THIRD SECTION
CASE OF LEDENTSOV v. RUSSIA
(Application no. 47283/09)
JUDGMENT
STRASBOURG
21 May 2019
This judgment is final but it may be subject to editorial revision.
In the case of Ledentsov v. Russia,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
Alena Poláčková, President,
Dmitry Dedov,
Jolien Schukking, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having deliberated in private on 30 April 2019,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 47283/09) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Oleg Lvovich Ledentsov (“the applicant”), on 24 April 2009.
2. The applicant, who had been granted legal aid, was represented by Ms Ye. Gazizova, a lawyer practising in Naberezhnyye Chelny.
3. The Russian Government (“the Government”) were represented initially by Mr G. Matyushkin, former Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.
4. On 27 September 2013 the complaints concerning the alleged unfairness of the criminal proceedings and the trial court’s failure to question certain witnesses were notified to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.
THE FACTS
THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1963 and is serving a prison sentence in the Perm Region.
A. Criminal charges against the applicant
6. The facts presented below are based on the official version of the events contained in the trial judgment of 25 July 2006. At the time, the applicant was a military deputy prosecutor.
1. Physical assault of K. and extortion
7. On 24 January 2000 someone broke into the applicant’s flat and stole property belonging to him. The applicant suspected that the theft had been committed by K. He assigned a number of army privates to search for K.
8. On 29 January 2000 the applicant together with a group of privates and a police officer, M., broke into a flat where K. was hiding. The applicant hit and questioned K. and the latter admitted that he had robbed the applicant’s flat. The applicant and the privates took K. with them.
9. On the same date, the applicant and M. went to see Kras. at his flat. The applicant asked for the ring that K. had stolen from his flat and sold to Kras. The applicant threatened the latter with a gun and Kras. gave the ring back to the applicant.
10. In the subsequent days, the privates who were under the applicant’s direct command repeatedly beat K. As a result, K. signed a note acknowledging his debt to the applicant. On several occasions the applicant met with K.’s mother, asking her to repay K.’s debt and threatening her with negative consequences for K. should she fail to comply.
2. Physical assault of a suspect and witnesses
11. On an unspecified date the applicant ordered the privates to beat up Sh., who had been detained as a suspect in a criminal case. The privates complied.
12. On 26 April 2000 the applicant ordered the privates to beat up Chern., a witness in a criminal case who had refused to cooperate. The privates beat up Chern. The applicant was present and supervised the beatings.
13. On 29 April 2000 the privates beat up B., another witness in a criminal case, on the applicant’s order. The applicant was present and supervised the beatings.
3. Murder of Sor.
14. On 8 April 2000 the applicant had a fight with Sor. during which he stabbed him. Sor. died. The applicant panicked and hid Sor.’s body in a forest nearby. The body was discovered in August 2000.
B. Criminal proceedings against the applicant
1. Trial
15. On 25 July 2006 the Military Court of Garrison 101 found the applicant guilty of murder, extortion and four counts of abuse of power, and sentenced him to fifteen years’ imprisonment. The court relied on forensic evidence and witnesses’ statements. The majority of the witnesses were questioned in court. Five of them did not attend and the trial judge, R., read out their statements.
2. Appeal
16. The applicant appealed against his conviction. His main argument was that he had been wrongfully convicted. He claimed that the killing of Sor. had been justifiable as he had acted in self-defence; that he should have been acquitted of extortion; and that the prosecution had failed to prove that he had abused his power as regards the beatings of the suspects and witnesses. The applicant also claimed that, in contravention of the applicable rules of criminal procedure, during the preparation of the verdict the trial judge had repeatedly left the deliberations room and that he had prepared the text of the verdict outside Perm where the trial had been held. The applicant relied on written statements made by his counsel, B., and by M., a retired serviceman. In particular, M. submitted that in July 2006, when Judge R. had been supposed to be drafting the judgment in the applicant’s case, he had seen the judge in another town. The judge had talked openly about the applicant’s trial, telling everyone that he would find the applicant guilty and sentence him to a long term of imprisonment. The applicant also complained that the trial court had failed to question five witnesses.
17. On an unspecified date the applicant retained counsel P. On 27 March and 17 April 2007 P. submitted twelve additional statements of appeal. The appeal court refused to accept them, holding that they had been submitted outside the time-limit, given that counsel P. had not submitted the original statement of appeal.
18. Following the applicant’s appeal, on 22 June 2007 the Military Court of the Third Circuit upheld his conviction in substance. As regards the applicant’s argument that the trial court had failed to question five witnesses, the court noted that three of them had been ill and had been unable to attend the hearing. The court made no comment as regards the remaining two witnesses. It also dismissed as unsubstantiated the applicant’s allegations concerning Judge R., holding as follows:
“There is no evidence showing that [Judge R.] discussed with anyone any issue relating to the [applicant’s case]. Nor does the case file contain any material confirming the [applicant’s] allegations that [Judge R.] made statements in public about the verdict he was drafting ... The allegations made in the statements of appeal do not constitute such evidence either.”
3. First supervisory review
19. On an unspecified date the applicant applied for a supervisory review of his conviction. He reiterated the arguments raised in his statement of appeal.
20. On 26 January 2009 the Presidium of the Military Court of the Third Circuit conducted a supervisory review and upheld the applicant’s conviction. The court discerned no violation of the rules of criminal procedure and dismissed the applicant’s complaint.
4. Second supervisory review
21. On 23 June 2009 the Supreme Court of the Russian Federation noted that the applicant had not been notified of the date and time of the supervisory review hearing, quashed the judgment of 26 January 2009 and remitted the matter for fresh consideration.
22. On 17 September 2009 the Presidium of the Military Court of the Third Circuit conducted a new supervisory review of the applicant’s conviction and upheld it. The court reiterated its earlier findings contained in the judgment of 26 January 2009.
5. Third supervisory review
23. On 10 June 2010 the Supreme Court quashed the judgment of 17 September 2009 and remitted the matter for fresh consideration in view of the unlawful composition of the supervisory-review court.
24. On 11 August 2010 the Presidium of the Military Court of the Third Circuit conducted a new supervisory review of the applicant’s conviction and upheld it. The Presidium ruled, inter alia, that the trial court’s reliance on the witnesses’ statements had been justified, given that those witnesses had been unable to attend the hearing and that their testimonies had not been the decisive or sole evidence in the applicant’s case. The Presidium dismissed as unsubstantiated the applicant’s argument that the trial judge had failed to comply with the applicable rules of criminal procedure when preparing his verdict. Lastly, the Presidium reiterated its earlier findings as regards the dismissal without consideration of the additional statements of appeal lodged by counsel P.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
25. The applicant complained that the trial judge, R., had not been impartial, that the trial court had relied on the statements of five witnesses given earlier in the course of the investigation without questioning them in person, and that the appellate court had refused to accept his twelve additional statements of appeal. He relied on Article 6 of the Convention, which, in so far as relevant, reads as follows:
“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.
...
3. Everyone charged with a criminal offence has the following minimum rights:
...
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him[.]”
26. The Government submitted that the applicant’s allegations concerning the partiality of the trial judge had been subject to examination by the appeal and supervisory-review courts. The courts had not accepted as credible the statements to that effect made by the applicant’s lawyer and a friend, whose goal had obviously been to help the applicant at all costs. As regards the witnesses’ statements admitted as evidence, the Government submitted that they had not been the sole or decisive evidence against the applicant. His conviction had been based predominantly on forensic evidence and the statements of the witnesses questioned in court. Three of the five witnesses had been unable to attend the hearing because they had been ill and it had been impossible to establish the whereabouts of the remaining two. Lastly, the Government submitted that although the appellate court had rejected the additional statements of appeal lodged by the applicant’s counsel, who had not submitted the original statement of appeal, counsel had been present at the appeal hearing and there had been nothing to prevent him from bringing any issue raised in those statements to the attention of the appellate court.
27. The applicant maintained his complaints. He argued that B. and M. had been merely acquaintances of his and not friends, as claimed by the Government. As regards the witnesses, the applicant considered their statements to have been decisive for his conviction. The court had failed to take the necessary measures to ensure their presence. Nor had it verified whether there had been a good reason for their non-attendance. Lastly, he argued that the appellate court’s refusal to accept the additional statements of appeal had been in contravention of the applicable rules of criminal procedure.
A. Admissibility
28. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B. Merits
29. The Court notes that the applicant made a number of complaints calling into question the fairness of the criminal proceedings against him. It will first examine the applicant’s allegations as regards the trial judge’s partiality. In this connection, it will rely on the general principles established in its case-law (see, for example, Kyprianou v. Cyprus [GC], no. 73797/01, §§ 118-21, ECHR 2005‑XIII).
30. The Court observes that the applicant called into question Judge R.’s impartiality, alleging that he had made statements about the applicant’s guilt prior to delivering the verdict in the case. The applicant presented witness statements to that effect before the appellate court, which rejected the allegations as unsubstantiated.
31. It is not the Court’s task, in the circumstances of the present case, to rule on the evidential value of witness statements alleging a lack of impartiality on the part of Judge R. or to decide whether the latter had actually made the alleged statements. The Court considers, however, that the issue raised by the applicant before the appellate court did not immediately appear to be manifestly devoid of merit. Accordingly, in the Court’s view, it was incumbent on the appellate court to check whether, as required by Article 6 § 1 of the Convention, the trial court had been “an impartial tribunal” within the meaning of that provision. It was the appellate court’s duty to use all the means within its power to dispel any doubts as to the truth and nature of the applicant’s allegations. The Government’s submissions and the material from the applicant’s criminal case-file do not show that any such check was performed. Save for the appellate court’s general statement that the applicant’s allegations were unsubstantiated (see paragraph 18 above), the judgments in the applicant’s case remained silent as to the underlying reasons for the appellate court’s conclusion and why it had chosen not to question M. and B. or to instruct the law-enforcement authorities to conduct an investigation into the applicant’s allegations pending the delivery of the appeal judgment.
32. The above considerations are sufficient for the Court to hold that the national judicial authorities deprived the applicant of the possibility of remedying, if proved necessary, a situation contrary to the requirements of the Convention (compare, Remli v. France, 23 April 1996, §§ 47-48, Reports of Judgments and Decisions 1996‑II, and Timofeyev v. Russia [Committee], no. 16887/07, §§ 21-24, 14 November 2017). There has been, accordingly, a violation of Article 6 of the Convention. The Court also considers that, in the circumstances of the case, there is no need to examine the remainder of the applicant’s complaints raised under that provision.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
33. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
A. Damage
34. The applicant claimed 99,900 euros (EUR) in respect of non‑pecuniary damage. Alternatively, he claimed EUR 170 for each day he had spent in prison following his conviction.
35. The Government considered that no monetary award should be made to the applicant, given that finding a violation of Article 6 of the Convention would serve as grounds for reopening his criminal case at national level.
36. The Court notes that it has found a violation of Article 6 of the Convention on account of the lack of impartiality of the trial court and awards the applicant EUR 7,800 in respect of non-pecuniary damage.
B. Costs and expenses
37. The applicant also claimed 1,100,000 Russian roubles (RUB) for the costs and expenses incurred before the domestic courts (for the work of two lawyers and the applicant’s mother) and RUB 300,000 for the costs and expenses incurred before the Court. He submitted copies of contracts with his mother and his representative before the Court.
38. The Government considered that the applicant’s claims should be rejected for his failure to show that he had actually incurred them and that they had been necessary.
39. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, taking account of the documents in its possession, the above criteria and the fact that legal aid has been granted to the applicant, the Court considers it reasonable to award the sum of EUR 1,000 covering costs under all heads, in addition to the sum paid by way of legal aid.
C. Default interest
40. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declares the application admissible;
2. Holds that there has been a violation of Article 6 of the Convention on account of the lack of impartiality of the trial court;
3. Holds that there is no need to examine the remainder of the complaints under Article 6 of the Convention;
4. Holds
(a) that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:
(i) EUR 7,800 (seven thousand eight hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 1,000 (one thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned three months until settlement, simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period, plus three percentage points;
5. Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 21 May 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Alena Poláčková
Deputy Registrar President