FIRST SECTION
CASE OF TIMOSHIN v. RUSSIA
(Application no. 41643/04)
JUDGMENT
STRASBOURG
7 February 2012
This judgment is final but it may be subject to editorial revision.
In the case of Timoshin v. Russia,
The European Court of Human Rights (First Section), sitting as a Committee composed of:
Mirjana Lazarova Trajkovska, President,
Anatoly Kovler,
Linos-Alexandre Sicilianos, judges,
and André Wampach, Deputy Section Registrar,
Having deliberated in private on 17 January 2012,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 41643/04) 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 Vladimir Alekseyevich Timoshin (“the applicant”), on 3 October 2004.
2. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, the Representative of the Russian Federation at the European Court of Human Rights.
3. On 30 April 2010 the President of the First Section decided to give notice of the application to the Government. In accordance with Protocol No. 14, the application was allocated to a Committee.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
4. The applicant was born in 1952 and lives in Ussuriysk, Primorye Region.
5. The applicant served in the military.
6. On 20 March 2001 the authorities opened criminal proceedings on account of a single incident of theft of the rare-earth metal palladium from certain military equipment.
7. A week later by a decision of the investigator in accordance with the procedural law at the time, the applicant was remanded on suspicion of participation in the above crime.
8. The applicant was served with a bill of indictment for the first time on 5 April 2001, and on the following day he was released from detention with an undertaking not to leave the town. He was subsequently issued with several amended bills of indictment.
9. The Government submitted that the applicant and his counsel had studied the material of the case between 7 March and 25 September 2002. According to the applicant, such a long period was granted to him because the prosecutor in the case was out of town and the proceedings could not advance in his absence.
10. The criminal case against the applicant and his co-accused arrived at the Military Court of the Spassk-Dalniy Garrison on 8 October 2002.
11. Between 1 May and 13 June 2003 the applicant had been out of town.
12. By a decision of the trial court of 9 September 2003 the applicant was again remanded. However, on an unspecified date he appears to have been released on bail.
13. On 4 June 2004 the trial court considered the case against the applicant and his co-defendant. By a judgment of the same date it convicted the applicant of aggravated theft and sentenced him to three years’ imprisonment, with a subsequent one-year bar on holding managerial office and forfeiture of his military rank and the State awards.
14. On 18 August 2004 the Military Court of the Far-East Circuit changed the legal qualification of the criminal act and sentenced the applicant to one year and six months’ imprisonment, a fine of 3,000 Russian roubles, and forfeiture of his military rank and the State awards.
II. RELEVANT DOMESTIC LAW
15. Federal Law № 68-ФЗ “On Compensation for Violation of the Right to a Trial within a Reasonable Time or the Right to Enforcement of a Judgment within a Reasonable Time” of 30 April 2010 (in force as of 4 May 2010) provides that in case of a violation of the right to trial within a reasonable time or of the right to enforcement of a final judgment, the Russian citizens are entitled to seek compensation of the non-pecuniary damage. Federal Law № 69-ФЗ adopted on the same day introduced the pertinent changes in the Russian legislation.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
16. The applicant complained that the length of the criminal proceedings against him had breached the “reasonable time” requirement as provided in Article 6 of the Convention, which reads, as far as relevant, 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
17. Referring to the introduction of the national remedy against excessive length of proceedings (see paragraph above), the Government argued that the applicant had failed to exhaust the available domestic remedies, in breach of Article 35 § 1 of the Convention.
18. The Court is aware of the existence of a new remedy introduced by federal laws nos. 68-ФЗ and 69-ФЗ in the wake of the pilot judgment adopted in the case of Burdov v. Russia (no. 2) (no. 33509/04, ECHR 2009 (extracts)) and accepts that the new remedy has been available to the applicant since 4 May 2010. At the same time, it notes that in the pilot judgment cited above it stated that it would be unfair to request applicants whose cases had already been pending for many years in the domestic system and who had come to seek relief at the Court, to bring their claims again before domestic tribunals (Burdov (no. 2), cited above, § 144). In line with this principle, the Court decides to proceed with the examination of the present case (see, mutatis mutandis, Utyuzhnikova v. Russia, no. 25957/03, § 52, 7 October 2010).
19. The Court considers 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.
B. Merits
20. The Government disagreed that examination of the criminal case against the applicant had been excessively long. They firstly stated that the length of the pre-trial investigation, amounting to ten months, had been conditioned by a large number of investigative actions held in different locations, disruption of the investigation by the co-accused, in particular, through their attempts to influence the witnesses, length of the expert examinations and studying of the case by the defence. As to the length of the trial, the Government asserted that it had been warranted due to the location of the accused, their counsel, the witnesses and the material evidence in different towns within the same region. The court had questioned sixteen individuals whose examination had sometimes continued during two or three hearings and had waited for the results of a repeated expert examination, which had taken one month. Examination of the case had also been delayed due to the involvement of the counsel in different proceedings and their illness. Overall, thirteen court hearings had had to be rescheduled due to the applicant’s or his counsel’s failure to attend for various reasons. The Government added that the trial court had disciplined the defaulting parties by fining the counsel and replacing them with other lawyers and had attempted to expedite the proceedings by moving the hearings temporarily to another town for examination of the witnesses residing there and by re-detaining the applicant on remand.
21. The applicant countered by stating that the Government had not submitted any evidence of the applicant’s default in appearance or other disruption of the investigation and trial. The thirteen hearings that had not taken place had not contributed to any significant extent to the overall length. He added that at the stage of the pre-trial investigation the prosecutor had been out of town for six months, and the proceedings could not have advanced without him.
22. 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 applicant’s conduct and the conduct of the competent authorities (see, among many other authorities, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999‑II).
23. The Court observes that the criminal proceedings against the applicant commenced on 27 March 2001, when he was arrested, and ended on 18 August 2004 with his final conviction. Their total length amounts approximately to three years and five months, during which period the authorities considered the case at two levels of jurisdiction.
24. The Court further observes that the parties chose not to submit a detailed description of the course of the events, nor did they submit evidence in support of their arguments, for example, copies of trial records. In these circumstances it will base its analysis on the parties’ statements and the available documents.
25. As regards the length of the pre-trial investigation, the Court notes that the parties disagree with each other as to the reason of the six-month delay and have not submitted anything that would allow it reaching an independent conclusion. While the total length of the investigation, amounting approximately to eighteen months, may appear somewhat excessive in a relatively simple case as the present one, it does not suffice alone to conclude that the authorities failed to conduct the proceedings in an expeditious manner.
26. As to the trial, the Court considers that the criminal case against the applicant was not complex, having concerned a single incident. On the other hand, it is cognisant of the fact that the participants in the proceedings, the material evidence and the trial court were located in different towns, and extra time was needed to summon or deliver them to the hearings. Furthermore, the applicant did not dispute the Government’s allegation that thirteen hearings had not taken place due to his or his counsel’s failure to attend.
27. Deciding on the strength of the evidence before it, the Court cannot establish any unjustifiable delay in the actions of the authorities. It also notes that the applicant was not in detention for the most part of the proceedings. In view of the foregoing, the Court cannot conclude that the overall length of the criminal proceedings in the present case amounts to a breach of the “reasonable time” requirement of Article 6 § 1 of the Convention.
28. There has accordingly been no violation of Article 6 § 1 of the Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
29. The applicant also complained under Articles 5 § 1 and 6 of the Convention of unlawful arrest and detention, about the outcome of the proceedings and assessment of evidence by the courts.
30. Having regard to all the material in its possession, and in so far as these complaints fall within its competence, the Court finds that there is no appearance of a violation of the rights and freedoms set out in these provisions in that respect. 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.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the complaint concerning length of the criminal proceedings admissible and the remainder of the application inadmissible;
2. Holds that there has been no violation of Article 6 § 1 of the Convention.
Done in English, and notified in writing on 7 February 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
André WampachMirjana Lazarova Trajkovska
Deputy RegistrarPresident
Full & Egal Universal Law Academy