FOURTH SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 46503/99
by Andrey Anatolyevitch KLIMENTYEV
against Russia
The European Court of Human Rights (Fourth Section), sitting on 17 September 2002 as a Chamber composed of
SirNicolas Bratza, President,
MrM. Pellonpää,
MrA. Pastor Ridruejo,
MrsE. Palm,
MrR. Maruste,
MrA. Kovler
MrS. Pavlovschi, judges,
and Mr M. O’Boyle, Section Registrar,
Having regard to the above application lodged with the European Commission of Human Rights on 11 August 1998,
Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,
Having deliberated, decides as follows:
THE FACTS
The applicant, Andrey Anatolyevich Klimentyev, is a Russian national, who was born in 1954 and lives in Nizhniy Novgorod. He is represented before the Court by Mrs Moskalenko, a lawyer practising in Moscow, Russia and Mr Gerhart R. Baum, a lawyer practising in Koln, Germany.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
Arrest and trial
The applicant, together with another person, was charged with embezzlement and other economic crimes on 7 March 1995. On 21 April 1997 the Nizhniy Novgorod Regional Court found the applicant guilty on some of the charges, and not guilty on most. He was sentenced to one and a half years in prison (the time he had already spent in pre-trial detention) and some of his property was confiscated.
In July 1997 the Supreme Court quashed the conviction on the applicant’s appeal and remitted the case to the Nizhniy Novgorod Regional Court.
On 30 March 1998, during the new trial, the prosecutor applied to the court to detain the applicant for violations of the undertaking not to leave the city during the trial and obstruction of justice. The Regional Court rejected the motion as unsubstantiated.
On 29 March 1998 the applicant won a majority in the elections for the mayor of Nizhniy Novgorod, which is one of the main industrial centres in the Volga Region, with a population of about one and a half million. On 1 April 1998 the local electoral committee declared the elections invalid on the ground of irregularities committed during the campaign by some candidates, including the applicant. The elections and the committee’s decision attracted much attention in the regional and federal media. The election results, the applicant’s alleged connection to organised crime, his previous convictions for distribution of pornographic movies and his involvement in illegal gambling were discussed in numerous press articles.
On 2 April 1998 the Nizhniy Novgorod Regional Court granted the prosecutor’s renewed motion for detention on grounds of obstruction of justice and violations of the undertaking not to leave the city, and the applicant was arrested in the course of the hearing. The reasons given by the court for the order were the witnesses’ refusal to testify in the courtroom, public and media pressure on the court instigated by the applicant and breach of the court order. The court also ordered that the rest of the trial should be conducted in camera.
On 23 April 1998 the applicant’s “civil defender”, who participated in the process with a status similar to that of a lawyer, lodged with the Supreme Court an appeal against the court order of 2 April to detain the applicant. He requested it to quash the order and to transfer the case to another region to be heard by jury, since it was impossible to achieve a fair and impartial trial in Nizhniy Novgorod, given the political tension surrounding the case. He also questioned the impartiality of the presiding judge, as he had ordered the applicant’s detention and allowed “unlawful” evidence in the trial. He did not raise the question of exclusion of public from the trial in his appeal. The reply from the Supreme Court, dated 19 May 1998, stated that the national law did not allow appeals against that type of trial court orders separately from appeals against judgments.
On 5 May 1998 the Convention entered into force for the Russian Federation.
On 19 May the applicant’s “civil defender” requested the Regional Court to dismiss the judge presiding in the case for bias. The judge’s bias was allegedly shown by his refusal to call some of the witnesses requested by the defence (former governor of the region, the Regional Prosecutor, some other high-ranking officials), by his order to detain the applicant and by admitting evidence contested by the defence. He referred to Article 6 of the Convention. On the same day the applicant requested to admit Mrs Moskalenko as his lawyer in the trial because one of his lawyers was on sick leave. Both requests were rejected by the Regional Court.
In total, the Regional Court heard more then 35 witnesses during the trial. In addition, five witness statements were admitted in the trial, in the absence of the witnesses. Two of them, R. and B., citizens of Norway, had been questioned in Norway by a Norwegian police department, ECOCRIME, separately and together with the Russian investigators. R. was also questioned on one occasion in Moscow in 1996. The witnesses did not attend the trial and the applicant could not question them. The applicant objected to the admission of the statements, claiming that, among other things, they were not affixed by an apostille, and therefore not in conformity with requirements relating to foreign official papers. The trial court rejected these objections, referring to the 1961 Hague Convention Abolishing the Requirement for Legalisation of Foreign Public Documents, which did not require any legalisation of documents received from official bodies of another State Party.
The third statement was taken from a German citizen P. during the pre-trial investigation and the court hearing in 1997. The fourth and fifth witnesses, Russian citizens M. and A., were also questioned during the pre-trial investigation and during the trial in 1997. The court noted that both were repeatedly called to the trial, but could not be found. Their statements made during the pre-trial investigation were admitted by the court, after viewing a video tape of their questioning. The court rejected the defence motions to call some additional witnesses, including the former governor of the region, the Regional Prosecutor and other officials.
The court also admitted several documents in English during the trial, the translations of which had not been provided to the applicant before the trial. It appears that the translation of these documents was made during the trial.
The court admitted certain expert reports as evidence, the legality of which was contested by the applicant. In particular, he claimed that he was not informed about the holding of the examinations until they were over, in violation of the national law. The applicant also contested the legality of certain witness’ statements, as they lacked indications of the time or place of questioning.
On 27 May 1998 the Nizhniy Novgorod Regional Court found the applicant guilty on charges of misappropriation and embezzlement, larceny, bribery and attempt not to return money from abroad. According to the conviction, the applicant together with his co-accused Mr K., the director of the shipyard “Oka”, had falsified documents and embezzled the budget of the shipyard. The director of the yard had concluded fraudulent contracts with the companies owned by the applicant and transferred money in accordance with them, which was then shared. The applicant was also convicted of bribing the director of the shipyard by opening bank accounts in Norway in the name of Mr K. and transferring money there. The applicant was also convicted of extortion of money from a market in Nizhniy Novgorod owned by companies “Zhanto” and “NL TOP”, and from a casino owned by a company “Slot”.
In total, the court sentenced him to six years in prison and confiscation of some property. The court also granted civil claims for damages by the shipyard “Oka” and three other companies, “Zhanto”, “NL TOP” and “Slot”. It appears that the civil claims by the latter three companies were submitted on 20 April 1998, i.e. during the trial. The conviction was pronounced in public.
On 27 May 1998 the Regional Court made a number of further orders (частные определения) in the case. The applicant claims that he was not informed of them, did not receive copies promptly and was therefore unable to appeal against them. In one order the court noted breaches of the relevant rules of criminal procedure during investigation, and found that these breaches had been remedied during the trial. In particular, the court noted that the defendants had not been informed about the commissioning of expert reports in the case until the examinations were over. The court considered that the fact that the defendants were not properly informed about the examinations did not invalidate the conclusions of the experts’ reports, and that the applicant had failed to contest the results of the reports during the investigation or during the trial. The court also noted that a number of documents in the case file were in foreign languages, but considered that this did not violate the defence rights because the documents were similar to, or copies of, other documents in Russian. In any event, all documents had been translated into Russian during the trial. The court further noted that certain witness statements had been admitted in evidence, even though they gave no indication as to the time or place of questioning. To verify them, the witnesses in question (and other witnesses) had been questioned in the courtroom on the circumstances of the questioning. The court viewed a video tape of the questioning, and decided to admit the statements in question as evidence. The court also accepted that there had been breaches of the relevant procedural rules in respect of property belonging to the applicant, which had been seized.
The applicant received a copy of the trial court judgment on 3 June 1998. He later found that changes had been made to the text of the judgment. It appears that on 8 July 1998 the Regional Court ordered that the applicant should be given the amended version, but he claims that he did not receive it. It further appears that the applicant was not allowed full access to the verbatim record and to documents in the case file. The trial record, which consisted of two volumes, was forwarded to the Supreme Court from the Nizhniy Novgorod Court, but the verbatim record, which ran to 15 volumes, was not attached.
An appeal to the Supreme Court by the applicant’s lawyer, Mr. O., challenged the judgment on a number of points. First, it contested the admissibility of some evidence admitted by the court: expert reports, documents in foreign languages, certain procedural documents, witness statements made during pre-trial investigation, witness statements taken by the Norwegian police, and other evidence obtained in Norway that was not in conformity with the Russian procedural rules. It also questioned the Regional Court’s and the Regional Prosecutor’s impartiality for their failure to react to the admitted mishandling of the applicant’s property during the investigation. The appeal also stated that allowing three companies, “Zhanto”, “NL TOP” and “Slot”, to submit their civil claims after the commencement of the trial was contrary to the national legislation. Finally, it stated that the applicant’s representation was inadequate, as one of his lawyers was on sick leave, and his request to admit Mrs Moskalenko as his lawyer was denied by the Regional Court.
Since one of the applicant’s lawyers, Mr. K., had had eye surgery in May 1998 and was apparently unable to act, Mrs Moskalenko joined the defence team before the cassation hearing. In July and on 10 August 1998 Mrs Moskalenko made a number of requests to the Supreme Court. Referring to difficulties in organising an adequate defence, she requested an adjournment of the hearing to give her time to study the case materials (more than 100 volumes). She also complained that the applicant had not been served with the final copy of the judgment and court orders of 27 May 1998, that he had had no access to the verbatim record and that some volumes of the case had not been given to the applicant. Her request to adjourn the hearing was not granted by the Supreme Court, and it appears that the issues of the judgment and access to the case file have not been addressed by the Supreme Court.
On 10 August 1998 the Supreme Court confirmed the judgment of the Nizhniy Novgorod Regional Court, with some alterations. The applicant requested permission to attend the hearing in the Supreme Court in person, but the request was turned down. His lawyers, including Mrs Moskalenko, were present at the hearing. It appears that the defence requested the court to stand down for lack of impartiality, shown by the refusal to postpone the hearing, but the motion was rejected. There is no record of the hearing.
The Supreme Court concluded that the disputed evidence had been properly evaluated by the Nizhniy Novgorod Regional Court and found admissible. The conclusions of the Regional Court were found reasonable and substantiated. The Supreme Court noted that the defendants were informed of the contents of all documents in foreign languages during the hearing. As to the complaint about representation, the Supreme Court concluded that the applicant had been adequately represented throughout the pre-trial investigation and the trial, and that at no point had he been without a representative. The applicant’s lawyer, Mr K., had not applied for an adjournment of the hearing for health reasons and the Regional Court’s refusal to admit Mrs Moskalenko as another lawyer did not constitute a violation of the applicant’s right to defence. The Supreme Court dropped certain charges from the conviction and altered the classification of certain crimes, in view of the Criminal Code which entered into force in 1997. Overall, the Supreme Court found that there had not been any significant breaches of national procedural law or international standards during the trial. It did not refer to the complaint referring to the property dispute or to the admission of three civil claimants during the trial. The sentencing of the applicant to a total of six years in prison was upheld.
In February 1999 the applicant’s first (1982) conviction was quashed, and the file in that case was closed by the Nizhniy Novgorod regional prosecutor’s office.
In October 2000 the applicant was released from detention.
Confiscation of property
Following the institution of an investigation against the applicant in March 1995, on 5 October 1995 property belonging to the applicant - the ship Stavanger and a floating drydock - was frozen on the order of the Nizhniy Novgorod prosecutor’s office. The Stavanger, built in Nizhniy Novgorod shipyard “Oka”, was placed under arrest in a shipyard near Astrakhan on the Caspian Sea.
In October 1995 the Makhachkala International Sea Port contacted the prosecutor of Nizhniy Novgorod and informed him that the Stavanger had been purchased by the Port before the arrest. He requested its release. In December 1995 the Makhachkala Sea Port forwarded to the prosecutor’s office a copy of the contract between the owner of the ship, a company owned by the applicant and called “Russian Shipping”, and the Makhachkala Sea Port. The contract was dated 10 February 1995 and provided for the purchase by the Port of the Stavanger for 2.5 million US dollars. The copy bore the applicant’s signature on behalf of “Russian Shipping”, but he later denied signing that contract.
The contract was to enter into force after the transfer of the purchase price to “Russian Shipping’s” German bank account. By the end of 1995 the money had not been transferred, but the Port claimed ownership of the ship and argued that it had suffered heavy losses due to the arrest. It asked the prosecutor’s office to indicate the bank account to which the purchase sum should be transferred.
In January 1996 the Port transferred the sum of 2.5 million US dollars to a special account of the Nizhniy Novgorod city administration. On 19 January 1996 the Stavanger was freed from arrest - and on 11 March 1996 the proceeds from the ship sale were frozen on the order of the Nizhniy Novgorod prosecutor’s office.
In May 1996 the Head of the Industry department of the Nizhniy Novgorod regional administration asked the Nizhniy Novgorod prosecutor for permission to use the proceeds from the Stavanger for the needs of the “Oka” shipyard, which had built the vessel, and which had been declared bankrupt in February 1996. On 18 May 1996 the Nizhniy Novgorod prosecutor’s office unfroze the account and transferred the money to the yard. The reasoning given was that the applicant had been accused of economic crimes, which had caused damage to “Oka”, and that the applicant had purchased the Stavanger with the money stolen from the yard.
It appears that the order freezing the drydock was lifted in May 1996, as it belonged to a Norwegian company “Aroko”. The applicant was not given a copy of the relevant order.
By a judgment of the Nizhniy Novgorod Regional Court of 21 April 1997, later quashed by the Supreme Court, the applicant was ordered to pay the “Oka” damages in the amount that had been transferred to it previously.
During the second trial, on 27 May 1998 (confirmed by the Supreme Court on 10 August 1998) the applicant was ordered by the Nizhniy Novgorod Court to pay damages to “Oka”. The proceeds from the sale of the Stavanger were deducted from the damages awarded to the yard.
On 27 May 1998 the Nizhniy Novgorod Regional Court issued an order (частное определение) in which it noted that the investigators had violated the Code of Criminal Procedure (CCP) by transferring the money to “Oka” prior to a final court finding on his guilt. The court further noted that “such behaviour damages the authority of the bodies of the preliminary investigation and may raise doubts about the quality and professionalism of the investigation of a criminal case”. The Court “brought to the attention” of the Nizhniy Novgorod regional prosecutor the investigators’ infringements of the criminal procedural law.
In their cassation appeal to the Supreme Court the applicant’s lawyer argued that the Regional Court had failed to react properly to the mishandling of the applicant’s property by the prosecutor’s office. In its decision, the Supreme Court did not refer to the complaint referring to the property dispute. In a general statement it concluded that there had been no significant breaches of national procedural law or international norms during the trial.
Publication about the case
In December 1995 a German-speaking Swiss magazine “Facts” published an article “Elections. A Candidate from Prison”, which described the situation in Nizhniy Novgorod and the applicant’s election campaign to the State Duma. The article contained an interview with the Prosecutor of the Nizhniy Novgorod Region, Mr Fedotov. The prosecutor is quoted as saying that the applicant’s election campaign “pursues ... just one aim - to avoid punishment”. He is further cited, without quotation marks, as having described the economic activities of the applicant as fraud and embezzlement.
B. Relevant domestic law
Constitution of the Russian Federation
Article 47
... 2. Anyone charged with a crime has the right to have his or her case reviewed by a court of law with the participation of jurors in cases stipulated by the federal law.
Concluding and Transitional Provisions
... 6. Until the adoption of a federal law setting forth the procedures for trial by jury, the former procedure for conducting trials shall be retained.
Law of the RF of 16 July 1993 “On introducing changes and amendments to the Law of the RSFSR “On organisation of courts of the RF”, the Code of Criminal Procedure of the RSFSR, the Criminal Code of the RSFSR and the Code on Administrative Offences of the RSFSR”
The Law introduced jury trial into the Russian legal system. On 16 July 1993 jury trial was introduced into nine regions with effect from 1 November 1993. Nizhniy Novgorod was not among those regions, and no new regions have been added to the list since.
Code of Criminal Procedure (“CCP”)
Article 29 stipulates that a civil claim can be submitted by persons who have suffered harm as a result of a crime. The civil claim can be submitted at any time between the opening of a criminal case and the beginning of the trial.
Articles 175 and 176 concern arrest of property pending trial, which can be authorised by the investigator. Article 303 obliges the trial court in its judgment to decide, inter alia, about the civil claim and the amount to be paid.
Article 264 regulates the keeping of a trial record in the first instance court. It does not require a verbatim record of the trial to be kept, but “a detailed record of the submissions”. In practice, if a verbatim record exists, it is not attached to the trial record.
Decision No 20-P of the Constitutional Court of 2 July 1998
On 20 July 1998 the Constitutional Court found that Article 331 §§ 2 and 3 and 464 § 1 of the CCP violated Article 6 of the European Convention and the provisions of the Russian Constitution which guarantee equality of arms. Those provisions allowed prosecutors, but not the defendant, to appeal to a higher court in respect of trial court orders (постановления и определения) fixing hearings, forwarding the case to the prosecution for further investigation, ordering a medical report, etc. The effect of such orders was that a person detained on remand would remain in detention on remand for a further period.
Decision No. 27-P of the Constitutional Court of 10 December 1998
On 10 December 1998 the Constitutional Court quashed Article 335 § 2 of the CCP as unconstitutional to the extent that it allowed the second instance court to determine an appeal without permitting the defendant to be present and “without allowing the convicted person to study documents filed in the court hearing and to present his position to the court on questions raised during the hearing”.
COMPLAINTS
1. The applicant complains under Article 5 § 1 of the Convention that his arrest on 2 April 1998 was unlawful. He further complains that his detention continued to be unlawful until the judgment of the trial court on 27 May 1998.
2. The applicant complains that he could not appeal against the court order to detain him and invokes Article 5 of the Convention.
3. The applicant complains that the court hearing at first instance was not public, as some parts of it were closed to the public and press, contrary to Article 6 § 1 of the Convention.
4. The applicant complains that his right to a fair trial under Article 6 § 1 was violated because he was not tried by a jury.
5. Referring to Article 6 §§ 1 and 3 (b), (c) and (d) of the Convention, the applicant complains that he did not receive a fair trial when his criminal case was reviewed. He submits that the trial before the Nizhniy Novgorod Regional Court was not fair, that he did not have adequate time and facilities for the preparation of his defence and that he was denied the right to defend himself through legal assistance of his choosing. He refers to the following:
a) the court accepted evidence obtained in violation of the national law;
b) some documents in the case file were not translated into Russian before the start of the hearing;
c) the court rejected his submissions to call additional witnesses and to adduce further evidence;
d) he could not question witnesses whose statements were read out in court;
e) the events for which he was convicted of bribery occurred in Norway and were outside the Russian jurisdiction;
f) the court accepted civil claims from three private companies during the trial, in violation of the national law;
g) the court was not impartial, since it had ordered his arrest on 2 April 1998;
h) one of his lawyers was sick and he was not permitted to take another during the trial.
The applicant further complains that the cassation review of the case against him in the Supreme Court on 10 August 1998 was not fair, that he did not have adequate time and facilities for the preparation of his defence and that he was denied the right to defend himself in person or through legal assistance of his choosing. In particular, the applicant complains of the following:
a) he did not get an amended copy of the trial court conviction;
b) he and his lawyers were not allowed sufficient time for access to the case file and were not allowed access to all the documents in the case file,
c) he and his lawyers were not allowed to compare the official record of the first instance trial with the verbatim record, the national legislation does not require keeping a verbatim record of proceedings in the trial court, the cassation court looked only at the trial record, but not at the verbatim record, and finally the absence of a requirement to keep trial record of the cassation proceedings violated his right to be able to defend himself;
d) he was not allowed to be present at the hearing, but the prosecutor was.
6. The applicant complains that the media coverage of the elections and the trial and some statements of public officials deprived him of a fair trial, since they influenced the perception by the judges and lay assessors of his guilt. He refers to Article 6.
7. The applicant complains that the principle of presumption of innocence was violated by the transfer of his property to the claimant before the conviction. He refers to Article 6 § 2 of the Convention.
8. The applicant further complains under Article 1 of Protocol No. 1 to the Convention that his property rights were violated by the mishandling of his property before the trial.
9. The applicant also complains that he was convicted for failure to pay a debt, which should have been dealt with as a private law matter. The applicant refers to Article 1 of Protocol No. 4 to the Convention.
THE LAW
1. The applicant complains, under Article 5 § 1 (c) of the Convention, that the decisions on his arrest and detention in 1995 and 1996 were unlawful.
Article 5 § 1 (c) provides as follows:
“1 Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ...
c. the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so.”
The Court notes that the decision in respect of the applicant’s arrest was taken on 2 April 1998. This decision was not subject to review by any national authority. This complaint thus relates to the period prior to 5 May 1998, which is the date of the entry into force of the Convention with respect to Russia.
It follows that this part of the application is outside the competence ratione temporis of the Court and therefore incompatible with the provisions of the Convention, within the meaning of Article 35 § 3 of the Convention, and must be rejected pursuant to Article 35 § 4.
2. The applicant complains that he was unable to challenge the lawfulness of his detention. The applicant refers to Article 5 § 4.
Article 5 § 4 reads as follows:
“4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”
The applicant refers to events which occurred between 2 April 1998, when his arrest was ordered by the Nizhniy Novgorod Court, and 27 May 1998, when the trial court convicted him. The Court can only examine events that took place after 5 May 1998, on which the Convention entered into force in respect of Russia. The Court can only, therefore, look at the procedures that took place between 5 May 1998 and 27 May 1998.
The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
3. The applicant complains that the criminal trial at first instance was not held in public, in violation of Article 6 of the Convention, which reads in so far as relevant:
“1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing ... 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, ... or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.”
The order of the Nizhniy Novgorod Regional Court which resulted in the exclusion of the public from the further hearing was adopted on 2 April 1998. However, the Court may only examine events that took place after 5 May 1998, which is the date of entry into force of the Convention in respect of Russia. The Court may also only deal with the matter after all domestic remedies have been exhausted, in accordance with Article 35 § 1 of the Convention.
From the documents submitted by the applicant, it appears that no complaints relating to the exclusion of the public from the trial were submitted by the applicant and consequently no procedures to review them took place either before or after 5 May 1998. It does not appear that the applicant made any reference whatever to the trial in camera held at first instance, whether in his appeal papers or otherwise. The judgment of 27 May 1998 was pronounced publicly.
In so far as it falls within the competence of the Court ratione temporis, it follows that this part of the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
4. The applicant complains that his right to fair trial under Article 6 § 1 was violated because his request to be tried by a jury was denied.
The applicant submits that this right is guaranteed by the national legislation, and that the refusal to try the case with a jury is a violation of the principle of equality before the law, which itself is a part of the fair trial requirement.
The Court reiterates that, even if in certain Contracting States trial by jury is an important element in ensuring fairness in the system of criminal justice, it is not an essential aspect of a fair hearing in the determination of a criminal charge within the meaning of Article 6 § 1 of the Convention (see Callaghan and others v. UK, application no. 14739/89, Commission decision of 9 May 1989, Decisions and Reports (DR) 60, p. 296) The right to a jury trial cannot therefore be based solely on the provisions of the Convention or on the case-law of the former Commission.
As to the applicant’s assertion that the right to a jury trial is guaranteed by the national legislation, the Court notes that Article 47 of the Russian Constitution does indeed give everyone charged with a criminal offence a right to jury trial, on conditions stipulated by the federal law. However, the relevant parts of Article 47 have not fully entered into force. Until such time as they do, the previous trial system is applicable. It is therefore not possible to derive this right from the national legislation, either.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
5. The applicant complains that the hearings of his case in the Nizhniy Novgorod Regional Court and the Supreme Court were not fair and impartial. He refers to Article 6 §§ 1 and 3 (b), (c) and (d) of the Convention, which read, in so far as relevant:
“1. In the determination of his civil rights and obligations or 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 established by law. ...
3. Everyone charged with a criminal offence has the following minimum rights:
bto have adequate time and facilities for the preparation of his defence;
cto 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;
dto 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.”
The applicant raises a number of complaints under Article 6 of the Convention relating to the criminal proceedings against him. As 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, the Court will examine the applicant’s complaints under Article 6 §§ 1 and 3 (b), (c) and (d) taken together (see Zoon v. Netherlands, no. 29202/95, § 31, ECHR 2000-XII), and will regard the national proceedings in their entirety.
The Court considers that it cannot, on the basis of the case file, determine the admissibility of these complaints and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
6. The applicant further complains that the media coverage of the elections and the trial had a negative impact on the court and deprived him of a fair trial. He also complains that some of the interviews of public officials breached the presumption of innocence. He refers to Article 6.
The Court points out, first of all, that the courts cannot operate in a vacuum. The media interest in the trial was justified by the fact that the applicant was a public figure who had been running for the highest post in the city administration. In such a case in particular, it is not only a task of the media to inform the public about the proceedings and administration of justice, but also a right of the public to know about them. If there is an intense press campaign surrounding the trial, what is decisive is not the subjective apprehensions of the suspect concerning the absence of prejudice required of the trial courts, however understandable, but whether, in the particular circumstances of the case, his fears can be held to be objectively justified (see, mutatis mutandis, the Castillo Algar v. Spain judgment of 28 October 1998, Reports 1998-VIII, p. 3116, § 45).
In support of his complaint the applicant has submitted copies of articles in the regional and federal media, which describe the elections and mention that the applicant was on trial at the time of the elections. They speak primarily of the election campaign in Nizhniy Novgorod and the decision of the electoral committee to cancel the results of the elections. They refer to the applicant’s previous conviction and to the criminal proceedings pending against him.
However, these press cuttings do not portray the applicant as guilty, nor do they contain statements of public officials which could be interpreted as a statement that the applicant was guilty of the crimes with which he was charged. It cannot be concluded that their contents or style could have caused some irreparable harm to the applicant’s defence or in any other way prejudiced his chances of receiving a fair trial or undermined the confidence of the public in the role of the courts in the administration of criminal justice (see Pullicino v. Malta (dec.), no. 45441/99, 15 June 2000, unreported).
The applicant further refers, in particular, to an interview of the Nizhniy Novgorod regional prosecutor, Mr. Fedotov, which was published in 1995 in a German-speaking Swiss magazine “Facts”. The Court first notes that the publication itself occurred before 5 May 1998, which is the date of entry into force of the Convention in respect of Russia. This event in itself therefore is outside the Court’s competence ratione temporis.
The applicant asserts that the publication influenced the authorities in Nizhniy Novgorod and contributed to the unfairness of the trial after the entry into force of the Convention for Russia. The Court recalls that whether the statement of a public official is in breach of the presumption of innocence must be determined in the context of the particular circumstances in which the impugned statement was made (see Daktaras v. Lithuania, no. 42095/98, § 43, ECHR 2000-X). It is difficult to see how a publication in German, published in Switzerland two and a half years before the final judgment in the case was passed, could have adversely affected the trial. Even assuming that it could, the quoted statements are not directly related to the then pending investigation in the applicant’s case. Viewed in the context of the article as a whole, they appear to be focused primarily on the applicant’s political activity, as at the time of the publication he was standing (ultimately unsuccessfully) in elections to the State Duma.
In these circumstances, the Court finds that this part of the application must be rejected as being manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.
7. The applicant also complains that the presumption of innocence, enshrined in Article 6 § 2, was violated by the mishandling of his property during the investigation.
Article 6 § 2 reads as follows:
“2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. ”
The events of which the applicant complains, i.e. the transfer of ownership of the arrested property and then of the funds to the “Oka”, occurred in 1995-1996, which is prior to 5 May 1998 - the date of entry into force of the Convention in respect of Russia. The Court recalls that, where the facts consist of a series of legal proceedings, the date of entry into force of the Convention in respect of the Contracting State in question has the effect of dividing the period into two, the earlier part escaping the Court’s jurisdiction ratione temporis, whereas a complaint relating to the later part cannot be rejected on this ground (see, e.g., No. 8261/78, Dec. 11.10.79, D.R. 18 p. 150, confirmed in No. 11306/84, Dec. 16.10.86, D.R. 50 p. 162). On the other hand, where a national court gives judgment after the entry into force of the Convention, the Court is competent to ensure that the proceedings leading up to this judgment were in conformity with the Convention, as the proceedings before a court are embodied in its final decision which thus incorporates any defect by which they may have been affected (see Stoitchkov and Shindarov v. Bulgaria, applications no. 24571/94 and 24572/94, Commission decision of 28 June 1995)
In the present case the decisions of the trial court and of the Supreme Court were both given after the entry into force of the Convention in respect of Russia, and the applicant had raised the issue before both authorities. The Nizhniy Novgorod Regional Court acknowledged breaches of procedure in this respect in its order of 27 May 1998.
The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
8. The applicant complains that the decisions taken in respect of his property before the trial violated his rights under Article of Protocol no. 1 to the Convention, which reads as follows:
“1. Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
2. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
As it was said in respect of the previous complaint, where a court gives judgment after the entry into force of the Convention, the Court is competent to ensure that the proceedings leading up to this judgment were in conformity with the Convention, as the proceedings before a court are embodied in its final decision which thus incorporates any defect by which they may have been affected (see Stoitchkov and Shindarov v. Bulgaria, applications no. 24571/94 and 24572/94, Commission decision of 28 June 1995).
In the present case the decisions of the trial court and of the Supreme Court were both given after the entry of the Convention in force in respect of Russia, and the applicant had raised the issue before both authorities. The Nizhniy Novgorod Regional Court acknowledged breaches of procedure in this respect in its order of 27 May 1998.
The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
9. The applicant finally complains that he was convicted for failure to pay a debt, which should have been treated as a private-law issue. He refers to Article 1 of Protocol no. 4 to the Convention. This Article reads as follows:
“No one shall be deprived of his liberty merely on the ground of inability to fulfil a contractual obligation. ”
The submissions made to the Court clearly demonstrate that the reason for the applicant’s deprivation of liberty was not his inability to fulfil contractual obligations, but the fact that he had been charged with a number of criminal offences under the national criminal law. This provision cannot be interpreted so as to require the Court to reassess the facts of the case and the application of the national law to them.
In these circumstances, the Court finds that this part of the application must be rejected as being manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicant’s complaints concerning the inability to challenge the lawfulness of detention ordered by a court, the fairness of the trial both at first instance and before the cassation court, presumption of innocence and interference with property rights;
Declares inadmissible the remainder of the application.
Michael O’BoyleNicolas Bratza
RegistrarPresident
Full & Egal Universal Law Academy