THIRD SECTION

CASE OF ZAKHODYAKIN AND OTHERS v. RUSSIA

( Applications nos. 31466/09 and 12 others – see appended list )

JUDGMENT

STRASBOURG

7 February 2017

This judgment is final but it may be subject to editorial revision.

In the case of Zakhodyakin and O thers v. Russia ,

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

Helena Jäderblom, President, Dmitry Dedov, Branko Lubarda, judges, and Fatoş Aracı , Deputy Section Registrar ,

Having deliberated in private on 17 January 2017 ,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1 . The case originated in thirteen applications (nos. 26401/06, 29258/06, 12149/07, 37061/07, 35903/08, 4874/09, 20343/09, 28877/09, 29514/09, 31466/09, 32934/10, 70306/11 and 59413/12) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by thirteen Russian nationals whose names and the dates on which they introduced their applications are set out in Ap p endix I.

2 . Some of the applicants were represented by lawyers whose names are listed in Appendix I. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights.

3 . The applicants complained, in particular, that they had been denied an opportunity to appear in person or that had not been represented before the appellate court in the criminal proceedings against them.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

A. Absence from appeal hearings

4 . The applicants were convicted in Russia of various crimes. The applicants and their lawyers , except for Mr Yakupov , whose lawyer was present, were refused leave to attend the appeal hearings on the ground that their presence was unnecessary or without addressing this issue at all .

5 . Following communication of the cases, the supervisory - review courts quashed the appeal judgments at the prosecutor ’ s request and remitted the cases for fresh examination s before the appe llate courts . In most of the cases the applicants and their lawyers were present at the new appeal hearings. Mr Trifonov and Mr Sidelnikov did not ask for leave to appear and did not attend the new hearings , but they were represented by lawyers .

6 . D etailed information about the applicants ’ attendance and dates of the hearings is set out in Appendix II .

B. Length of proceedings (a pplication no. 31466/09 )

7 . On 12 November 2002 criminal proceedings were initiated against Mr Zakhodyakin. Since then the criminal proceedings were suspended and reopened several times .

8 . On 26 June 2007 the Vuktyl Town Court of the Komi Republic found the applicant guilty of abuse of office and sentenced him to one year ’ s imprisonment. On 24 August 2007 the Supreme Court of the Komi Republic upheld th at judgment on appeal.

9 . On 8 October 2008 the Presidium of the Supreme Court of the Komi Republic quashed the judgment of 24 August 2007 and remitted the case for a fresh examination. On 7 November 2008 the Supreme Court of the Komi Republic upheld the judgment of 26 June 2007.

10 . On 3 October 2012 the Presidium of the Supreme Court of the Komi Republic quashed the judgment of 7 November 2008 and remitted th e case for a fresh examination. On 18 December 2012 the Supreme Court of the Komi Republic upheld the judgment of 26 June 2007 .

II. RELEVANT DOMESTIC LAW

11 . If a convicted person wishes to take part in appeal hearing, he or she must indicate this request in his or her statement of appeal (Code of Criminal Procedure of the Russian Federation, Article 375 § 2).

12 . The failure of a party, who has been duly notified of the date, time and place of the appeal hearing, to attend the hearing should not preclude the court from proceeding with the examination of the case (Code of Criminal Procedure, Article 376 § 4).

13 . If the court is unable to proceed owing to the absence of a party summoned to court, it must adjourn the hearing (Code of Criminal Procedure, Article 253 § 1).

THE LAW

I. JOINDER OF THE APPLICATIONS

14 . In accordance with Rule 42 § 1 of the Rules of the Court, the Court decides to join the applications, given their similar factual and legal background.

I I . ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION ON ACCOUNT OF ABSENCE FROM AN APPEAL HEARING

15 . The applicants complained under Article 6 §§ 1 and 3 (c) of the Convention that the authorities had failed to ensure their and their lawyers ’ presence at the appeal hearings, while the prosecutor had attended and had made oral submissions. The relevant parts of Article 6 of the Convention provide as follows:

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hear ing ... 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 ...”

16 . T he Government stated that the applicants had lost their victim status.

17 . The applicants maint ained their complaint .

18 . The Court reiterates that 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 , 25 June 1996, § 36, Reports of Judgments and Decisions 1996 ‑ III).

19 . The Court further reiterates that the reopening of proceedings by itself may not automatically be regarded as sufficient redress capable of depriving the applicant of his victim status. To ascertain whether or not the applicant retained his victim status the Court will consider the proceedings as a whole, including the proceedings which followed the reopening (see Sakhnovskiy v. Russia [GC], no. 21272/03 , § 83, 2 November 2010 , and Timoshin v. Russia (dec.), no. 17279/05, 17 May 2011 ).

20 . In the present cases the supervisory - review court s quashed the appeal judgments on the ground that the courts had failed to secure the presence of the applicants and their lawyers at the appeal proceedings. Thus they explicitly acknowledged the infringement of the applicants ’ right to defen ce in person and legal assistance in the appeal proceedings and ordered a fresh appeal hearing.

21 . Mr Burmistrov, Mr Budrin, Mr Gayniyatov, Mr Mezhinov, Mr Chichkin, Mr Ivanovskiy, Mr Sadovnik, Mr Zakhodyakin, Mr Goncharov, Mr Kayzer, Mr Yakupov and their lawyers were present at the new appeal hearings and were able to make oral submissions. There is no indication that these new proceedings had any defects. Therefore the measures taken by the authorities provided adequate redress to the applicants in respect of the violation of their right to take part in the appeal hearing .

22 . Mr Trifonov and Mr Sidelnikov were represented by lawyers at the new appeal hearings. Their lawyers had had sufficient time to study the case file and made oral and written submissions. As to the applicants ’ personal presence, they failed to apply for leave to appear though they had been informed of this requirement. They had also been informed of the date of new appeal hearings .

23 . In these circumstances, the Court concludes that the defects in the original appeal proceedings were remedied by the subsequent procedure before the appellate court. The fact that the applicant s were duly represented at the new hearings constitute d adequate redress for the violation of their right to fair trial.

24 . Therefore, having regard to the content of the supervisory - review courts ’ judgments and the subsequent re-examination of the applicants ’ cases during which they were afforded an effective opportunity to be present or be represented, the Court finds that the national authorities have acknowledged, and then afforded redress for, the alleged breach of the Convention which occurred as a result of the authorities ’ failure to summon the applicants to the hearing s (see Timoshin , cited above; Lozhkin v. Russia (dec.), no. 16384/08, §§ 14-22, 22 October 2013; and Khismatullin v. Russia , no. 33469/06 , §§ 61-67, 11 December 2014).

25 . It follows that the applicants can no longer claim to be “victim s ” of the alleged violation of Article 6 §§ 1 and 3 (c) of the Convention within the meaning of Article 34 of the Convention and that this part of the application must be rejected pursuant to Articles 34 and 35 §§ 3 (a) and 4 of the Convention .

III . ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION ON ACCOUNT OF EXCESSIVE LENGTH OF PROCEEDINGS

26 . Mr Zakhodyakin complained under Article 6 § 1 of the Convention of a breach of the “reasonable-time” requirement as regards the length of the criminal proceedings against him. Article 6 § 1 provides:

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

27 . The Government acknowledged that the length of the proceedings did not satisfy the “reasonable - time ” requirement.

28 . The applicant maintain ed his complaint.

A. Admissibility

29 . The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

30 . In the leading case of Nakhmanovich v. Russia ( no. 55669/00, 2 March 2006) the Court found a violation in respect of issues similar to those in the present case.

31 . The total duration of proceedings to be taken into account, less the time between appeal judgments and quashing by way of supervisory review, amount ed to five years and twenty-seven days.

32 . Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion as to the merits of this complaint. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable - time” requirement.

33 . There has accordingly been a breach of Article 6 § 1 of the Convention on account of an excessive length of proceedings .

IV . OTHER ALLEGED VIOLATIONS OF THE CONVENTION

34 . The applicants also submitted other complaints, in particular complaints concerning conditions of detention, unlawful detention, unfairness and the outcome of criminal proceedings against them .

35 . However, having regard to all the material in its possession, and in so far as these complaints fall within its competence, the Court finds that there is no appearance of a violation of the rights and freedoms set out in the Convention. It follows that this part of the application must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

V . APPLICATION OF ARTICLE 41 OF THE CONVENTION

36 . Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

37 . Mr Zakhodyakin claimed 67,000 euros (EUR) and 50,000 euros (EUR) in respect of pecuniary and non-pecuniary damage respectively .

38 . The Government considered his claim excessive.

39 . The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this part of the claim. On the other hand, it awards the applicant EUR 2,0 00 in respect of non-pecuniary damage.

B. Costs and expenses

40 . Mr Zakhodyakin also claimed 181,661.77 Russian r o ubles (RUB) for the costs and expenses incurred before the domestic courts and before the Court.

41 . The Government stated that these expenses had not been actually and necessarily incurred and were not reasonable as to quantum.

42 . Regard being had to the documents in its possession and to its case ‑ law , the Court notes that the applicant ’ s complaint concerning his absence from the appeal hearing was declared inadmissible. Accordingly, these expenses are not to be reimbursed. As to the legal fees, the Court notes that the legal costs incurred in the domestic proceedings are relevant only in so far as they were incurred in order to remedy the violation of Article 6 of the Convention on account of excessive length of proceedings . Those costs cannot be deduced from the documents submitted. On the other hand, it considers it reasonable to award the sum of EUR 12 covering postal costs.

C. Default interest

43 . The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT , UNANIMOUSLY,

1. Decides to join the applications ;

2 . Declares the complaints concerning the applicants ’ absence from the appeal hearings in admissible and Mr Zakhodyakin ’ s complaint concerning excessive length of criminal proceedings admissible ;

3 . Holds that there has been a violation of Article 6 of the Convention on account of excessive length of criminal proceedings ;

4 . Holds

(a) that the respondent State is to pay Mr Zakhodyakin , within three months , the following amounts to be converted into the currency of the respondent State at the rate applicable at the date of settlement :

(i ) EUR 2,000 ( two thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii ) EUR 12 ( twelve euros), plus a ny tax that may be chargeable , in respect of costs and expenses;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

5 . Dismisses the remainder of Mr Zakhodyakin ’ s claim for just satisfaction.

Done in English, and notified in writing on 7 February 2017 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Fatoş Aracı Helena Jäderblom Deputy Registrar President

\* MERGEFORMAT Appendix I

No .

Application No .

Lodged on

Applicant

Date of birth

Place of residence

Represented by

26401/06

28/04/2006

Vladimir Mikhaylovich BURMISTROV

06/07/1959

Kamenskiy village, Saratov Region

Yekaterina Viktorovna YEFREMOVA

29258/06

25/05/2006

Vladimir Aleksandrovich TRIFONOV

28/09/1953

Pechora , Komi Republic

Eduard Valentynovych MARKOV

12149/07

23/01/2007

Sergey Olegovich BUDRIN

30/12/1978

Solikamsk , Perm Region

37061/07

19/07/2007

Yevgeniy Maratovich GAYNIYATOV

26/01/1978

Izhevsk , Udmurtia Republic

Aleksandr Grigoryevich MANOV

35903/08

10/05/2008

Yuriy Mikhaylovich MEZINOV

07/05/1968

Elets , Lipetsk Region

Valeriy Vladimirovich SHUKHARDIN

4874/09

05/11/2008

Oleg Alekseyevich CHICHKIN

25/04/1976

Bor , Nizhniy Novgorod Region

Dmitriy Vladimirovich AGRANOVSKIY

20343/09

02/02/2009

Oleg Yevgenyevich SIDELNIKOV

28/09/1968

Pugachev , Saratov Region

28877/09

23/04/2009

Roman Timofeyevich IVANOVSKIY

10/01/1975

Metallistov village, Tver Region

29514/09

18/04/2009

Vitaliy Valeryevich SADOVNIK

08/05/1990

Nosovo , Rostov Region

Yevgeniya Dmitriyevna DOKHNOVA

31466/09

07/05/2009

Nikolay Dmitriyevich ZAKHODYAKIN

07/04/1951

Vuktyl , Komi Republic

32934/10

26/04/2010

Ivan Alekseyevich GONCHAROV

21/01/1975

Volgograd

70306/11

05/10/2011

Vladimir Ivanovich KAYZER

19/11/1951

Staroshcherbinovskaya, Krasnodar Region

Eduard Valentynovych MARKOV

59413/12

01/12/2011

Ruslan Ramilovich YAKUPOV

26/12/1974

Belebey , Bashkortostan Republic

A PPENDIX II

No.

Application number and applicant ’ s name

First appeal (supervisory review) hearing,

attendance

Quashing

New appeal hearing, attendance

Present

Represented

Present

Represented

26401/06, Burmistrov Vladimir Mikhaylovich

09/03/2006, Saratov Regional Court

09/08/2012, Supreme Court of Russia

18/09/2012, Saratov Regional Court

No; Leave to appear: No

Yes

18/02/2013, Presidium of the Saratov Regional Court

26/03/2013, Saratov Regional Court

No

No

Yes

Yes

29258/06, Trifonov Vladimir Aleksandrovich

27/02/2006, Supreme Court of Russia

21/07/2010, Presidium of the Supreme Court

14/10/2010, Supreme Court of Russia

No

No

No; leave to appear : No; informed of the hearing

Yes

12149/07, Budrin Sergey Olegovich

10/08/2006, Supreme Court of Russia

23/01/2013, Presidium of the Supreme Court of Russia

26/03/2013, Supreme Court of Russia

No

No

Yes

Yes

37061/07, Gayniyatov Yevgeniy Maratovich

25/01/2007, Supreme Court of the Udmurtia Republic

18/03/2013, Presidium of the Supreme Court of the Udmurtia Republic

25/04/2013, Supreme Court of the Udmurtia Republic

No

No

Yes

Yes

35903/08, Mezhinov Yuriy Mikhaylovich

22/01/2008, Orel Regional Court

18/06/2009, Presidium of the Orel Regional Court

22/09/2009, Orel Regional Court

No

No

Yes

Yes

4874/09, Chichkin Oleg Alekseyevich

07/05/2008, Ulyanovsk Regional Court

30/08/2012, Presidium of the Ulyanovsk Regional Court

19/09/2012, Ulyanovsk Regional Court

No

No

Yes

Yes

20343/09, Sidelnikov Oleg Yevgenyevich

26/08/2008, Moscow Regional Court

05/12/2012, Presidium of the Moscow Regional Court

05/02/2013, Moscow Regional Court

No

No

No; Leave to appear: No; informed of the hearing

Yes

28877/09, Ivanovskiy Roman Timofeyevich

11/11/2008, Tver Regional Court

17/01/2013, Supreme Court of Russia

05/03/2013, Tver Regional Court

No

No

Yes

Yes

29514/09, Sadovnik Vitaliy Veleryevich

16/12/2008, Supreme Court of Russia

Supreme Court of Russia, date unclear

29/08/2012, Supreme Court of Russia

No

No

Yes

Yes

31466/09, Zakhodyakin Nikolay Dmitriyevich

24/08/2007, Supreme Court of the Komi Republic

08/10/2008, Presidium of the Supreme Court of Komi Republic

07/11/2008, Supreme Court of the Komi Republic

No; Leave to appear: Yes

No

03/10/2012, Presidium of the Supreme Court of Komi Republic

18/12/2012, Supreme Court of the Komi Republic

No

No

Yes

Yes

32934/10, Goncharov Ivan Alekseyevich

30/11/2009, Volgograd Regional Court

08/05/2013, Presidium of the Volgograd Regional Court

14/06/2013, Volgograd Regional Court

No

No

Yes

Yes

70306/11, Kayzer Vladimir Ivanovich

18/05/2011, Krasnodar Regional Court

20/02/2013, Presidium of the Krasnodar Regional Court

03/07/2013, Krasnodar Regional Court

No

No

Yes

Yes

59413/12, Yakupov Ruslan Ramilovich

02/06/2011, Supreme Court of the Bashkortostan Republic

12/09/2012, Presidium of the Supreme Court of the Bashkortostan Republic

19/02/2013, Supreme Court of the Bashkortostan Republic

No

Yes

Yes

Yes