CASE OF RYABOV v. RUSSIA
Preliminary objections dismissed;Violation of Art. 34;Remainder inadmissible;Non-pecuniary damage - claim dismissed
Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
7. The applicant was born in 1972 and lives in the Vologda Region. 8. On 9 December 2002 the applicant was charged with the rape of T., aged seven at the time of the offence in summer 2000. The charge was based on the investigator’s interviews with the girl (T.), the girl’s mother Mrs K. and a neighbour Mrs G., as well as on the findings of the medical examination carried out on the victim on 4 October 2002. The applicant asked the investigator to arrange for a confrontation with the prosecution witnesses and the medical expert. On 10 December 2002 the investigator refused his request. On 9 January 2003 the Vologda Regional Court upheld that decision as lawful, in the final instance. 9. At the beginning of the trial, once the applicant learned that the witness Mrs G. and the medical expert were not present, he asked the court to secure their attendance. The judge replied “Where shall I get them?” and refused his request. 10. The applicant pleaded not guilty. He admitted that in late July 2000 he had gone with T. to the village of Volodino where they had spent a night at his ex-wife’s house but he denied having raped the girl. 11. Before the court Mrs K. testified that in October 2002 she had found a note written by T. In the note the girl wrote that the applicant had raped her in summer 2000 in the village of Volodino. She questioned the girl about the note and T. confirmed its contents. 12. At the trial T. confirmed that the applicant had raped her. 13. On 21 January 2003 the Vologda Regional Court convicted the applicant of aggravated rape, an offence under Article 131 § 3 (v) of the Russian Criminal Code, and sentenced him to twelve years and six months’ imprisonment. 14. The Regional Court considered that the applicant’s guilt had been sufficiently established on the basis of the victim’s statements, which were corroborated by the following evidence: the findings of the medical examination carried out on 4 October 2002 which described scars on T.’s hymen. The scars might have been caused by impact of a hard object. It was not possible to establish when they had been caused; the written statement by the neighbour Mrs G. made during the pre-trial investigation. One summer night in 2000, Mrs G. – whose flat was separated from that of the applicant’s ex-wife by a partition – heard a girl shrieking and imploring her father to stop. The girl sobbed for a while. G. shouted at the applicant and told him to stop harassing the girl. At that time she thought that the girl was a daughter of the applicant, V. The sobs subsided but then the girl started crying again and begging her father to stop. The following day G. met the applicant and asked him what had happened. He replied that it was none of her business; the note written in a child’s handwriting which stated that the author had been raped by “Andryukha” (a diminutive of the applicant’s first name). T. confirmed that she had written the note. 15. In his statement of appeal the applicant complained, in particular, that the trial court had not secured the attendance of Mrs G. and the medical expert. 16. On 7 July 2003 the Supreme Court of the Russian Federation upheld the judgment of 21 January 2003 on appeal. It held that the court’s conclusions had had a substantial basis in the statements by the victim which had been corroborated by other evidence, in particular, the child’s note, Mrs G.’s testimony “before the court” [sic] and the findings of the medical examination. 17. On 25 July 2005 a deputy Prosecutor General lodged an application for supervisory review with the Presidium of the Supreme Court. He submitted that the Vologda Regional Court and the Supreme Court had infringed the applicant’s right to have the witness Mrs G. and the medical expert examined. 18. On 1 March 2006 the Presidium of the Supreme Court granted the prosecutor’s application in part. It found that the appeal court had not given any consideration to the applicant’s argument that his request for examination of the witnesses for the prosecution had been groundlessly rejected. It also found that the appeal court had wrongly stated that Mrs G. had been heard in court. The Presidium quashed the appeal judgment of 7 July 2003 and remitted the case for a new appeal hearing. 19. On 19 July 2006 the Supreme Court held a new appeal hearing. It noted that the applicant had not been able to confront Mrs G. and the medical expert during the pre-trial investigation or in court. It found that the applicant’s rights under Article 6 § 3 (d) had been infringed, quashed the conviction and ordered a new trial. 20. It appears that on 11 September 2006 the Vologda Regional Court issued a new judgment in the applicant’s case. However, a copy was not made available to the Court. Although the applicant indicated his intention to lodge an appeal against it, he did not submit a copy of his statement of appeal. No further information about these proceedings was received. 21. On 21 October 2005 the applicant’s representatives, Mrs Moskalenko and Mrs Arutyunyan, submitted observations in reply to the Government’s memorandum and claims for just satisfaction. They enclosed, in particular, the following documents: (a) legal-assistance agreement no. 032 of 28 September 2005, according to which the advocate Mrs Arutyunyan undertook to represent the applicant before the European Court for a fee of 21,000 Russian roubles (RUB). The field for the applicant’s signature contained the note “in accordance with the authority form for the European Court” but no signature; (b) legal-assistance agreement no. 2384 of 28 September 2005, under which Mrs Moskalenko undertook to represent the applicant before the European Court for a fee of RUB 42,000. The field for the applicant’s signature contained the note “in accordance with the authority form for the European Court” but no signature. 22. On 23 November 2005 the Government submitted their comments on the applicant’s claim for just satisfaction. They alleged, in particular, that the above documents were “legally void and issued contrary to fundamental rules of preparation of legal documents” because there was no signature by the applicant or a person authorised to sign on his behalf. In their view, a power of attorney issued for representation of the applicant before courts did not allow Mrs Moskalenko to sign, acting as the agent of the applicant, the legal-assistance agreement which bound the applicant to pay for her services. 23. On 25 November 2005 the Representative before the European Court Mr Laptev (“the Representative”) sent a letter to the director of the Federal Registration Service of the Ministry of Justice, which enclosed a copy of legal-assistance agreement no. 2384 and contained the following request: “...The said agreement is not signed by either Mr Ryabov or a person authorised by him... In this connection I request [you] to comment on the lawfulness of the actions by the advocate Mrs K. Moskalenko who had compiled on behalf of her client (Mr Ryabov) and apparently without his knowledge, a legal-assistance agreement which imposed on Mr Ryabov, also without his knowledge, the obligation to pay a large amount (42,000 roubles). On the basis of the Regulations on the Representative of the Russian Federation before the European Court of Human Rights, approved by President’s Decree no. 310 of 29 March 1998, I request [you] to prepare and send the above information to my address by 23 December 2005”. (bold-facing in the original letter) 24. On 9 December 2005 the acting first deputy director of the Economic Security Department of the Ministry of Internal Affairs Major-General S. sent a letter to the director of Advocates Office no. 10 where Mrs Moskalenko worked. He wrote that on 25 November 2005 the Ministry of Internal Affairs had received a request from the Representative, who had asked the Ministry to verify whether Mrs Moskalenko had lawfully listed as taxable income the proceeds from legal-assistance agreement no. 2384 of 28 September 2005 concerning representation of Mr Ryabov before the Court. Referring to section 11 paragraph 1 (4) and (30) of the Police Act, Major-General S. requested the director to produce, within five days, a copy of the legal-assistance agreement, a copy of the power of attorney issued by Mr Ryabov and copies of all the existing documents concerning the implementation of that agreement and payments effected in its pursuance. 25. On 13 December 2005 Mrs Moskalenko replied to Major-General S. that the requested documents were covered by lawyer-client privilege and could not be made available to the police unless a criminal case had been formally instituted. 26. On 19 December 2005 Mr K., a senior operational officer of the Economic Security Department of the Ministry of Internal Affairs, and his superior Mrs P., deputy head of the department, contacted Mrs Moskalenko by telephone and asked her to provide the documents in connection with the inquiry conducted at the request of the Representative. 27. According to the applicant, in late December 2005 he was visited in prison by Mr V., an employee of the Economic Security Department of the Ministry of Internal Affairs, who asked him to reply to the following questions: “1. How did [the applicant] meet Mrs Moskalenko and Mrs Arutyunyan? 2. Who gave [him] the address of the Centre for Assistance to International Protection and when did it happen? 3. Where and how was the legal-assistance agreement compiled?” The applicant refused to answer the questions or give any statements in the absence of his lawyers. The meeting lasted approximately one hour. 28. On 20 December 2005 the applicant gave a written statement to the director of Advocates Office no. 10. He stated that he had never made any complaint or inquiries either to the Ministry of Internal Affairs or any other State authorities in connection with his representation by Mrs Moskalenko and Mrs Arutyunyan in the supervisory review and Strasbourg proceedings. 29. On the same date the applicant submitted a new power of attorney for his representation by Mrs Arutyunyan. In the covering letter he asked the Court not to believe the Government’s allegation that the previous power of attorney had been forged. 30. Also on 20 December 2005, the head of the Ministry of Justice’s Department for Inspection and Supervision of Advocates and Notaries Public sent a copy of legal-assistance agreement no. 2384 to the President of the Moscow City Bar. He claimed that the agreement had been entered into in breach of the Civil Code and the Advocates’ Act, as it had not been signed by either Mr Ryabov or a person authorised to act on his behalf. The President of the Moscow City Bar was told to carry out an inquiry into the situation and report to the Ministry of Justice as soon as possible. In reply, the President of the Moscow City Bar informed the Ministry of Justice that “Mrs Moskalenko represented Mr Ryabov before the European Court on the basis of a duly completed form of authority” and that “her actions in the framework of the legal-assistance agreement had been approved by the applicant”. He pointed out that financial aspects of the legal-assistance agreement were covered by lawyer-client privilege. 31. On 9 January 2006 Mrs Moskalenko complained to the Court of a harassment campaign against her in connection with her representation of the applicant in the Strasbourg proceedings. She alleged a hindrance to the applicant’s right of individual petition in breach of Article 34 of the Convention. 32. On 2 February 2006 the Court examined the matter and decided to obtain comments from the Government. 33. According to the applicant, on 23 February 2006 he was taken into the office of a prison operational officer, who did not introduce himself or indicate his rank. He insisted on obtaining a written statement about the applicant’s relationship with Mrs Moskalenko and Mrs Arutyunyan. On the officer’s table the applicant saw documents with the letterhead of the Federal Registration Service with a note: “obtain a statement from the convict Mr Ryabov”. The officer had refused the applicant’s request to see these documents. He had put the following questions to the applicant: “1. Which amounts did [the applicant] pay to Mrs Moskalenko and Mrs Arutyunyan for his representation? 2. Were these amounts mentioned in any written agreement? 3. When and where was such an agreement prepared? 4. Did [the applicant] agree to pay any amount in addition to that? 5. When and where did [the applicant] first meet his representatives?” 34. On 28 March 2006 the Government submitted their comments on their compliance with Article 34 of the Convention. They also asked the Court to stay the proceedings so as the applicant could choose another representative, and offered their assistance in this matter. 35. On 27 April 2006 the applicant submitted the following handwritten statement to the Court: “I inform you as follows: on 27 April 2006 I was visited in remand centre no. 3, Moscow, by my lawyer Mrs Moskalenko. She gave me the text and translation of the Government’s comments of 27 March 2006. I am exasperated by Mr Laptev’s letter of 27 March 2006 and would like to state the following: 1. I am well aware of the amounts indicated in the agreements with Mrs Moskalenko and Mrs Arutyunyan. I would be happy to pay double or triple those amounts but I regret that I do not have that much money. 2. I have confirmed on many occasions, orally and in writing, and now confirm again, that I have been satisfied with the work by Mrs Moskalenko and Mrs Arutyunyan. Statements by Mr Laptev are merely an attempt to mar the relationship between me and my lawyers. 3. I assure you that I fully trust my lawyers Mrs Moskalenko and Mrs Arutyunyan as regards my representation before the European Court and other issues. I am categorically opposed to introducing other lawyers into the case, especially those suggested by Mr Laptev.” 36. The relevant parts of section 11 § 1 read as follows: “For the performance of their duties, the police shall have the following rights: ... (4) to obtain from citizens and State officials necessary statements, information, certificates, documents and copies thereof; ... (30) to receive from citizens and organisations information free of charge, except for situations where the law establishes a different procedure for obtaining information.” 37. According to the Regulation on the Representative before the European Court approved by President’s Decree no. 310 of 29 March 1998, the Representative may obtain from federal, regional and municipal bodies the information on legal and factual aspects of the case which is required for effective representation of the Russian Federation before the European Court (section II.5). 38. The Economic Security Department has the following functions: identification of economic threats to the State; participation in defining the federal funding priorities; identification, prevention and detention of most dangerous inter-regional or international tax crimes or crimes against the State; identification, prevention and detention of most dangerous economic and tax crimes which have attracted public attention; taking preventive and operational measures for the protection of property against crimes; organisation of documentary inspections and revisions for detecting inter-regional or international economic or tax crimes; fighting against money laundering; fighting against funding of terrorist or extremist activities.