Постановление Европейского суда по правам человека от 29.04.2010 «Дело Тугаринов (tugarinov) против России» [англ.]

Город принятия

(Application No. 20455/04)
(Strasbourg, 29.IV.2010)
*This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Tugarinov v. Russia,

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

Nina {Vajic}*, President,

*Здесь и далее по тексту слова на национальном языке набраны латинским шрифтом и выделены фигурными скобками.

Anatoly Kovler,

Elisabeth Steiner,

Khanlar Hajiyev,

Dean Spielmann,

Giorgio Malinverni,

George Nicolaou, judges,

and {Andre} Wampach, Deputy Section Registrar,

Having deliberated in private on 30 March 2010,

Delivers the following judgment, which was adopted on that date:

1. The case originated in an application (No. 20455/04) 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 Vitaliy Dmitriyevich Tugarinov ("the applicant"), on 14 April 2004.

2. The Russian Government ("the Government") were represented by Mrs V. Milinchuk, former Representative of the Russian Federation at the European Court of Human Rights.

3. On 12 June 2007 the President of the First Section decided to give notice of the application to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 3).

The circumstances of the case
4. The applicant was born in 1977 and lives in the village of Ivolginsk in the Republic of Buryatiya.

5. On 29 January 1995 the Ivolginskiy District police department instituted criminal proceedings against the applicant and several other individuals. They were accused of severely injuring Mr I. during a public disturbance. An investigator questioned the applicant in the presence of legal-aid counsel, Mrs N. On the same day the applicant was remanded in custody.

6. In September 1995 the applicant was served with a bill of indictment and the case was committed for trial to the Ivolginskiy District Court. On 1 December 1995 the District Court found the applicant guilty of disorderly conduct and causing serious injury. It sentenced him to four years' probation. The applicant was released on the same day. The judgment of 1 December 1995 was upheld on appeal and became final on 14 March 1996.

7. On 16 October 1998 the Presidium of the Supreme Court of the Republic of Buryatiya, by way of supervisory-review proceedings, quashed the judgments of 1 December 1995 and 14 March 1996, having established that the District Court had been composed in violation of the domestic requirements, and remitted the case for a fresh examination.

8. Ten days later the Ivolginskiy District Court received the case file. Of the nine hearings fixed between 27 October 1998 and 7 April 1999, three were adjourned because a co-defendant, having been drafted into the army, could not attend, two hearings were rescheduled because the applicant or his counsel were ill, one was postponed because the applicant's counsel was participating in other proceedings and one was annulled owing to the absence of a co-defendant's counsel.

9. On 7 April 1999 the District Court accepted a request by the applicant and his counsel for the trial court and the prosecutor to step down. That decision was amended on appeal by the Supreme Court of the Republic of Buryatiya. In particular, on 22 June 1999 the Supreme Court held that the District Court was correct in accepting the challenge to the composition of the bench. However, it should have rejected the request for the prosecutor's dismissal.

10. The District Court, sitting in the new composition, fixed a hearing for 25 August 1999. That hearing, as well as the subsequent one scheduled for 1 October 1999, was adjourned due to failure to attend on the part of a co-defendant and of victims and witnesses.

11. On 15 November 1999 a new presiding judge was assigned to the case following the applicant's request for a change in the composition of the bench. Hearings were held between 15 and 23 November 1999.

12. On 23 November 1999 the District Court changed the composition of the bench, having dismissed the presiding judge at counsel's request. That decision was quashed on appeal a month later and the examination of the case on the merits was ordered.

13. On 11 January 2000 the President of the Supreme Court of the Republic of Buryatiya transferred the case to the Sovetskiy District Court of Ulan-Ude for an examination on the merits.

14. The first trial hearing scheduled by the Sovetskiy District Court for 1 February 2000 was adjourned because of the absence of counsel for a co-defendant.

15. On 21 February 2000 the applicant's counsel successfully asked the District Court to return the case for an additional inquiry, alleging gross defects in the initial pre-trial investigation.

16. On 30 March 2000 the head of the investigating department of the Ministry of Interior Affairs of the Republic of Buryatiya reopened the investigation.

17. A month later, on 30 April 2000, the criminal proceedings against the applicant were discontinued for the following reasons:

- on the charge of participation in disorderly acts due to the application of an amnesty act;

- on the charge of having caused injuries because the applicant's guilt had not been proven.

18. On 16 May 2000 the Prosecutor of the Republic of Buryatiya quashed the decision of 30 April 2000 and authorised the resumption of the pre-trial investigation. On 9 June 2000 the investigation recommenced.

19. On 9 July 2000 an investigator discontinued the criminal proceedings against the applicant because his conduct did not constitute a criminal offence. That decision was quashed by a prosecutor on 28 September 2000 and the criminal proceedings were resumed on 6 October 2000.

20. Twice, on 13 November 2000 and 20 February 2001, the investigation was stayed because the applicant was ill. Decisions to resume the proceedings were issued on 25 December 2000 and 31 August 2001 respectively.

21. On 5 October 2001 the applicant was placed on a wanted persons' list and the investigation was stayed. That decision was quashed and the proceedings were resumed.

22. On 8 November 2001 an investigator closed the criminal proceedings. The relevant part of the decision read as follows:

"[The applicant's] guilt in respect of the above-mentioned criminal offences is confirmed by reliable and consistent statements by the victim, Mr I., and by witnesses Mr T., Mr B., Mr Tyu., whom the victim had told that he had identified the person who had hit him - [the applicant]. A witness Mr G. had seen [the applicant] hit Mr I. in the face with a stick.

However, taking into account that the pre-trial investigation and the examination of the case in the courts... have lasted six years and ten months, and having regard to the fact that during those years [the applicant] did not commit any unlawful acts and that by 2001 he was no longer socially dangerous... [the criminal proceedings are to be closed]"
23. On 28 December 2001 the Sovetskiy District Court, upon the applicant's complaint, quashed the decision of 8 November 2001 as unlawful. The District Court held that the criminal proceedings had been unlawfully closed without the applicant having consented to it.

24. In February 2002 the criminal proceedings were reopened. However, two weeks later they were stayed. That decision was quashed by a higher-ranking prosecutor on 28 June 2002.

25. On 25 September 2002 the criminal proceedings were again stayed because the applicant had not responded to the investigator's summons. That decision was quashed by the Sovetskiy District Court because there was no evidence that the applicant had been properly summoned.

26. On 24 December 2002 the criminal proceedings were resumed.

27. On 20 January 2003 an investigator sent the bill of indictment to the Ivolginskiy District Prosecutor. The prosecutor refused to sign it and returned the case for an additional investigation, noting that the applicant's defence rights had been violated. The same thing happened in February 2003.

28. On 28 March 2003 the prosecutor signed the bill of indictment and served it on the applicant. The applicant was committed to stand trial before the Ivolginskiy District Court.

29. The first hearing fixed by the District Court for 15 April 2003 was adjourned because the victims failed to appear and the applicant successfully asked for his counsel to be replaced. The following hearing was scheduled for 7 May 2003. However, it was then rescheduled for 14 May 2003 as the applicant's representative was ill.

30. Of the twenty hearings fixed between 14 May and 15 September 2003, one hearing was adjourned because the applicant's representative was ill, one was postponed because the applicant was to attend a funeral and two hearings were rescheduled because the victims or their counsel did not attend.

31. On 15 September 2003 the District Court found the applicant guilty of disorderly conduct and causing severe injury and sentenced him to four years' probation. On 18 November 2003 the Supreme Court of the Republic of Buryatiya upheld the judgment on appeal.

I. Alleged violation of Article 6 § 1 of the Convention
32. The applicant complained that the length of the proceedings had been incompatible with the "reasonable time" requirement laid down in Article 6 § 1 of the Convention, 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. Submissions by the parties
33. The Government put forward two lines of argument. Firstly, they submitted that the applicant's complaint had been lodged too late, as although the applicant had signed his application form, he had dated it 14 April without indicating the year. The stamp on the application form showed that the Court had received it on 26 May 2004. Therefore, there was no evidence that the applicant had complied with the six-month requirement, as the criminal proceedings against him had ended with the final judgment of 18 November 2003. As an alternative, the Government argued that the applicant's complaint was manifestly ill-founded. They stressed that the Court only has competence ratione temporis to examine the five-year period after 16 October 1998, when the Presidium quashed the initial conviction. In the Government's opinion, the duration of the proceedings was justified by objective reasons, such as the applicant's and his counsel's illness, the applicant's difficult family situation, the victims' and witnesses' failure to attend, and so on. The domestic authorities were not responsible for any stays in the proceedings, while the applicant twice successfully petitioned the trial court for a change in its composition. Furthermore, the case was sent back to the investigating authorities at the applicant's request.

34. The applicant, relying on a copy of postal receipt No. 670000-49 showing the date and content of his first letter to the Court and an international postal certificate, submitted that he had sent his application form on 14 April 2004, thus complying with the six-month requirement. He further argued that his absences from court hearings had been rare and caused by his illness. In addition, he had been forced to ask for removal of the bench or presiding judge or for a reopening of the pre-trial investigation, as he had no other means to prevent violations of his procedural rights. In any event, the domestic authorities had accepted that his requests were well-founded.

B. The Court's assessment
1. Admissibility
(a) Six-month rule objection
35. The Court reiterates the Government's argument pertaining to the applicant's alleged failure to comply with the six-month requirement. In this respect, the Court observes that despite the facts that the applicant omitted to indicate the year on his application form and that the application was only received by the Court on 26 May 2004, the evidence presented by the applicant, in particular copies of the postal receipt and international shipment certificate, shows that he posted his letter with the application form at a post office on 14 April 2004. Having regard to the fact that the final judgment in his case was issued on 18 November 2003, the Court considers that he raised his complaint of excessive length of the criminal proceedings within the six-month time-limit established by Article 35 § 1 of the Convention (see Arslan v. Turkey (dec.), No. 36747/02, ECHR 2002-X (extracts), and Gaspari v. Slovenia, No. 21055/03, § 35, 21 July 2009). The Government's objection is therefore dismissed.

(b) Period to be considered
36. The Court further observes that the entire duration of the proceedings is divided into two separate periods. The first of these commenced on 29 January 1995 when the criminal proceedings were instituted against the applicant and ended on 1 December 1995 when the applicant's conviction was upheld on appeal. The second began on 16 October 1998 when the conviction was quashed on a supervisory review and a retrial was authorised. The period in question ended on 18 November 2003 with the final judgment of the Supreme Court of the Republic of Buryatiya. In this respect, the Court observes that it only has competence ratione temporis to consider the second period, which commenced after the Convention had entered into force in respect of Russia on 5 May 1998 and which lasted a little over five years and one month before the investigating authorities and courts at two levels of jurisdiction. However, in assessing the reasonableness of the time that elapsed after that date, account must be taken of the state of proceedings at the time.

(c) The Court's decision on the admissibility of the complaint
37. The Court therefore concludes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits
38. 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 conduct