CASE OF SVINARENKO AND SLYADNEV v. RUSSIA
Preliminary objection dismissed (Article 34 - Victim);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);Pecuniary damage - claim dismissed;Non-pecuniary damage - award
Anatoly Kovler;Dean Spielmann;Dmitry Dedov;Elisabeth Steiner;George Nicolaou;Guido Raimondi;Helen Keller;Helena Jäderblom;Ineta Ziemele;Isabelle Berro-Lefèvre;Ján Šikuta;Johannes Silvis;Josep Casadevall;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Luis López Guerra;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Vincent A. De Gaetano
7. The applicants were born in 1968 and 1970 respectively. The first applicant, Mr Svinarenko, is currently serving a sentence of imprisonment in the Murmansk region. The second applicant, Mr Slyadnev, lives in the settlement of Sinegorye in the Yagodninskiy district of the Magadan region. 8. In 2002 the Far Eastern Federal Circuit Investigation Department of the Investigation Committee at the Ministry of the Interior brought several sets of criminal proceedings against a Mr Grishin. 9. On 24 September 2002 the first applicant was questioned as one of the suspects in those proceedings. On 9 October 2002 he was arrested. In a decision of 12 November 2002 ordering his detention on remand, the Magadan Town Court noted that the crimes he was charged with had been committed during a three-year probation period under a judgment of the Magadan Region Yagodninskiy District Court of 13 April 2001 convicting him of theft and imposing on him a conditional sentence of five years’ imprisonment. It also noted that he had negative references from his place of residence and that he had breached his undertaking to appear before the investigating authority. According to the final charges against the first applicant, he was accused of robbery with violence against Mr A.S. and Mrs T.S. in September 2002 as a member of a gang led by Mr Grishin, and of the illegal acquisition, storage, transportation and carrying of ammunition. 10. On 20 January 2003 the second applicant, who was serving a sentence of imprisonment after his conviction by the Magadan Region Yagodninskiy District Court on 26 July 2002 for negligent infliction of death under Article 109 § 1 of the Criminal Code of the Russian Federation (“the CC”), was questioned as one of the suspects in the proceedings brought against Mr Grishin. On 22 January 2003 he was charged with the following crimes: (i) establishing an armed gang under Mr Grishin’s leadership and participating in the gang’s attacks on citizens from October 2001 to September 2002 – under Article 209 § 1 of the CC; (ii) the robbery in October 2001 of Mr V.B., the director of a private goldrefining company, with the use of weapons and violence endangering life and health and a threat to use such violence, by an organised group, with the aim of misappropriating another’s property of substantial value – under Article 162 § 3 of the CC; (iii) illegal storage and transportation of precious metals (industrial gold allegedly misappropriated from Mr V.B.) of substantial value by an organised group in October 2001 – under Article 191 § 2 of the CC; (iv) extortion (against Mr V.B.) in October 2001 with the aim of obtaining a right to property under the threat of the use of violence, by an organised group – under Article 163 § 3 of the CC; (v) the robbery of Mr Ya.B. in October 2001 with the use of weapons and violence endangering life and health and the threat to use such violence, by a group of persons according to a premeditated plan, by means of illegal entry into a dwelling with the aim of misappropriating another’s property of substantial value – under Article 162 § 3 of the CC; and (vi) illegal acquisition, storage, transfer, transportation and carrying of firearms by an organised group in October 2001 – under Article 222 § 3 of the CC. 11. On 11 April 2003 the Magadan Region Khasynskiy District Court found the second applicant to be eligible, in view of his orderly behaviour and positive references, for early conditional release one year and three months ahead of the term of two years and three months to which he had been sentenced under the Yagodninskiy District Court’s judgment of 26 July 2002. 12. On 24 April 2003 the Magadan Town Court ordered the second applicant’s remand in custody in the criminal proceedings at issue in the present case. It noted, inter alia, that he was accused of grave crimes which had been committed during a three-year probation period under the Yagodninskiy District Court’s judgment of 15 June 2001 convicting him of hooliganism and wilful infliction of grievous bodily harm and sentencing him conditionally to four years’ imprisonment. 13. On 20 May 2003 the investigation was completed and the defence received access to the case file. 14. On 13 August 2003 the Magadan Town Court found that the second applicant had been deliberately delaying the examination of the case file and set a time-limit for the examination at 5 September 2003. 15. On 19 September 2003 the case was sent for trial to the Magadan Regional Court, which held from 16 October to 26 December 2003 a preliminary hearing to decide on numerous requests by the applicants and their two co-defendants concerning the admissibility of the evidence and other procedural issues, as well as to prepare the jury trial requested by the defendants. During this period the hearing was postponed for about four weeks at the co-defendants’ request. 16. As a result of the preliminary hearing, on 26 December 2003 the Regional Court ordered that the case be examined at an open hearing by a jury on 23 January 2004. On that day fewer than twenty candidate jurors appeared before the court instead of the fifty invited and the court, therefore, ordered that another 100 candidate jurors be summoned. 17. On 13 February 2004 a jury was empanelled and sworn in. 18. The Regional Court held about thirty court sessions, during which it decided various procedural issues, such as the replacement of some jurors, the exclusion or examination of certain evidence and the ordering of expert opinions. It examined the evidence, including the testimony of the victims, witnesses and experts, and heard the defendants. The hearing was adjourned for two weeks as one of the defence lawyers could not attend. 19. On 15 June 2004 the prosecution amended one of the robbery charges against the second applicant (concerning Mr Ya.B.) to the lesser charge of “arbitrary unlawful acts” (самоуправство) with the use of violence, under Article 330 § 2 of the CC. 20. On 22 June 2004 the jury found the applicants not guilty. They were released in the courtroom. On 29 June 2004 the Magadan Regional Court delivered a judgment in which they were acquitted and their right to rehabilitation was acknowledged. 21. The co-defendants and the prosecution appealed against the trial court’s judgment. On 7 December 2004 the Supreme Court of the Russian Federation examined the case on appeal and quashed the judgment on the grounds, inter alia, that some of the jurors had concealed information about their family members’ criminal records although they had been obliged to disclose such information to the parties and to the court at the time of their selection; and that the presiding judge had failed to sum up all the evidence in his directions to the jury, in particular failing to sum up the victims’ and witnesses’ statements. The Supreme Court remitted the case to the Magadan Regional Court for fresh examination. 22. On 21 December 2004 the Regional Court received the case file. It adjourned its hearing twice, on 31 January and 7 February 2005, as the second applicant’s lawyer had failed to appear. 23. In a decision of 8 February 2005 the Regional Court imposed on the defendants an undertaking not to leave their place of residence without its authorisation, to appear before it when summoned, and not to obstruct the proceedings. 24. The Regional Court’s decision of the same date to remit the case to the Magadan Regional Prosecutor for the rectification of errors in the indictment was appealed against by the defence and quashed as erroneous by the Supreme Court on 26 April 2005. 25. The hearing before the Regional Court was adjourned on 17 June 2005 as a result of the first applicant’s and a co-defendant’s failure to appear, for unknown reasons. It was adjourned again on 21 June 2005 owing to a co-defendant’s hospitalisation and the impossibility of examining the case in respect of the others in separate proceedings. 26. The hearing resumed on 22 November 2005. On that day, however, fewer than twenty candidate jurors appeared before the court instead of the thirty invited and the court, therefore, ordered that another 100 candidate jurors be summoned. 27. On 6 December 2005 the Regional Court ordered that the applicants and the other two defendants be detained on remand. It noted the applicants’ previous convictions, the serious charges against them, and the fact that during the preliminary investigation and the current trial some of the victims and witnesses had expressed fears of unlawful behaviour by the defendants. In its decision it did not give any details concerning the fears referred to, or the names of the defendants concerned. The applicants’ appeals against the detention order were dismissed by the Supreme Court of the Russian Federation in its decision of 22 February 2006. In upholding the Regional Court’s detention order, the Supreme Court noted that one of the victims, Mr Ya.B., had asked for the case to be examined without his participation as he had been afraid to give evidence in open court. This fear constituted, according to the Supreme Court, a sufficient ground to consider that the defendants did not satisfy the condition of not obstructing the proceedings in order for them to remain free under the previously imposed undertaking not to leave their place of residence. The applicants’ detention was subsequently extended for similar reasons. 28. On 9 December 2005 the jury was empanelled and sworn in and the court held hearings on 12, 20 and 23 December 2005. On the last-mentioned date one of the co-defendants was granted leave to engage a new lawyer. On 27 December his new lawyer failed to appear and the hearing was adjourned until 10 January 2006, 1-9 January being non-working days. The Regional Court continued the examination of the case in January. It ruled on numerous procedural requests by the defence, in particular requests seeking the replacement of the presiding judge and the prosecutor. 29. As the witnesses and victims who lived in Sinegorye had failed to appear at the hearings several times, on 17 January the court ordered them to be brought before it under escort. The hearing was adjourned on 20 January until 27 January and on 26 February until 10 March 2006, pending the execution of that order. 30. The examination of the case continued in February, March, April and May 2006. During this time the hearing was adjourned on a number of occasions for about four weeks in total at the request of jurors who could not participate, and for about a week at the request of one of the defence lawyers, who was ill. On 2 June 2006 the presiding judge declared the examination of the evidence closed. In five sessions in June 2006 the Regional Court heard the parties’ oral argument. It announced a break from 14 July until 3 October 2006 in view of the fact that several jurors were leaving for their summer holidays in central Russia. 31. The hearing resumed on 3 October 2006. Having consulted the parties, the court decided that they would repeat their oral argument. They did so on 6, 12 and 19 October and 2 November 2006. The preparation of questions to be put to the jury then followed. The jury gave its verdict on 17 November 2006. The first applicant was found not guilty and was released in the courtroom. 32. On 5 December 2006, after an examination of the legal issues during the sessions held in November and December, the Regional Court delivered its judgment. The first applicant was acquitted and his right to rehabilitation was acknowledged. The second applicant was convicted of extortion (against Mr V.B.), and “arbitrary unlawful acts” with the use of violence (in respect of Mr Ya.B.), and was sentenced to seven years’ imprisonment (which took into account his 2001 conviction, in respect of which the conditional sentence was revoked). He was acquitted on the remaining charges. His detention on remand was to continue until the judgment took effect. 33. On 6 June 2007 the Supreme Court examined the appeals against the judgment lodged by a co-defendant, one of the victims and the prosecution. It found that the defendants and their lawyers had breached the rules on criminal trials by committing an abuse of their rights, namely, by discussing in the jurors’ presence, despite the presiding judge’s warnings, issues which fell outside the scope of the jurors’ competence. They had also made remarks which did not concern the issues to be decided by the jury and which had been aimed at discrediting the evidence against them, thus creating a negative impression of the victims and the presiding judge, and a positive one of themselves. This was held by the Supreme Court to have unlawfully influenced the jury’s verdict. It was also noted that the jury’s verdict had not been entirely clear as some of the answers to the questions put to them had been contradictory. The Supreme Court quashed the judgment and remitted the case to the Regional Court for a fresh examination. It also ordered that the second applicant remain in custody. 34. In August 2007 the first applicant was detained on remand in connection with an unrelated set of criminal proceedings brought against him on suspicion of an extortion allegedly committed in 2002. 35. On 4 September 2007 the Magadan Regional Court received the case file and opened the proceedings. On 5 October 2007 fewer than twenty candidate jurors appeared before the Regional Court instead of the 100 invited and the court, therefore, ordered that another 150 candidate jurors be summoned. 36. On 2 November 2007 the selection of the jurors began. However, after a number of candidate jurors refused to sit in the case, the number available was still insufficient and the court ordered that another 150 candidate jurors be summoned. The same situation occurred on 22 November 2007. 37. The number of candidate jurors who appeared before the Regional Court was again insufficient on 11 December 2007 and 17 January 2008, necessitating the summoning of an additional 200 and 250 persons respectively. 38. A jury, composed of twelve jurors and two substitute jurors, was empanelled on 5 February 2008 from thirty-four candidate jurors who had appeared before the court, and the trial commenced. The court held five or six sessions monthly from February to June 2008, two sessions in July, four in August (after a break for the jurors’ holidays from 1 July to 18 August), eleven in September, six in October, ten in November and four in December 2008. Some of the sessions were held without the jury as they concerned various procedural issues, including the admissibility of evidence and requests for the examination of the evidence before the jury. The court examined the vast body of evidence, including the testimony of more than seventy victims and witnesses, and numerous expert reports. 39. For about a month the trial was delayed because a co-defendant was ill. Some delay was caused by difficulties in ensuring the appearance of some of the victims and witnesses, who resided in remote settlements in Burkhala and Sinegorye, or who had moved to the central and other parts of the country. 40. On 13 February 2009 the Regional Court started hearing the parties’ oral argument. 41. On 7 March 2009 the jury returned a “not guilty” verdict in respect of the first applicant. It found the second applicant guilty of “arbitrary unlawful acts” and not guilty on the remaining charges. 42. On 12 March 2009 the Regional Court ordered the second applicant’s release on an undertaking not to leave his place of residence and to behave in a law-abiding manner. 43. On 19 March 2009 it delivered its judgment, acquitting the first applicant and finding, in respect of the second applicant, that on 11 October 2001 he, Mr Grishin and Mr N.G. (against whom the criminal proceedings were terminated owing to his death) had requested Mr Ya.B. to repay a debt in the amount of 100,000 Russian roubles (RUB); following Mr Ya.B.’s refusal Mr Grishin and Mr N.G. had beaten him up; the second applicant had beaten up Mr S.K., who had witnessed Mr Ya.B.’s beating; they had then taken Mr Ya.B. to his home and Mr Grishin had taken money from him in the amount of RUB 247,000. 44. The Regional Court noted that there had been mixed references in the materials of the case about the second applicant, who had been characterised negatively by the local authority and by a district police officer at the place of his residence, and positively by the administration of a detention facility, in which he had been detained on remand, and by the administration of a prison in which he had served his sentence after a previous conviction. 45. The Regional Court convicted the second applicant, under Article 330 § 2 of the CC, of “arbitrary unlawful acts” with the use of violence, sentenced him to two years and ten months’ imprisonment, revoked the conditional sentence under his 2001 conviction as the new crime had been committed during the probation period, and, after adding the revoked conditional sentence, sentenced him to a total of four years and five months’ imprisonment; it discharged him from serving the sentence in the part relating to the conviction under Article 330 § 2 as liability for the relevant offence had become time-barred, and found that he had served his sentence in the remaining part in view of his detention on remand from 24 April 2003 to 22 June 2004 and from 6 December 2005 to 12 March 2009, which amounted to four years, five months and six days in total. It acquitted him on the remaining charges. 46. As of 19 March 2009 the first applicant was still detained in connection with unrelated criminal proceedings against him (see paragraph 34 above). 47. On 23 July 2009 the Supreme Court dismissed an appeal by a codefendant and the prosecution and upheld the judgment. 48. During the applicants’ detention on remand they were taken to the Magadan Regional Court from their detention facility by police guards. During the hearings they sat on a bench enclosed on four sides by metal rods 10 millimetres in diameter. The enclosure was 255 centimetres long, 150 centimetres wide and 225 centimetres high, with a steel mesh ceiling and a door, also made of metal rods. The distance between the metal rods was 19 centimetres. 49. Armed police guards remained beside the caged dock. There were always two police guards per detainee – eight police guards in total during the first and second trials and six police guards for the applicants and one of their co-defendants during the third trial. 50. After the first applicant’s acquittal had become final he brought proceedings against the State for damage suffered as a result of the criminal proceedings against him. 51. On 23 October 2009 the Magadan Regional Court awarded him RUB 18,569 in respect of pecuniary damage, representing an unemployment allowance that had not been paid as a result of his detention on remand. On 17 December 2009 the Supreme Court of the Russian Federation upheld the Regional Court’s judgment. 52. On 1 March 2010 the Magadan Town Court awarded the first applicant RUB 50,000 in respect of non-pecuniary damage incurred by him as a result of his criminal prosecution, the imposition on him of an undertaking not to leave his place of residence and his detention on remand from 9 October 2002 to the moment of his release, following the first “not guilty” jury verdict of 22 June 2004 and from 6 December 2005 until 17 November 2006. The applicant appealed against the judgment arguing, inter alia, that the amount awarded to him was not just or reasonable. On 30 March 2010 the Magadan Regional Court dismissed the applicant’s appeal and upheld the Town Court’s judgment.