FIRST SECTION

Application no. 41952/04 Sergey Vladimirovich DIKAREV against Russia lodged on 11 November 2004

STATEMENT OF FACTS

The applicant, Mr Sergey Vladimirovich Dikarev , is a Russian national, who was born in 1974 and lives in the town of Barnaul , the Altay Region.

A. The circumstances of the case

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

1. The applicant ’ s arrest and conviction

On 30 October 1998 the applicant was arrested on the suspicion of having committed a murder. He was subsequently detained on remand pending the proceedings.

The Leninskiy District Court of the Town of Barnaul found the applicant guilty of murder on 17 May 1999 and sentenced him to eleven years of imprisonment. The Altay Regional Court which heard the case on appeal generally upheld and partly amended the judgment by its final decision of 10 February 2000.

2. Rejections of the applicant ’ s requests for supervisory review

Thereafter the applicant filed numerous applications to initiate supervisory review proceedings in respect of his conviction. Most of these applications were rejected without examination. He claimed, among other things, that he had been instigated to commit a crime by a victim. On three occasions the decisions were taken by judges Go., Gr. and K. of the Altay Regional Court .

In his letter of 25 June 2001 judge Gr. of the Altay Regional Court informed the applicant that he saw no reason to initiate supervisory review proceedings of his conviction. The letter contained a brief analysis of his complaints.

In the letter dated 24 November 2003 judge K. of the Altay Regional Court advised the applicant that he saw no reason to re-consider an earlier decision rejecting his request. The letter contained a detailed analysis of his arguments.

By the letter of 14 January 2004 judge Go. of the Altay Regional Court returned to the applicant his repeated application for supervisory review. The applicant was advised about a possibility to lodge a supervisory review application with the Supreme Court of the Russian Federation , which he later did.

3. Supervisory review proceedings after remittal of the case

On 28 July 2005 the President of the Supreme Court of the Russian Federation granted the application and initiated supervisory review of the conviction and remitted the criminal case for examination to the Presidium of the Altay Regional Court . It is unclear from the case file what were the grounds for granting the request.

On an unspecified date the applicant filed three motions with the Presidium. He requested the court: a) to secure his personal presence at the hearing; b) to provide him with the decision of the President of the Supreme Court of 28 July 2005 initiating supervisory review proceedings in order to have the possibility to prepare for the hearing; c) to appoint for him a legal aid counsel since he had no means to pay for legal assistance.

The applicant submits that he was notified that the hearing would take place on 20 September 2005, that his presence would be secured by way of a video link, and that he would be provided with the decision of 28 July 2005 “later on”. It is unclear how the applicant was provided with that information, and it does not appear that the court ever responded to his request for legal aid.

On 20 September 2005 the hearing took place in the personal presence of the prosecutor who recommended to uphold the conviction as it stood. Judge Go. acted as a rapporteur in the case but did not have the right to take part in the deliberations because he was not a member of the Presidium. The applicant ’ s presence was secured by way of a video link. In the beginning of the hearing the applicant unsuccessfully challenged judges Go., Gr. and K., each of whom had previously dismissed his applications for supervisory review. According to him, his microphone was shut off before he was able to submit other motions, and he was told that the court would give him additional time to submit other arguments.

The applicant was given floor at the end of the hearing to submit any additional arguments. When he inquired about his requests for legal aid and the decision of the President of the Supreme Court, the judges allegedly replied that they had not received such requests.

The Presidium granted the request for supervisory review of the decisions in his case in part, finding that the crime had been instigated, and reduced the applicant ’ s sentence from eleven to ten years.

4. Other court proceedings

In 2005 the applicant, dissatisfied with the fact that back in 1998 the investigator had questioned him in the absence of his lawyer, brought criminal proceedings against him. The prosecutor rejected his complaint as unfounded. The courts subsequently upheld his decision. The final decision was taken by the Altay Regional Court on 9 March 2006.

B. Relevant domestic law

Under Article 407 of the Code of Criminal Procedure , a convicted person and his counsel are notified of the date, time and place of hearings before the supervisory review court. They are provided with the copy of a decision to initiate a supervisory review. They may participate in the hearing provided that they have made a specific request to that effect.

COMPLAINTS

1. In respect of the initial set of criminal proceedings which ended with the decision of the Altay Regional Court of 10 February 2000 the applicant complained about the allegedly appalling conditions of his detention, his detention on remand, and the alleged unfairness of the proceedings.

2. Referring to Article 6 of the Convention, the applicant contested the decision of the Altay Regional Court of 9 March 2006, which rejected the applicant ’ s complaint about the actions of the investigator back in 1998.

3. The applicant complained under Article 6 § 1 that the Presidium of the Altay Regional Court, which heard his case on 20 September 2005, lacked impartiality because three judges out of six, including judge rapporteur , previously rejected his applications for supervisory review.

4. Referring to Article 6 § 3 (b), the applicant complained of the court ’ s failure to respond to his request for a copy of the decision of 28 July 2005, which was necessary for his adequate preparation for the hearing of the Altay Regional Court on 20 September 2005.

5. The applicant also complained that his request for legal assistance before the Altay Regional Court during the hearing of 20 September 2005 remained unanswered, in violation of Article 6 § 3 (c).

6. Relying on Article 6 § 3 (c), the applicant expressed his dissatisfaction with the fact that the Presidium of the Altay Regional Court ignored his motion to secure his presence at the hearing in person and instead arranged a video link.

7. The applicant also complained under Article 13 that the prison authority required him to exhaust a domestic remedy which they knew was ineffective.

QUESTIONS

1. Was the judicial panel of the Altay Regional Court , which heard the applicant ’ s case on 20 September 2005, impartial? In particular, was the requirement of impartiality laid down by Article 6 § 1 observed, given the fact that judges Go., Gr. and K. had previously rejected the applicant ’ s requests for supervisory review?

2. Was the applicant afforded adequate time and facilities to prepare his defence during the hearing of the Altay Regional Court on 20 September 2005, as required by Article 6 § 3 (b) of the Convention? In particular, was he provided in advance with a copy of the decision of the President of the Supreme Court of the Russian Federation of 28 July 2005? Did he file a motion to provide him with this decision, and, if yes, was it resolved?

3. Was the applicant afforded free legal assistance, within the meaning of Article 6 § 3 (c) of the Convention? In particular, did the interests of justice require such assistance? Did the applicant file a motion to provide him with free legal assistance, and, if yes, was it resolved?

4. Was the applicant able to defend himself, as required by Article 6 § 3 (c) of the Convention? In particular, was he able to follow the proceedings and be heard without technical impediments?