FIRST SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 1606/02
by Sergey Yuryevich POPOV and Vadim Gennadyevich VOROBYEV
against Russia
The European Court of Human Rights (First Section), sitting on 2 March 2006 as a Chamber composed of:
MrC.L. Rozakis, President,
MrsS. Botoucharova,
MrA. Kovler,
MrsE. Steiner,
MrK. Hajiyev,
MrD. Spielmann,
MrS.E. Jebens, judges,
and Mr S. Quesada, Deputy Section Registrar,
Having regard to the above application lodged on 11 July 2001,
Having deliberated, decides as follows:
THE FACTS
The applicants, Mr Sergey Yuryevich Popov and Mr Vadim Gennadyevich Vorobyev, are Russian nationals, who were born in 1964 and 1963 respectively and live in Vladivostok. They are represented before the Court by Ms Tatyana Zolotar, a lawyer practising in Vladivistok.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
At the material time the first applicant, a police officer, and the second applicant, a former police officer, were the chairman and the deputy chairman of a local police trade union.
1. Pre-trial investigation
(a) The events prior to the applicants’ apprehension
On 28 October 1999 officers of the Primorskiy Department of the Interior (Управление внутренних дел Приморского края) and the Federal Security Service of Russia (“the FSB”, Федеральная служба безопасности РФ) found two explosive devices and cartridges at the domicile of a third person, K. Criminal proceedings were brought in this connection under Article 222 § 1 of the Criminal Code of Russia (“Illegal acquisition, transmission, sale, keeping, transportation and bearing of weapons, their main parts, ammunitions, explosives and explosive devices”).
On 6 December 1999 the FSB questioned M., a suspect in the case, who made statements incriminating the applicants.
On 11 January 2000 the President of the Primorskiy Regional Court authorised the seizure of a transcript of messages from the applicants’ pagers.
(b) The applicants’ apprehension and their detention between 14 and 24 January 2000
On 14 January 2000 the applicants were detained pursuant to Article 122 of the Code on Criminal Procedure (“the CrPC). The investigator in charge drew up apprehension reports (протоколы задержания) on standard forms containing a printed list of permissible grounds and motives for the detention under Article 122 of the CrPC. The investigator made a reference to Article 222 § 1 of the Criminal Code and inserted the applicants’ names and personal details without indicating any specific ground and motive in the list. The first applicant made a note on the report, denying his involvement in any offences. The second applicant indicated that the reason for his detention was unclear, and that he had no intention to abscond or interfere with the investigation. It does not appear that either of the applicants challenged in court the investigator’s actions.
On the same date the investigator interrogated the applicants, who availed themselves of their right to remain silent. Thereafter they were placed in detention on remand.
On 15 January 2000 the investigator notified the prosecutor of the Primorskiy Region (“the regional prosecutor”, прокурор Приморского края) of the apprehension of the first applicant, referring to statements of certain eye-witnesses as the grounds for the first applicant’s detention. It does not appear that any notification was made in respect of the second applicant.
On 17 January 2000 the regional prosecutor ordered the applicants’ arrest. It does not appear that the applicants lodged any complaints about this decision.
On 24 January 2000 the applicants were formally charged with acquisition, possession and dealing with explosives as well as with falsely reporting on K., and tampering with evidence, and transferred to remand facility IZ – 20/1.
(c) Searches
On 14 January 2000, around 9 a.m., the police searched the first applicant’s flat in the presence of two attesting witnesses. The search was ordered by the investigator in charge, but not authorised by the regional prosecutor. On the same date the investigator notified the regional prosecutor that the latter’s authorisation had not been obtained in view of the fact that the search had been conducted early in the morning.
On 14 January 2000, between 11 and 11.30 a.m., the police searched the second applicant’s flat in the presence of two attesting witnesses. The search ordered by the investigator was not authorised by the regional prosecutor. No reasons for the absence of the prosecutor’s authorisation were given.
On the same date, between 7 and 8.30 p.m., the second applicant’s car was searched. It does not appear that a search warrant was issued. The investigator drew up a “crime scene inspection report” (протокол осмотра места происшествия), reflecting the results of the search.
On 15 January 2000, between 3 and 3.30 p.m., the first applicant’s car box was searched in the presence of two attesting witnesses. The search ordered by the investigator was not authorised by the regional prosecutor. On the same day the investigator informed the prosecutor that the search had been conducted without the latter’s authorisation “for a reason that admitted of no delay” (причина, не терпящая отлагательств), since 15 January 2000 was on Saturday.
Between 3.30 and 4 p.m. the police further searched the first applicant’s office. Two attesting witnesses and the first applicant were present during the search. The search ordered by the investigator was not authorised by the regional prosecutor. No reasons for the absence of the prosecutor’s authorisation were given.
On 16 January 2000, between 10.20 a.m. and 12 noon, another office in which the first applicant used to work was searched in the presence of two attesting witnesses. The search was ordered by the investigator, but not authorised by the regional prosecutor. On the same day the investigator informed the prosecutor that the search had been conducted without the latter’s authorisation “for a reason that admitted of no delay” (причина, не терпящая отлагательств), since 16 January 2000 was on Sunday.
On 17 January 2000, between 11.30 a.m. and 12 noon, the police searched the first applicant’s car box. This search was similarly not authorised by the regional prosecutor. In his explanatory note to the regional prosecutor the investigator again referred to “a reason that admitted of no delay” without further explanation.
It does not appear that the applicants attempted to challenge in court the lawfulness of the searches.
(d) The applicant’s detention between 25 January 2000 and 20 February 2001
On 28 April 2000 the Leniskiy District Court of Vladivostok examined the first applicant’s request to release him pending trial. During a hearing the first applicant’s lawyer argued that the first applicant posed no danger to the public, had good professional references and family commitments. Furthermore, the investigation was almost at end, evidence had already been collected, and therefore the first applicant could not obstruct the investigation, or abscond. Without addressing those arguments, the District Court dismissed the request by reference to the gravity of charge and the first applicant’s personality. The above decision was not appealed against.
On 13 June 2000 the investigation was completed and the case-filed referred to the Frunzenskiy District Court of Vladivostok (“the Frunzenskiy District Court”) for examination.
On 15 June 2000 the first applicant lodged a complaint with the Vladivostok prosecutor’s office (прокуратура г. Владивостока). He complained that searches in his flat and office had been conducted in breach of national law and requested that the criminal proceedings against him be discontinued. It appears that this complaint remained unanswered.
On 29 October 2000 the first applicant applied to the Frunzenskiy District Court complaining about the conditions of his detention and various procedural irregularities of the investigation. The first applicant further stated that he would not abscond if at liberty and requested the court to order his release pending trial. It does not appear that the Frunzenskiy District Court examined this request.
In letters of 10 November 2000 the first applicant further applied to the Prosecutor General of Russia and the President of Russia, complaining about the length of his pre-trial detention and flaws in the investigation, but to no avail.
On 16 November and 12 December 2000, 23 January and 20 February 2001 the second applicant requested the Frunzenskiy District Court to release him subject to the imposition of another measure of restraint. He complained about the length of his pre-trial detention and referred to the poor state of his health, his positive professional references, decorations and family commitments. According to the second applicant, he never received any answer to his requests.
On 3 January 2001 the second applicant filed a complaint with the Frunzenskiy District Court requesting his release in view of his poor health. By letter of 12 January 2001 the court notified the second applicant that “there were no grounds to alter the measure of restraint”.
On the same date the first applicant complained to the Frunzenskiy District Court about the appalling conditions of his detention. He also requested the court to order his release on bail, but received no response.
2. The applicants’ criminal conviction and further development
On 20 February 2001, the first day of the trial, the presiding judge of the Frunzenskiy District Court ordered that the public be excluded from the courtroom giving no reasons for such an order. The judge also refused the applicants’ request to allow an audio recording of the hearing.
At the trial, one of the FSB officers who had participated in the preliminary investigation, Ya., stated that the FSB had established that the applicants and M., the third co-accused, had been acquainted with each other and, in particular, had communicated by pagers. Ya. further testified that while questioning M. on 6 December 1999, he “had shown M. a transcript of pager messages and the latter had confessed”.
On 2 March 2001 the Frunzenskiy District Court of Vladivostok, composed of judge K. and lay assessors G. and T., convicted the applicants and M. as charged. In view of the fact that the applicants had positive references and no criminal record, the court sentenced them to a suspended term of four years’ imprisonment. The applicants were released in the courtroom.
On 24 April 2001 the Criminal Section of the Primorskiy Regional Court upheld the above judgment on appeal, having reduced the applicants’ suspended sentence to three years and six months’ imprisonment.
In 2001 – 2002 the applicants unsuccessfully applied for supervisory review of their sentence. In their requests the applicants complained, inter alia, that their apprehension on 14 January 2000 and the seizure of the transcript of messages from their pagers had been unlawful.
By decision of 7 June 2002 the Pervorechenskiy District Court of Vladivostok lifted the first applicant’s suspended sentence and ordered that his criminal record be purged.
On 6 September 2002 the Leninskiy District Court of Vladivostok took an analogous decision in respect of the second applicant.
On 15 February 2005, upon the third defendant’s request, a judge of the Supreme Court of Russia instituted supervisory review proceedings in respect of the applicants’ case on the ground that during the trial two lay assessors had held their positions in breach of national law, and therefore the composition of the trial court had been unlawful.
On 8 April 2005 the Presidium of the Primorskiy Regional Court accepted the above arguments, quashed, by way of supervisory review, the judgment of 2 March 2001 and the decision of 24 April 2001 and remitted the case to the first instance for a fresh examination.
By letter of 15 November 2005 the applicants informed the Court that between May and October 2005 the trial court held four hearings in their case. The proceedings are now pending.
3. Conditions of detention
From 24 January 2000 to 2 March 2001 the applicants were detained in remand centre IZ – 20/1 in the city of Vladivostok (СИЗО – 20/1).
The applicants, a police officer and a former police officer, were kept in cells with other suspects and convicts. The cells measuring 8 square metres held 4 bunk beds. Whilst the first applicant shared his cell with 4 detainees, the number of inmates in the second applicant’s cell reached 6 – 7. Therefore he had to sleep taking turns.
The cells were damp; there was mould on the walls and the ceiling. As there was no air ventilation, the cells were hot in summer and very cold during wintertime. The air was stale and musty. The windows of the cells were covered with metal grills supplemented with “eye-lashes”, i.e. metal strips covering the grill, which let no daylight in. The cell was only illuminated with a single 60-watt bulb. Unprotected electric wiring hung over the ceiling and along the walls. The cell was overrun with cockroaches, blood-sucking insects and mice, but the authorities made no attempts to exterminate them refusing even to give chloride for disinfection.
Despite the applicants’ numerous requests, they were never provided with bedding, crockery or kitchenware. They were also denied any toiletries – soap, toothbrush, saving-set, toilet paper – to maintain personal hygiene. According to the applicants, they were able to have a shower once or twice a month, and to take a walk of about 50 minutes per day. The duration of walks was sometimes reduced to 20 – 30 minutes. On several occasions, the ward authorities made the applicants choose between having a bath or taking a walk. The scarce meals were of very poor quality.
The applicants, who suffered from toothache and urolithiasis, were denied proper medical treatment by reference to “the absence of specialists and necessary medicine”. In response to the first applicant’s complaints about colic, a medical officer furnished him with a medicine which was unfit for use, as its shelf life had expired 3 years earlier. With regard to the second applicant’s complaint about an acute attack of colic, the medical officer refused to give him an injection with the medicine and syringes that had been earlier delivered by the applicant’s family. The officer stated that he only used syringes for treatment of seriously ill patients, but he could see no such patients at the moment. The available dental care was confined to extraction of an aching tooth without anaesthesia.
4. The alleged persecution of the applicants by the FSB
According to the first applicant, on 7 March 2001 he found a tapping device in his flat. He has furnished the Court with photos of that device.
On 17 March 2001 the first applicant met 6 to 8 FSB officers, including officer Ya., in the vicinity of his domicile. The first applicant submits that Ya. threatened him with arrest and demanded that he admitted the imputed offences during an appeal hearing.
On 18 April 2001 the applicants applied to the prosecutor of the Primorskiy Region, complaining that they were being harassed by the FSB. In particular, the first applicant claimed that the tapping device could only have been installed by the FSB between 14 and 24 January 2000 when the flat keys had been seized by the investigators. It is unclear whether this application was ever answered.
On 23 April 2001 the first applicant further lodged a complaint with the military prosecutor’s office of the Pacific Fleet (“the military prosecutor’s office”, военная прокуратура Тихоокеанского флота). He claimed that the FSB was chasing him and tapping his telephone conversations. He further referred to a statement of his neighbour who, shortly after the first applicant’s arrest, had allegedly seen an unknown man enter the first applicant’s flat, having opened it with a key.
On 20 May 2001 the first applicant also lodged a complaint with the Vladivostok prosecutor’s office, in which he challenged the lawfulness of the searches conducted in his flat and office in January 2000. It appears that this complaint remained unanswered.
In its letter of 31 May 2001 the military prosecutor’s office informed the first applicant that on 17 April 2001, in the vicinity of the first applicant’s domicile, the FSB had taken operative actions unrelated to the applicants’ case. The letter further stated that after the investigation in the applicants’ case had been completed, the FSB had taken no measures in respect of the applicants. As regards the device allegedly found by the first applicant in his flat on 7 April 2001, the letter stated that insofar as it could be ascertained from the photos submitted by the first applicant, the said device “may be a tapping one”. However, in order to make a more precise assessment, it was necessary to examine the device itself, which the first applicant refused. The letter continued that the Primorskiy department of the FSB had no such devices in its inventory.
By letter of 7 June 2001 (erroneously dated 7 May 2001) the first applicant again complained about the installation of the tapping device in his flat and harassment by the FSB to the military prosecutor’s office. The latter on 20 June 2001 replied that the first applicant’s allegations had already been investigated and proved unfounded.
5. The first applicant’s complaints against officials
On 4 February 2003 the first applicant lodged a complaint with the prosecutor’s office of the Frunzenskiy District of Vladivostok (“the Frunzenskiy prosecutor’s office”, Фрунзенская районная прокуратура г. Владивостока) seeking to have criminal proceedings instituted against the investigator who had ordered his apprehension on 14 January 2000. The first applicant claimed the investigator’s reference to statements of certain eye-witnesses as the grounds for his apprehension had been false, since there had been no such eye-witnesses.
By letter of 12 March 2003 the Primorskiy prosecutor’s office informed the first applicant that there had been sufficient grounds for his apprehension on 14 January 2000, and notably statements of M., the suspect in the case, and that the actions of the investigator in charge had fully complied with the requirements of the national law.
On 20 March 2003 the first applicant requested the Primorskiy prosecutor’s office to authorise his access to the case-file of the investigation that had presumably been conducted in connection with his complaint of 4 February 2003.
In its letter of 21 April 2003 the Primorskiy prosecutor’s office stated that no investigation had been conducted into the first applicant’s allegations regarding the flaws in the preliminary investigation, since all the materials relating to his case had already been examined by courts in the context of the criminal proceedings against him, which were now over.
Thereafter the first applicant issued proceedings with the Leninskiy District Court of Vladivostok, requesting it to order the Primorskiy prosecutor’s office to conduct an investigation in connection with his complaint of 4 February 2003 and take a respective procedural decision.
On 16 September 2003 the Leninskiy District Court allowed the first applicant’s complaint and ordered the Primorskiy prosecutor’s office to investigate the first applicant’s complaint.
On 5 December 2003 the Presidium of the Primorskiy Regional Court annulled the decision of 16 September 2003 by way of supervisory review and discontinued the proceedings. The court noted that the first applicant’s arguments raised in his complaint of 4 February 2003 had already been examined and dismissed by the courts during the trial. Furthermore, the criminal charge against the first applicant had already been determined, become final and could not be affected by the refusal of the Primorskiy prosecutor’s office to commence an investigation in connection with his complaint of 4 February 2003.
B. Relevant domestic law and practice
The Code of Criminal Procedure of 1960, as in force at the relevant time
By Article 122, an inquiring authority may apprehend a person suspected of having committed a criminal offence punishable by imprisonment on one of the following grounds:
(i) if the person is caught in the act of or immediately after committing the offence;
(ii) if eye witnesses, including victims, directly indicate the person as the one who has committed the offence;
(iii) if clear traces of the offence are found on the person’s body or clothes, or with him or in his dwelling.
An inquiring authority must draw up a report on any apprehension of a person suspected of having committed a criminal offence, indicating grounds, motives, day and hour, year and month of the apprehension, explanations of the apprehended person and the time of the drawing up the report, and within 24 hours make a written notification of a prosecutor. Within 48 hours after being notified of the apprehension a prosecutor shall either order the apprehended person’s remand in custody or release that person.
Article 168 provides that a search shall be conducted on the basis of an investigator’s reasoned decision and subject to the authorisation of a prosecutor. A search may be conducted without a prosecutor’s authorisation for a reason that admits of no delay, but a prosecutor shall be notified of the conducted search within 24 hours.
By Articles 218 and 220, complaints about actions of the investigator are submitted to the investigator, who should forward them to the relevant prosecutor within 24 hours, and complaints against a prosecutor are submitted to a higher-ranking prosecutor. On 23 March 1999 the Constitutional Court of Russia found these articles, to the extent that they prevented judicial review, unconstitutional. Since that date, decisions of an investigator or a prosecutor concerning the conduct of seizures and searches, other investigation actions, extension of preliminary investigation, etc, can be appealed to a court. The decision also allowed complaints to be brought to a court directly, bypassing the supervising prosecutor.
Article 2201 states that a detainee or his (her) counsel or representative can challenge the arrest order, and any subsequent extension order, in court. On 29 September 1994 the Plenary Session of the Supreme Court of Russia ruled that a person apprehended under Article 122 of the CrPC, was also entitled to challenge in court the lawfulness and reasonableness of his (her) apprehension.
Law on Complaints to Courts against Actions and Decisions Violating the Rights and Freedoms of Citizens (as revised by the Federal Law of 14 December 1995)
This law provides that any citizen has the right to file a complaint with a court when he or she considers that his or her rights have been infringed by unlawful actions or decisions of State agencies, bodies of local self-government as well as institutions, enterprises or their associations, non-governmental organisations or officials and State employees.
Complaints may be filed either directly with a court or a higher State agency which has the obligation to review the complaint within a month. If the complaint is rejected by the latter or there has been no response on its part, the person has the right to bring the matter before a court.
COMPLAINTS
1. The applicants complain under Article 3 of the Convention about inadequate conditions of their detention in the Vladivostok remand centre IZ – 20/1.
2. The applicants rely on Article 5 § 1 (c) of the Convention, stating that the grounds for their arrest were not specified in the reports of 14 January 2000, and therefore it was unlawful. They further submit that they spent 14 months in pre-trial detention, although there were no sufficient grounds to believe that they may commit any offences or abscond, given that they had family commitments, positive references from service and permanent place of residence, and that their applications for release remained unanswered.
3. The applicants complain under Article 6 § 1 of the Convention about various procedural irregularities in the course of the criminal proceedings against them. Firstly, the applicants claim that the length of the criminal proceedings was excessive, and in particular refer to a delay between the termination of the pre-trial investigation and the commencement of the trial. The applicants further claim that they were denied a public hearing, as the presiding judge prohibited an audio recording in the courtroom, and on 20 February 2001 ordered that the public be excluded. In this respect the applicants also complain that the judgment of 2 March 2001 was not pronounced publicly. The applicants next maintain that the trial court was biased and influenced by the FSB, and that it interpreted the adduced evidence against the applicants, and refused their requests to adduce evidence favourable to them. Under this head the applicants also contend that the first instance court could not be considered as a “tribunal established by law”, since, firstly, the presiding judge was appointed to his office by the President and not elected by way of general elections, and secondly, two lay assessors held their positions in breach of national law.
4. The applicants complain under Article 8 of the Convention that numerous searches of their housing during the preliminary investigation were not duly authorised. They further claim that although the seizure of messages from their pagers was only authorised by court on 11 January 2000, the FSB already had a transcript of those messages on 6 December 1999. The first applicant also complains that he found a tapping device in his flat, and alleges that it was installed by the FSB between 14 January 2000 and 25 January 2000, since during this period nobody lived in the flat and its keys had been seized by the investigators.
5. The applicants rely on Article 11 of the Convention, stating that their criminal prosecution was a reprisal for their activities as leaders of a police trade union. In this respect the applicants also invoke Article 18 of the Convention, as, in their view, restrictions on their rights were imposed for other purpose than those prescribed under the Convention.
6. Finally, the applicants state that numerous procedural defects during the preliminary investigation, and in particular illegal searches, faking evidence by the investigative authorities as well as absence of valid reasons for the applicants’ detention, constitute a breach of Articles 1 and 17 of the Convention.
THE LAW
1. The applicants claim that the conditions of their pre-trial detention were incompatible with the requirements of Article 3 of the Convention. This provision reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
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 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
2. The applicants complain under Article 5 § 1 (c) of the Convention that their initial apprehension was unlawful the respective reports indicated no specific reasons for it, and that there were no reasonable grounds for their arrest. The relevant parts of Article 5 read 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 must first examine whether the applicants have complied with the rule of exhaustion of domestic remedies, as required by Article 35 § 1 of the Convention.
The Court notes that no evidence has been submitted that the applicants properly appealed in court against their apprehension on 14 January 2000 and ensuing arrest on 17 January 2000 during the criminal proceedings against them. It further observes that the applicants first raised the issue of the alleged unlawfulness of the apprehension on 14 January 2000 in their applications for supervisory review after their conviction had been upheld on appeal. The Court recalls in this respect that these applications constitute extraordinary remedies, the use of which depends on the discretionary powers of respective public officials, and do not, therefore, constitute effective remedies to be exhausted, within the meaning of Article 35 § 1 of the Convention (see Tumilovich v. Russia (dec.), no. 47033/99, 22 June 1999).
It follows that this part of the application must be rejected for non-exhaustion of domestic remedies pursuant to Article 35 §§ 1 and 4 of the Convention.
3. Without referring to any Articles of the Convention, the applicants raise complaints relating in substance to the length of their pre-trial detention and lack of judicial review in this respect. These complaints fall to be examined under Article 5 §§ 3 and 4 of the Convention, which provide as follows:
“3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be... entitled to trial within a reasonable time or to release pending trial...
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 in not lawful.”
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 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
4. The applicants rely on Article 6 § 1 of the Convention, claiming that the criminal proceedings in their case were unreasonably lengthy, that they were denied the right to a public hearing and a public pronouncement of the judgment by which they were convicted, that the first instance court incorrectly assessed the evidence and refused to adduce the evidence of their choosing, and that its composition was unlawful on the ground that the residing judge obtained her office by virtue of the President’s appointment rather than by way of general elections, and also because two lay assessors had been sitting in their case in breach of national law. Article 6 § 1, in so far as relevant, reads as follows:
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
(a) As regards the length complaint, the Court recalls that the period to be taken into consideration in determining the length of criminal proceedings begins with the day on which a person is “charged” within the autonomous and substantive meaning of that term and ends with the day on which a charge is finally determined or the proceedings are discontinued (see, among many authorities, Kalashnikov v. Russia, no. 47095/99, § 124, ECHR 2002-VI). Furthermore, only the periods when the case was actually pending before the courts are to be taken into account, thus excluding the periods between the adoption of final and binding judgments and their annulment in the course of extraordinary proceedings (see Markin v. Russia (dec.), no. 59502/00, 16 September 2004). Accordingly, in the present case only the periods between 14 January 2000, when the applicants were apprehended, and 24 April 2001, when their conviction was upheld on appeal, as well as from 8 April 2005, when the Presidium of the Primorskiy Regional Court re-opened the case by way of supervisory review, until the present fall to be examined by the Court.
The Court further 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 criteria established by its case-law, particularly the complexity of the case, the conduct of the applicant and of the relevant authorities and what was at stake for the applicant (see, among many other authorities, Panchenko v. Russia, no. 45100/98, § 129, 8 February 2005). In addition, only delays attributable to the State may justify a finding of a failure to comply with the “reasonable time” requirement (see Pedersen and Baadsgaard v. Denmark, no. 49017/99, § 44, 19 June 2003).
In the present case the proceedings against the applicants initially lasted 1 year 3 months and 10 days, during which the applicants’ case was examined in two instances. While it is true that after the re-opening on 8 April 2005, the charge against the applicants has not been determined so far and the proceedings are still pending, it follows from the applicants’ letter of 15 November 2005 that between May and October 2005 at least four hearings were held in their case.
In such circumstances Court finds that there were no substantial delays attributable to the domestic authorities as regards the period from 14 January 2000 until 24 April 2001 and there is no evidence that the authorities have protracted the proceedings as regards the period from 8 April 2005 until the present.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
(b) In so far as the remainder of the applicants’ complaints under Article 6 are concerned, the Court notes the applicants’ final conviction was quashed by reference to the unlawful composition of the trial court and the case was sent to the first instance for a fresh examination. The question arises whether, in accordance with Article 34 of the Convention, the applicants can still be regarded as “victims” of the alleged violation of Article 6.
The Court recalls that, where criminal proceedings are re-opened after a conviction had become final, a decision quashing the conviction is, in itself, not sufficient to deprive an individual of his status as a “victim” unless the national authorities have acknowledged, either expressly or in substance, and afforded redress for, the breach of the Convention (see, among many other authorities, Dalban v. Romania, judgment of 28 September 1999, Reports of Judgments and Decisions 1999-VI, § 44).
In the present case, on 8 April 2005 the Presidium of the Primorskiy Regional Court quashed the applicants’ conviction on the ground that during the trial the two lay assessors of the Frunzenskiy District Court of Vladivostok had held their positions in breach of national law. The Court is of the opinion that the fact that the applicants had been tried by a tribunal not established in accordance with law could have adversely affected the fairness of the proceedings as a whole. It can therefore be assumed that by annulling the applicants’ conviction for the aforementioned reason, the Presidium of the Primorskiy Regional Court acknowledged, in substance, that the applicants’ right to a fair trial had been breached.
The Court next has regard to the fact that the applicant’s conviction in 2001 had not involved any deprivation of their liberty, and that on 8 April 2005 the Presidium of the Primorskiy Regional Court not only set aside the applicants’ conviction, but further remitted the their case to the first instance for a new examination, i.e. afforded the applicants the opportunity to have the charges against them determined afresh. The new examination is currently underway. In such circumstances the Court finds that the Regional Court’s decision of 8 April 2005, taken together with the subsequent proceedings, can be regarded as sufficient redress for the alleged procedural unfairness of the original set of proceedings. The applicants have thus ceased to be victims of the alleged violation of their rights under Article 6 of the Convention.
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 applicants complain under Article 8 of the Convention about unlawful searches and seizure of the transcript of messages from their pages during the preliminary investigation. The first applicant also alleges that the FSB installed a tapping device in his flat when he was kept in pre-trial detention. Article 8 provides as follows:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
It must first be examined whether the applicants have complied with the rule of exhaustion of domestic remedies as required under Article 35 § 1 of the Convention.
The Court notes that the applicants only raised the aforementioned issues either in their applications for supervisory review of their case or in their appeals to prosecutors. The Court reiterates that such applications and appeals constitute extraordinary remedies, the use of which depends on the discretionary powers of respective public officials, and do not, therefore, constitute effective remedies to be exhausted, within the meaning of Article 35 § 1 of the Convention (see Tumilovich, cited above, and, mutatis mutandis, Trubnikov v. Russia (dec.), no. 49790/99, 14 October 2003, or Dougoz v. Greece, judgment of 6 March 2001, Reports of Judgments and Decisions 2000-II, § 62). The Court further notes that it was open to the applicants to challenge before domestic courts the lawfulness of the searches in the criminal proceedings against them as well as to appeal against the alleged failure of the prosecutors to respond to their complaint or the alleged misconduct of the FSB, in accordance with the federal law of 14 December 1995, but the applicants did not avail themselves of either of these remedies.
It follows that this part of the application must be rejected for non-exhaustion of domestic remedies pursuant to Article 35 §§ 1 and 4 of the Convention.
6. Lastly, the Court has examined the remainder of the applicants’ complaints as submitted by them. However, having regard to all materials in its possession, the Court finds that these complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicants’ complaints concerning the conditions and length of their pre-trial detention and the lack of judicial review of its lawfulness;
Declares the remainder of the application inadmissible.
Santiago QuesadaChristos Rozakis
Deputy RegistrarPresident
Full & Egal Universal Law Academy