CASE OF KHUZHIN AND OTHERS v. RUSSIA
Remainder inadmissible;Violation of Art. 6-2;Violation of Art. 6-1;Violation of Art. 8;Violation of P1-1;Just satisfaction dismissed
Anatoly Kovler;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
4. The applicants are brothers. Mr Amir and Damir Khuzhin were twins born in 1975 and Mr Marat Khuzhin was born in 1970. They all live in the town of Glazov in the Udmurtiya Republic of the Russian Federation. On 19 June 2006 Mr Damir Khuzhin died in an accident. 5. On 14 April 1999 the first and second applicants were arrested on suspicion of kidnapping committed in concert. The case was assigned to Mr Kurbatov, a senior investigator in the prosecutor’s office of the Udmurtiya Republic. 6. On 12 May 1999 the investigator Mr Kurbatov questioned the third applicant as a witness. On the same day he was placed in custody. On 14 May 1999 the investigator issued a formal decision to arrest the third applicant on suspicion on aiding and abetting kidnapping. 7. On 17 and 26 May 1999 the first applicant was allowed to see his fiancée, Ms Maksimova. It would appear that on the latter date they contracted a marriage because from 9 June 1999 she began visiting him as his wife and changed her name to Mrs Khuzhina. In the subsequent period she visited the first applicant on a regular basis once or twice a month. 8. On 2 June 1999 the three applicants were charged with kidnapping and torture, offences under Articles 117 and 126 of the Criminal Code. They were accused of having abducted a certain Mr V., a homeless tramp, and forced him to perform physical labour in a fruit warehouse owned by them in exchange for extremely low pay. On several occasions V. had run away but the brothers had caught him, beaten him and tortured him by applying electric wires to various parts of his body. 9. On 7 June 1999 the first applicant and his counsel requested the investigator to arrange for a confrontation with V. and a certain witness U. On the following day the investigator refused their request, noting that the confrontation was “undesirable as both V. and U. had previously been financially dependent on the Khuzhin brothers and during a confrontation Amir Khuzhin could exert a negative influence on them”. 10. The third applicant and his counsel requested the investigator to interview witnesses G., L., and A., who could allegedly testify that V. had been able to move around freely and that the Khuzhin brothers had treated him well. On 18 June 1999 the investigator dismissed the request as unsubstantiated. He noted that V.’s liberty of movement had indeed been unrestricted in the beginning and the Khuzhin brothers had restrained him “only at a later stage” and that there were “a sufficient number of depositions by witnesses and the victim to the effect that the Khuzhin brothers had treated V. very badly and humiliated him”. 11. It appears that on an unspecified date the police entered and inspected a warehouse belonging to the applicants. 12. On 20 July 1999 the State television channel Udmurtiya broadcast the Versiya (“Version”) programme. The second part of the programme concerned the applicants’ case. The participants included the presenter Ms Temeyeva, the Glazov town prosecutor Mr Zinterekov, the investigator Mr Kurbatov, and Mr Nikitin, who was head of the division for particularly important cases in the office of the prosecutor of the Udmurtiya Republic, as well as the victim V., whose face was not shown. 13. Mr Zinterekov opened the programme with the following statement: “The Khuzhin brothers are, by their nature, cruel, insolent and greedy; they wished to get cheap or, more precisely, free labour. On the other hand, the victim V., a person with no fixed abode, mild and gentle...” 14. The presenter started telling the story of V.’s enslavement. As she was speaking, black-and-white passport-size photos of the applicants were shown full screen. 15. The presenter’s story alternated with that of the victim V., who related how he had been ill-treated by the Khuzhins and had unsuccessfully attempted to escape. The presenter asked the participants whether the Khuzhin brothers could be described as sadistic. 16. Mr Zinterekov replied as follows: “We, that is, prosecutors and the police, have known these brothers from the time when they were still minors... We investigated the acts committed by the brothers but they could not be held criminally liable by virtue of their young age. After they reached the age [of majority], they found themselves in the dock. All three brothers were convicted of disorderly acts. In my opinion, that offence is very much characteristic of all the Khuzhin brothers in its cruelty and meaningless brutality. I think that the personal qualities of the Khuzhin brothers and [their] desire to have free labour have led to this crime.” 17. The participants subsequently discussed why the victim had not come to the police immediately after the beatings had begun, and commented on legal aspects of the pending proceedings: “[Mr Kurbatov:] You know when [V.] came to the law-enforcement authorities in April 1999, our investigative group in the Glazov town prosecutor’s office was shocked at the cruelty of this crime. When a person comes for protection to the law-enforcement authorities, you should examine him closely, listen carefully to his story. [V.] had more than 187 injuries on him. The Convention [for the Prevention] of Torture naturally comes to mind. [Presenter:] The Khuzhin brothers are now charged under two provisions of the Criminal Code: Article 126 – kidnapping committed for lucrative motives, and Article 117 – torture.” As she was speaking, the first page of the criminal case file was shown on screen. 18. The other participants offered the following comments: [Mr Zinterekov:] The prosecutor’s office will insist on imprisonment as a measure of punishment in respect of all three brothers... For instance, Article 126 § 2 provides for five to ten years’ imprisonment, Article 117 provides for three to seven years’ imprisonment. The court will have to choose... [Mr Nikitin:] A brazen crime. If anyone knows about similar facts, report them to the police and the criminals will be punished... [Presenter:] ... In September the Glazov Town Court begins its examination of the criminal case. Three businessman brothers who got a false idea of being slave-owners will get a well-deserved punishment.” 19. The programme was broadcast again in August 1999 and on 15 May and 25 October 2001. 20. On 7 August 1999 the journalist Ms M. published an article under the headline “The Land of Slaves” («Страна рабов») in the local newspaper Kalina Krasnaya. It began as follows: “I am firmly convinced that the following story is just one fact that emerged from the dim waters of market relations. And ethnic relations as well. Though I wish I were impartial as regards these ethnic relations – each people has its enlightened scholars and cruel murderers.” 21. The journalist related the story of V., who had been exploited and beaten by the Khuzhin brothers. The article mentioned that the elder brother’s first name was Marat, that the two other brothers were twins aged 24 and that they traded in fruit at a local market. The applicants’ last names were not listed. A former classmate of V. who had given him refuge was quoted as citing a statement by V. himself, to the effect that “these Tatars have everything fixed up”. The final paragraph read as follows: “Many, many questions crossed my mind as I was reading the criminal case file. Why is the life of a dirty piglet more valuable than a human life? Why are masses of Russians, Udmurts and others among the unemployed, while ‘they’ not only find work for themselves but also use hired labour! And why does everyone in the town know about the doings of that best friend of all tramps and put up with it? ...” 22. The applicants lodged several complaints about the press coverage of proceedings against them. 23. In a letter of 23 March 2000 Mr Nikitin replied that the programme had been produced on the basis of information supplied by the division for particularly important cases in the office of the prosecutor of the Udmurtiya Republic. Pursuant to Article 139 of the RSFSR Code of Criminal Procedure, the prosecutor’s office had had the right to disclose materials in the case file and make them available to the journalist. 24. In a letter of 3 May 2000 a deputy prosecutor of the Udmurtiya Republic replied that there were no grounds to hold officials of the Glazov prosecutor’s office criminally liable for disclosure of materials from the investigation. 25. On 25 August 2000 Mr Zinterekov wrote that there were no grounds for liability to be incurred either by officials of the prosecutor’s office or by journalists who had provided coverage of the proceedings. 26. On 18 December 2000 a deputy prosecutor of the Udmurtiya Republic replied to the third applicant that Mr Zinterekov could not be held criminally liable for his statements. 27. In a letter of 12 March 2001 a deputy prosecutor of the Udmurtiya Republic confirmed that the disclosure of the case file to the mass media had been in compliance with Article 139 of the Code of Criminal Procedure. He further noted that the Glazov town prosecutor (Mr Zinterekov) had been told to use “a more balanced approach in determining the scope of information that could be made public in criminal cases before the conviction has become final”. 28. In similarly worded letters of 25 July and 15 August 2001, deputy prosecutors of the Udmurtiya Republic informed the first and third applicants that there were no grounds to initiate a criminal case against the maker of the television programme and that no further replies concerning that matter would be given. The Glazov town prosecutor was, however, instructed to check whether a criminal investigation should be opened in connection with the article in the Kalina Krasnaya newspaper. 29. On 27 September 2001 an investigator from the Glazov prosecutor’s office issued a formal decision not to initiate a criminal case for libel against the journalist M., who had authored the article “The Land of Slaves”. It appears from the decision that, in M.’s own words, she had received formal permission from the investigator Mr Kurbatov to consult the case file and that Mr Kurbatov had approved a draft of the article. Mr Kurbatov, however, denied any memory of granting access to the file to M. and claimed he had never read the article in question. He did not deny, though, that he had briefed the presenter of the television programme on details of the criminal case. Referring to the applicants’ conviction by the judgment of 2 March 2001 (see below), the investigator found that the contents of the article had been essentially true and that M. had not disseminated any false information damaging the third applicant’s dignity or honour. 30. On 31 July 2000 the Glazov Town Court held a directions hearing and scheduled the opening of the trial for 10 August 2000. 31. The trial continued in late 2000 and early 2001. Witnesses for the prosecution and defence, as well as the victim Mr V., testified in court. 32. On 2 March 2001 the Glazov Town Court found the applicants guilty of kidnapping and torture under Article 126 § 2 and Article 117 § 2 of the Russian Criminal Code. The third applicant was sentenced to five years and one month’s imprisonment, whilst the first and second applicants were to serve seven years in a high-security colony. 33. The applicants appealed against the conviction. Their points of appeal concerned, in particular, the alleged prejudice to their presumption of innocence which had resulted from the newspaper publication and television programme described above. The prosecution also lodged an appeal. The case file was sent to the Supreme Court of the Udmurtiya Republic for consideration on appeal. 34. On 29 October 2001 the acting president of the Criminal Division of the Supreme Court of the Udmurtiya Republic returned the case file to the Town Court because the trial judge had failed to consider the applicants’ comments on the trial record, to locate the allegedly missing documents and to provide the applicants with a copy of the prosecution’s points of appeal. 35. In an interim decision of 1 November 2001 the Glazov Town Court partly accepted and partly rejected the applicants’ corrections of the trial record. 36. On 18 December 2001 the Supreme Court of the Udmurtiya Republic heard the case on appeal and upheld the judgment of 2 March 2001. The court did not address the applicants’ arguments concerning an alleged impairment of their presumption of innocence. 37. Following their conviction, the applicants remained in detention facility no. IZ-18/2 for unspecified reasons. 38. On 21 October 2002 the facility administration distributed winter clothing to the prisoners. The applicants refused to take it. On 13 November 2002 the third applicant accepted a padded jacket and the second applicant winter shoes. 39. On 26 December 2002 the applicants were listed for transport from detention facility no. IZ-18/2 to correctional colonies. According to them, the outside temperature on that day was -36o C; the Government submitted a certificate from the meteorological service showing that the temperature fell to -29.8 o C in the night. 40. At about 5 p.m., when the applicants were taken to the assembly cell of the detention facility together with ten to twelve other detainees, they were wearing T-shirts and tracksuit bottoms. The wardens offered them winter jackets and hats which, according to the Government, hailed from the humanitarian-aid supplies but had been washed and were neat. The applicants claimed that the items were “torn and old” and refused to take them. 41. At 10 p.m. the applicants, together with other prisoners, were put into a prison van and taken to Glazov railway station to board the Kirov-Kazan train that arrived at 10.10 p.m. The distance between the facility and the station was 800 metres and the journey time was less than five minutes. At 10.05 p.m. the van arrived at the station and the applicants emerged from it without winter clothing. A prison inspector dashed into the van, collected the winter clothing which the applicants had left behind, and gave it to the escorting officer. The officer again offered the clothing to the applicants to put on but they refused to do so, claiming that it was unfit to wear. According to the statements by the inspector and the officer, the clothing was in an “appropriate condition”. 42. It appears that the argument went on for about 10 to 15 minutes. The head of the train escort refused to take the applicants in without appropriate clothing and the facility personnel decided to take them back into the cells. 43. In support of their claim that the clothing had been “inappropriate”, the applicants produced to the Court a written statement signed by five other detainees who had been held in facility no. IZ-18/2 at that time. 44. On 27 and 29 December 2002, 7 January and 11 April 2003 and other dates the applicants complained that they had been subjected to inhuman and degrading treatment on 26 December 2002. 45. On 28 February 2003 Mr Zinterekov responded to them in the following terms: “It has been established that winter clothing was given to you and that you remained outside in clothing inappropriate for that season only because you refused to put it on. Your arguments that the clothing offered did not meet sanitary and hygiene standards could not have been objectively confirmed; there are no grounds for disciplining any officials.” 46. On 12 May 1999 the third applicant arrived in his van at the Glazov police station for questioning. On that day he was taken into custody (see above). 47. On 13 May 1999 the investigator Mr Kurbatov impounded the van and ordered that it should be kept in the car park of a private company. The charging order itself did not indicate the grounds on which it had been issued, but referred back to the investigator’s decision of the same date, a copy of which was not made available to the Court. 48. The third applicant repeatedly complained to various authorities that his van had been unlawfully seized. He alleged that the investigator was using it for his private errands. 49. In a letter of 14 April 2000 the acting Glazov prosecutor reported to the third applicant the findings of an internal inquiry into his complaints. He found as follows: “On 12 May 1999 Mr Kurbatov arrested you... However, the Gazel car, in which you had arrived, remained in the street outside the premises of the Glazov police station, and measures for its safe keeping were not taken. The car remained there until 13 May 1999, when Mr Kurbatov impounded it... However, he did not examine the state of the car, nor did he show it to you or any attesting witnesses... The impounded car was taken by a road police employee from Glazov police station, acting on Mr Kurbatov’s orders, into the premises of the [private company]. The car was not properly sealed... It must be noted at the same time that there existed no legal grounds for impounding the vehicle, as required by Article 175 § 1 of the RSFSR Code of Criminal Procedure. According to that provision, a charging order could be issued with a view to securing a civil claim or a possible confiscation order. However, in this case no civil claim was brought throughout the proceedings and the criminal-law provisions under which [the third applicant] was charged do not provide for confiscation measures as a penal sanction. Thus, Mr Kurbatov breached Articles 141, 142, 175 and 176 of the RSFSR Code of Criminal Procedure – which set out the requirements for the record of impounding and the procedure for issuing charging orders – and also the Instruction on the procedure for seizing, accounting, storing and transferring physical evidence in criminal cases, values and other assets by law-enforcement authorities and courts. Further to the internal inquiry, the prosecutor of the Udmurtiya Republic was advised to determine whether Mr Kurbatov should be disciplined.” 50. On 13 June 2000 the investigator Mr Kurbatov handed the keys and registration documents of the van to the Glazov Town Court. 51. In letters of 19 July and 18 December 2000 the Udmurtiya Republic prosecutor’s office informed the third applicant that Mr Kurbatov had been disciplined for breaches of the Instruction on the procedure for storing physical evidence and fined in the amount of his bonus salary for the first quarter of 2000. 52. It appears that on 4 June 2002 the Glazov Town Court lifted the charging order and the third applicant’s van was returned to Mrs Khuzhina (his brother’s wife). 53. On an unspecified date the third applicant sued the investigator Mr Kurbatov for damages on account of his failure to ensure the safe keeping of his van; all three applicants also brought a defamation action against the journalist Ms M., seeking compensation in respect of non-pecuniary damage. The Glazov Town Court ordered the joinder of both actions and listed a hearing for 3 March 2003. 54. In February 2003 the applicants asked the court for leave to appear. Mrs Khuzhina, as a representative of the first applicant, asked the court to ensure the attendance of the applicants at the hearing. 55. On 3 March 2003 the Town Court issued several procedural decisions. In the first decision, it rejected Mrs Khuzhina’s request for the applicants’ attendance, holding that the Penitentiary Code did not provide for the possibility of bringing convicted persons from a correctional colony to the local investigative unit for the purpose of taking part in a hearing in a civil case. The second decision took stock of the absence of both parties – the journalist Ms M. and a representative of the newspaper had not shown up despite having been notified of the hearing – and indicated that the case would be heard in their absence. It appears that Mrs Khuzhina then walked out of the courtroom in protest against the court’s decision to hear the case in the absence of the first applicant. In a third decision, the court decided to proceed with the case in her absence. It additionally rejected the applicants’ request for leave to appear on the same grounds as above, adding: “...parties to the case do not just have rights but also have duties, such as [a duty] to make written submissions and substantiate their claims. Taking into account the fact that the rights of Mr A. Khuzhin, Mr D. Khuzhin and Mr M. Khuzhin are not restricted and can be exercised by them in full measure, there are no legal grounds to ensure the attendance of individuals who have committed particularly serious, insolent [дерзкие] crimes.” Lastly, the Town Court rejected the applicants’ requests to summon witnesses and study the hearing records, reasoning as follows: “The substantiation of the Khuzhins’ claim seeks to obtain a new assessment of the circumstances and findings set out in the criminal judgment of 2 March 2001. The statements by the Khuzhin brothers are not reasoned or argued; they are not procedural requests as such [sic]; they have repeatedly studied the materials in the case file and can study them again by receiving copies of them; since they are serving a sentence imposed by a court judgment in a penitentiary institution, the case must be examined in their absence.” 56. On 4 March 2003 the Town Court refused for the same reasons the third applicant’s request to obtain attendance of witnesses and an expert. It also decided to proceed with the hearing in the absence of both parties’ representatives. 57. On the same day the Town Court dismissed all of the applicants’ claims. On the defamation issue it found that the article “The Land of Slaves” had been based on the true facts which had subsequently been established in the criminal judgment of 2 March 2001. As regards the claim relating to the damage caused to the third applicant’s van, it established that the vehicle had been returned to him after he had paid compensation to the victim for non-pecuniary damage and that the investigator had acted within his powers and had not caused any damage through his actions. 58. The applicants and Mrs Khuzhina appealed. They complained, in particular, of a breach of the principle of equality of arms. Mrs Khuzhina additionally pointed out that she had not been the representative of either Damir or Marat Khuzhin. 59. On 7 October 2003 the Civil Division of the Supreme Court of the Udmurtiya Republic held an appeal hearing. It appears that neither the applicants nor Mrs Khuzhina were in attendance. The court held that there had been no breach of equality of arms because the applicants had been duly notified of the hearing and informed of their right to appoint representatives. The second and third applicants had not made use of that right, whereas the first applicant’s representative, Mrs Khuzhina, had declined to take part in the hearing. In the court’s view, the joinder of the cases was also lawful and justified because the second applicant had been a party to both claims. 60. According to a letter of 30 April 2003 from the prosecutor of the Udmurtiya Republic to the second applicant, it was incumbent on the court hearing a civil claim to decide whether the detainee’s presence was necessary. The second applicant could have been escorted to the hearing if there had been a decision of the Glazov Town Court to that effect. 61. On an unspecified date the third applicant brought a defamation action against the prosecutor Mr Zinterekov. He challenged as defamatory the statements made by Mr Zinterekov in the Versiya television programme about the applicants’ adolescent delinquency, insolence and greediness. 62. On 14 November 2003 the Glazov Town Court delivered its judgment. Mr Zinterekov made oral submissions to the court; the third applicant was neither present nor represented. In dismissing the defamation action, the court noted as relevant the materials relating to the criminal case against the applicants and, more specifically, a reference letter for the second applicant from his secondary school that concerned his unauthorised absences from classes and disorderly behaviour. The court held that the facts as established in the judgment of 2 March 2001 had justified Mr Zinterekov’s reference to the applicants as insolent and greedy. 63. On 19 December 2003 and 22 January 2004 the third applicant lodged his points of appeal, alleging, in particular, a violation of the principle of equality of arms. 64. The Court has not been provided with any information about the appeal proceedings. 65. The Criminal Code provides that torture is punishable with up to seven years’ imprisonment (Article 117 § 2) and kidnapping with up to twenty years’ imprisonment (Article 126 § 3). 66. The RSFSR Code of Criminal Procedure (in force at the material time) provided as follows: “If the investigator observes, on the basis of the case file, that the crime committed caused pecuniary damage to an individual or organisation, he must explain to them or to their representatives that they have a right to lodge a civil claim... If a civil claim has been lodged, the investigator must issue a reasoned decision recognising [the interested party] as a civil claimant or refusing such status...” “Materials from the preliminary investigation may only be made public with the consent of an investigator or a prosecutor and to the extent they consider it possible...” “With a view to securing a civil claim or a possible confiscation order, the investigator must charge the property of the suspect, defendant ... or of the other persons who keep criminally acquired property... If necessary, the charged property may be impounded...” 67. The Code of Civil Procedure of the Russian Federation provides that individuals may appear before the court in person or act through a representative (Article 48 § 1). A court may appoint an advocate to represent a defendant whose place of residence is not known (Article 50). The Advocates Act (Law no. 63-FZ of 31 May 2002) provides that free legal assistance may be provided to indigent plaintiffs in civil disputes concerning alimony or pension payments or claims for health damage (section 26 § 1). 68. The Penitentiary Code provides that convicted persons may be transferred from a correctional colony to an investigative unit if their participation is required as witnesses, victims or suspects in connection with certain investigative measures (Article 77.1). The Code does not mention the possibility for a convicted person to take part in civil proceedings, whether as a plaintiff or defendant. 69. On several occasions the Constitutional Court has examined complaints by convicted persons whose requests for leave to appear in civil proceedings had been refused by courts. It has consistently declared the complaints inadmissible, finding that the contested provisions of the Code of Civil Procedure and the Penitentiary Code did not, as such, restrict the convicted person’s access to court. It has emphasised, nonetheless, that the convicted person should be able to make submissions to the civil court, either through a representative or in any other way provided by law. If necessary, the hearing may be held at the location where the convicted person is serving the sentence or the court hearing the case may instruct the court having territorial jurisdiction over the correctional colony to obtain the applicant’s submissions or carry out any other procedural steps (decisions no. 478-O of 16 October 2003, no. 335-O of 14 October 2004, and no. 94-O of 21 February 2008).