FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 7169/04 by Sergey Alekseyevich KULNEV against Russia

The European Court of Human Rights ( First Section), sitting on 18 March 2010 as a Chamber composed of:

Christos Rozakis , President, Nina Vajić , Anatoly Kovler , Elisabeth Steiner , Khanlar Hajiyev , Giorgio Malinverni , George Nicolaou , judges, and Søren Nielsen , Section Registrar ,

Having regard to the above application lodged on 21 December 2003 ,

Having regard to the Court ’ s decision to examine jointly the admissibility and merits of the case (Article 29 § 3 of the Convention),

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Sergey Alekseyevich Kulnev, is a Russian national who was born in 1951 and lives in Voronezh . He is a former military prosecutor and head of the legal firm “Kulnev and Partners”. The respondent Government are represented by Mrs V. Milinchuk, former Representative of the Russian Federation at the European Court of Human Rights.

The facts of the case, as submitted by the parties , may be summarised as follows.

On 12 November 1998 the Military Prosecutor of the Siberian Military Circuit instituted criminal proceedings against the applicant and two other persons on suspicion of several counts of aggravated bribery. The applicant appears to have been immediately notified of the charges against him. In October 1999 the investigation was completed and the applicant was served with the bill of indictment and committed to stand trial before the Military Court of the Sretenskiy Garrison.

On 24 January 2000 the Military Court of the Sretenskiy Garrison found the applicant guilty of bribery and sentenced him to four years ’ imprisonment. The judgment was not appealed against and became final.

The applicant was released on probation by a decision of the Karymskiy District Court of the Chita Region on 6 April 2001.

On 21 February 2002 the Military Section of the Supreme Court of the Russian Federation quashed the judgment of 24 January 2000 by way of supervisory-review proceedings and remitted the case for fresh examination to the Military Court of the Chita Garrison.

On 26 March 2002 the Military Court of the Chita Garrison received the case file. The first hearing was scheduled for 8 May 2002.

Of the five hearings fixed between 8 May and 2 July 2002, two were adjourned because witnesses failed to appear and two hearings were postponed because a new prosecutor had been assigned to the case and he needed time to study the case file.

On 2 July 2002 the Military Court of the Chita Garrison held that since the new Code of Criminal Procedure had entered into force on 1 July 2002 it no longer had competence to examine the applicant ’ s case and it sent the case to the Military Court of the East-Siberian Command. On 7 August 2002 that decision was quashed on supervisory review by the Presidium of the Military Court of the East-Siberian Command. The case was then sent back to the Military Court of the Chita Garrison for trial.

On 24 December 2002 the Military Section of the Supreme Court of the Russian Federation , by way of supervisory review, decided that the case was within the competence of the Military Court of the East-Siberian Command, quashed the decision of 7 August 2002 and restored the decision of 2 July 2002.

On 26 February 2003 the Military Court of the East-Siberian Command scheduled a preliminary hearing for 12 March 2003. In the meantime, the applicant had asked the trial court to stay the proceedings, citing his poor state of health and lack of resources to travel to Chita where trial hearings were to take place. The Military Court re-scheduled the hearing for 26 March 2003.

On 19 March 2003 the applicant again informed the Military Court that he was unable to attend and made another request for a stay. A week later the Military Court examined his request and decided to proceed with the examination of the case. The hearing was fixed for 9 April 2003.

Between 9 April and 9 July 2003 the Military Court held twenty-nine hearings. The applicant failed to appear once.

On 9 July 2003 the Military Court of the East-Siberian Command acquitted the applicant.

On 6 November 2003 the Supreme Court of the Russian Federation quashed that judgment and remitted the case for re-examination.

On 29 January 2004 the Military Court scheduled a hearing for 25 February 2004 and sent a telegram to the applicant, who resided in Voronezh , informing him of the date and time of the hearing. In addition, summonses to the hearing were sent by registered mail. The telegram reached the applicant ’ s home on the following day. The summonses were served on him on 11 February 2004. Ten days later the Military Court received a telegram from the applicant ’ s father notifying the trial court that the applicant had been admitted to hospital for treatment and that he was therefore unable to get to Chita to take part in the trial. Medical documents confirming the applicant ’ s father ’ s statement were sent to the Military Court by mail.

On 25 February 2004 the Military Court stayed the proceedings until 23 March 2004 because the applicant had not appeared for the hearing and his presence was mandatory. Two days later a telegram was sent to the applicant informing him that a hearing was scheduled for 23 March 2004. He was also notified that his presence was required and that he would be forcibly escorted to the court if he failed to attend.

On 10 March 2004 the Military Court received a telegram from the applicant ’ s father informing it that the applicant was undergoing treatment in a hospital in Voronezh and that he could not get to Chita to participate in the trial. Two weeks later the Military Court received medical documents confirming that information.

The next hearing was scheduled for 12 May 2004 and the applicant was duly summoned to it. The Military Court also sent telegrams to the Military Prosecutor of the Voronezh Garrison and the head of the Voronezh Town Hospital enquiring about the applicant ’ s state of health and his ability to participate in the trial.

The applicant did not attend the hearing on 12 May 2004, citing his admission to hospital, and a hearing was scheduled for 15 June 2004.

On 8 June 2004 the Military Court received a telegram from the applicant notifying it that he had been discharged from hospital on 2 June 2004. At the same time the applicant stressed that he required out-patient treatment for three months and would therefore be unable to get to Chita until October 2004. A week later the court received copies of medical documents corroborating the applicant ’ s assertion. The applicant also submitted copies of letters from the European Court of Human Rights showing that his application form and subsequent letters had been received by the Court.

On 15 June 2004 the Military Court held a hearing. When the applicant did not appear for the hearing the trial court rescheduled the hearing for 1 July 2004. On 23 June 2004 the Military Court received a copy of the applicant ’ s medical history. The applicant did not attend the hearing on 1 July 2004 and the proceedings were stayed until the end of September 2004.

On 20 September 2004 the applicant informed the Military Court that a military medical commission had examined him and had found that he needed to continue medical treatment for an additional two months. The applicant sent a copy of the commission ’ s report to the trial court by mail.

In response to the information received from the applicant, the Military Court stayed the proceedings until 16 November 2004 and sent a letter to the Health Department of the Voronezh Town Council and Voronezh Town Hospital asking them to confirm the applicant ’ s assertion that he was unfit to take part in the proceedings. On 28 September 2004 the Voronezh Town Hospital replied that the applicant required hospital treatment for another two months.

The Military Court rescheduled the hearing for 7 December 2004 and once again requested information on the applicant ’ s health. In addition, it asked the head of the Voronezh Regional Bar Association and the head of the Ministry of Justice of the Voronezh Region to provide assistance in securing the applicant ’ s presence at the trial hearings.

On 6 December 2004 the Military Court received a letter from the head of the Health Department of the Voronezh Region. The letter read as follows:

“In response to your [letter] about [the applicant ’ s] failure to attend the hearing in Chita , [I] inform you that:

[The applicant] was treated in [hospital] from 16 to 20 February 2004, from 24 February to 12 March 2004 and from 6 May to 2 June 2004. The admissions to hospital were well-founded; the copies of the medical documents issued by [the hospital] and presented to you are authentic.

Subsequently [the applicant] continued to be monitored by [the hospital]. This monitoring was done without his being granted sick leave, as the hospital did not record any acute attacks of his chronic diseases during the monitoring period. The copies of documents issued by [the hospital] and submitted by you are authentic; however, they do not indicate that [the applicant] was incapacitated only temporarily. [The applicant ’ s] state of health and his out-patient treatment did not prevent his presence at the hearings in Chita . [The applicant] is not currently being monitored by [the hospital].”

On 7 December 2004 the Military Court held a hearing which the applicant attended. Between 8 December 2004 and 25 January 2005 the Military Court scheduled fifteen hearings, of which three were adjourned because the applicant failed to appear and one was postponed at the request of a co-defendant who had to attend the funeral of a close relative.

Of the twenty-nine hearings fixed between 25 January and 20 April 2005, four hearings were postponed because the applicant did not attend, two were adjourned because a co-defendant did not attend, and one was rescheduled so that one of the witnesses could attend.

On 13 May 2005 the Military Court of the East-Siberian Command discontinued the criminal proceedings against the applicant and relieved him of criminal liability as the statutory limitation period had expired. The judgment was not appealed against and became final.

COMPLAINTS

The applicant complained under Articles 6 and 13 of the Convention that the criminal proceedings against him had been excessively long, that he had not had an effective remedy for his complaints of a violation of the “reasonable time” requirement in the criminal proceedings against him, that the judgment of 24 January 2000 had been unfair and that the judgment of 9 July 2003 had been quashed on appeal .

THE LAW

1. The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention, which reads as follows:

“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”

A. Submissions by the parties

The Government submitted that the entire duration of the proceedings during which the case had been pending before the domestic authorities should be divided into two separate periods: (a) from 12 November 1998 to 24 January 2000, when the Military Court of the Sretenskiy Garrison convicted the applicant, and (b) from 21 February 2002, when the Military Section of the Supreme Court quashed the conviction and authorised a re-trial, to 13 May 2005, when the criminal proceedings were discontinued. During the first period of one year, two months and twelve days the case was pending before investigating authorities and the trial court. Citing the particular complexity of the case, which involved a number of defendants and required the investigation of several instances of criminal conduct, the Government insisted that the duration of the first period could not be considered excessive. As regards the second period, the Government stressed that the only delay attributable to the domestic authorities was the one of approximately six months between July 2002 and January 2003 when the domestic courts had been dealing with the competence issue. The remaining delays were entirely caused by the applicant ’ s failure to attend owing to his illness or without any reason whatsoever. The Government drew the Court ’ s attention to the medical evidence showing that the applicant had been fit to participate in the trial. However, he had misled the trial court about the state of his health and deliberately prolonged the proceedings. The Government insisted that the complaint was manifestly ill-founded and should be dismissed.

The applicant averred that the domestic courts were responsible for the entire length of the criminal proceedings. As to his inability to attend hearings, he claimed that he had been ill and had provided the trial court with documents showing that he was unfit to stand trial.

B. The Court ’ s assessment

The Court observes, and the parties did not dispute this fact, that the period to be taken into consideration began on 12 November 1998. The Court further reiterates the Government ’ s argument that the proceedings could be divided into two separate periods. In this regard the Court considers it appropriate to take into account only the periods when the case was actually pending before the investigating authorities and courts, that is, the periods when there was no effective judgment in the determination of the charges against the applicant. The periods during which the domestic courts were deciding whether or not to reopen the case should be excluded since Article 6 does not apply to such proceedings (see, for example, Markin v. Russia (dec.), no. 59502/00, 16 September 2004, and Skorobogatova v. Russia , no. 33914/02, § 39 , 1 December 2005 ).

The Court therefore accepts the Government ’ s argument that there were two distinct periods during which the proceedings were pending. The first period commenced on 12 November 1998 and ended on 24 January 2000 when the applicant was convicted. The second period began on 21 February 2002 with the supervisory-review decision and ended on 13 May 2005 when the proceedings were discontinued. The total length of the proceedings was therefore approximately four years and five months. During that period the case was examined by the investigating authorities and domestic courts of three levels of jurisdiction.

T he Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the complexity of the case and the conduct of the applicant and the relevant authorities (see, among many other authorities, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999-II)

Turning to the facts of the present case, the Court finds that the proceedings at issue were complex as they required an assessment of the complicated factual background to a case concerning several counts of bribery and involving a number of defendants. The Court considers that the task of the domestic authorities was rendered more difficult by these factors, although it cannot accept that the complexity of the case, taken on its own, was such as to justify the overall length of the proceedings .

In so far as the behaviour of the applicant is concerned, the Court notes that a number of hearings were adjourned at the applicant ’ s request and this resulted in the stays of the proceedings from the beginning of March to 9 April 2003 and from February to 7 December 2004. Thus, a total delay of approximately eleven months is attributable to the applicant. In this respect the Court does not lose sight of the fact that, as can be seen from the letter of 6 December 2004 issued by the Health Department of the Voronezh Region, apart from the three short periods when the applicant was undergoing treatment in hospital, his state of health did not preclude him from travelling to Chita and taking part in the trial. In addition, as can be seen from the list of hearings submitted by the Government, at least six hearings were rescheduled after 7 December 2004 because of the applicant ’ s failure to attend.

As regards the conduct of the authorities, the Court considers that the overall period less the period attributable to the applicant ’ s conduct leaves the authorities accountable for approximately three years and five months. In this respect the Court reiterates that only delays attributable to the State may justify a finding of failure to comply with the “reasonable time” requirement (see Des Fours Walderode v. the Chech Republic (dec.), no. 40057/98, 4 March 2003).

The Court observes no substantial periods of inactivity on the part of the courts save for one: from July 2002 to February 2003 when the case was transferred from one court to another as a result of a failure to correctly indentify which court was competent to examine the case. In this respect the Court reiterates that Article 6 § 1 of the Convention imposes on Contracting States the duty to organise their judicial system in such a way that their courts can meet the obligation to decide cases within a reasonable time (see, among other authorities, Löffler v. Austria (No. 2) , no. 72159/01 , § 57, 4 March 2004 ). Apart from the period discussed above, the hearings were scheduled at regular intervals, the parties ’ requests were examined at the same or at the following hearing and attendance by victims and witnesses was effectively ensured. The Court also notes that the investigating authorities and courts of three levels of jurisdiction were involved in the applicant ’ s case. The domestic authorities examined the merits of the case and did not idle (see Kravchuk v. Russia (dec.), no. 72749/01, 1 February 2005, and Pronina v. Russia (dec.), no. 65167/01, 30 June 2005 ).

Regard being had to the circumstances of the case, the complexity of the facts and legal issues involved, and the substantial delays attributable to the applicant, the Court considers that the “reasonable time” requirement has been complied with.

It follows that the complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

2. The applicant also complained that he did not have an effective domestic remedy for his Convention complaint pertaining to the excessive length of the criminal proceedings, in breach of Article 13 of the Convention which provides as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

The Government argued that the applicant ’ s complaint was manifestly ill-founded, being linked to the manifestly ill-founded complaint under Article 6 of the Convention. In any event, it had been open to the applicant to lodge an action for compensation for damage caused by the allegedly unreasonable length of the proceedings.

The applicant maintained his complaints.

B. The Court ’ s assessment

The Court reiterates that a complaint may only be made under Article 13 in connection with a substantive claim which is “ arguable” (see, for example, Hatton and Others v. the United Kingdom [GC], no. 36022/97, § 137 , ECHR 2003 ‑ VIII , with further references, and Ashworth and Others v. the United Kingdom (dec.) , no. 39561/98, 20 January 2004). The Court has found that the applicant ’ s complaint under Article 6 of the Convention concerning the length of the criminal proceedings is manifestly ill-founded and therefore inadmissible. It accordingly finds that that claim cannot be said to be “arguable” within the meaning of the Convention case-law.

It follows that the corresponding complaint under Article 13 is also manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, and that it must be rejected pursuant to Article 35 § 4.

3. Lastly, the applicant raised a number of complaints relating to certain unfavourable judgments issued in the course of the proceedings. Having regard to all the material in its possession, the Court finds that the evidence discloses no appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Søren Nielsen Christos Rozakis Registrar President