FIRST SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 14899/04 
by Anatoliy BABKIN 
against Russia

The European Court of Human Rights (First Section), sitting on 12 May 2005 as a Chamber composed of:

Mr C.L. Rozakis, President
 Mr P. Lorenzen
 Mrs N. Vajić
 Mrs S. Botoucharova
 Mr A. Kovler
 Mrs E. Steiner, 
 Mr K. Hajiyev, judges
and Mr S. Nielsen, Section Registrar,

Having regard to the above application lodged on 26 April 2004,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Anatoliy Ivanovich Babkin, is a Russian national who was born in 1930 and lives in Moscow. He is represented before the Court by Ms K. Kostromina, a lawyer with the International Protection Centre in Moscow.

A.  The circumstances of the case

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

On 28 March 2000 the Investigations Division of the Federal Security Service of the Russian Federation (Следственное управление Федеральной службы безопасности РФ, the FSB) opened a criminal investigation into disclosure of State secrets, an offence under Article 283 § 1 of the Criminal Code.

On 3 April 2000, at about 1 p.m., the applicant was apprehended by the FSB officers at a conference and brought to the FSB offices in Moscow. From 4.05 to 11.20 p.m. the applicant was interviewed as a witness.

On 4 April 2000, at 0.10 a.m., a report on the applicant's arrest was drawn up. The applicant was recognised as a suspect in a criminal case and his interrogation continued till 6 a.m.

On 3 and 4 April 2000 the applicant's home and office were searched and a body search was carried out on his person.

On 6 April 2000 a deputy Prosecutor General ordered the applicant's detention on remand. The applicant was placed in the Lefortovo detention centre, run by the Federal Security Service. Following an appeal by the applicant, on 17 July 2000 the Moscow City Court confirmed, in the final instance, the lawfulness of the detention order.

On 12 April 2000 the applicant was charged with a criminal offence under Article 283 § 1 of the Criminal Code. On 13 June 2000 the charge was amended to that of high treason (Article 275 of the Criminal Code). The applicant was accused of having collected certain information containing State secrets and transmitted it to Mr P., a US citizen and a retired naval officer employed by the University of Pennsylvania, for remuneration.

On 14 June 2000 the applicant's wife applied for permission to see her husband. On 23 June 2000 the investigator refused permission on the ground that a visit was “not opportune” (нецелесообразно).

On 2 August 2000 the applicant was released from custody on a written undertaking not to leave Moscow.

On 3 August 2000 the applicant had a heart attack.

On 10 August 2000 the case against the applicant was severed from the case against Mr P. On 28 August 2000 the proceedings against him were stayed pending his convalescence.

On 6 December 2000 the Moscow City Court found Mr P. guilty of espionage under Article 276 of the Criminal Code and sentenced him to twenty years' imprisonment in a high-security colony. On 14 December 2000 Mr P. was amnestied by a special decree of the Russian President and expelled from Russia.

On 7 February 2001 the proceedings against the applicant were resumed.

On 19 February 2003 the Moscow City Court found the applicant guilty of high treason under Article 275 of the Criminal Code. It relied on testimony by witnesses, including the applicant's co-workers who participated in the co-operation project with the University of Pennsylvania, and reports by the experts who established the classified nature of information that the applicant had collected and made available to Mr P. Despite objections by the applicant's defence, the court extensively quoted the statements made by Mr P. during his trial. In particular, referring to these statements, the court rejected the applicant's allegations that he had not despatched the reports himself and that he had not personally received money from Mr P. The untruthfulness of these allegations was also confirmed by other witnesses. The court also noted the deposition of the witness I., made during the pre-trial investigation. The witness confirmed that the applicant had obtained from him a working drawing in order to pass it on to Mr P. The applicant did not deny having received the drawing, but claimed that he had no intention to make it available to Mr P. The judgment does not indicate why the witness could not testify before the court. Having regard to the applicant's age and frail health, the court gave him a suspended sentence of eight years' imprisonment, conditional on a five-year probation.

Both the prosecution and the defence appealed against the judgment. The applicant's defence submitted, in particular, that the trial court should not have relied on Mr P.'s statements because he had not had any procedural status in the applicant's trial and that the trial court failed to secure the attendance of the witness I. The applicant alleged violations of Articles 3, 5, 6 and 8 of the Convention in respect of his arrest and detenion in 2000 and breaches of the principle of equality of arms.

On 6 November 2003 the Supreme Court of the Russian Federation upheld the judgment of 19 February 2003. As to the alleged procedural defects, it found as follows:

“..It appears from the trial record that a copy of the bill of indictment was served on [the applicant].. The case materials were reviewed with a sufficient thoroughness; in particular, an assessment of the statements by Mr P., whose conviction had become final and whose depositions were read out in accordance with Article 281 of the Code of Criminal Procedure, was made; there have been no substantial breaches of the rules of criminal procedure in the trial..”

The Supreme Court also quoted from the deposition by the witness I., without indicating the reasons for his non-attendance.

B.  Relevant domestic law

The Russian Code of Criminal Procedure defines evidence as any information on the basis of which a court establishes the existence or absence of circumstances that have to be proven in a criminal case (Article 74 § 1). Admissible evidence includes (i) statements by the accused or defendant; (ii) statements by the victim or witness; (iii) conclusions and statements of an expert; (iv) material evidence; (v) records of investigative and judicial acts; and (vi) other documents (Article 74 § 2).

All evidence is to be examined directly by the trial court. The reading-out of depositions made during the pre-trial investigation is permissible in circumstances described in Articles 276 and 281 of the Code. The judgment may only be founded on the evidence that has been examined at the trial (Article 240 §§ 1-3).

A deposition made by an accused or defendant during the pre-trial investigation or an earlier trial hearing may be read out at the request of a party if there is a substantial discrepancy between his testimony before the court and the deposition (Article 276 §§ 1 (1) and 2).

A deposition made by a victim or witness during the pre-trial investigation or an earlier trial hearing may be read out upon consent by the parties (i) if there is a substantial discrepancy between his testimony before the court and the deposition, or (ii) if the victim or witness defaulted (Article 281 § 1).

COMPLAINTS

1.  The applicant complains under Article 3 of the Convention that the conditions of his detention in the Lefortovo centre, the lack of contacts with his wife, frequent and intensive interviews and psychological intimidation while in detention, amounted to the treatment incompatible with this Convention provision. As regards the restrictions on family visits in detention, the applicant also invokes Article 8 of the Convention. He further complains under Article 5 of the Convention about the unlawfulness of his detention.

2.  The applicant alleges a number of violations of his right to a fair trial enshrined in Article 6 of the Convention. In particular, he complains that:

(a)  the findings of his guilt were based on the testimony by Mr P. who was neither a defendant nor a witness in his trial and whom he could not have examined;

(b)  the trial court read out a written deposition of the witness Mr I. whom the applicant could not have examined;

(c)  he was officially charged only eight days after the arrest;

(d)  his confession statements were obtained under duress;

(e)  he never had a copy of the bill of indictment at his disposal;

(f)  the defence witness B. was first questioned by the prosecution and only then by the defence.

THE LAW

1.  The applicant complained under Articles 3, 5 and 8 of the Convention about the circumstances of his detention in 2000.

The Court notes that the applicant was detained from 3 April to 2 August 2000 and that his appeal against the detention order was rejected in the final instance on 17 July 2000. However, his application was only lodged with the Court on 26 April 2004, that is outside the six-month time-limit established in Article 35 § 1 of the Convention. This conclusion is undisturbed even though substantially similar complaints were later raised in statements of appeal against his conviction lodged with the Supreme Court of the Russian Federation. The Court finds that the purpose of these proceedings was to decide on the applicant's innocence or guilt and the scope of review exercised by the Supreme Court was limited to the merits of the criminal charge against him. In these proceedings the Supreme Court had no competence to examine, or to afford redress for, alleged breaches of the Convention provisions unrelated to the determination of the criminal charge against the applicant, and these issues were accordingly treated as irrelevant and not addressed in the Supreme Court's judgment (see Moiseyev v. Russia (dec.), no. 62936/00, 9 December 2004).

It follows that this part of the application is introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

2.  The applicant complained under Article 6 of the Convention about a violation of his right to a fair trial as regards the trial court's handling of testimonies by witnesses and his allegedly restricted ability to prepare his defence. The relevant parts of Article 6 read as follows:

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

...

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

(a)  to be informed promptly.. of the nature and cause of the accusation against him;

(b)  to have adequate time and facilities for the preparation of his defence;

(c)  to defend himself in person or through legal assistance of his own choosing..

(d)  to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him...”

The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant's complaints concerning an alleged violation of his right to a fair trial;

Declares the remainder of the application inadmissible.

Søren Nielsen Christos Rozakis 
 Registrar President

BABKIN v. RUSSIA DECISION


BABKIN v. RUSSIA DECISION