FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 42237/02 by Aleksandr Ivanovich FEDOSOV against Russia

The European Court of Human Rights ( First Section), sitting on 25 January 2007 as a Chamber composed of:

Mr L. Loucaides , President, Mrs N. Vajić , Mr A. Kovler , Mrs E. Steiner , Mr K. Hajiyev , Mr D. Spielmann , Mr S.E. Jebens , judges, and Mr S. Nielsen , Section Registrar ,

Having regard to the above application lodged on 5 November 2002,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,

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 Aleksandr Ivanovich Fedosov, is a Russian national who was born in 1958 and live s in Chelyabinsk . The respondent Government are represented by Mr P. Laptev, the Representative of the Russian Federation at the European Court of Human Rights.

A. The circumstances of the case

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

In 1999 the police arrested Mr Mikhalevskiy and Mr Shcherbakov on suspicion of having robbed Mr Gichka. They testified that the applicant had been an accomplice to that robbery.

On 21 August 1999 the applicant was arrested. According to the applicant, the arresting officers did not explain what the reasons for his arrest were and did not inform him about the statutory rights of an accused. During the first few interviews the applicant refused to answer investigator ’ s questions relying on his right not to incriminate himself.

On 24 August 1999 the Chelyabinsk Regional prosecutor ’ s office authorised the applicant ’ s detention on remand. The detention order indicated that he was accused of having been an accomplice to a robbery.

The case was referred for trial to the Chelyabinsk Regional Court . The trial court, composed of Ms Kalenova, the presiding judge, Mr Tumkin and Ms Lopayeva, lay assessors, examined documentary evidence, statements by several witnesses and by the applicant ’ s co-defendants. On 17 July 2001 the Chelyabinsk Regional Court found the applicant guilty as charged and sentenced him to ten years ’ imprisonment.

The local television company recorded the pronouncement of the judgment of 17 July 2001 and made a programme about the criminal proceedings against the applicant. On 18 July 2001 the programme was shown on television. A reporter allegedly made defamatory comments concerning the applicant.

On 5 September 2001 the applicant filed an appeal against the judgment of 17 July 2001. He challenged, inter alia, the composition of the bench that had given the said judgment. Whilst the Federal Law on the Lay Assessors of the Federal Courts of General Jurisdiction allowed lay assessors to be called once a year for a maximum period of fourteen days, or for as long as a specific case lasted, the assessors Ms Lopayeva and Mr Tumkin had been engaged earlier in the course of 2000 and 2001 in at least two other trials.

On 13 May 2002 the Supreme Court of the Russian Federation dismissed the appeal and upheld the applicant ’ s conviction. The Supreme Court noted that “the complaints of the co-defendants about unlawful composition of the bench were unfounded”.

On 9 July 2005 a deputy Prosecutor General of the Russian Federation lodged an application before the Presidium of the Supreme Court of the Russian Federation , seeking revision of the judgments of 17 July 2001 and 13 May 2002, by way of a supervisory review. The deputy Prosecutor argued that the trial court which had heard the applicant ’ s case had been composed in violation of the Federal Law on the Lay Assessors because the lay assessors, Ms Lopatyeva and Mr Tumkin, had participated in two criminal cases in 2001.

On 28 September 2005 the Presidium of the Supreme Court of the Russian Federation accepted the application for a supervisory review, quashed the judgments of 17 July 2001 and 13 May 2002 and remitted the case for a fresh examination. In particular, the Presidium held as follows:

“According to paragraphs 2 and 3 of Article 9 of the Federal Law on Lay Assessors... ‘ lay assessors are called once a year to perform their duties in a regional court for as long as a particular case lasts ’ .

However, that requirement of the law had not been taken into account when the trial court which examined the criminal case against Mr Fedosov... had been set up.

As it appears from the case-file, the judgment of the Chelyabinsk Regional Court of 17 July 2001 against Mr Fedosov was taken by the trial court composed of the presiding judge and two lay assessors, Mr Tumkin and Ms Lopayeva.

According to a copy of the judgment of the Chelyabinsk Regional Court of 22 March 2001,... in 2001 the same lay assessors were engaged in the examination of another criminal case against Mr Petrukhin and Mr Sazhin, which was pending between 21 February and 22 March 2001.

Therefore the lay assessors, Mr Tumkin and Ms Lopayeva, were engaged in examination of the criminal case against Mr Fedosov... in violation of the abovementioned law, and under Article 381 of the Russian Code on Criminal Procedure that fact serves as a ground for quashing of the judgment because it was issued by the unlawfully composed court.”

The Presidium also held that the applicant should remain in custody pending the new examination of his case.

On 2 May 2006 the Troitsk Town Court of the Chelyabinsk Region, composed of one professional judge, re-examined the applicant ’ s case, found him guilty of aggravated extortion and robbery and sentenced him to six years, eight months and ten days ’ imprisonment. The Town Court based its judgment on statements by the victims and witnesses, confessions by the applicant ’ s co-defendants given in open court and documentary evidence. The judgment of 2 May 2006 was not appealed against and became final on 13 May 2006.

The applicant was released on 2 May 2006 because he had served his sentence.

B. Relevant domestic law

For the summary of relevant domestic law provisions concerning appointment of lay assessors see Posokhov v. Russia , no. 63486/00, ECHR 2003 ‑ IV , § 28, and Fedotova v. Russia (dec.), no. 73225/01, 1 April 2004 .

COMPLAINT S

1. The applicant complained under Article s 5 § 1 (a) and 6 § 1 of the Convention that on 17 July 2001 he had been convicted by a court that had been composed in breach of the relevant national rules.

2. The applicant further complained under Article 5 § 1 (c) and §§ 2 and 3 of the Convention that he had been unlawfully remanded into custody, that he had not been promptly informed about the reasons for his arrest and that his detention on remand had been excessively long.

3. Furthermore, the applicant complained under Article 6 §§ 1, 2 and 3 (a), (b) and (d) of the Convention that his conviction had been based on statements given by his co-defendants under coercion; that the trial court had disregarded evidence in his favour and that it had not heard certain witnesses on his behalf, that he had not had sufficient time for preparation of his defence, that he had not been informed of his constitutional rights of an accused and the nature of accusation against him.

4. The applicant finally complained under Article 8 of the Convention that the local television had broadcasted a programme on the criminal proceedings against him and had disclosed personal information about him.

THE LAW

1. The applicant complained under Article 5 § 1 (a) and Article 6 § 1 of the Convention that the judgment of 17 July 2001 had not been issued by a tribunal established by law because the lay judges had acted in that capacity twice in one year. The Court considers that the present complaint falls to be examined under Article 6 § 1 of the Convention (see Posokhov v. Russia , no. 63486/00, § 38 , ECHR 2003 ‑ IV ). The relevant part of this provision read as follows:

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

The Government argued that the domestic authorities had taken steps to remedy the alleged violation. In particular, on 28 September 2005 the Presidium of the Supreme Court quashed the judgment of 17 July 2001 and ordered a re-trial. On 2 May 2006 the Troitsk Town Court , composed in accordance with the Russian Code on Criminal Procedure, re-examined the applicant ’ s case, found him guilty as charged and sentenced him to a term of imprisonment.

The applicant maintained his complaint.

The Court recalls that under Article 34 of the Convention it is entitled to receive applications from persons, non-governmental organisations or groups of individuals “claiming to be the victim of a violation” by a High Contracting Party of the rights contained in the Convention and its Protocols. In situations where an alleged violation has already occurred, subsequent events can give rise to a loss of the status of “victim”, provided that the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see, among other authorities, Amuur v. France , judgment of 25 June 1996, Reports of Judgments and Decisions 1996-III, p. 846, § 36).

Turning to the facts of the present case, the Court observes that on 28 September 2005 the Presidium of the Supreme Court of the Russian Federation expressly acknowledged that the Chelyabinsk Regional Court which had heard the applicant ’ s criminal case and had issued the judgment of 17 July 2001 had been composed in violation of the Russian law because in 2001 the lay assessors had been engaged in the two criminal cases (see, by contrast, Posokhov , cited above, § 36) . The Presidium quashed the judgment of 17 July 2001 and the appeal judgment of 13 May 2002 and ordered a re-trial.

The Court further notes that following the decision of 28 September 2005, the Troitsk Town Court , composed of a professional judge, re-examined the applicant ’ s case. On 2 May 2006 it found the applicant guilty as charged and sentenced him to the six years, eight months and ten days ’ imprisonment.

The parties did not dispute that the Troitsk Town Court had been set up in accordance with Russian law. The applicant benefited from the re-trial, he had the possibility to argue his case fully before the Town Court and there is nothing to show that he was in any way denied a fair hearing. Moreover, the Court notes that in the first trial the applicant was found guilty of the same criminal offences and sentenced to ten years ’ imprisonment. However, following the re-trial the Troitsk Town Court reduced the applicant ’ s sentence by approximately three years and four months. In this respect, the Court reiterates that in certain circumstances a reduction in sentence can have the effect of rendering an applicant “ no longer a victim ” (see, for example, Lie and Berntsen v. Norway (dec.), no. 25130/94, 16 December 1999, and V an Laak v. the Netherlands , no.17669/91, Commission decision of 31 March 1993, DR 74, p. 156).

The Court also does not lose sight of the fact that the applicant did not appeal against the judgment of the Troitsk Town Court . Thus it appears that he did not object to the findings of the Town Court and the sentence imposed by it.

Having regard to the content of the judgment of 28 September 2005, the subsequent re-trial before the Troitsk Town Court and the mitigation of the sentence, the Court finds that the national authorities have acknowledged, and then afforded redress for, the alleged breach of the Convention.

It follows that the applicant can no longer claim to be a victim of the alleged violation of Article 6 § 1 of the Convention within the meaning of Article 34 of the Convention (cf. Hans-Joachim Enders v. Germany , no. 25040/94, Commission decision of 12 April 1996, and, mutatis mutandis, Hajiyev v. Azerbaijan, no. 5548/03, 16 June 2005 and Wong v. Luxemburg (dec.), no. 38871/02, 30 August 2005 ) and that this complaint is to be rejected, pursuant to Articles 34 and 35 §§ 3 and 4.

2. Invoking Article 5 § 1 (c) and §§ 2 and 3 of the Convention, the applicant complained about unlawfulness and excessive length of his detention on remand and belated notification of the reasons for his arrest in August 1999. The invoked Article, in so far as relevant, read as follows:

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

...

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

...

2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.

3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”

The Court observes that the applicant ’ s detention on remand may, in the special circumstances of the present case, be divided into two periods:

(i) the first period commenced on 21 August 1999 when the applicant was arrested and ended on 17 July 2001 when the Chelyabinsk Regional Court convicted the applicant ( see Labita v. Italy [GC], no. 26772/95, § 147, ECHR 2000 ‑ IV);

(ii) the second period began on 28 September 2005 when the Presidium of the Supreme Court quashed the applicant ’ s conviction and authorised his detention on remand. The period terminated on 2 May 2006 when the applicant was released.

As regards the applicant ’ s complaints related to the first period, the Court is not required to decide whether or not they disclose an appearance of a violation of the Convention. The Court reiterates that, according to Article 35 of the Convention, t he Court may only deal with the matter within a period of six months from the date on which the final decision was taken. It observes that the applicant was convicted on 17 July 2001 and after that date his detention no longer fell within the ambit of Article 5 § 1 (c), but within the scope of Article 5 § 1 (a) of the Convention (see, for instance, B. v. Austria, judgment of 28 March 1990, Series A no. 175, pp. 14-16, §§ 36-39). The applicant lodged his application before the Court on 5 November 2002, which is more than six months after the first period of his detention on remand had ended.

It follows that the complaints related to the period of the applicant ’ s detention on remand before 17 July 2001 were introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

As regards the complaints related to the second period, the Court observes that the applicant did not appeal against any decision authorising or extending his detention on remand after 28 September 2005. Moreover, he did not dispute that under Russian law, as it stood at the relevant time, it was open for him to submit a request for release to the court conducting the criminal proceedings. He could have also done that at a hearing on the merits of the case. However, the applicant did not make use of this avenue.

It follows that this part of the application must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

3. The applicant further complained under Article 6 §§ 1, 2 and 3 (a), (b) and (d) of the Convention that the trial court had disregarded evidence in his favour, had refused to hear certain witnesses and had based his conviction on unlawfully obtained evidence, including the statements by his co-defendants. He also complained about insufficient time for preparation of his defence and the authorities ’ failure to inform him of his constitutional rights of an accused and the nature of the accusation against him.

The Court notes that the applicant did not appeal against the first-instance judgment of 2 May 2006 to a higher-instance court in order to obtain redress in this respect. It follows that this part of application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

4. Under Article 8 of the Convention the applicant complained about the disclosure of personal information in a TV programme of 18 July 2001.

The Court reiterates that the rule on non-exhaustion contained in Article 35 § 1 of the Convention affords the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court. Thus the complaint to be submitted to the Court must first have been made to the appropriate national courts, at least in substance, in accordance with the formal requirements of domestic law and within the prescribed time-limits.

The Court observes that the applicant did not raise the issue of the alleged violation of his rights guaranteed by Article 8 of the Convention before any Russian court. The applicant did not dispute that he could have instituted court proceedings against the TV broadcaster and/or the reporter seeking compensation for damage or other redress he considered appropriate. The Court further notes that the applicant did not argue that there had been special circumstances which had absolved him from the obligation to exhaust domestic remedies at his disposal.

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

For these reasons, the Court unanimously

Declares the application inadmissible.

Søren Nielsen Loukis Loucaides Registrar President