THIRD SECTION

DECISION

Application no . 23324/04 Yuriy Failovich ULIMAYEV against Russia

The European Court of Human Rights (Third Section), sitting on 21 February 2017 as a Committee composed of:

Luis López Guerra, President, Dmitry Dedov, Branko Lubarda, judges, and Fatoş Aracı, Deputy Section Registrar ,

Having regard to the above application lodged on 14 April 2004,

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

1. The applicant, Mr Yuriy Failovich Ulimayev, is a Russian national who was born in 1965 and lives in Ufa. He is represented before the Court by Ms Y. Yefremova and Mr P. Finogenov, lawyers practising in Moscow. The Russian Government (“the Government”) are represented by their Agents, Mr A. Savenkov and Mr G. Matyushkin.

A. The circumstances of the case

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

3. On 17 May 2003 the applicant was arrested by law officers from the Asha Town Department of the Interior of the Chelyabinsk Region ( Ашинский городской отдел внутренних дел Челябинской области ) on suspicion of the robbery of a roadside shop.

4. After his arrest, the applicant was detained in a temporary holding facility in the town of Asha ( Изолятор временного содержания г. Аша ) in conditions which he alleged were characterised by poor ventilation, disease, and general squalor.

5. On 17 May (according to the applicant) or 18 May (according to an official record) 2003, a number of the applicant ’ s personal effects were seized as evidence from the home of the applicant ’ s suspected accomplice.

6. On 23 May 2003 the applicant was charged under Article 162 §§ 2 (a) and (d) of the Criminal Code of 1996 (armed robbery using violence or intimidation and abetted by others). On the same date the Asha Town Court ( Ашинский городской суд ) issued an order for the applicant to be remanded in custody, that order being upheld on 16 June 2003 in appellate proceedings by the Judicial Collegium for Criminal Cases of the Chelyabinsk Regional Court ( Судебная коллегия по уголовным делам Челябинского областного суда ).

7. On 4 June 2003 the applicant was removed from the temporary holding facility, was returned there on 25 June 2003, and was moved out of the facility once again on 18 July 2003.

8. On 26 August 2003 the Asha Town Court passed sentence on the applicant and his three co-defendants, imposing a term of ten years ’ imprisonment in a “special regimen” establishment and forfeiture of his assets. The court ’ s finding of guilt was based on the following items of evidence: a written statement from the shop owner during the pretrial investigation and read out in evidence during the trial, testimony given in open court by a shop attendant who had witnessed the crime and by a witness who had seen the four defendants together at a later point in time, the co-defendants ’ courtroom confessions, the minutes of pretrial face ‑ to ‑ face confrontations between the applicant and his co ‑ defendants, the record of the visual inspection of the crime scene, and other documentary pieces of evidence.

9. The applicant lodged an application for reversal of the Asha Town Court ’ s judgment with the superior court of cassation instance, namely the Judicial Collegium for Criminal Cases of the Chelyabinsk Regional Court (hereinafter “the Judicial Collegium”).

10. On 19 November 2003 seventy-five personal items seized from the applicant subsequent to his arrest were returned to him. The applicant alleged, however, that some items were missing, on which grounds he sought, unsuccessfully, to have criminal proceedings instituted.

11. On 5 December 2003 the applicant was informed that the examination of the appeal against his sentence had been scheduled for 11 December 2003. He also learned that he was to appear before the court of appellate instance via simultaneous audio-visual transmission. Since the applicant was concerned that such an appearance might negatively affect the fairness and adversarial character of the proceedings, on 9 December 2003 he submitted a request to the court of appellate instance to be present in the courtroom in person, but never received a response.

12. On 11 December 2003 the applicant was taken to pretrial detention centre FGU IZ-74/3 GUFSIN of Russia for the Chelyabinsk Region ( Федеральное государственное учреждение Следственный изолятор № 3 Главного управления федеральной службы исполнения наказаний по Челябинской области ) and into special premises housing technical audio-visual transmission equipment. The applicant ’ s teleconferencing session with the Judicial Collegium lasted twenty minutes. On the screen in front of him the applicant was able to see a well-defined image of the judicial bench occupied by the presiding judge and two associate judges. On top of the bench was a microphone pointing towards the presiding judge. On the right-hand side of the screen the applicant was able see the prosecutor ’ s desk, which did not have a microphone on it. The sensitivity level of the microphone on the presiding judge ’ s desk proved to be insufficient to capture the prosecutor ’ s rather indistinct voice from a distance. The outcome of that hearing was that the Judicial Collegium reclassified the applicant ’ s crime in law and upheld the remainder of the judgment of the court of first instance.

B. Relevant domestic law and practice

13. The Code of Criminal Procedure of 2001 as in force at the material time provided:

Article 376. Setting down the case for the appeal hearing

1. Having received the criminal case with the notice of appeal ... the judge shall fix the date, time and venue of the [appeal] hearing.

2. The parties shall be notified of the date, time and venue [of the appeal hearing] no later than fourteen days beforehand. The court shall decide whether the convicted detainee should be summoned to the hearing.

3. A convicted detainee who has expressed a wish to be present [at the appeal hearing] shall have the right to be present personally or to submit his arguments by videoconference facility. The court shall decide in what form the participation of the convicted person in the hearing is to be secured....

COMPLAINTS

14. The applicant complained under Article 6 § 1 that his trial by means of the videoconferencing facility had been unfair since he had been unable to hear the prosecutor speaking in the courtroom.

15. The applicant also complained under Articles 3, 5, 6, and 13 of the Convention and Article 1 of Protocol No. 1 about the poor conditions of his detention after arrest, unlawful detention, unfair trial, and the theft of items seized during a police search.

THE LAW

A. Complaint about inaudible courtroom speech via videoconference facility

16. The applicant complained under Article 6 § 1 of the Convention that his trial using videoconferencing equipment had been unfair because he had not been able to hear what the prosecutor was saying to the judge. The relevant part of this Article reads:

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

1. Submissions by the parties

(a) The Government

17. The Government submitted that the applicant had not brought the subject matter of his application to the Court to the knowledge of the competent governmental authorities. At the same time, the applicant had been in a position to bring his complaint before a competent domestic court and the complaint was therefore inadmissible owing to failure to exhaust domestic remedies, as required by Article 35 § 1 of the Convention.

18. In addition the Government argued that the complaint was manifestly ill-founded as follows. According to the Court ’ s case law, Article 6 of the Convention generally guarantees an accused the right to effectively participate in the court proceedings on his criminal case (see Lagerblom v. Sweden , no. 26891/95, 14 January 2003). Generally, the right of an accused to participate effectively in a criminal trial on his case includes not only his right to be present, but also to hear and follow the proceedings (see Stanford v. the United Kingdom , 23 February 1994, § 26, Series A no. 282 ‑ A). It was evident that, as such, the holding of court hearings using videoconferencing made it possible for accused parties to participate to the full in such hearings, and to hear and follow the course of the proceedings.

19. The Government submitted that the possibility of holding court hearings of criminal cases via videoconferencing was expressly established by the law of the Russian Federation. Thus, according to Article 376 § 3 of the Code of Criminal Procedure, a convicted detainee who has stated his wish to attend the hearing at which the appeal against his sentence was to be considered was entitled to participate in such court hearings in person or to make known his response, using a videoconferencing system for this purpose. The question as to the form of the defendant ’ s participation in the court hearings was to be resolved by the court.

20. The Government furthermore submitted that the Constitutional Court had examined the issue of the compliance of the provisions of Article 376 § 3 of the Code of Criminal Procedure with the Constitution and the observance of constitutional rights and freedoms of citizens as regards the use of videoconferencing systems in court hearings on criminal cases. The Constitutional Court had set out its position on the issue of the participation of a convicted party in court hearings at the court of cassation instance in its Decree of 10 December 1998 no. 27-P. It stated that, within the meaning of Article 46 § 1 of the Constitution in conjunction with its Articles 19 § 1, 47 § 1, 50 § 3 and 123 § 3 and subject to the relevant provisions of the International Covenant on Civil and Political Rights and the Convention, the realisation of the constitutional guarantees of judicial protection implied – owing to specific features of the cassation procedure provided for by the effective law of criminal procedure – that convicted parties wishing to participate in the court hearings may not be deprived of the opportunity to submit disqualification motions and petitions, to familiarise themselves with the positions of the participants in the court hearings and with any additional evidentiary material, and to provide explanations, including explanations in response to the prosecutor ’ s opinion. The above were the measures that were to be provided to a convicted detainee in order to guarantee judicial protection and a fair hearing of the case at the stage of the cassation proceedings. This did not rule out the legislator ’ s right to enhance their level. The extension of the powers of the court of second instance implied an appropriate adjustment of the scope of a convicted party ’ s rights in relation to his participation in court hearings to review his sentence.

21. The Government took the view that the aforementioned guarantees might be realised not only by providing an accused with the opportunity for personal participation in court hearings but also in other ways. These might include the entrusting by an accused of his defence to a defence lawyer chosen by him, and the submission by him of his written objections to arguments put forward in the cassation appeals, of objections and of statements by participants in the hearings before the court of cassation instance. As regards the latter, the provision enabling an accused wishing, in the interests of justice, to participate in the court hearings with a realistic opportunity to put forward his stance on all aspects of the case and make it known to the court was of constitutional significance.

22. The Government observed that, following the emergence of the possibility of holding court hearings via videoconferencing – a solution enabling detainees to overcome an obvious inconvenience in cases where the courtroom was located a long way from the place of custody – the Constitutional Court, in responding to complaints from citizens about various aspects of the use of videoconferencing systems, proceeded on the basis set out in the aforementioned Decree of 10 December. Thus, in its rulings no. 538-O of 16 November 2006, no. 481-O of 19 June 2007 and no. 111-O of 21 February 2008, the Constitutional Court concluded that citizens ’ rights and freedoms were neither violated nor restricted if court hearings were held using a videoconferencing system and considered such means of communicating one ’ s position to court to amount to personal participation.

23. The Government also submitted that where court hearings were held using videoconferencing, the volume of guarantees provided to the defendant as regards the court proceedings was identical to the volume – as established by Article 6 of the Convention – that is provided where a court hearing involves the personal participation of the defendant. Furthermore, videoconferencing systems were in fact used frequently for court hearings, the number of cases considered in the Russian Federation annually using this method amounting to about 2,000.

24. As regards the present case, the Government noted that videoconferencing was used in the court hearing in the Judicial Collegium on 11 December 2003. The videoconferencing procedure adopted complied with the requirements set out in the Supplement to the Decree of the Council of Judges of the Russian Federation on Informatisation and Automation in the Courts of 16 November 2001. In every court hearing held at court of cassation instance, the general technical requirements imposed on the system and the specific software and hardware requirements in respect of videoconferencing facilities were complied with very strictly.

25. The Government argued that the equipment in the videoconferencing room of the pretrial detention centre had made it possible to maintain videoconference communication in real-time mode without any loss of video or audio stream. The equipment complied fully with the requirements established in the aforementioned Supplement of 16 November 2001. It was more than adequate to ensure high-quality video and audio communication.

26. The Government drew the Court ’ s attention to the fact that videoconferencing equipment was checked by specialists before every court hearing at which it was used and the judge would ask the parties how well they could hear and see the transmission. If either party found the quality of communication unsatisfactory, the videoconference would be abandoned. On 11 December 2003, no disruptions or failures were recorded as regards the equipment or the quality of communication.

27. The Government noted that the Court has pointed out that governmental responsibility arises only in cases where the applicant or his lawyer has complained or made a representation to the court that the applicant was experiencing hearing difficulties during the course of the proceedings (see Stanford v. the United Kingdom , no. 16757/90, § 23, 23 February 1994). Before the criminal case was examined within the framework of the court hearings, the applicant had been in a position to inform the court that he was unable to hear and therefore to follow the course of the proceedings. Upon completion of the court hearings, the applicant was also provided with the opportunity to submit a complaint about the quality of the sound or the images. If the applicant believed that the quality of the videoconferencing had prevented him from fully following the course of the proceedings, he could have submitted a complaint to a higher court instance; however, he had failed to do this. The Government therefore argued that neither the material contained in the present application nor the information provided by the competent State authorities provided any grounds for asserting that the quality of the videoconferencing had prevented the applicant from following the course of the court hearings. They also noted that during the cassation proceedings on 11 December 2003 the applicant ’ s sentence was shortened. In determining the punishment, the court took into consideration the nature, the degree of social danger and the gravity of the crime committed by the applicant. It also took into consideration information regarding the applicant ’ s character and mitigating circumstances, including those to which the applicant referred in his cassation complaint.

(b) The applicant

28. The applicant claimed that the quality of transmission had not allowed him to hear the submissions made by the prosecution and thus to effectively follow and participate in the appeal proceedings.

29. The applicant maintained that the Government ’ s submission that before each court session the judge always inquired whether the parties were satisfied with the transmission quality was too general. As regards the applicant ’ s specific situation, this submission was unsubstantiated. The Government had also failed to state the readings taken by the technical specialists when checking the equipment. Moreover, it was to be stressed that it was the prosecutor whom the applicant was unable to hear, and until the latter actually heard him speak, he would not have imagined that the transmission could be of such poor quality.

30. Since during the appeal hearing the applicant had been unable to hear the submissions made by the prosecution, he could not effectively participate in the hearing, being unable to follow it or to conduct his self ‑ defence. The trial resulting from such a hearing could not be considered as fair within the meaning of Article 6 § 1 of the Convention.

31. The fact that the applicant ’ s counsel had been present in the courtroom could not compensate for the breach of the applicant ’ s right to effective participation in person.

32. Moreover, it was during appeal proceedings that the applicant ’ s right was violated. The domestic legislation (Chapter 48 of the Code of Criminal Procedure) provided for an applicant ’ s right to appeal against a court decision to the supervisory review courts only. However, such proceedings did not meet the criteria of efficient remedies adopted by the Court. The applicant had therefore had no effective domestic remedy, such as appealing to a court that could assess submissions that were not duly made during the appeal hearing, due to the mere fact that he could not hear the prosecutor and was thus not properly informed about all the aspects of the case.

33. Under Article 35 of the Convention, normal recourse should be had by an applicant to remedies which were available and sufficient to afford redress in respect of the alleged breaches (see Akdivar and Others v. Turkey , 16 September 1996, § 66-69, Reports of Judgments and Decisions 1996 ‑ IV). However, the list of grounds in the Code of Criminal Procedure for quashing or amending judgments that have become final did not include low videoconference transmission quality during the hearing that prevented the defendant from participating in the proceedings. The Government had failed to adduce any example from judicial practice where a similar violation had been found to constitute such a ground.

34. The applicant noted that despite the communication to the Government of his complaint about transmission quality during the appeal hearing of 11 December 2003 which, in the applicant ’ s opinion, entailed a breach of his rights, the Government had not initiated a new set of proceedings pertaining to the criminal charges brought against him, in which his rights could have been respected and redress thus afforded to him at the domestic level.

35. For this reason, the applicant could not possibly consider a supervisory-review court – either in theory or in practice – as a domestic remedy available and sufficient to afford redress. No redress in respect of the breach of the applicant ’ s right during the court session of 11 December 2003 could be afforded at the domestic level.

36. This being so, the applicant maintained that the Government had failed to ensure adequate transmission quality during the appeal hearing on 11 December 2003, as a result of which he was unable to hear the prosecutor and follow the proceedings. The Government did not take any step to afford redress for the breach at the domestic level and the applicant therefore had to conclude that there had been a breach of his right to a fair trial as guaranteed by Article 6 § I of the Convention.

2. The Court ’ s assessment

37. The Court reiterates that the physical presence of an accused in the courtroom is highly desirable, but it is not an end in itself: it rather serves the greater goal of securing the fairness of the proceedings, taken as a whole (see Golubev v. Russia (dec.), no. 26260/02, 9 November 2006). Furthermore, although the defendant ’ s participation in the proceedings by videoconference is not as such contrary to the Convention, it is incumbent on the Court to ensure that recourse to this measure in any given case serves a legitimate aim and that the arrangements for the giving of evidence are compatible with the requirements of respect for due process, as laid down in Article 6 of the Convention (see Marcello Viola v. Italy , no. 45106/04, § 67, ECHR 2006 ‑ XI (extracts) ). It must be ensured that the applicant is able to follow the proceedings and to be heard without technical impediments (see Sakhnovskiy v. Russia [GC], no. 21272/03 , § 98, 2 November 2010).

38. In addition, the Court reiterates that in accordance with Article 35 of the Convention, “[it] may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken.” The purpose of the exhaustion rule is to afford the Contracting States the opportunity of preventing or putting right – usually through the courts – the violations alleged against them before those allegations are submitted to the Court. Consequently, States do not have to answer for their acts before an international body before having had the opportunity to put matters right through their own legal system. That rule is based on the assumption, reflected in Article 13 of the Convention – with which it has close affinity – that there is an effective remedy available in respect of the alleged breach in the domestic system. In this way, it is an important aspect of the principle that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights. (see, among many other authorities, Handyside v. the United Kingdom , 7 December 1976, § 48, Series A no. 24; Akdivar and Others v. Turkey , cited above, § 65; and Fressoz and Roire v. France [GC], no. 29183/95, § 37, ECHR 1999 ‑ I). The Court cannot, and must not, usurp the role of Contracting States, whose responsibility it is to ensure that the fundamental rights and freedoms enshrined therein are respected and protected on a domestic level (see Demopoulos and Others v. Turkey [GC] (dec.), no. 46113/99, § 69, ECHR 2010-...).

39. The Court must first of all acknowledge that the applicant ’ s complaint concerns the hearing difficulties caused by the videoconferencing equipment. It is possible that, for technical reasons, communication between the hearing room and the place of detention may not be ideal, and that difficulties in transmission of the voice or the images may result. In the present case, however, it must be noted that at no juncture during the appeal proceedings before the Judicial Collegium did the applicant attempt to make the judges present in the courtroom aware of the problem (see, with further references, Marcello Viola v. Italy , cited above, § 74). Such failure to act may result in the Court ’ s finding that the domestic remedies had not been exhausted (see The Conde Nast Publications Ltd. and Carter v. the United Kingdom (dec.), no. 29746/05, 8 January 2008).

40. Since the only superior instance for the Judicial Collegium would have been supervisory review, which the Court does not consider to be a remedy to be exhausted (see Berdzenishvili v. Russia (dec.), no. 31697/03 , ECHR 2004 ‑ II (extracts), a complaint to the judges present in the courtroom would have been the most appropriate method by which the applicant could have addressed the particular shortcomings in the fairness of the proceedings. The applicant ’ s omission to make use of a complaint of this kind resulted in the State having no opportunity to put matters right through its own legal system.

41. Accordingly, this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

B. Other complaints

42. The applicant also complained under Articles 3, 5, 6, and 13 of the Convention and Article 1 of Protocol No. 1 about the allegedly poor conditions of his detention, unlawful detention, unfair trial, and the alleged theft of items seized during the search by the police.

43. However, 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. Accordingly, this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 16 March 2017 .

FatoÅŸ Aracı Luis López Guerra              Deputy Registrar President