YAKURIN v. RUSSIA

FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 65735/01
by Konstantin Andreyevich YAKURIN
against Russia

The European Court of Human Rights (First Section), sitting on 11 December 2008 as a Chamber composed of:

Christos Rozakis, President,
Anatoly Kovler,
Elisabeth Steiner,
Dean Spielmann,
Sverre Erik Jebens,
Giorgio Malinverni,
George Nicolaou, judges,
and Søren Nielsen, Section Registrar,

Having regard to the above application lodged on 18 October 2000,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Konstantin Andreyevich Yakurin, is a Russian national who was born in 1976 and lived in Novgorod before his conviction. He was represented before the Court by Mr V. Lapinskiy and Mr V. Drozdov, lawyers practising in St Petersburg. The Russian Government (“the Government”) were represented by Mr P. Laptev and Ms V. Milinchuk, former Representatives of the Russian Federation at the European Court of Human Rights.

The facts of the case, as submitted by the parties, may be summarised as follows.

A. Original proceedings

The applicant served in military unit no. 3729 of Moscow-based troops of the Ministry of Interior. On 27 November 1998 he was performing his duties in one of the army patrols securing public safety in the city.

On 1 December 1998 he was arrested and detained on suspicion of having committed murder. On 4 December 1998 he was charged with murder and theft and was placed in detention on remand. It was alleged that, while patrolling the city on 27 November 1998 with Mr F., another more senior serviceman, the applicant had stopped Mr S., a citizen of Yugoslavia, to check his identity, searched him and found him to be carrying 4,100 United States dollars (USD). On the pretext that Mr S. was not registered in Moscow and was drunk they asked him to follow them to a police station. The applicant then allegedly ordered Mr S. to give USD 200 to Mr F., promising to release him in return. Mr S. handed over the money. It was alleged that the applicant and Mr F. then agreed to take the rest of the money, and accordingly made Mr S. drunk and stole the money. In order to hide their crimes they then allegedly suffocated Mr S. and took his passport.

The investigation in the case finished on 18 August 1999. The applicant requested that he be tried by a jury but was informed that a jury trial did not exist in military courts at that time.

The trial commenced on 20 October 1999. The hearings were held on the premises of the applicant's military unit. The bench consisted of a presiding judge, who was a lieutenant colonel of justice, and two people's assessors who were privates in the military unit. The prosecution was represented by a Deputy Military Prosecutor of Moscow, who was a lieutenant colonel of justice. The applicant's co-accused, Mr F., and most of the witnesses in the case were either serving or former staff of the unit. The unit itself participated in the case as a civil defendant because, according to the law, it was liable for damage caused by its staff. The applicant and his lawyer, Mr Suvorov, participated in the trial.

At the beginning of the trial the applicant objected to holding the trial on the territory of the unit, which was an interested party in the case. He also requested a jury trial or, if military courts did not provide for such an opportunity, for the transfer of his case to the Moscow City Court, a court of general jurisdiction, where a jury existed. The court dismissed his requests.

On 15 November 1999 the Moscow Circuit Military Court convicted the applicant under Article 105 § 2 (g) and (j) of the Criminal Code of concerted murder by a group of people for the purpose of hiding another crime, under Article 158 § 3 (b) of the theft of a large sum of money, under Article 343 § 2 of a violation of military regulations, under Articles 33 § 5 and 290 § 1 of aiding and abetting the bribery of a public official and under Article 325 § 2 of the theft of a passport. It sentenced him to seventeen years' imprisonment to be calculated from 1 December 1998. It granted the civil claim by the victim's brother and ordered the applicant's military unit to pay him damages.

The applicant appealed against the judgment. He argued, in particular, that the trial court's assessment of evidence and its findings were wrong, that he should have been given a jury trial, that the people's assessors had been subordinate to the judge and the other participants of the trial and should have been dismissed, that holding the trial on the closed territory of the military unit, which was a civil party to the case, had violated the principles of publicity and equality of arms, and that the trial records had been inaccurate.

On 16 May 2000 the applicant's counsel, Mr Suvorov, lodged an additional appeal in which he disputed the trial court's assessment of the evidence and criticised its failure to take into account the applicant's subordination to F. He requested that he be informed of the date of the examination of the case on appeal.

According to the Government, a letter dated 30 June 2000 was sent to the applicant's counsel to inform him of the date of the appeal hearing.

According to the applicant, that letter was dispatched only on 1 August 2000 and received by Mr Suvorov on 13 August, as indicated by the postmarks on the envelope. The letter, which was addressed to Mr Suvorov, the applicant, his co-accused, the prosecutor and other participants in the proceedings, stated as follows:

“Your participation in the examination of the appeals is not compulsory, [and] travel and other expenses will not be reimbursed.”

On 12 July 2000 the Military Section of the Supreme Court of the Russian Federation held an appeal hearing. At the beginning of the hearing the court informed the applicant that his counsel, Mr Suvorov, had not arrived and, since the applicant had not informed the court about his wish to be represented by his lawyer at the appeal hearing, the court would proceed with examination of the case without his counsel. The applicant did not object.

The appeal court heard oral submissions by the applicant, Mr F. and his counsel, and the prosecutor. It found the applicant's and his counsel's points of appeal unsound. In particular, it stated that there had been no outside pressure on the judge and the people's assessors, who had acted on the basis of the law, that the trial court had been free to choose the place of the trial hearing and that the hearing on the territory of the military unit had complied with the principle of publicity.

The Supreme Court overturned the conviction of aiding and abetting bribery of a public official under Articles 33 § 5 and 290 § 1 for lack of corpus delicti, reduced the sentence by one year and upheld the judgment in the remaining part.

B. Application to the Court

According to the applicant, in September-October 2000 the administration of his detention facility IZ 48/1, located in Moscow, refused to send his application to the Court, explaining that they did not send mail abroad. His first letter to the Court was sent on his behalf by Ms Yakovleva, a resident of St Petersburg, on 18 October 2000. In the letter she stated that the applicant had been unable to send his application to the Court from prison because the prison administration had refused to send any mail abroad.

C. Retrial proceedings

On 16 February 2005 the Presidium of the Supreme Court granted an application by Mr Lapinskiy, the applicant's counsel, to have the conviction set aside on the ground that, as a result of legislative changes, there had been no legal basis for the election of the people's assessors who had formed part of the trial court. It quashed the judgment of 15 November 1999 and the Supreme Court's decision of 12 July 2000 and remitted the case to a first‑instance court for a fresh examination.

The Moscow Circuit Military Court held a jury trial. It convicted the applicant in a judgment of 19 October 2005 under Article 105 § 2 (j) of the Criminal Code and sentenced him to 14 years' imprisonment. On 27 December 2005 the Supreme Court examined the applicant's appeal against that judgment. It found that the judgment did not describe the crime as it had been established by the jury, and that in his summing up the presiding judge had indicated his opinion on questions put to the jury. In view of those procedural violations the appeal court quashed the judgment and remitted the case for a fresh examination to the same court in a different composition of judges. In a separate ruling the Supreme Court drew the attention of the President of the Moscow Circuit Military Court to the presiding judge's violations of the criminal procedure in the examination of the applicant's case.

The Moscow Circuit Military Court held a new jury trial. At a public hearing the applicant and his counsel were present and argued their case. In a verdict of 5 May 2006 the jury found the applicant guilty. In a judgment of 11 May 2006 the applicant was convicted under Article 105 § 2 (g) and (j) of the Criminal Code and sentenced to 11 years' imprisonment, to be calculated from 1 December 1998.

On 21 September 2006 the Supreme Court examined the case on appeal. It heard oral submissions by the applicant and his counsel in support of their points of appeal. It dismissed the appeal as unfounded and upheld the judgment.

COMPLAINTS

A. Application lodged on 18 October 2000

1. The applicant complained under Article 2 of the Convention that his case should have been tried by a jury in accordance with the Constitution of the Russian Federation, which stated that where a charge entailed the death penalty as a possible punishment the accused should be given the right to have his case tried by a jury.

2. The applicant complained under Article 6 of the Convention that the Moscow Circuit Military Court, composed of the presiding judge and two people's assessors, had not been an “independent and impartial tribunal” in view of the judges' status as servicemen and the people's assessors' subordination to the judge, the prosecutor and the representative of their military unit, which was a civil defendant in the case. He further complained that he had not received a public hearing as the trial had been held on the territory of the military unit with restricted access for the public. The entry‑point had been under the control of the command of the unit, which was an interested party in the case and could bring pressure to bear on the people's assessors and the witnesses, who were either serving or former members of the unit's staff. The applicant also complained that he had not been represented by counsel at the appeal hearing.

3. The applicant further complained under Article 6 that the domestic courts had disregarded his submissions concerning the alleged procedural irregularities (such as the appeal court's failure to resolve a disagreement between him and the trial court about the accuracy of the court records). He further alleged that the courts had failed properly to assess the evidence and apply the law; that the charges against him and his subsequent conviction had been ill-founded and that the sentence should have been less severe; that the court had failed properly to prepare the case for trial and had made errors in the court records; that the appeal court had failed to address all points of his appeal; that the judgment had been based on inadmissible evidence; and that the trial court had allegedly refused to send him a copy of certain documents from his case file.

4. The applicant complained under Article 34 of the Convention that in September-October 2000 the administration of remand centre IZ 48/1 had refused to send his application to the Court.

B. New complaint

In his letters of 30 March and 24 May 2004 the applicant complained under Article 6 § 1 of the Convention that there had been no legal basis for the election of the people's assessors who had formed part of his trial court.

THE LAW

A. Complaints under Article 6 of the Convention concerning the trial court's independence and impartiality, publicity of the trial hearing and the lack of legal representation on appeal

The applicant complained that the trial court in its original composition comprising the presiding judge and two people's assessors, had not been independent and impartial, in view of the judges' status as servicemen and the fact of subordination between them, the prosecutor and the representative of the military unit, which was itself a civil defendant in the case. He further complained that the trial hearing, which had taken place on the territory of the military unit, was not public. He also complained that he had not been represented by counsel at the appeal hearing. He relied on Article 6 of the Convention, the relevant part of which provides:

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal established by law. 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, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

...

3. Everyone charged with a criminal offence has the following minimum rights:

...

(c) to 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;

...”

1. The parties' submissions

(a) The Government

The Government submitted that the Moscow Circuit Military Court, composed of the presiding judge and the two people's assessors, had been lawful, independent and impartial. The judges had been free from any pressure or any personal bias in respect of the case. There had been no circumstances which would have required the dismissal of the people's assessors. In the absence of any evidence of bias on the part of the judges, the applicant's challenge to the court had been lawfully dismissed.

The Government further submitted that, in view of its importance, the applicant's case had been examined at a public hearing. Following established practice aiming at eradicating and preventing crime, military courts had organised the examination of certain publicly important cases in the presence of personnel from the military unit concerned. The courts had been free to decide where to hold hearings. The Moscow Circuit Military Court had held a public hearing on the territory of the military unit, in compliance with Article 18 of the Code of Criminal Procedure. There had been free access to the court hearing room. No pressure had been brought to bear by the command of the unit on the trial participants.

The Government argued that Mr Suvorov, the applicant's counsel, had been informed of the date of the appeal hearing in a letter of 30 June 2000. However, he had failed to appear at the hearing. The applicant's co‑defendant, Mr F., had been given a lawyer, as requested by him. No such request had been made by the applicant. Nor had the applicant submitted that his case should not be examined in the absence of Mr Suvorov, whose failure to appear had not, under Article 336 of the Code of Criminal Procedure, prevented the examination of the case.

The Government submitted that after the retrial the applicant could no longer claim to be a victim within the meaning of Article 34 of the Convention in respect of the complaints in question, in view of the quashing of his conviction and the retrial. In its decision of 16 February 2006 the Presidium of the Supreme Court had found that the applicant had been convicted by an unlawful composition of the trial court and had thereby acknowledged and remedied a violation of the applicant's rights under the Convention. The Government noted that it was open to the applicant to bring civil proceedings for compensation of any non-pecuniary damage sustained.

(b) The applicant

The applicant submitted that the Government had not provided any information as to when and whether the letter of 30 June 2000, produced by them, had been received by the addressee. The applicant stated that the letter had been dispatched only on 1 August 2000, after the appeal hearing, and received by Mr Suvorov's law office on 13 August 2000, as shown by the postmarks on the envelope.

Under Resolution no. 5 of the Plenum of the Supreme Court of the Russian Federation, a court which examined an appeal against a judgment had to ascertain whether the appellants had received notification of the date of an appeal hearing. If they had not, the hearing was to be postponed. Thus, by a decision of 24 November 1995 published in the Supreme Court's Bulletin no. 6 of 1996, the Presidium of the Supreme Court of the Republic of Udmurtiya had quashed an appeal court's decision on account of failure to inform an appellant.

Under an instruction from the Ministry of Justice of 16 June 1994 on clerical work in district (town) courts, notification of a court hearing was to be sent in the form of a summons (повестка). This had two parts, one of which was to be signed by the addressee and returned to the court to serve as confirmation of the summons' receipt. No such summons had been sent to the applicant's counsel.

Furthermore, Article 336 of the Criminal Procedural Code was to be read together with sub-paragraphs 1, 5 and 6 of Article 49 § 1 of the Code, under which the participation of the applicant's counsel in the court examination had been obligatory, in that the prosecution had participated in the examination of the case, the applicant had been accused of a crime for which the death penalty could have been imposed, and because there had been conflicting interests between the applicant and his co-defendant, who had been represented by counsel. The applicant could not be blamed for the failure to request counsel. The State had been required to provide him with counsel if it was to comply with the Code of Criminal Procedure and Article 48 of the Constitution.

Lastly, the applicant disagreed with the Government's argument concerning his victim status to the effect that, as a result of the retrial, he had been convicted under one instead of the original five provisions of the criminal law and had been sentenced to eleven instead of fifteen years' imprisonment. He argued that he had served six years in prison based on the unlawful judgment. Furthermore, the issue of his counsel's absence from the appeal court hearing in the original proceedings had not been resolved in the course of his retrial.

2. The Court's assessment

The Court notes that the parties disagree as to whether the applicant can still claim to be a victim of the alleged violations in view of the quashing of his original conviction and the retrial. However, it finds it unnecessary to resolve this issue because this part of the application should in any event be struck out of the list of cases for reasons set out below.

The Court must ascertain whether, in view of the retrial, it is possible to come to one of the conclusions envisaged in Article 37 § 1 of the Convention and consequently strike the application in this part out of its list of cases (see Pisano v. Italy [GC] (striking out), no. 36732/97, § 40, 24 October 2002). Article 37 § 1 provides:

“The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that

(a) the applicant does not intend to pursue his application; or

(b) the matter has been resolved; or

(c) for any other reason established by the Court, it is no longer justified to continue the examination of the application.

However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.”

Since the applicant wished to pursue his application, sub-paragraph (a) of this Article is not applicable.

The applicant's consent not being a prerequisite for the application of the other two sub-paragraphs, the Court will next consider the applicability of sub-paragraph (b), for which it must examine, firstly, whether the circumstances complained of directly by the applicant still obtain and, secondly, whether the effects of a possible violation of the Convention on account of those circumstances have also been redressed. This approach reflects the structure of the Convention's supervisory machinery, which provides both for a reasoned decision or judgment as to whether the facts in issue are compatible with the requirements of the Convention (Article 45), and, if they are not, for the award of just satisfaction (Article 41). Furthermore, it should be borne in mind that a judgment in which the Court finds a breach of the Convention or its Protocols imposes on the respondent State a legal obligation not just to pay those concerned the sums awarded by way of just satisfaction, but also to choose, subject to supervision by the Committee of Ministers, the general and/or, if appropriate, individual measures to be adopted in their domestic legal order to put an end to the violation found by the Court and to redress so far as possible the effects (see Pisano, cited above, §§ 42 and 43).

The Court observes that the applicant's original conviction by the Moscow Circuit Military Court's judgment of 15 November 1999, as upheld by the Supreme Court's decision of 12 July 2000, was quashed and no longer has any legal force. The alleged violations of Article 6 of the Convention have been remedied in the subsequent retrial proceedings, since the trial court sat in a different composition, with the participation of a jury, as desired by the applicant; it no longer comprised people's assessors, and a public hearing was held with the participation of the applicant and his counsel, in addition, the applicant was represented by counsel at the appeal hearing. Even supposing the Court were to consider the merits of the application and to find in the applicant's favour, the Committee of Ministers' supervision of the execution of the judgment could no longer pursue the aim of having the proceedings reopened in the applicant's case.

The Court also reiterates that under Article 41 of the Convention the purpose of awarding sums by way of just satisfaction is to provide reparation solely for damage suffered by those concerned to the extent that such events constitute a consequence of the violation that cannot otherwise be remedied (ibid, § 46).

It further notes the applicant's submission that he had served six years in prison under the unlawful judgment. However, the term he had served after his original conviction did not exceed the sentence imposed on him as a result of the retrial.

In view of the above considerations the Court considers that the matter has been resolved within the meaning of Article 37 § 1 (b) and that there is therefore no longer any objective justification for the applicant to pursue his application. The Court is satisfied that respect for human rights as defined in the Convention and its Protocols does not require it to continue the examination of this part of the application (Article 37 § 1 in fine).

Consequently, this part of the application should be struck out of the list.

B. Complaint under Article 34

The applicant complained that on unspecified dates in September‑October 2000 the administration of remand centre IZ 48/1 had allegedly refused to send his application to the Court. He relied on Article 34 of the Convention, which provides:

“The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.”

The Government submitted that, according to an investigation carried out by the Ministry of Justice, the administration of detention facility IZ-48/1 had not interfered with the applicant's right of application guaranteed by Article 34. The applicant had never complained to the domestic authorities about the administration's alleged refusal to send his application to the Court, although he had often sent complaints to various domestic authorities. Thus, according to the detention facility's records, in September-October 2000 he had sent eight such applications. A staff member of detention facility IZ-48/1 who had been responsible for detainees' outgoing correspondence in September and October 2000 had retired, which made it impossible to receive her explanations in respect of the applicant's allegations. The Government noted various measures which had been introduced since 2000 in order to ensure compliance with Article 34 by the personnel of detention facilities and penitentiary establishments.

The applicant submitted statements by his former cellmates. Mr K., who had been detained in detention facility IZ-48/1 from January to November 2000 and in the applicant's cell, no. 402, in September and October 2000, stated on 18 January 2004 that the administration of the detention facility had refused to send Mr Yakurin's application to the Court, explaining that they had sent no mail abroad. Mr D., who had been detained in detention facility IZ-48/1 from September 1999 to February 2002 and in cell no. 402 from October 1999 to July 2000, made similar submissions on 5 May 2004.

The Court reiterates that Article 34 of the Convention imposes an obligation on a Contracting State not to hinder the right of individual petition. While the obligation imposed is of a procedural nature, distinguishable from the substantive rights set out in the Convention and Protocols, it flows from the very essence of this procedural right that it is open to individuals to complain of its alleged infringements in Convention proceedings (see Manoussos v. the Czech Republic and Germany (dec.), no. 46468/99, 9 July 2002). The Court also recalls that the undertaking not to hinder the effective exercise of the right of individual application precludes any interference with the individual's right to present and pursue his complaint before the Court effectively (see, among other authorities and mutatis mutandis, Akdivar and Others v. Turkey, 16 September 1996, § 105, Reports 1996-IV; Kurt v. Turkey, 25 May 1998, § 159, Reports 1998-III; Tanrikulu v. Turkey [GC], no. 23763/94, ECHR 1999-IV; Sarli v. Turkey, no. 24490/94, §§ 85-86, 22 May 2001; and Orhan v. Turkey, no. 25656/94, 18 June 2002).

The Court has found a violation of Article 34 in cases against Russia raising complaints, similar to the complaint in question, about the hindrance of applicants' correspondence with the Court by the administrations of their detention facilities (see Nurmagomedov v. Russia, no. 30138/02, §§ 57-62, 7 June 2007; Klyakhin v. Russia, no. 46082/99, §§ 120-123, 30 November 2004; and Poleshchuk v. Russia, no. 60776/00, §§ 23-28, 7 October 2004).

In the present case it is in dispute between the parties whether the incident complained of took place. The Court notes that the applicant's first letter to the Court was sent on his behalf by Ms Yakovleva, a resident of St Petersburg, on 18 October 2000. In the letter she stated that the applicant had been unable to send his application to the Court from prison because the prison administration had allegedly refused to send any mail abroad. The Court also takes into account the statements by the applicant's two former cellmates. It notes, however, that one of them did not share the same cell with the applicant at the time of the alleged events, and that both of them gave their statements in 2004, more than three years thereafter. The case-file does not contain any other indications in support of the applicant's allegations. It follows from the case file that since the receipt of the first letter the Court has never encountered any delays or other difficulties in its written communication with the applicant via Ms Yakovleva and, from 17 January 2004, with Mr Lapinskiy, a lawyer practising in St Petersburg.

In view of the material in its possession the Court finds that there is an insufficient factual basis to enable it to conclude that the applicant suffered any prejudice in regard to the presentation of his application to the Court or that he was in any way frustrated in the exercise of his right of individual petition.

In view of the above facts and considerations, the Court finds that the alleged violation of Article 34 of the Convention has not been established.

C. The remaining complaints

The Court has examined the remainder of the applicant's complaints as submitted by him. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they 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

Decides by a majority to strike the application out of its list of cases in accordance with Article 37 § 1 (b) of the Convention in so far as it relates to the complaints concerning the independence and impartiality of the Moscow Circuit Military Court, the publicity of its hearing and the lack of legal representation on appeal in the original criminal proceedings against the applicant;

Finds unanimously that there has been no breach of the respondent State's obligations under Article 34 of the Convention;

Declares unanimously the remainder of the application inadmissible.

              Søren NielsenChristos Rozakis
RegistrarPresident

 

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