CASE OF SERGEY TIMOFEYEV v. RUSSIA
Remainder inadmissible;Violation of Art. 6-1;No violation of Art. 6-1;Non-pecuniary damage - award
Anatoly Kovler;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste
5. The applicant was born in 1968 and lives in the town of Shakhty, in the Rostov Region. 6. On 10 July 1995 the Shakhty Prosecutor's Office instituted criminal proceedings against the applicant and Mr P. for rape and attempted rape of two victims. On 10 October 1995 the proceedings were terminated for lack of evidence. 7. On 13 December 1995 the decision of 10 October 1995 was quashed and the case was remitted for a further investigation. 8. On 1 July 1996 the applicant was remanded in custody on suspicion of rape and attempted rape. On an unspecified date he was released. A preventive measure in the form of an undertaking not to abscond was applied both to the applicant and Mr P. 9. On 1 July 1997 the Shakhty Town Court acquitted the applicant and Mr P. of rape and attempted rape. 10. On 15 January 1998 the Rostov Regional Court quashed the firstinstance judgment on appeal and remitted the case for a fresh examination. 11. On 6 August 1998 the Presidium of the Rostov Regional Court quashed the judgment of 15 January 1998 and remitted the case for a new examination in the second instance. 12. On 26 August 1998 a hearing before the Rostov Regional Court was postponed because the applicant's counsel, Mr K., was occupied. 13. On 9 September, 14 October and 4 November 1998 the Rostov Regional Court postponed appeal hearings because the applicant was ill. 14. On 9 December 1998 the Rostov Regional Court postponed a hearing because they had received a telegram from an anonymous sender requesting that the applicant's case be taken off the list of appeals to be heard. 15. On 29 December 1998, as well as on 3 February and 3 March 1999 the Rostov Regional Court postponed appeal hearings because of the applicant's illness. 16. On 14 April 1999 the Rostov Regional Court decided to examine the appeal in the applicant's absence, quashed the judgment of 1 July 1997 and remitted the case for a fresh examination in the first instance. The applicant's counsel was not present at the hearing. 17. On 11 May 1999 the Shakhty Town Court scheduled a hearing for 8 June 1999. 18. On 8 June 1999 the Shakhty Town Court ordered Mr P. to be summoned to a hearing. It appears that Mr P. failed to comply with the summons. 19. On 2 July 1999 the criminal proceedings against the applicant and Mr P. were suspended. The preventive measure in Mr P.'s respect was changed to custodial detention and he was put on a wanted list. The Shakhty Town Court decided not to proceed with the examination of the case. The applicant and his lawyer did not appeal against the decision. 20. On 4 January 2002 the criminal proceedings were resumed in respect of the applicant. 21. On 10 January 2002 the Shakhty Town Court postponed a trial hearing owing to the applicant's failure to appear. 22. On 23 January 2002 a trial hearing was postponed to 18 February 2002. 23. On 18 February 2002 a hearing was postponed owing to witnesses' and the applicant's counsel's failure to appear. Mr K. was absent because of a business trip. 24. On 26 February 2002 a hearing was postponed because of the applicant's illness. 25. On 14 March 2002 a hearing was postponed on a prosecutor's request in charge of the search for Mr P. 26. On 18 March 2002 a hearing was postponed because one of the victims failed to attend. 27. On 21 March 2002 a hearing was postponed until 22 March 2002 on the applicant's request, to allow him to study the case file. 28. On 21 March 2002 the Shakhty Town Court dismissed Mr K.'s request to suspend the proceedings against the applicant pending the search for Mr P. The applicant's counsel appealed against the ruling on the same day. 29. Between 22 March and 1 April 2002 the Shakhty Town Court held hearings on the applicant's case every day. 30. On 28 March 2002 the Shakhty Town Court dismissed the applicant's request that the proceedings be terminated on the basis of the Act of Amnesty in Commemoration of the 55th Anniversary of the Victory in the Great Patriotic War of 1941-45 adopted by the Russian State Duma on 26 May 2000 (“the Amnesty Act”). 31. On 1 April 2002 a hearing was postponed because the applicant was ill. 32. On 9 April 2002 the criminal proceedings in respect of the applicant were suspended because of his illness. 33. On 23 April 2002 the Rostov Regional Court upheld the rulings of 21 and 28 March 2002. 34. On 13 June 2002 the proceedings against the applicant were resumed and a hearing was scheduled on 27 June 2002. 35. On 27 June 2002 the Shakhty Town Court held a hearing, dismissed the applicant's challenge in respect of the composition of the court and a request for a medical examination and postponed the hearing until 23 August 2002. 36. On 25 July 2002 the Presidium of the Rostov Regional Court quashed by way of supervisory review the refusal to dismiss the applicant's requests of 27 June 2002. 37. On 16 August 2002 the Chief Doctor of the Shakhty Oncological Dispensary informed the trial court that the applicant had been diagnosed with malignant lymphoma and had undergone gastrectomy (removal of the stomach) and hemicolectomy (removal of a part of the colon). He underlined that the applicant had a first-degree disability and “dumping syndrome” (rapid fall in blood sugar after eating) which did not allow him to participate in the hearing; and that any stressful situation could aggravate his condition. 38. On 19 August 2002 the criminal proceedings in respect of the applicant were suspended because of his illness. 39. On 1 October 2002 the Rostov Regional Court quashed the ruling of 19 August 2002 and remitted the case for a fresh examination to the Shakhty Town Court with a new composition. 40. On 29 October 2002 a hearing was scheduled for 15 November 2002. 41. On 15 November 2002 the proceedings in respect of the applicant were suspended because of his illness and then resumed on 27 November 2002. 42. On 10 and 25 December 2002 hearings were postponed because of the applicant's absence. 43. On 17 January 2003 the proceedings in respect of the applicant were suspended because of his illness and then resumed on 31 January 2003. 44. On 10 February 2003 a hearing was postponed because the applicant's counsel, Ms L., was occupied. 45. On 26 February 2003 the Shakhty Town Court heard the applicant, his counsel, the victim and several witnesses and examined written evidence. 46. On 28 February 2003 the Shakhty Town Court convicted the applicant of rape and attempted rape and sentenced him to three years' imprisonment. The applicant was exempted from serving the sentence under the Amnesty Act. 47. On 28 February 2003 one of the victims appealed against the judgment. 48. On 5 and 11 March 2003 the applicant lodged appeals against his conviction, challenging, inter alia, the court's factual findings. According to the applicant, he requested the Rostov Regional Court to examine his appeal in his presence. According to the Government's submissions, the applicant did not request to be present at a hearing. 49. On 11 March 2003 the prosecutor appealed against the judgment of 28 February 2003. 50. On 1 April 2003 the applicant lodged an additional appeal in which he made detailed complaints alleging deficiencies in the first-instance proceedings. According to the Government, he also requested that an appeal hearing be held in his presence. 51. On 20 April 2003 the victim lodged an additional appeal, which was forwarded to the applicant for comments. 52. On 27 May 2003 the Shakhty Town Court received the applicant's comments on the victim's and prosecutor's appeals and then forwarded the case to the Rostov Regional Court. An appeal hearing was scheduled for 15 July 2003. 53. On 15 July 2003 the Rostov Regional Court postponed an appeal hearing to 5 August 2003 because the applicant was ill. 54. On 5 August 2003 the applicant did not appear before the Rostov Regional Court because he was ill. The hearing was postponed until 26 August 2003. 55. On 26 August 2003 the appeal hearing was again postponed because of the applicant's failure to appear in the court-room due to illness. 56. In August 2003 the President of the Criminal Chamber of Rostov Regional Court requested the Ministry of Health of Rostov Region and Chief Doctor of the Shakhty Oncological Dispensary to provide information on the applicant's state of health with a view to the possibility of his participating in an appeal hearing scheduled for 30 September 2003. 57. On 4 September 2003 the Health Department of Shakhty Administration informed the Rostov Regional Court that the applicant was suffering from a malignant lymphoma and that between 29 July and 18 August 2003 he had been hospitalised. The applicant was weak; a stressful situation would have an adverse impact on his state of health. It was not possible to predict or assume a date when he would be available for an appeal hearing. 58. On 29 September 2003 the applicant sent a telegram to the Rostov Regional Court, requesting that the hearing be adjourned as he was in hospital. He also asked if the court was equipped with facilities to enable wheelchair access. 59. On 30 September 2003 the Rostov Regional Court decided to reject the applicant's request to adjourn the appeal hearing. It referred to the applicant's serious state of health, and the legislative rule that the appeal court must start examination of an appeal no later than one month after it has been lodged. 60. On the same day the Rostov Regional Court examined the case on appeal. The court heard submissions by the judge rapporteur and prosecutor, but the applicant's counsel was not present at the hearing. The judgment of 28 February 2003 was upheld. 61. On 20 February 2004 the Rostov Regional Court rejected the applicant's request for supervisory review proceedings. With respect to the applicant's complaint about examination of the case on appeal in his absence the court found that the applicant had failed to appear “for a farfetched reason”. 62. An appeal court examines appeals with a view to verifying the lawfulness, validity and fairness of first-instance judgments (Article 373). 63. An appeal court must start the examination of an appeal no later than one month after its receipt (Article 374). 64. An appeal court can directly examine evidence, including additional material submitted by parties (Article 377 §§ 4 and 5). 65. An appeal court may (a) uphold a first-instance judgment; (b) quash it and terminate criminal proceedings; (c) quash it and remit the case for a fresh examination in the first-instance; and (d) amend the judgment (Article 378 § 1).