Information Note on the Court’s case-law No. 128
March 2010
Kouzmin v. Russia - 58939/00
Judgment 18.3.2010 [Section V]
Article 6
Article 6-2
Presumption of innocence
Virulent remarks made on television by candidate for election as governor about a district prosecutor accused of rape: violation
Facts – A seventeen-year-old girl lodged a criminal complaint through her mother against the applicant, a district prosecutor, alleging rape. The proceedings were instituted on 22 April 1998. On 7, 12 and 13 May 1998 Mr Alexander Lebed, a candidate for election to the post of regional governor and a well-known public figure, stated in television interviews that the applicant was a “criminal” who should have been in the “nick” for some time, promising that the “son of a bitch” would soon be “rotting in jail”. The applicant was dismissed from the prosecution service. On 22 May 1998 he was arrested and remanded in custody. The following day he was charged with the rape of a minor. In November 1998 the indictment was served on the applicant, who maintained that he had not had access to the full version of the document in good time. In December 1998 he was sentenced to three years and six months’ imprisonment. He lodged appeals but to no avail.
Law – Article 6 § 2: (a) Statements by Mr Lebed – Besides being a candidate for the post of governor, at the time of the events Mr Lebed had been a retired army general, a prominent figure in Russian society who had occupied various posts as a senior government official and a very well-known politician. The Court did not consider that he had made the impugned comments on television as a private individual. The comments in question, including a promise to arrest the applicant, could well have been construed as confirming his belief that the applicant was guilty of the alleged offence. Moreover, several days after giving the interviews, Mr Lebed had been elected governor and the applicant, who at that point was a suspect, had swiftly been arrested and charged with the rape of a minor. It had been particularly important at that early stage of the proceedings against the applicant – before he had even been charged – not to make any public allegations which could have given the impression that certain senior officials believed him to be guilty.Accordingly, given the very particular circumstances in which Mr Lebed had made the statements in question in television interviews, the Court considered that they amounted to declarations by a public official which had served to encourage the public to believe the applicant guilty and prejudged the assessment of the facts by the competent authorities. The impugned statements had not been relevant to considerations of protection against defamation by a private individual and the right of access to a court for the determination of civil rights.
Conclusion: violation (four votes to three).
(b) Language used in the prosecuting authorities’ documents – Although the use of the terms in issue in the application and subsequent order for the applicant’s dismissal had been somewhat careless, in the specific circumstances of the case they had not been likely to encourage the public to believe the applicant guilty or to prejudge the assessment of the facts by the competent judicial authorities.
Conclusion: no violation (unanimously).
Article 6 §§ 1 and 3 (d): Irrespective of whether or not the accused had received the full bill of indictment, the Court attached decisive weight to the following two aspects. Firstly, even if the indictment had been received without a list of the witnesses to be called, neither domestic law nor the practice of the domestic courts had prevented the applicant from applying orally or in writing to the court dealing with the case to have any witnesses called if he thought that their testimony might be significant for the determination of the charge against him. The evidence in the file did not support the conclusion that the judges had failed to respond to any request by the applicant for witnesses to be called. Secondly, the applicant had not explained how the evidence supplied by the witnesses in question might be useful. The Court could therefore only assume, having regard to the concerns expressed by the defence before the domestic courts, that the applicant had wished to have certain witnesses examined in order to substantiate his argument that the police and the investigator had pressured the victim’s mother into lodging the complaint and that, after forging certain documents, the authorities had succeeded in having him imprisoned for rape. However, according to the records in the file, those allegations had been examined at the trial, the applicant had been confronted with a number of persons who had been directly involved in registering and following up the complaint, and he had been able to defend his position according to the principle of equality of arms.
Conclusion: no violation (unanimously).
The Court also held unanimously that there had been a violation of Article 3 of the Convention as regards the conditions of the applicant’s detention.
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This summary by the Registry does not bind the Court.
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