Постановление Европейского суда по правам человека от 22.07.2010 «Дело Самошенков и Строков (samoshenkov and strokov) против России» [англ.]

Город принятия

EUROPEAN COURT OF HUMAN RIGHTS
FIRST SECTION
CASE OF SAMOSHENKOV AND STROKOV v. RUSSIA
(Applications Nos. 21731/03 and 1886/04)
JUDGMENT*
(Strasbourg, 22.VII.2010)
____________________________
*This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Samoshenkov and Strokov v. Russia,

The European Court of Human Rights (First Section), sitting as a Chamber composed of:

Christos Rozakis, President,

Anatoly Kovler,

Elisabeth Steiner,

Dean Spielmann,

Sverre Erik Jebens,

Giorgio Malinverni,

George Nicolaou, judges,

and {Soren}*Nielsen, Section Registrar,

____________________________
*Здесь и далее по тексту слова на национальном языке набраны латинским шрифтом и выделены фигурными скобками.

Having deliberated in private on 1 July 2010,

Delivers the following judgment, which was adopted on that date:

PROCEDURE
1. The case originated in two applications (Nos. 21731/03 and 1886/04) 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 two Russian nationals, Mr Andrey Petrovich Samoshenkov ("the first applicant") and Mr Igor Gennadiyevich Strokov ("the second applicant"), on 19 May and 10 November 2003.

2. The applicants, who had been granted legal aid, were represented by Mr P.A. Finogenov, a lawyer with the International Protection Centre, a Moscow-based human-rights NGO. The Russian Government ("the Government") were represented by Mr G. Matyushkin, the Representative of the Russian Federation at the European Court of Human Rights.

3. On 5 May and 23 June 2008 the President of the First Section decided to give notice of the applications to the Government. It was also decided to examine the merits of the applications at the same time as their admissibility (Article 29 § 1).

4. The Government objected to the joint examination of the admissibility and merits of the applications. Having considered the Government's objection, the Court dismissed it.

THE FACTS
I. The circumstances of the case
5. The applicants were born in 1962 and 1967 respectively and are now serving their sentence in the Chelyabinsk Region.

A. Criminal proceedings against the first applicant
6. On 14 January 1995 the first applicant was arrested on suspicion of murder, an offence punishable with up to fifteen years' imprisonment or capital punishment. On 28 February 1996 he was formally charged with murder and on 6 December 1996 committed to stand trial before the Chelyabinsk Regional Court.

7. On 26 February 1997 and 5 February 1999 the Regional Court returned the case to the prosecutor for additional investigation.

8. On 9 November 2000 the Chelyabinsk Regional Court convicted the first applicant of inflicting grievous bodily harm and sentenced him to six years' imprisonment. However, he was immediately released on the basis of a general amnesty.

9. On 31 October 2001 the Supreme Court of the Russian Federation quashed the judgment on appeal and ordered a retrial by a different bench.

10. The new trial opened on 6 December 2001. Owing to the absence of co-defendants, the hearing was first adjourned until 29 December 2001 and then again until 11 February 2002. The first applicant failed to appear at that hearing and on 20 February 2002 the Regional Court issued a search warrant and severed his case from the proceedings against the other defendants.

11. On 25 April 2002 the first applicant was arrested and remanded in custody. The trial resumed on 22 August 2002.

12. On 19 September 2002 the Chelyabinsk Regional Court convicted the first applicant of aggravated murder and sentenced him to eleven years' imprisonment.

13. Counsel for the first applicant filed a statement of appeal.

14. On 27 December 2002 the Supreme Court upheld the judgment on appeal. The hearing was conducted by means of a videolink connecting the courtroom with the remand prison where the first applicant was held. Counsel for the first applicant was not invited to take part in the appellate proceedings.

15. On 10 September 2007 the first applicant sent an application for supervisory review to the President of the Supreme Court of the Russian Federation, complaining that he had not been represented in the appellate proceedings. It appears that the institution of supervisory review proceedings was refused.

B. Criminal proceedings against both applicants
16. In 2002 both applicants were charged with beating a Mr O., and fraudulently gaining possession of his car.

17. On 16 August 2002 the second applicant was remanded in custody for an initial two-month detention period.

18. On 10 October 2002 the first applicant and his counsel asked the investigator, among other matters, to secure the attendance of the witnesses Ms E., Mr B., Mr U., as well as unnamed garage employees and others, at the trial. On the following day the investigator acceded to that request and directed that the witnesses be included in the witness list accompanying the charge sheet.

19. The case was sent for trial to the Miass Town Court of the Chelyabinsk Region on 17 October 2002.

20. On 6 November 2002 the Town Court returned the case-file to the prosecutor on the ground that the charge sheet had not been properly served on the defendants.

21. On 25 February 2003 the Town Court held a preliminary hearing. The court rejected the first applicant's request to call further witnesses, other than those already listed on the charge sheet. The applicants did not appeal against the decision.

22. On 11 March 2003 the Town Court noted that the witnesses had not appeared but decided to proceed with the trial. It heard the parties' views on the order of oral argument and examined the victim Mr O.

23. On 7 April 2003 the Town Court issued an order requiring the witness Ms E. and others to attend. On 7 and 21 April 2003 a bailiff filed two reports, stating that he would be unable to bring the witnesses to the court because he did not have enough money to travel to their places of residence.

24. On 17 April 2003 the witness Mr B. sent a telegram to the Town Court informing it that he would not be able to attend because of financial constraints. On the following day the nurse of a child of the witness Mr U. contacted the court by telephone and said that Mr U. had been away for professional reasons.

25. On 22 April 2003 the Town Court, among other procedural matters, rejected the first applicant's request for examination of Mr U. before the court.

26. On 15 May 2003 the Town Court examined the prosecutor's application for a further extension of the applicant's detention. It noted that the authorised period of detention had expired on 17 April 2003 and held that it should be extended for a further three months, until 17 July 2003.

27. During the trial the Town Court overruled the applicants' objection to the reading-out of Ms E.'s written statement made at the stage of the preliminary investigation and authorised the prosecutor to use this piece of evidence. Subsequently, the court rejected the applicants' second request to obtain the attendance and examination of Ms E.

28. On 25 June 2003 the Town Court rejected the applicants' request for examination of the investigators Ms K. and Ms P. and the expert witness Mr Ku. It noted that the investigator Ms P. had already been examined in court, that the investigator Ms K. had not taken part in the investigating of the criminal case, and that the expert Mr Ku. had not been required to give his opinion on the origin of the victim's injuries. The applicants did not appeal against the decision.

29. On 1 July 2003 the Miass Town Court delivered its judgment. It found that, driven by personal enmity against the victim Mr O., the applicants had beaten him and had also forced him to hand over the keys and registration papers for his Mercedes car. The court did not accept the applicants' defence that the first applicant had legitimately purchased the car from Mr O. In finding the applicants guilty of robbery, the court referred to the following evidence:

(a) The testimony by the victim, Mr O., who related to the court that on 5 October 2001 he had gone to an office in Miass for business negotiations concerning a failure to make payment for a shipment of metal belonging to his uncle Mr St. He had been surprised to see in the office both applicants, whom he had not previously known. They had shouted at him and the first applicant had broken a leg off a chair and attempted to hit him with it. They demanded that he give them keys and registration papers for his Mercedes car. When he refused, they had punched and kicked him and also hit him on his head with the chair leg. Subsequently Mr O. had been told by a middleman that he was to pay 1,000 United States dollars "to settle the problem" and also transfer the registration of his Mercedes car to the first applicant, which he did on 12 October 2001 at the traffic police department of Magnitogorsk.

(b) The testimony by Mr St. who had gone to the meeting together with Ms E. and his nephew Mr O. He had seen both applicants shout at Mr O. and wield the chair leg. He had not seen what had happened thereafter because the first applicant had told him to go outside. Later, he had seen Mr O. with his face covered in blood and the first applicant driving Mr O.'s car.

(c) The pre-trial statement by Ms E. who had gone to the meeting together with Mr St. and had seen both applicants in the office. Although she had remained outside, she had seen through the window that the first applicant had been beating Mr O. with some kind of a wooden stick, and that Mr O. was covered in blood and swollen when leaving the office.

(d) The pre-trial statement by Mr B. who had seen the applicants in the office. He had gone away on a personal errand for some fifteen minutes and upon his return he had seen Mr O. with a wound on his head and bloodstains on his jacket.

(e) The testimony of Ms M. who had not been present in the office but who had seen Mr O. covered in blood.

(f) The testimony of Mr and Ms V., who had been around the office but had not seen anyone beat Mr O.

(g) The testimony of Mr U., a former traffic-police officer in Magnitogorsk, who said that it might be possible that he had registered the transfer of ownership of the Mercedes car but he could not remember it clearly.

(h) The testimony by the former police officer Mr F. and investigator Ms P., who had detained and interviewed the first applicant in April or May 2002.

(i) Documents concerning the financial transaction which had been the source of conflict, and the Mercedes car.

(j) Forensic reports showing that Mr O. had injuries from being struck with a blunt object that may have been caused in October 2001, and that Mr O. was a person of sound mind.

30. The Town Court sentenced the first applicant to eight years' imprisonment and the second applicant to three years' imprisonment. The applicants and their counsel appealed against the conviction.

31. The first applicant, among other matters, specifically complained about the trial court's failure to examine the witness Ms E. and the reading-out of her written statement.

32. The second applicant complained, in particular, that the trial court had not taken measures to obtain the attendance of the defaulting witnesses Ms E. and Mr B. and had read out their written statements despite the objections by the defence. He maintained that the trial court had unlawfully decided to examine the witnesses for the defence before those for the prosecution. Finally, he submitted that his detention from 17 April to 15 May 2003 had been unlawful.

33. On 4 September 2003 the Chelyabinsk Regional Court upheld the conviction on appeal. As regards the applicants' specific grievances, it found as follows:

"The convicts' argument that the trial court did not take measures for summoning the witnesses is unfounded because the case-file contains several court orders requiring the witnesses to attend, which shows that the court complied with the requirements of the criminal-procedure law.

The convicts' argument that the trial court breached the order of examination of evidence is unfounded because the trial record shows that the decision on the order of examination of evidence was made upon consultation with the parties and that the witnesses were examined in the order of their appearance before the trial court.

...

The convicts' argument that there was no reason to read out the written statement by the witness Ms E. is unfounded because the grounds and procedure for making such a decision are compatible with Article 281 of the Code of Criminal Procedure.

The convict Strokov's argument that he was unlawfully detained from 17 April to 15 May 2003 is unfounded because this period, like all other detention periods, was credited towards the sentence imposed on him."
II. Relevant domestic law
A. Custody matters
34. The Russian Constitution establishes that a judicial decision is required before a defendant can be detained or his or her detention extended (Article 22).

35. The Code of Criminal Procedure ("CCrP") provides that the term of detention "during the trial" is calculated from the date the court received the file and to the date the judgment is given. The period of detention "during the trial" may not normally exceed six months, but if the case concerns serious or particularly serious criminal offences, the trial court may approve one or more extensions of no longer than three months each (Article 255 §§ 2 and 3 of the CCrP).

B. Legal representation in the appellate proceedings
36. Article 51 of the CCrP provides for mandatory legal representation if the accused faces serious charges carrying a term of imprisonment exceeding fifteen years, life imprisonment or the death penalty. Unless counsel is retained by the accused, it is the responsibility of the investigator, prosecutor or the court to appoint legal-aid counsel.

37. The Constitutional Court, in its decision of 18 December 2003, confirmed the applicability of the requirements of Article 51 of the CCrP to the appellate proceedings.

THE LAW
I. Joinder of the applications
38. Having regard to the fact that the applicants were co-defendants in the same criminal proceedings, the Court decides to join their applications, in accordance with Rule 42 § 1 of the Rules of Court.

II. Alleged violation of Article 5