THIRD SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 46082/99 by Konstantin Vladimirovich KLYAKHIN against Russia

The European Court of Human Rights (Third Section) , sitting on 3 April 2001 as a Chamber composed of

Mr J.-P. Costa , President , Mr L. Loucaides , Mr P. KÅ«ris , Mrs F. Tulkens , Mr K. Jungwiert , Mrs H.S. Greve , Mr M. Ugrekhelidze , judges ,

and Mrs S. Dollé , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 24 July 1998 and registered on 9 February 1999,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having deliberated, decides as follows:

THE FACTS

The applicant is a Russian citizen, born in 1966. He is currently detained on remand in Armavir ( Krasnodar Region).

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

A. Detention on remand and the criminal proceedings

On 13 August 1997 the applicant was detained, beaten and threatened by a group of people, allegedly because they wanted him to testify against a relative of his, an officer of the Armavir Prosecutors’ Office. On 26 August 1997 the applicant was detained on suspicion of involvement in a robbery, together with his relative and another person. The denunciation of the applicant was made by the people who had allegedly intimidated him.

From 26 to 29 August 1997 the applicant was interviewed several times by an investigator of the prosecution service, sometimes in the presence of the Armavir Town Prosecutor ( Прокурор города Армавира ). The applicant complains that during these interviews he was threatened, blackmailed and intimidated into giving a statement in exchange for a low penalty. On 28 August the applicant was placed in a freshly painted cell, where he spent over 24 hours and lost consciousness because of paint vapors .

The applicant complained about the cell to prosecutors at various levels. It appears that following his complaint of 21 September 1997 the Armavir Town Prosecutor initiated an investigation into the facts, but found no violations of domestic law. The applicant was informed of this in October 1997. On 12 January 1999 the applicant made the same complaint to the Town Court.

On 29 August 1997 the Armavir Town Prosecutor authorised the applicant’s detention on suspicion of theft. On 5 September 1997 the applicant was officially charged with involvement in a robbery.

It further appears that in September 1997 a search was carried out at the applicant’s house.

From the applicant’s submissions it appears that he appealed against his detention on 11 September 1997, and that on 14 October 1997 a judge of the Armavir Town Court ( Армавирский городской суд ) dismissed his appeal. This was apparently the only time a court reviewed the lawfulness of his detention. Following the transfer of the case to the Armavir Town Court on 26 January 1998, all complaints and requests submitted by the applicant were forwarded to that court, in accordance with Article 217 of the Code of Criminal Procedure.

The investigation was completed on 26 January 1998 and the applicant was allowed access to the case-file between 24 and 27 January 1998. A lawyer was present at this stage, whom the applicant later dismissed. The indictment was sent to the Armavir Town Court on 27 January 1998.

On 16 February 1998 the Armavir Town Court scheduled the first hearing in the case for 4 March 1998. The judge ordered the continued detention of the applicant and his co-accused, without giving reasons.

On 4 March 1998 a judge of the Town Court adjourned the hearing because the applicant had not had sufficient access to the case-file. On 26 and 27 March 1998 the applicant was allowed access to the case-file and officially served with the indictment.

On 22 April 1998 the judge ordered a psychiatric expert report on a co-accused and adjourned the hearing. It appears that further hearings were scheduled, but were adjourned or cancelled on 31 August 1998, 30 September 1998, 5 January 1999 and 20 January 1999. On 21 January 1999 the case was adjourned due to the illness of a co-accused. By the same decision, the applicant’s further detention on remand was confirmed. On 25 January 1999 the applicant complained to the Armavir Town Prosecutor about his continued detention on remand. On 5 March 1999 he was informed that his detention was lawful and that he could appeal to a court.

The trial resumed on 29 March 1999 and on 6 April 1999 the Armavir Town Court returned the case to the prosecutor’s office for additional investigations.

On 8 and 16 April 1999 the applicant lodged complaints with the President of the Armavir Town Court in respect of his detention on remand. No response was received.

On 27 April 1999 the Armavir Town Prosecutor appealed against the order of further investigations. On 16 June 1999 the Krasnodar Regional Court quashed that order, and returned the case to the Town Court for the consideration of the merits. The Regional Court ordered the continued detention of the applicant and the co-accused. No reasons were given.

On 16 August 1999 the applicant was convicted of robbery and sentenced by the Armavir Town Court to five years’ imprisonment. He was represented by a lawyer. The applicant appealed, and on 20 October 1999 the Krasnodar Regional Court confirmed the decision of the Town Court. It appears that the applicant was not present at the appeal hearing and that he was informed of the outcome on 12 November 1999. The conviction of 16 August 1999 subsequently entered into force and the applicant was sent to a detention centre to serve his sentence.

On 2 December 1999 the Presidium of the Krasnodar Regional Court, acting by way of a supervisory review, quashed the conviction of 16 August 1999 and remitted the case to the first instance court. On 30 December 1999 the applicant was returned to the Armavir Town detention centre ( СИЗО 18/2 ).

The case-file was returned to the Armavir Town Court on 20 December 1999. A judge was appointed to hear the case on 23 March 2000.

On 18 April 2000 the Armavir Town Court ordered a medical report of the applicant in a psychiatric hospital. The judge stated that the report was needed because of the applicant’s “strange behaviour which raised doubts about his mental health”. The behaviour manifested itself in an “inadequate reaction to questions, [and] the constant submission of fictitious and ill-founded requests”. The applicant was not given a copy of that order for several months. The applicant appealed against that decision and his continued detention on remand to the Armavir Town Court on 19, 24 and 25 April 2000, as well as on 12, 23 and 25 May 2000, but received no reply. He also appealed to the Armavir Town Prosecutor on 25 April 2000, and to the Krasnodar Regional Prosecutor’s Office on 21 April 2000. Both replied that his complaints had been forwarded to the Armavir Town Court.

The case-file was transferred to the Krasnodar psychiatric hospital on 3 May 2000. On 28 June 2000 the file was returned to the Town Court, no report having been prepared. On 20 July 2000 the judge of the Town Court ordered another report to be done on an out-patient basis.

During the hearing on 20 July 2000 the applicant was represented by a lawyer. On 24 July 2000 the applicant requested the Armavir Town Court to discharge the lawyer, as he had failed in his duties. The request was rejected.

On 20 July 2000 the applicant declared a hunger-strike in the court room, which, it appears, lasted until 30 July 2000. He alleged that the judge presiding in the case was not impartial, and that he had made threats to his relatives.

The applicant appealed against the order for a psychiatric expertise to the Armavir Town and Krasnodar Regional Prosecutors, to the Regional Court, to the Qualifications Collegiate of Judges of the Krasnodar Region and other administrative bodies. On 9 and 24 August 2000 the Regional Qualifications Collegiate forwarded the applicant’s complaints to the Armavir Town Court. On 28 September 2000 the Regional Court informed the applicant that his complaint had been forwarded to the Town Court, which was to forward the case for an appeal hearing before the Regional Court. No hearing took place.

By way of a letter dated 29 September 2000, the Chairman of the Armavir Town Court replied to the applicant and the Qualifications Collegiate that no violations of domestic law had been committed in the handling of the case. He dismissed the applicant’s allegations that the presiding judge had threatened his relatives as “fictitious and ill-founded”. The Chairman concluded that there were no reasons to question the impartiality and qualifications of the presiding judge.

On 9 October 2000 a medical commission examined the applicant in the detention centre and found him to be of sound mind.

Between February and December 2000 the applicant submitted nine requests to the Armavir Town Court for additional access to the case-file. His request was granted for a period from 8 to 15 December 2000, when he was allowed to see and make hand-written copies of relevant documents.

On 18 December 2000 a hearing took place in the Town Court and the case further adjourned. On 21 December 2000 the applicant appealed against the adjournment to the Krasnodar Regional Court.

B. Correspondence with the Court

The applicant claims that in June 1998 the administration of SIZO - 18/2, where he was detained on remand, refused to forward his application to the Court. The applicant forwarded the letter through his relatives, who posted it on 24 July 1998.

The explanatory notice attached to the Court’s Registry letter of 14 August 1998 was not given to the applicant.

The applicant further claims that on 25 March 1999 he forwarded a letter to the Court, with attachments, which never reached the Court. On 10 June 1999 the applicant repeated the letter, sent via his mother.

A letter from the applicant to the Court dated 5 June 2000 was posted on 20 October 2000. The applicant lists a number of attachments to that letter, none of which arrived. The applicant sent them again on 29 December 2000.

The applicant is not allowed by the administration of the prison to keep the correspondence from the Court, which is given to him for a day and is then taken away.

C. Relevant domestic law

The Code of Criminal Procedure

Article 217 (Forwarding the case-file to the court) provides that, after the investigation has been completed, the prosecutor must approve the bill of indictment and forward the case to the court. Thereafter, all complaints and requests must be forwarded directly to the court.

Articles 223-1 (Setting the date for the hearing) and 230 (Order on setting the date of the hearing) provide that when the accused is in detention, the judge should set the date for the first hearing within 15 days from receiving the case-file from the prosecutor. In his order the judge should also decide on whether the accused should be remanded in custody.

Article 331 (Appeals against orders of the first instance court and judges) provides for an appeal against orders ( определения и постановления ) of the first instance court and judges. Orders on, inter alia , setting dates for the hearing, forwarding the case for additional investigation, requesting an in-patient mental health report are excluded. This Article was found unconstitutional by the Constitutional Court on 2 July 1998, to the extent that it prevented persons in detention from appealing against court orders which had the effect of extending their detention.

COMPLAINTS

1. The applicant complains under Article 3 of the Convention that his placement in a freshly painted cell in August 1997 constituted inhuman treatment and torture.

2. The applicant complains that he was detained between 26 and 29 August 1997 without being officially charged. He invokes Article 5 § 2 of the Convention.

3. The applicant complains about the length of his detention on remand and the absence of a trial within a reasonable time, as required by Article 5 § 3 of the Convention.

4. Invoking Article 5 § 4 of the Convention, the applicant complains that he did not have access to a procedure to challenge the lawfulness of his detention. The only time the lawfulness of his detention was examined was, in effect, on 14 October 1997. Since then the courts automatically continued his detention.

5. Under Article 6 § 1 of the Convention, the applicant complains that he has not had his case examined within a reasonable time. He further submits that his prolonged detention without having the criminal charge finally determined violates the presumption of innocence, contrary to Article 6 § 2.

6. The applicant complains that the Armavir Town Court which considered his case was neither impartial nor independent, and was not “established by law”, in violation of Article 6 § 1 of the Convention. In particular, he submits that the lay assessors in the Town Court were not appointed in accordance with the national legislation.

7. The applicant also complains that the denial to him of access to the case-file, despite his numerous complaints to the Armavir Town Court, constituted a violation of his right to have adequate time and facilities for the preparation of his defence, contrary to the provisions of Article 6 § 3 (b) of the Convention.

8. Invoking Article 6 § 3 (c) of the Convention, the applicant complains that he was forced to accept free legal aid. He alleges that lawyers who represented him during the pre-trial investigation and court hearings were incompetent or acted against his interests.

9. Invoking Article 8 of the Convention, the applicant next complains that his house was illegally searched in September 1997 and that his family members were threatened by the investigating officials.

10. Under both Articles 8 and 10 of the Convention, the applicant complains about an interference by the prison authorities with his correspondence to and from the Court. Some of the applicant’s letters to the Court were lost, and others were delivered without attachments. His incoming and outgoing correspondence is screened by the prison administration. He is only allowed access to, but is not permitted to keep the letters.

11. Finally, the applicant complains that he is denied effective remedies to protect his rights, and believes that he is subjected to discrimination. He invokes Articles 13 and 14 of the Convention.

THE LAW

1. The applicant complains that in August 1997 he was subjected to treatment contrary to Article 3 of the Convention, which prohibits torture, inhuman or degrading treatment or punishment. He also complains that he was not informed of the reasons for his arrest, in violation of Article 5 § 2 of the Convention. He submits that the reason given for his detention on 29 August 1997 (theft) was different from the official charge of robbery made on 5 September 1997.

However, these matters relate to the period prior to 5 May 1998, which is the date of the entry into force of the Convention with respect to Russia. It follows that this part of the application is outside the competence ratione temporis of the Court and therefore incompatible with the provisions of the Convention, within the meaning of Article 35 § 3 of the Convention. Consequently, it must be rejected pursuant to Article 35 § 4.             

2. The applicant next complains about the length of his detention in remand. He invokes Article 5 § 3 of the Convention, which guarantees that everyone detained on suspicion of having committed a criminal offence is entitled to a trial within a reasonable time or to release pending trial.

The Court considers that it can not, on the basis of the present state of the file, determine the admissibility of this part of the application and that is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of the Court, to give notice of this complaint to the respondent Government.

3. The applicant further complains that he could not have the lawfulness of his detention on remand examined by a court, contrary to the provisions of Article 5 § 4 of the Convention. He also complains that his case has not been examined within a reasonable time, and that his detention on remand for such a lengthy period of time is in breach of the presumption of innocence, in violation of Article 6 § § 1 and 2 of the Convention.

The Court considers that it cannot, on the basis of the present state of the file, determine the admissibility of this part of the application and that is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of the Court, to give notice of these complaints to the respondent Government.

4. The applicant submits that the Armavir Town Court failed to meet the requirements of an independent and impartial tribunal, established by law, and that he was denied adequate facilities to prepare his defence, having been given insufficient access to his case file. He invokes Article 6 §§ 1 and 3 (b) of the Convention, the relevant part of which read as follows:

“1. In the determination of … any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.  …

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

b. to have adequate time and facilities for the preparation of his defence; …”

However, the Court notes that the judgment of the Armavir Town Court of 16 August 1999, by which the applicant was sentenced to five years’ imprisonment, was quashed by the Presidium of the Krasnodar Regional Court on 3 June 1999 and the case remitted for a retrial. To date, no new verdict has been reached by the Armavir Town Court and the proceedings are pending. In these circumstances, the Court considers that these complaints are premature. 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.

5. The applicant next complains that his defence rights were violated because he was forced to accept lawyers who were not competent or acted against his interests. The applicant refers to Article 6 § 3 (c) of the Convention, which reads as follows:

“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.”

The Court recalls that the conduct of a lawyer does not per se engage the responsibility of the State and that the competent authorities are only required to intervene when failure by legal aid counsel to provide effective representation is manifest or sufficiently brought to their attention in some other way (the Kamasinski v. Austria judgment of 19 December 1989, Series A no. 168, p. 33, § 65). Nothing in the documents submitted supports the applicant’s allegations that he was not provided with adequate assistance, or that he was forced to accept legal representatives who acted contrary to his interests in some way. The fact that the applicant, by letter of 24 July 2000 (not submitted to the Court), requested the Armavir Town Court to dismiss his lawyer is an insufficient basis to ground a prima facie case of a breach of Article 6 § 3 (c) of the Convention.

It follows that this part of the application is unsubstantiated and must be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

6. The applicant further complains that his rights, guaranteed under Article 8 of the Convention, were violated by the search of his house in September 1997 and by threats to his relatives.

Article 8, as far as relevant, reads as follows:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society … for the prevention of disorder or crime … .”

As regards the house search, the Court notes that this occurred before the date of the entry into force of the Convention with respect to Russia on 5 May 1998, and that this complaint has not been shown to have been the subject on any proceedings after that date. Moreover, nothing in the applicant’s submissions indicates that the search was in breach of either domestic law or the Convention.

As regards the alleged threats to the applicant’s relatives, the Court notes that the matter was put by the applicant to the courts and other administrative bodies. The allegations were verified by the national authorities, as the letter from the Chairman of the Armavir Town Court of 29 September 2000 indicates, but were deemed groundless, as the applicant had failed to provide any specific facts to support them. The complaint made by the applicant to the Court is similarly of a general nature and does not call into doubt the findings of the domestic authorities.

In the light of the above, the Court considers that this part of the application is also unsubstantiated and must be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

7. The applicant alleges that the prison authorities have unjustifiably interfered with his correspondence to and from the Court. He invokes Article 8 of the Convention, cited above, as well as Article 10 of the Convention which guarantees freedom of expression.

However, the Court considers that this complaint should be examined under Article 8 of the Convention together with Article 34, which provides as follows:

“The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.”

The Court considers that it cannot, on the basis of the present state of the file, determine the admissibility of this part of the application and that is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of the Court, to give notice of this complaint to the respondent Government.

8. Finally, the applicant complains of ineffective protection against the alleged violations of the Convention outlined above, and invokes Articles 13 and 14 of the Convention which provide as follows.

“Everyone whose rights and freedoms as set forth in this 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 enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

The Court finds that the applicant’s complaint under Article 13 of the Convention must be broken down into several elements:

It is partly subsumed by the complaint raised under Article 5 § 4 of the Convention (point 3 above), or is superfluous to the stronger guarantees of Article 6 §§ 1 and 3 of the Convention. However, insofar as the applicant complains about the length of the criminal proceedings against him under Article 6 § 1 of the Convention (point 3 above) or relates to the alleged interference with his correspondence to and from the Court (point 7 above), the Court considers that it cannot, on the basis of the present state of the file, determine the admissibility of this part of the application and that is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of the Court, to give notice of this aspect of the Article 13 complaint to the respondent Government.

As regards the applicant’s complaints under Article 14 of the Convention, the Court finds it wholly unsubstantiated, there being nothing in the applicant’s submissions to indicate that he has been subjected to discrimination within the meaning of this Convention provision. The Court concludes, therefore, that this matter is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court:

unanimously,

DECIDES TO ADJOURN the examination of the applicant’s complaint s [Note1] about the alleged lack of judicial review of his detention on remand, the length of both his detention on remand and the criminal proceedings against him, the alleged interference with his correspondence to and from the Court and the alleged lack of remedies for these two latter complaints;

by a majority,

DECLARES INADMISSIBLE the remainder of the application.

S. Dollé J.-P. Costa Registrar President

[Note1] Summarise the complaints without necessarily citing the invoked Convention Articles.