Communicated on 22 March 2016
THIRD SECTION
Application no. 55859/08
Batyrgaley Buryangaleyevich KULCHAROV
against Russia
lodged on 22 September 2008
STATEMENT OF FACTS
The applicant, Mr Batyrgaley Buryangaleyevich Kulcharov, is a Russian national, who was born in 1963 and is serving a prison sentence in Chelyabinsk Region.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Arrest and detention pending investigation
On 5 December 2006 the applicant was arrested on suspicion of murder. On 8 December 2006 the Leninskiy District Court, Orenburg detained the applicant pending trial. His pre-trial detention was extended on numerous occasions. In particular, on 4 June 2008, the Orenburg Regional Court extended the applicant’s pre-trial detention in order to allow more time for the study of the case-file, reasoning as follows:
“It appears from the evidence submitted to the court, that [the applicant] is charged with [numerous] criminal offences, including a particularly serious one which entails a custodial sentence exceeding ten years.
...
The circumstances underlying the [applicant’s] remand in custody have not changed.
...
It appears from the evidence submitted [by the investigator], that the [applicant’s] former place of residence provided negative references as to his character; that he is aggressive, prone to disturbances of the peace, maintains connections with ex‑offenders and that [the regional police department for combatting organised crime] possesses information that [the applicant], if released, intends to put pressure on witnesses ... or to abscond.
Regard being had to the above, the court considers that, [if released], [the applicant] might abscond, continue his criminal activities, put pressure on witnesses, try to destroy evidence or interfere with the administration of justice.”
On 11 June 2008 the Regional Court issued its reasoning in the decision of 4 June 2008, specifying that the applicant’s pre-trial detention was extended until 20 September 2008.
On 21 August 2008 the Supreme Court of the Russian Federation upheld the decisions of 4 and 11 June 2008 on appeal.
On 1 September 2008 the Regional Court extended the applicant’s pre‑trial detention until 28 February 2009 noting as follows:
“The court accepts the prosecutor’s argument that it is necessary to extend the [applicant’s] pre-trial detention. It is objectively supported by the evidence in the case-file. The circumstances underlying the [applicant’s] remand in custody and the extension of his pre-trial detention have not changed and are still relevant. There are grounds to believe that [the applicant] might abscond or put pressure on witnesses. In the interests of the administration of justice and in order to ensure the defendant’s presence at the trial, the court authorises his continuing detention pending trial.”
On an unspecified date the applicant was charged with, inter alia, organisation of a criminal gang, murder, extortion, breaking and entering and fraud.
2. Trial
On an unspecified date the investigation was completed and the case-file was transferred to the court.
On 30 December 2008 the Regional Court decided to dispense with the public hearing of the criminal case against the applicant and the other defendants. The court relied on a letter from the regional department for combatting organised crime suggesting that, in the event of an open hearing, it might be attended by certain persons who could put pressure on witnesses and threaten the safety of the parties to the proceedings and their families.
On 30 September 2009 the presiding judge ordered the removal of defendant Kh. from the courtroom for the latter’s disruptive behaviour and adjourned the hearing. When the judge reconvened the hearing, several defendants, including the applicant, refused to return to the courtroom despite an order from the judge to do so. The judge asked the applicant’s lawyers to meet with him to advise the applicant and the other defendants of the consequences of their failure to comply with his order. The applicant again refused to return to the courtroom. Then the judge again ordered that the defendants return to the courtroom; none of them complied with the order. The judge ruled that the defendants, including the applicant, be removed from the courtroom and that the trial be conducted in their absence. The three lawyers retained by the applicant attended the hearings.
On 5 August 2010 the applicant was allowed to attend the trial in order to testify. He was then removed from the courtroom until the closing arguments.
On 4 August 2011 the Regional Court found the applicant guilty as charged and sentenced him to twenty years’ imprisonment.
On 21 May 2012 the Supreme Court upheld the applicant’s conviction on appeal.
COMPLAINTS
The applicant complains under Article 5 of the Convention about the length of his pre-trial detention.
The applicant complains, under Article 6 of the Convention, that he did not have a public hearing in the criminal proceedings against him.
The applicant complains, under Article 6 of the Convention, about his exclusion from the trial.
QUESTIONS TO THE PARTIES
1. Was the length of the applicant’s pre-trial detention in breach of the “reasonable time” requirement of Article 5 § 3 of the Convention?
2. Was the exclusion of the public from the trial in the present case “strictly necessary” within the meaning of Article 6 § 1 of the Convention (see Riepan v. Austria, no. 35115/97, ECHR 2000‑XII, and Krestovskiy v. Russia, no. 14040/03, 28 October 2010)?
3. As regards the applicant’s exclusion from the trial, was that situation compatible with the requirements of Article 6 §§ 1 and 3 (c) and (d) of the Convention (see Idalov v. Russia [GC], no. 5826/03, §§ 167-82, 22 May 2012?
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