SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 28861/03 by Khusein AZIEV against Russia

The European Court of Human Rights (Second Section), sitting on 20 May 2008 as a Chamber composed of:

Françoise Tulkens, President , Antonella Mularoni, Anatoly Kovler, Vladimiro Zagrebelsky, Danutė Jočienė, Dragoljub Popović , András Sajó, judges , and Sally Dollé, Section Registrar ,

Having regard to the above application lodged on 19 August 2003,

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 ap plicant, Mr Khusein Aziev, is a Russian national who was born on 28 September 1973 in the village of Roshni ‑ Chu in the Chechen Republic and is currently serving his sentence in the Kemerovo region. He is represented before the Court by Mr I. Timishev, a lawyer practising in Nalchik , the Republic of Kabardino-Balkaria . The Russian Government (“the Government”) were initially represented by Mr P. Laptev, the former Representative of the Russian Federation at the European Court of Human Rights, and subsequently by their Representative, Mrs V. Milinchuk.

The applicant was one of the applicants in the Shamayev case ( Shamayev and Others v. Georgia and Russia , no. 36378/02, ECHR 2005 ‑ III ) . In his letter of 9 October 2003 he requested that the present application be joined to his complaint in the Shamayev case, cited above. On 26 April 2005, in view of the fact that judgment had already been given in Shamayev , cited above, and that the complaints made by the applicant in the present case differed to a large extent from those raised by his Georgian representatives in Shamayev , the Court decided not to join the two cases under Rule 42 § 1 of the Rules of Court.

A. The circumstances of the case

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

1. Events prior to the applicant ’ s extradition from Georgia to Russia

On 27 July 2002 a group of several armed men, including the applicant, were arrested by the Georgian border guards on the Georgian-Russian border (see Shamayev and Others , cited above, §§ 57, 89 and 106).

The applicant was placed in pre-trial detention by the Georgian authorities. Following that measure, the Russian Prosecutor General ’ s Office requested the applicant ’ s extradition to the Russian Federation (see Shamayev and Others , cited above, §§ 58 and 62 ‑ 73). The applicant was charged by the Russian authorities with terrorism and banditry with aggravating circumstances ( Articles 205 § 3 and 209 § 2 of the Criminal Code); causing bodily harm to members of the police and security forces (Article 317 of the Criminal Code ); organising illegal armed groups and participation in such groups, with aggravati ng circumstances (Article 208 § 2 of the Code); gunrunning with aggravating circumstances ( Article 222 § 2 of the Criminal Code); and illegal crossing of the Russian Federation ’ s border in July 2002, with aggravating circumstances (Article 322 § 2 of the Code). He was extradited on 4 October 2002 (see Shamayev and Others , cited above, §§ 66, 70, 71 and 74).

2. Events subsequent to the applicant ’ s extradition to Russia

(a) The role of the applicant ’ s lawyer during the preliminary investigation

It appears that upon the applicant ’ s arrival in Russia , on 5 October 2002, he was assigned a lawyer to represent his interests, Mr Molochkov. After 31 January 2003 the applicant was defended by another lawyer, hired by his family, Mr V. On 19 August 2003 the applicant instructed Mr Timishev to represent him before the European Court .

The applicant produced a letter dated 9 July 2003 which had been sent to the Court on 26 August 2003 by Mr Molochkov in connection with the Shamayev case (see Shamayev and Others , cited above, § 241). In the letter, sent in relation to a request from the Representative of the Russian Federation to the Court, Mr Molochkov stated that he had acted as Mr Aziev ’ s defence lawyer between 5 October 2002 and 31 January 2003 in connection with the criminal charges brought against the latter. During that period his former client had never complained of a violation of his rights under the Convention, nor had he ever expressed to him a wish to apply to the Court. In the absence of relevant instructions from the applicant , the lawyer could not contact the Court on his own initiative. He had always had adequate time and facilities to prepare his client ’ s defence and opportunities to meet him without prison wardens being present (ibid . , §§ 232 et seq.).

The applicant alleged that Mr Molochkov had taken no steps to defend him. In any event, since he did not speak Chechen, the lawyer would have been unable to hold discussions with him. He had not refused to accept Mr Molochkov ’ s services; nor had he lodged any complaints against the actions of Mr Molochkov with the domestic courts or any other authorities.

(b) Procedure for designating a court with territorial jurisdiction

On 24 June 2003 the preliminary investigation was closed. The applicant was committed for trial before the Supreme Court of the Chechen Republic (“the Supreme Court of Chechnya”). On 24 July 2003, citing the “lack of judges of the court available to examine this category of case”, the President of that court decided to refer the case to the Supreme Court of the Russian Federation so that the latter could designate another competent court.

On 21 August 2003 the Vice-President of the Supreme Court of the Russian Federation decided to refer the case to the Stavropol Regional Court .

When he was brought before the Regional Court , the applicant requested that his case be transferred to the Supreme Court of Chechnya under Article 30 § 2 of the new Code of Criminal Procedure (“CCP”). He insisted that, under the CCP, his case fell within the territorial jurisdiction of that court.

By a decision of 6 October 2003 a single judge of the Stavropol Regional Court rejected the request on the ground that Article 36 of the CCP prohibited jurisdiction disputes between courts. As the case had been referred to the Regional Court by the Supreme Court of the Russian Federation following a decision to transfer jurisdiction, the applicant ’ s request could not be granted.

The applicant lodged an application for supervisory review with the Supreme Court of the Russian Federation . On 26 November 2003 a judge of that court replied to the applicant, pointing out that decisions of the President and Vice ‑ President of the Supreme Court of the Russian Federation were not amenable to appeal and that, accordingly, his complaint concerning the transfer of jurisdiction had been rejected without being examined on the merits.

According to the judge in question, when the preliminary investigation was closed on 24 June 2003 the applicant had requested a jury trial before the Supreme Court of Chechnya (see Article 30 § 2 (b) of the CCP). As assize courts could not be introduced in Chechnya until 1 January 2007 (as provided by the federal Law of 27 December 2002), the fact that the applicant ’ s case had been referred to the Supreme Court of the Russian Federation with a view to transferring jurisdiction was not contrary to Article 35 of the CCP. The judge maintained that since the applicant and his representative had been informed of the decision of 21 August 2003 to refer the case to the Stavropol Regional Court for examination, there had been no violation of the applicant ’ s rights.

After the communication of the case to the Russian authorities, the parties informed the Court that on 6 October 2003 the applicant and his representative had stated that he did not want to be tried by jury. Accordingly, the case was to be heard by a single judge. Following several decisions to adjourn the hearing, on 12 November 2004 the Stavropol Regional Court granted the applicant ’ s request and decided to refer the question of territorial jurisdiction to the Supreme Court.

On 13 January 2005 the Supreme Court ruled that the case was to be heard by the Supreme Court of Chechnya, in view of the applicant ’ s withdrawal of his request to be tried by jury.

On 20 June 2005 the Supreme Court of Chechnya found the applicant guilty of banditry, illegal handling of firearms, assault on police or military officers and illegal crossing of the state border. The applicant was given a custodial sentence of seventeen years, to be served in a strict-regime correctional facility. On 24 June 2005 the applicant appealed against the conviction, apparently raising a number of procedural irregularities and questioning the interpretation of certain facts by the trial court. He did not submit a copy of his appeal.

On 15 September 2005 the Supreme Court upheld the conviction.

(c) The alleged ill-treatment of the applicant

Alleging that while being transferred from the SIZO to the Stavropol Regional Court on 29 October 2003 his client had been ill-treated by the guards escorting him, Mr Timishev applied to the Stavropol district prosecutor ’ s office to have the perpetrators placed under investigation.

The prosecutor of the Promyshelnny district of Stavropol investigated the complaint. The prosecutor questioned the applicant, several guards who had been on duty on that day and the SIZO officers who had dealt with the applicant ’ s reception after he had been delivered into their custody after the court hearing. The prosecutor also inspected the journal of medical complaints kept in the SIZO. In his statement given to the prosecutor on 14 November 2003 the applicant stated that the guards had pushed him when he was climbing into the car and then slapped him on the back two or three times. They had also pushed him in the back on arrival at the court building, forcing him to walk faster.

By a decision of 14 November 2003, the application was rejected on the ground that no confirmation of the applicant ’ s allegations had been established and that the latter had not requested any medical assistance in relation to the incident. The applicant did not appeal against that decision.

In addition, an internal inquiry was carried out by the Stavropol Regional Department of the Interior. In those proceedings the guards in question were identified and questioned. They denied ill-treating the applicant. No complaints from or injuries to the applicant had been registered. The Department concluded that the complaint was unsubstantiated.

B. Relevant domestic law

Since 1 July 2002 matters relating to criminal procedure have been governed by the Code of Criminal P r ocedure (CCP) of the Russian Federation (Law no. 174-FZ of 18 December 2001).

Article 30 of the CCP sets out the composition of trial courts. Part 2 (b) of that Article provides that, upon an application by the accused, the trial of serious crimes can be conducted by a bench composed of one federal judge and twelve jurors.

Articles 32, 35 and Article 36 of the CCP lay down rules of territorial jurisdiction. They stipulate that if, inter alia , upon a successful application of a party to the proceedings, a decision has been taken to transfer the case to another court, that decision is final and binding on the court to which the case has been transferred.

The federal Law of 27 December 2002 amended the order of entry into force of the provisions of the CCP. In particular, in so far as it concerned the introduction of jury trial, the Law provided that Article 30 part 2 (b) of the CCP would come into force in the Stavropol region as of 1 July 2002 and in Chechnya as of 1 January 2007.

COMPLAINTS

1. The applicant complains under Article 3 of the Convention that on 29 October 2003 he was subjected to ill-treatment by the guards.

2. Under Article 6 of the Convention, the applicant complains firstly that the Russian Prosecutor General ’ s Office secured his extradition from Georgia to Russia without any review by the courts and secondly that the charges were brought against him with the help of Mr Molochkov, his “official” lawyer, who did not defend his case. Even if he had been willing to do so, the lawyer would have been unable to prepare his defence with him without an interpreter.

3. The applicant complains that he was not tried by a “tribunal established by law” since the Supreme Court referred his case to the Stavropol Regional Court, which, he argues, was not competent to consider the charges against him.

4. Relying on Article 13 of the Convention, the applicant complains that no remedy exists in Russian law against a decision to transfer a criminal case to a different territorial jurisdiction.

5. In his latest submissions, made after the communication of the present complaint to the Russian Government, the applicant raised a number of other points related to the fairness of criminal proceedings in the trial court and in cassation. In particular, the applicant alleged that the trial court had read out a number of witness statements of persons who could not be called to the trial; that a number of arguments raised in the cassation appeal had not been properly addressed by the Supreme Court; and that certain factual arguments had been interpreted by both courts incorrectly.

THE LAW

A. The applicant ’ s complaint concerning ill-treatment

The applicant submitted that on 29 October 2003 he had been ill-treated by the guards escorting him from the SIZO to the Stavropol Regional Court , in breach of Article 3 of the Convention. Article 3 reads:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

The Government considered that this complaint should be declared manifestly ill-founded. They referred to the conclusions of the domestic investigation, which had not found any substance to the applicant ’ s complaints.

The applicant repeated his complaints and argued that the domestic investigation had been superfluous and therefore its conclusions could not be taken into account.

The Court considers that it is not required to address the arguments of the parties for the following reasons. Article 35 § 1 of the Convention provides that it may only deal with a matter after all domestic remedies have been exhausted. The Court reiterates in this regard that a complaint seeking the institution of criminal proceedings against police officers alleged to have violated Convention rights constitutes an adequate remedy for the purpose of Article 35 § 1 (see, mutatis mutandis , Assenov and Others v. Bulgaria , judgment of 28 October 1998, Reports of Judgments and Decisions 1998-VIII, p. 3286, §§ 82-86). The Court reiterates further that where competent investigating authorities refuse to institute criminal proceedings an appeal to a court can be considered a substantial safeguard against the arbitrary exercise of powers by the investigating authority (see Trubnikov v. Russia (dec.), no. 49790/99; see also Medvedev v. Russia (dec.), no. 26428/03, 1 June 2006). Therefore, in the ordinary course of events such an appeal might be regarded as a possible remedy where the prosecution decided not to investigate the claims.

In principle, the Court recognises the vulnerability of detainees and the difficulty for them in pursuing complex legal proceedings. These considerations may influence the Court ’ s approach to the matters of exhaustion. Thus, the Court has already found that in certain circumstances, in particular where the victim sustained serious injuries in suspicious circumstances and the attention of the authorities was sufficiently drawn to that situation, the authorities were under a duty to investigate the alleged ill-treatment of their own motion, even without an appropriate formal complaint from the victim (see, for example, Aksoy v. Turkey , judgment of 18 December 1996, Reports 1996-VI, § 56, and İlhan v. Turkey [GC], no. 22277/93, § 63, ECHR 2000-VII).

However, the present case clearly does not belong to that category. At no time did the applicant allege that there existed special circumstances that could absolve him from the requirement to lodge an appeal against the decision of the prosecutor. The Court takes special note that at the relevant time the applicant was represented by two lawyers, had regular meetings with them and lodged a number of applications with their assistance. In spite of that, no appeal was lodged against the decision of the Promyshlenny district prosecutor of 14 November 2003.

It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

B. The applicant ’ s complaint concerning inadequate legal assistance

The applicant complained that the behaviour of his appointed lawyer had breached his right to a fair trial and, in particular, to legal assistance. The complaint falls to be examined under Article 6, which reads, in so far as relevant:

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal...

3. Everyone charged with a criminal offence has the following minimum rights:

(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; ...”

1. Arguments of the parties

The Government requested the Court to declare the complaint manifestly ill-founded. They argued that Mr Molochkov had been a member of the Stavropol Regional Bar association since 1993 and was listed in the local register of lawyers. He had been appointed to defend the applicant ’ s interests on a pro bono basis on 5 October 2002 and had carried out those duties until 31 January 2003. The appointment had been in compliance with the requirements of the relevant provisions of the Russian Constitution and the Code of Criminal Procedure, as well as the Federal Law on Legal Assistance and Bar Associations in the Russian Federation . The applicant had not submitted any complaints to the investigating authorities or the prosecutor about the actions of Mr Molochkov; nor had he complained to the Stavropol Regional Bar Association about the allegedly poor quality of representation. The Government also noted that the applicant had not refused to accept the services of Mr Molochkov or requested to be appointed another lawyer, as the relevant legislation allowed. Thus, the authorities had not been aware of the applicant ’ s dissatisfaction with his officially assigned lawyer and had not had grounds to take any steps to intervene in the matter.

As to the applicant ’ s assertion that the letter of July 2003 had been a sign of Mr Molochkov ’ s collaboration with the investigative authorities, they argued that the letter had contained no information communicated to the lawyer within the framework of his professional relations with the client. The letter referred only to the period during which Mr Molochkov had acted as the applicant ’ s lawyer in the criminal proceedings and dealt with facts that could not be construed as hindering the applicant ’ s right to legal representation.

The applicant argued that Mr Molochkov had acted as a witness for the Government in the proceedings before this Court and thus demonstrated that he had been an unreliable defence counsel. The applicant also argued that Mr Molochkov had not taken heed of the applicant ’ s insufficient knowledge of Russian. In his latest submissions he also alleged that Mr Molochkov had represented another applicant and defendant in a related case, Mr Visitov, despite a conflict of defence interests between them.

2. The Court ’ s assessment

The Court reiterates that it is primarily a supervisory body and subsidiary to the national systems safeguarding human rights. The rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges those seeking to bring a case against the State before an international judicial body to use first the remedies provided by the national legal system, thus dispensing States from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal systems. In order to comply with the rule, normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged (see Assenov and Others v. Bulgaria , no. 24760/94, § 85, ECHR 1999-VIII).

The subject matter of the present complaint is the adequacy of legal representation of the applicant in criminal proceedings in Russia . It covers the period between 5 October 2002, when the applicant was extradited from Georgia , and 15 September 2005, when his conviction was upheld by the Supreme Court. In the context of these proceedings the applicant was represented by an officially assigned lawyer, Mr Molochkov, between 5 October 2002 and 31 January 2003. After that date another lawyer, Mr V., chosen by the applicant, took charge of his defence. At some point Mr Timishev took up the functions of additional defence counsel. Thus, after 31 January 2003 the applicant was continuously represented by a lawyer of his choosing.

From the parties ’ submissions and the documents reviewed by the Court it does not transpire that, while being represented by Mr Molochkov or later, the applicant had at any point brought up the issue of allegedly deficient legal representation during the first four months of the pre-trial proceedings before any competent national authorities. Nor had he alleged that such remedies had been unavailable to him in the circumstances of the present case.

The Court also reiterates in this connection that, as it has held on numerous occasions, it follows from the independence of the legal profession that the conduct of the defence is essentially a matter between the defendant and his counsel, whether counsel be appointed under a legal-aid scheme or privately financed. The Court considers that the competent national authorities are required under Article 6 § 3 (c) to intervene only if a failure by legal-aid counsel to provide effective representation is manifest or sufficiently brought to their attention in some other way (see, as a classic authority, Kamasinski v. Austria , judgment of 19 December 1989, Series A no. 168, § 67). As can be seen from the submissions of the parties, the officially assigned lawyer participated in the proceedings together with the applicant, and it cannot be said that the circumstances of the case were such as to have required the authorities to act of their own motion (see, by contrast, Kahraman v. Turkey , no. 42104/02, § 36 , 26 April 2007 ).

In the absence of any explanations on behalf of the applicant as to why the issue was not raised by him in the framework of the criminal proceedings before any domestic authorities, it follows that this complaint must be rejected under Article 3 5 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

C. The applicant ’ s complaints concerning the lawfulness of a tribunal

The applicant alleged that the transfer of the trial of his case to the Stavropol Regional Court had been unlawful and that he had had no legal remedies against that decision. He invoked Articles 6 and 13 of the Convention, which, in so far as relevant, contain the following provisions:

Article 6

“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.”

Article 13

“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 referred to the applicant ’ s request to be tried by jury. They invoked the domestic legal instruments according to which trial by jury would not be available in Chechnya before 1 January 2007 and was introduced in the Stavropol region after 1 July 2002. The Supreme Court was competent, on a request by the applicant, to transfer the criminal case for trial in another region in order to ensure the applicant ’ s constitutional right to be tried by jury. Thus, no violations of Articles 6 and 13 had occurred.

The applicant insisted that the transfer of the criminal case for trial to the Stavropol Regional Court had been unlawful. He also considered that even though he had eventually been tried by the Supreme Court of Chechnya, he had suffered from a violation of the said provisions in so far as his case had remained with the Stavropol Regional Court for one and a half years.

The Court notes that the applicant was convicted by the Supreme Court of Chechnya in June 2005 and that this judgment was upheld by the Supreme Court in September 2005. It has not been established that the courts which decided the applicant ’ s case at two instances lacked jurisdiction to do so, or that they did not constitute tribunals “established by law”. Therefore, this part of the complaint is manifestly ill-founded.

In sum, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.

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

D. Other complaints relating to the fairness of the criminal proceedings against the applicant and the decision of the Prosecutor General to demand the applicant ’ s extradition

The applicant raised a number of other complaints under Article 6, some of them after the case was communicated to the Russian authorities.

An examination by the Court of the material as it has been submitted does not disclose any appearance of a violation of this provision. It follows that this part of the application is manifestly-ill founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention .

For these reasons, the Court unanimously

Declares the application inadmissible.

Sally Dollé Francoise Tulkens Registrar President