FIRST SECTION

CASE OF KARASEV v. RUSSIA

(Application no. 35677/05)

JUDGMENT

STRASBOURG

21 October 2010

This judgment is final but it may be subject to editorial revision.

In the case of ,
The European Court of Human Rights (First Section), sitting as a Committee composed of:
	Nina Vajić, President,
	Anatoly Kovler,
	Khanlar Hajiyev, judges,
and André WampachDeputy Section Registrar,
Having deliberated in private on 30 September 2010,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 35677/05) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Vladimir Vasilyevich Karasev (“the applicant”), on 18 August 2005.
2.  The applicant was represented by Mr A.A. Zabusov, a lawyer practising in Pervomaiskiy of the Tambov Region. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.
3.  On 23 September 2009 the President of the First Section decided to give notice of the application to the Government. In accordance with Protocol No. 14, the application was allocated to a Committee. It was also decided that the Committee would rule on the admissibility and merits of the application at the same time (Article 29 § 1 of the Convention).
THE FACTS
I.  THE CIRCUMSTANCES OF THE CASE
4.  The applicant was born in 1958 and lives in Ryazan.
5.  On 29 March 2000 the applicant and two other individuals were detained on suspicion of having committed an assault and infliction of grave bodily harm resulting in death. The applicant’s challenge of the custodial measure of restraint was rejected on 11 August 2000.
6.  On 8 September 2000 the preliminary investigation was completed. The applicant did not study the case materials as his legal counsel were unable to assist him at the time due to illness and involvement in different proceedings.
7.  On 29 September 2000 the applicant signed the undertaking not to leave the town and was released. He and his counsel did not appear at the investigator’s summons to study the case materials.
8.  From 12 October to 13 November 2000 the applicant stayed in hospital. Following his and his counsel’s repeated failure to familiarise themselves with the case materials, the investigator set the deadline at 25 April 2001.
9.  On 3 May 2001 after finalising the bill of indictment the prosecutor decided again to place the applicant in detention, which was subsequently extended by the court on several occasions and upheld by decisions of 27 February 2003, 4 December 2003, 24 February 2004, 10 June 2004 and 12 August 2004 of the Ryazan Regional Court (“the Regional Court”).
10.  The Ryazhskiy District Court of the Ryazan Region received the applicant’s case for examination on 8 May 2001. By decision of 22 May 2001 the court adjourned the proceedings due to the applicant’s illness.
11.  The next hearing scheduled for 2 July 2001 did not take place due to the counsels’ failure to appear.
12.  At the hearing of 17 July 2001 the applicant requested that he be given one month to study the case-file but could not do so as both of his counsel were on vacation. On 28 September 2001 the court limited the time granted to the applicant to study the case-file by 1 November 2001.
13.  The next hearing scheduled for 20 November 2001 did not take place due to the judge’s illness.
14.  On 8 January 2002 president of the Ryazhskiy District Court requested that president of the Regional Court assign the applicant’s case to a different trial court due to the fact that the judge who was considering it was ill and the other judges had already taken part in the proceedings in some form and could not examine the case. On 22 January 2002 the applicant’s case was transferred to the Ukholovskiy District Court of the Ryazan Region (“the District Court”).
15.  At the next hearing scheduled for 27 February 2002 the court granted the defence’s request for an outpatient psychiatric examination and a graphologic examination.
16.  On 20 June 2002 the court commissioned an inpatient psychiatric examination which was held on 2 December 2002. The applicant did not object to the composition of the trial court and did not challenge the judges.
17.  Between 14 January 2003 and 14 September 2004 twenty two scheduled hearings did not take place due to the counsels’ failure to appear; on twenty occasions it was the default of the applicant’s counsel. Following the applicant’s refusal to continue examination of the case in his counsel’s absence, on several occasions president of the District Court requested replacement of the counsels at the Tambov and Ryazan regional bars as well as the Ryazan Region Lawyers’ Council. It is not clear whether or when this measure became successful.
18.  On 21 September 2004, in presence of the applicant’s legal counsel, the District Court convicted the applicant as charged and sentenced him to 13 years’ imprisonment. It also granted the civil suit again him.
19.  In his grounds of appeal the applicant challenged the bench which had delivered the conviction alleging defects in the appointment of the lay judges.
20.  On 24 February 2005 the Regional Court upheld the judgment on appeal. It also found that the trial court had been composed in accordance with the law and that the applicant had failed to challenge the bench during the trial.
II.  RELEVANT DOMESTIC LAW AND PRACTICE
21.  Article 50.3 of the Russian Code of Criminal Procedure of 2001 provides that in the event of a counsel’s failure to appear during 5 days after a motion for legal assistance, the court may invite the accused to retain a different counsel or assign a legal-aid lawyer.
THE LAW
I.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
22.  The applicant complained that the length of the criminal proceedings against him had been incompatible with the “reasonable time” requirement as provided in Article 6 § 1 of the Convention, the relevant part of which reads as follows:
“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”
A.  Admissibility
23.  The Government argued that this complaint was manifestly ill‑founded and should be rejected in accordance with Article 35 § 3 of the Convention.
24.  The Court notes that this complaint does not appear to be manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B.  Merits
25.  The Government stated that the length of the criminal proceedings had been justified to some extent by the objective need to conduct several expert examinations. They also contended that the most serious delays had occurred through the fault of the applicant’s legal counsel and not the authorities.
26.  The applicant retorted that the trial court had delayed the proceedings by first commissioning an outpatient psychiatric examination and only then ordering an inpatient one. He also referred to Article 50.3 of the Code of Criminal Procedure arguing that the court should have appointed a legal aid lawyer on account of his privately retained counsels’ failure to appear.
27.  The Court observes that the criminal proceedings against the applicant had commenced on 29 March 2000 and ended on 24 February 2005, in which period the case was considered at two levels of jurisdiction. The aggregate length of the proceedings amounts accordingly to four years and eleven months.
28.  The Court 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 following criteria: the complexity of the case, the applicant’s conduct and the conduct of the competent authorities (see, among many other authorities,  [GC], no. 25444/94, § 67, ECHR 1999-II).
29.  The Court considers that the case had been relatively simple having involved one incident and only two hearings on the merits.
30.  Regarding the applicant’s conduct, the Court observes that the applicant’s illnesses as well as his lengthy unexplained failure to familiarise himself with the case materials delayed the proceedings approximately for one year.
31.  As to the authorities’ behaviour, the Court is mindful that some of the delay had been the result of the judges’ illnesses and protracted expert examinations. However, it is particularly struck by the fact that during one year and eight months of the privately-retained counsel’s default in appearance, the trial court had failed to take advantage of the powers bestowed on it by law and invite the applicant to retain a different counsel or to assign a legal-aid lawyer in accordance with the domestic legal provisions (see paragraph 21 above). The applicant’s possible lack of activity in the circumstances of detention did not ‘absolve the court from ensuring compliance with the requirements of Article 6 concerning reasonable time’ (see, mutatis mutandis, Unión Alimentaria Sanders S.A. v. Spain, 7 July 1989, § 35, Series A no. 157). The Court concludes that the overall delay attributable to the authorities amounts approximately to two years and nine months. Regard being had to the fact that the applicant remained detained for all but eight months of the proceedings, it finds such inactivity unacceptable and leading to a breach of the “reasonable time” requirement of Article 6.
32.  The foregoing considerations are sufficient to enable the Court to conclude that there has been a violation of Article 6 § 1 of the Convention.
II.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION
33.  The applicant also complained under Article 5 of the Convention that his pre-trial detention had been unlawful and too long and under Article 6 § 1 of the Convention that the trial court that had convicted him had not been composed in accordance with law.
34.  Regarding the complaint under Article 5, the Court observes that it was lodged out of time as the applicant’s pre-trial detention ended on 21 September 2004 when the trial court determined the charges against him (see Daktaras v. Lithuania (dec.), no. 42095/98, 11 January 2000). It should therefore be rejected in accordance with Article 35 § 1 of the Convention.
35.  As to the complaint under Article 6 § 1 of unlawful composition of the trial court, nothing in the case file indicates that the applicant’s allegations have any merit to it. The complaint should be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
36.  Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
A.  Damage
37.  The applicant claimed 1,000,000 Russian roubles (app. 25,000 euros (EUR)) in respect of non-pecuniary damage.
38.  The Government disputed the claim as excessive and unfounded and argued that in the case of finding of a violation, it in itself would constitute adequate just satisfaction.
39.  Taking into account the applicant’s partial contribution to the delay (see paras. 7 and 8 above) and deciding on an equitable basis, the Court awards the applicant EUR 1,700 in respect of non-pecuniary damage.
B.  Default interest
40.  The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1.  Declares the complaint concerning excessive length of the proceedings admissible and the remainder of the application inadmissible;

2.  Holds that there has been a violation of Article 6 § 1 of the Convention;

3.  Holds
(a) that the respondent State is to pay the applicant, within three months, EUR 1,700 (one thousand seven hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into Russian roubles at the rate applicable at the date of settlement;
(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4.  Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 21 October 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	André Wampach	Nina Vajić
	Deputy 	President