CASE OF KALEYEV v. RUSSIA
Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)
Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos
4. The applicant was born in 1975 and lives in Norilsk. 5. The applicant was convicted in 1998 and 2000; having partially served his sentence of 2000, he was released on parole.in 2002. 6. On 14 October 2003 the police carried out a test buy of drugs from the applicant, searched his flat and seized, in particular, the drugs, an audio system and 9,000 Russian roubles (RUB). 7. On 21 November 2003 the Norilsk town court (“the town court”) retroactively upheld the seizure of the audio system and RUB 9,000 for securing an eventual confiscation order. A sum of RUB 1,500 was also seized on an unspecified date. The investigator deposited the audio system to the police warehouse; the sum of RUB 10,500 was deposited onto the police bank account. 8. The applicant was charged with drug-related crimes. On an unspecified date the investigation file was transferred to the town court for trial. 9. On 3 March 2004 the applicant’s retained lawyer Mr B. failed to attend a trial hearing. The town court rescheduled the hearing on 12 March 2004. 10. On 12 March 2004 Mr B. again failed to attend the hearing; the trial court appointed Ms V., a legal-aid lawyer, to represent the applicant. It follows from the trial record that the applicant did not indicate any failings on the part of Ms V. to the trial court. 11. At some point between 12 and 30 March 2004 the applicant decided to replace Mr B. with Ms M. as his retained lawyer. 12. On 30 March 2004 the town court held the second hearing. It convicted the applicant of a drugrelated offence and procurement and possession of firearms and sentenced him to ten years’ imprisonment. The town court ordered that RUB 10,500 and the audio system be confiscated as “unlawfully acquired”. 13. On 6 July 2004 the Krasnoyarsk regional court (“the regional court”) quashed the conviction for procurement and possession of firearms and reduced the applicant’s sentence for the drugrelated crime to nine years and six months’ imprisonment. In the remaining part the judgment of 30 March 2004 was upheld and became final and enforceable. 14. On 3 November 2004 the applicant sent an introductory letter to the Court in which no specific complaint was raised. 15. On 15 November 2004 the sum of RUB 10,500 was added to the State budget. 16. On 6 June 2005 the applicant sent to the Court a completed application form complaining for the first time that Mr B. had not represented him on 12 March 2004. 17. On 3 November 2005 the audio system was sold for RUB 2,274.30; the proceeds were added to the State budget. 18. On 21 April 2006 the town court brought the applicant’s sentences for the crimes committed in 2000 and 2004 into conformity with the amendments in law; the decision was upheld on appeal on 20 June 2006. 19. On 20 June 2007 the applicant complained to the Court for the first time about the order to confiscate his property contained in the judgments of 30 March and 6 July 2004. 20. On 11 November 2007 the presidium of the regional court delivered two separate supervisory review rulings: one in respect of the decisions bringing the sentences of 2000 and 2004 into conformity with the new law, by which it mitigated the sentences on technical grounds, and one in respect of the judgments of 30 March and 6 July 2004. In the latter the presidium briefly confirmed lawfulness of the applicant’s conviction and declared the judgments unlawful in the part concerning confiscation of the applicant’s property, which it remitted for a fresh examination in the first instance. 21. On 5 May 2008 the town court decided that RUB 10,500 should be repaid and the audio system should be returned to the applicant. The decision became final and enforceable. On the same date a writ of execution was issued. 22. On 11 July 2008 the bailiffs’ service opened enforcement proceedings in respect of the writ of 5 May 2008. No further actions to ensure enforcement were taken. 23. The final decision of 5 May 2008 remained unenforced as the audio system had been sold and the money sent to the State budget. 24. On 29 April 2009 the Registry of the Court requested the applicant to produce a copy of the trial record. 25. The applicant asked the town court for a copy; the request was denied as the applicant had already been provided with a freeof-charge copy and had failed to pay a court fee for an additional one as required by domestic regulations. 26. On 29 May 2009 the applicant informed the Court that he had been trying to obtain a copy of the record. Later he succeeded at that. 27. On 8 November 2010 the Norilsk town prosecutor’s office criticised the bailiffs’ failure to act and issued an instruction ordering them to take measures to enforce the decision of 5 May 2008. 28. On 24 November 2010 the town court changed the manner of execution of the decision of 5 May 2008 in respect of the audio system and decided that the applicant should be paid RUB 2,274.30, the sum for which the audio system had been sold. 29. The decision of 5 May 2008 remained unenforced.