8. On the same date Ts. lodged a similar complaint with the court. He alleged that the publications in the local newspaper about the trial and his role in it had been damaging to his reputation.

9. On 24 March 2011 the prosecutor asked the court to hold the trial in camera. He relied on the complaints lodged by K. and Ts. The court granted the prosecutor’s request and decided to hold the trial in camera in order to protect the interests of the witnesses.

10. On 11 August 2011 the Regional Court found the first applicant guilty on two counts of abuse of power and two counts of bribery and sentenced her to 7.5 years’ imprisonment and a monetary fine. The first applicant appealed.

11. On 12 October 2011, having heard the judge rapporteur, the prosecutor, the first applicant and her counsel, the Supreme Court of the Russian Federation upheld the first applicant’s conviction in part (one count of abuse of power and one count of bribery in respect of Ts.’s attempt to purchase a plot of land) and quashed it in part (one count of abuse of power and one count of bribery in respect of K.’s attempt to purchase a plot of land) remitting the matter for fresh consideration. The court also reduced the first applicant’s sentence and the amount of the fine.

12. On 8 October 2013 the Regional Court found the first applicant guilty as charged, as regards charges of abuse of power and bribery in respect of the bribe paid by K., and sentenced her cumulatively to 7 years and 3 months’ imprisonment and a monetary fine. The court held a public hearing. It appears that the first applicant did not appeal against the judgment of 8 October 2013.

B. Application no. 32397/12 lodged on 16 May 2012

13. Mr Mukhachev (“the second applicant”), was born on 29 December 1976 and lived, prior to his conviction, in Zheleznodorozhniy, Moscow Region.

14. On 4 August 2009 the second applicant was arrested on the charges of extremism and fraud. He remained in custody pending investigation and trial.

15. On 31 March 2011 the Savelovskiy District Court of Moscow fixed the trial for 14 April 2011. The court decided to hold the trial in camera in order to ensure security for the parties to the proceedings and their family members.

16. On 30 September 2011 the District Court found the second applicant guilty as charged and sentenced him to 9 years’ imprisonment. The second applicant appealed.

17. On 14 December 2011, having heard the judge rapporteur, the prosecutor, the second applicant and his counsel and the counsel for the civil party, the Moscow City Court upheld, in substance, the second applicant’s conviction on appeal.

THE LAW

I. JOINDER OF THE APPLICATIONS

18. In accordance with Rule 42 § 1 of the Rules of the Court, the Court decides to join the applications, given their similar factual and legal background.

II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

19. The applicants complained that they had not had a public hearing in the criminal proceedings against them, contrary to Article 6 § 1 of the Convention, which reads as follows:

“In the determination ... of any criminal charge against him, everyone is entitled to a fair and public hearing ... by [a] ... tribunal ... . 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.”

20. The Government submitted that the court’s decisions to hold the trial in camera had been in compliance with domestic law and the Convention. In particular, it had been necessary to ensure the security of the parties to the proceedings. In any event, in the Government’s opinion, the applicants failed to show that the court’s decision to hold the trial in camera had had an adverse impact on the fairness of the criminal proceedings against them. As regards the first applicant’s case, the Government pointed out that the court had decided to dispense with the public hearing only in response to the complaints lodged by the witnesses who had received threats and whose reputation had been damaged as a result of the publications about the trial.

21. The applicants maintained his complaint. The first applicant considered that the only purpose of the trial in camera in her case had been the exclusion of mass media. She considered that the witnesses’ opinion that the publications in mass media had been damaging to their reputation had not been substantiated. The witnesses had not sued newspapers or journalists to protect their reputation. In any event, the trial court had failed to consider if there had been alternative ways to protect the witnesses’ reputation. It had been open to the trial court to exclude the public from the hearings in which those witnesses had testified. The second applicant submitted that, in his case, the trial court’s decision to hold the trial in camera, had not relied on any evidence that the threat to the security of the parties to the proceedings existed. Nor had the trial court indicated those parties.

A. Admissibility

22. As regards the first applicant, the Court notes that she had been found guilty of abuse of power and bribery in relation to two episodes. The appellate court quashed her conviction in relation to the episode in which the main witness was K. and remitted the matter for fresh consideration to the trial court which determined the charges against the applicant de novo in a public hearing. In such a situation, the Court accepts that, in respect of that episode, the material facts complained of by the first applicant have ceased to exist and that the trial de novo constituted an adequate and sufficient remedy for her grievances (see Krestovskiy v. Russia, no. 14040/03, § 34, 28 October 2010). Accordingly, the Court concludes that the matter giving rise to this complaint can therefore now be considered to be “resolved” within the meaning of Article 37 § 1 (b). It also considers that no particular reason relating to respect for human rights as defined in the Convention requires it to continue its examination of the relevant part of the application under Article 37 § 1 in fine. Accordingly, application no. 23493/12 in part concerning the criminal charges against the first applicant determined by the judgment of 8 October 2013 should be struck out of the Court’s list of cases.

23. The Court notes that the first applicant’s complaint concerning her conviction on the remainder of the charges (abuse of power and bribery in relation to the episode in which the main witness was Ts.) and the second applicant’s complaint are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.

B. Merits

24. The Court notes from the outset that the principles concerning the right to a public hearing are well-developed in the Court’s case-law (see, among other authorities, Gautrin and Others v. France, 20 May 1998, § 42, Reports of Judgments and Decisions 1998‑III; Pretto and Others v. Italy, 8 December 1983, § 21, Series A no. 71; Campbell and Fell v. the United Kingdom, 28 June 1984, § 87, Series A no. 80; and, mutatis mutandis, Martinie v. France [GC], no. 58675/00, § 40, ECHR 2006‑...).

25. Turning to the circumstances of the present case, the Court observes that, when deciding to close the trial to the public, the courts referred to the need to ensure security for the parties to the proceedings and to protect their reputation. Accordingly, the question before the Court in each case is whether the national courts’ decision to dispense with the public hearing was justified.

26. Having regard to the material in its possession and to the parties’ submissions before it, the Court answers this question in the negative. In the Court’s view, the courts failed to strike a proper balance between the applicants’ right to a public hearing of the criminal case against them, on the one hand, and other important interests at stake, on the other.

27. As regards the first applicant’s case, the Court is unconvinced that the protection of the interests of witnesses justified the exclusion of the public from the trial. Even assuming that the content of the testimony to be provided by them might have called for certain limitations of the first applicant’s right to a public hearing, it was the duty of the court to restrict the rights of the accused as little as possible. In the present case the Court discerns nothing in the materials in its possession to suggest that closing only part of the hearing, during which witnesses would testify, would have jeopardised or impacted negatively on the clarity and accuracy of their testimony or infringed their privacy. Alternatively, as a matter of last resort, it was also open to the court to ban the press from reporting the details from the trial.

28. As regards the second applicant’s case, the Court reiterates that security problems are a common feature of many criminal proceedings, but cases in which security concerns alone justify excluding the public from a trial are nevertheless rare (see Riepan v. Austria, no. 35115/97, § 34, ECHR 2000‑XII). Admittedly, it was incumbent on the domestic judicial authorities to protect the safety and security of the persons present in the courtroom. However, in the Court’s view, the security measures should be narrowly tailored and comply with the principle of necessity. The judicial authorities should thoroughly consider all possible alternatives to ensure safety and security in the courtroom and give preference to a less strict measure over a stricter one when it can achieve the same purpose. The Court notes that in the present case no such effort was made by the domestic courts. The court did not explain why the general security measures already in place had not been sufficient to ensure safety and security in the courtroom. Nor can the Court accept, in the absence of any specific details, the national court’s reasoning that the conduct of a public hearing was a threat to any party to the proceedings and their family members.

29. In sum, the Court concludes that the domestic courts have failed to give due consideration to the applicants’ right to a public hearing.

30. Finally, the Court does not lose sight of the fact that the appeal hearings were public. However, as it has previously ruled on many occasions, the lack of a public hearing could not in any event be remedied by anything other than a complete re-hearing before the appellate court (see, for example, Riepan, cited above, § 40). The Court discerns nothing in the materials presented that that the review carried out by the appellate courts had the requisite scope.

31. Having regard to the above, the Court finds no justification for the lack of a public hearing at first instance in the present case. Nor does it find that such lack of a public hearing was remedied by the appellate courts hearing the case in public. There has accordingly been a violation of Article 6 § 1 of the Convention.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

32. 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

33. The first applicant claimed 5,000 euros (EUR) in respect of non‑pecuniary damage. The second applicant claimed EUR 50,000 in respect of non-pecuniary damage.

34. The Government submitted that, should the Court find a violation of the applicant’s rights set out in the Convention, it could make an award in compliance with its well-established case-law.

35. Making its assessment on an equitable basis, the Court awards EUR 4,000 to each of the applicants in respect of non-pecuniary damage.

B. Costs and expenses

36. The first applicant claimed 500,000 Russian roubles (RUB) for the costs and expenses incurred before the domestic courts and RUB 130,000 for those incurred before the Court. The second applicant did not submit a claim for cost and expenses.

37. The Government did not comment.

38. 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 1,000 to the first applicant covering costs under all heads. It considers that there is no call to award the second applicant any sum on that account.

C. Default interest

39. 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. Decides to join the applications;

2. Decides to strike the first applicant’s complaint out as regards the criminal charges against her determined by the judgment of 8 October 2013;

3. Declares the remainder of the applications admissible;

4. Holds that there has been a violation of Article 6 § 1 of the Convention;

5. Holds

(a) that the respondent State is to pay, 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, to each of the applicants;

(ii) EUR 1,000 (one thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to the first applicant;

(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;

6. Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 30 October 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              Stephen PhillipsBranko Lubarda
RegistrarPresident

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