FIRST SECTION

CASE OF DAVYDOV v. RUSSIA

(Application no. 16621/05)

JUDGMENT

STRASBOURG

25 November 2010

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

In the case of Davydov v. Russia,
The European Court of Human Rights (First Section), sitting as a Committee composed of:
	Sverre Erik Jebens, President,
	Anatoly Kovler,
	George Nicolaou, judges,
and André Wampach, Deputy Section Registrar,
Having deliberated in private on 4 November 2010,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 16621/05) 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 Sergey Aleksandrovich Davydov (“the applicant”), on 12 April 2005.
2.  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 20 May 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.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
4.  The applicant was born in 1963 and lives in Vladimir.
5.  The applicant is a lawyer who used to provide legal services to a certain enterprise.
6.  On 11 January 1999 the applicant was detained on suspicion of having appropriated the enterprise’s funds. On the same day his case was joined to the case of his co-accused A. A week later a local newspaper published an article accusing the applicant of the crime that he was being charged with.
7.  In February and March 1999 the investigation authorities commissioned two expert examinations and apprised the applicant and his privately-retained counsel of their results.
8.  From 31 May to 13 October 1999 the applicant studied the case-file.
9.  On 15 November 1999 the case-file arrived at the Tsentralniy District Court of Chelyabinsk (“the District Court”) which scheduled the first hearing for 17 April 2000.
10.  On 10 April 2000 one of the applicant’s counsels informed the court by a letter that he would not defend the applicant in court due to the applicant’s failure to pay for his services. He also mentioned that he would not be available due to a vacation. The hearing of 17 April 2000 did not take place following the applicant’s counsel’s default in appearance. Nor did they appear at the next hearing scheduled for 4 July 2000.
11.  At the hearing of 12 September 2000 the applicant was represented by a new privately-retained counsel who requested that the case be remitted to the prosecutor for curing of the investigation defects. His request was granted on 19 September 2000. The District Court reasoned that the investigation authorities had failed to ensure that the applicant was provided with legal assistance while studying the case-file, ignored his requests for additional expert examinations and committed certain procedural irregularities.
12.  On 17 November 2000 the applicant was again invited to study the case-file. Following his refusal to do so, the investigator informed him that it was open to him to familiarize himself with the case materials from 27 December 2000 to 11 January 2001.
13.  On 2 February 2001 the case arrived to the court. The hearing was first scheduled for 7 May and then for 14 May 2001 due to the judge’s involvement in different proceedings.
14.  On 14 May 2001 the court again granted the defence’s request for remittal of the case to the prosecutor. However, this decision was set aside on appeal on 16 July 2001. The trial court was ordered to continue examination of the case.
15.  The next hearing scheduled for 1 October 2001 did not take place due to the failure to deliver the accused to the court.
16.  On 8 October 2001 the court allowed the applicant to study the case-file until 15 October 2001. From 15 October to 1 November 2001 the court held regular hearings examining the case.
17.  On 1 November 2001 the court released the applicant from detention on an undertaking not to leave the town and granted the defence’s request for remittal of the case to the prosecutor. The decision to remit the case was again overturned on appeal on 29 November 2001.
18.  The next hearing was scheduled for 20 May 2002. However, the court had to stay the proceedings until 1 October 2002 due to the applicant’s illness. From 1 October 2002 to 2 April 2003 the court held regular hearings.
19.  On 2 April 2003 the District Court acquitted the applicant of all charges. This judgment was overturned on appeal on 23 June 2003. The appeal court required a new hearing.
20.  On 11 August 2003 the applicant requested the court that the proceedings be adjourned until his convalescence.
21.  At the next hearing that took place on 15 October 2003 the court granted the applicant’s request for an accounting expert examination whose results arrived to the court on 17 May 2004. In May and June 2004 the court held regular hearings.
22.  On 25 June 2004 the applicant was convicted of aiding and abetting the manager of the enterprise in abuse of office and sentenced to two years and six months’ imprisonment. He was relieved from serving his sentence due to the expiry of the time-limit for prosecution for the committed crime. When accepting the change in the qualification of the offence suggested by the prosecutor, the court noted that it did not aggravate the situation of the accused, nor did it impair their right to defence.
23.  On 2 July and 20 October 2004 the applicant submitted his grounds of appeal and a supplement to them. On 22 September 2004 he also submitted his objections to the hearing minutes, which were later dismissed.
24.  On 7 February 2005 the Chelyabinsk Regional Court upheld the conviction on appeal.
THE LAW
I.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
25.  The applicant complained that the length of the criminal proceedings against him had been in breach of the “reasonable time” requirement as provided in Article 6 § 1 of the Convention. The relevant part of provision 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
26.  The Government submitted that this complaint should be rejected as manifestly ill-founded in accordance with Article 35 § 3 of the Convention. They did not elaborate on this argument.
27.  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
28.  The Government submitted that most of the delays had been caused by the applicant’s illness and lengthy studying of the case file, or his counsel’s default in appearance.
29.  The applicant maintained his complaints.
30.  The Court observes that the criminal proceedings against the applicant commenced on 11 January 1999 and ended on 7 February 2005. Accordingly, their aggregate length amounted approximately to six years and one month, during which period the authorities examined the applicant’s case twice at two levels of jurisdiction.
31.  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, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999-II).
32.  The Court considers that the applicant’s case was not characterised by particular complexity, having involved a charge of one count and two co-defendants.
33.  Regarding the applicant’s conduct, the Court accepts that the applicant took a significant period of time to study the criminal case-file and that the proceedings were adjourned twice due to his illness and twice due to his privately-retained counsel’s default in appearance. It is also mindful of the fact that the applicant filed three motions for remittal of the case to the prosecution, which further delayed the proceedings. However, it has been the Court’s constant approach that an applicant cannot be blamed for taking full advantage of the resources afforded by the national law in the defence of his interests (see, mutatis mutandis, Yağcı and Sargın v. Turkey, 8 June 1995, § 66, Series A no. 319-A). Accordingly, a cumulative delay of ten months can be attributed to the applicant.
34.  As to the conduct of the authorities, the Court observes the following deficiencies. On three occasions it took the trial court from three to six months to hold a first hearing; it also took seven months to examine the applicant’s appeal of the conviction. The Court notes that the remittal of the case to the prosecutor to remedy the investigation defects further delayed the proceedings by four months. Finally, it is cognisant of the fact that it took seven months to conduct an accounting expert examination commissioned by the trial court. The Court concludes that an approximate delay of two years and four months is attributable to the authorities.
35.  Regard being had to the relative simplicity of the case and the authorities’ responsibility for the majority of the delays, the Court considers that the length of the criminal proceedings against the applicant did not comply with the “reasonable time” requirement.
36.  There has accordingly been a violation of Article 6 § 1 of the Convention.
II.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION
37.  The applicant also complained under Articles 3 and 5 of the Convention about the conditions and of unlawfulness of his pre-trial detention; under Article 6 § 1 of the Convention that the trial court had forged the hearing minutes, erred in the assessment of the evidence and prejudiced his defence rights by changing the qualification of his offence and that the appeal court had not been independent upholding his conviction; under Article 6 § 2 of the Convention that the newspaper article had accused him of the crime before delivery of the judgment by the trial court; under Article 6 § 3 (b) of the Convention that he had not had adequate time and facilities to prepare his defence; under Article 6 § 3 (d) of the Convention that he had not been informed in advance of the first expert examination and that the court had rejected his motion to summon the expert and to conduct another examination; and under Article 13 of lack of effective remedies for the violations alleged above.
38.  The Court considers that the complaints under Article 3 and 5 were lodged out of time and should be rejected in accordance with Article 35 § 1 of the Convention.
39.  The complaint under Article 6 § 1 of wrong assessment of evidence is of a fourth-instance nature. As to the allegation that the trial court forged the hearing minutes and that the appeal court had not been independent, this is not supported with any evidence. As regards the complaint of the change in the qualification of the offence, the appeal court considered it at an oral hearing from both the procedural and substantive point of view; therefore the applicant’s right to defence was not infringed (see Sipavičius v. Lithuania, no. 49093/99, §§ 29-34, 21 February 2002). Accordingly, these complaints must be rejected under Article 35 §§ 3 and 4 of the Convention.
40.  Regarding the complaints under Article 6 §§ 2 and 3 (b) and (d), they were not raised in the applicant’s grounds of appeal and therefore should be rejected in accordance with Article 35 § 1 of the Convention.
41.  There is no need for separate examination of the complaint under Article 13 in absence of an arguable claim under the substantive provisions of the Convention.
III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
42.  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
43.  The applicant claimed 1,685,468 euros (EUR) in respect of pecuniary damage calculated as lost profits from the business that he had managed prior to the initiation of the criminal proceedings against him. He also claimed EUR 4,110,000 as compensation of non-pecuniary damage.
44.  The Government disputed the amounts as manifestly excessive and unfounded.
45.  The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. As to the claim for non-pecuniary damage, it considers that the applicant did not significantly contribute to the length of the criminal proceedings against him and, deciding on an equitable basis, awards him EUR 3,000 under this head.
B.  Costs and expenses
46.  The applicant also claimed EUR 33,461 for the costs and expenses incurred before the domestic courts. He specified that the claimed amount included lawyer fees, dental care, transport and housing rental fees incurred during the criminal proceedings against him.
47.  The Government noted that the applicant had submitted supporting documents covering a total amount of 772,791 Russian roubles and EUR 477.
48.  Regard being had to the documents in its possession and to its case‑law, the Court rejects the claim for costs and expenses seeing that the expenses claimed have no connection either to attempts to redress the found violation at the domestic level or the proceedings in Strasbourg.
C.  Default interest
49.  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 criminal 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 3,000 (three thousand 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 25 November 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	André Wampach	Sverre Erik Jebens
	Deputy Registrar	President