FIRST SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 18792/03 
by Aleksandr Bronislavovich KUPRYAKOV 
against Russia

The European Court of Human Rights (First Section), sitting on 2 March 2006 as a Chamber composed of:

Mr C.L. Rozakis, President
 Mrs S. Botoucharova
 Mr A. Kovler
 Mrs E. Steiner
 Mr K. Hajiyev
 Mr D. Spielmann, 
 Mr S.E. Jebens, judges
and Mr S. Quesada, Deputy Section Registrar,

Having regard to the above application lodged on 14 May 2003,

Having deliberated, decides as follows:

THE FACTS

The applicant, Aleksandr Bronislavovich Kupryakov, is a Russian national who was born in 1960 and lives in Angarsk. He is represented before the Court by Ms E. Liptser, a lawyer practising in Moscow.

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

The applicant’s pre-trial detention

On 22 March 2001 the applicant was arrested on suspicion of extortion and detained. The detention was chosen because the applicant faced serious charges. Between December 2001 and September 2002 the applicant eleven times challenged the lawfulness of his detention before the court, but his complaints were of no avail. Two of his complaints were examined by the Moscow City Court almost six months after they had been filed (filed on 26 December 2001 and 30 January 2002 and examined on 6 June 2002). The applicant was not provided with copies of all the court’s decisions to enable him to appeal against them, and only one of the seven appeals against the extensions of his detention was examined by the court of appeal – the Supreme Court of Russia – on 30 October 2002.

The applicant’s trial

On 1 November 2002 the Moscow Regional Court convicted the applicant of extortion, kidnapping, and large-scale theft, and sentenced him to fourteen years’ imprisonment. The court relied on the evidence that the applicant found unreliable: the testimony of a witness received at the stage of the pre-trial investigation (which had been read out during the trial), the identification parade of a co-accused and his subsequent testimony, and the protocol of the applicant’s search allegedly held in breach of the national legislation. The applicant asked the court to call the attesting witnesses who could have proven that the search itself had been held earlier without them and that they had just signed the protocol, but the court refused his request.

The applicant appealed against the judgment. In his appeal he complained that the conclusions reached by the court mismatched the circumstances of the case, that the court’s conclusions were not corroborated by evidence, that some evidence was unreliable and should not have been admitted. In particular, he claimed that the testimony of the witness was received during the pre-trial investigation in violation of the procedural rules. He further complained that the trial court refused his request to summon the attesting witnesses of his search and his request to question the victim at the hearing rather than use his testimony received at the stage of the pre-trial investigation. On 1 July 2003 the Supreme Court of Russia upheld the judgment on appeal.

Civil proceedings

On 4 November 2002, before the judgment of 1 November 2002 became final, a daily newspaper – “Moskovskiy Komsomolets” – published an article which disclosed some facts of the applicant’s biography and criminal file, which, in the applicant’s opinion, were false and humiliating, i.e. the applicant was referred to as a “criminal leader” alias “Kuper” and the “head of a gang”, who was “sentenced to death” by a certain criminal group.

The applicant sued the newspaper for defamation.

On 2 March 2004 the Presnenskiy District Court of Moscow dismissed the applicant’s claim in his absence, having heard the representative of the respondent. The court mistakenly stated that the applicant had asked to hear the case in his absence. It held that the information contained in the article could not be refuted, because it contained assumptions rather than statements and corresponded with the facts.

The applicant appealed against the judgment on the ground that the hearing had taken place in his absence. In his appeal the applicant also contended that because the newspaper article had been published before his conviction became final, it influenced the hearing of his case before the second-instance court and pre-determined its results.

On 16 August 2004 the Moscow City Court dismissed the appeal, ignoring the applicant’s argument about the mistake of the first-instance court to indicate his unwillingness to participate in the proceedings.

COMPLAINTS

1.  The applicant complains under Article 5 §§ 1, 3, and 4 of the Convention about the alleged unlawfulness of his detention and its extensions. He complains that the sole ground for it was the gravity of charges against him, that the proceedings by which the lawfulness of his detention was to be decided were not speedy, that he was not provided with the decisions of the first-instance court in order to appeal against them, that not all his appeals were examined by the second-instance court and the one examined was not given due consideration and his request to participate in this hearing was not granted.

2.  He complains under Article 6 § 1 that the court’s conclusions mismatch the circumstances of his case, that the evidence on which the court based the conviction was received in breach of the national legislation and should not have been admitted, that the testimonies of the witness and a victim were read out during the trial, which deprived the applicant of the opportunity to question them and impaired the principle of immediacy and openness of the proceedings.

3.  The applicant further complains under Article 6 § 3 (d) that the court refused his request to call the attesting witnesses of his search, who would have proven that it had been held in breach of the national law and led to non-admissibility of its results in determining his guilt.

4.  Finally, the applicant complains under Article 6 § 1 about the wrong decisions of the domestic court in his civil trial and about the fact that it was held in absentia at both instances, which impaired the principle of equality of arms and the overall fairness of the proceedings to which he was a party.

THE LAW

1. The applicant complained under Article 5 §§ 1, 3 and 4 about the alleged unlawfulness of his detention.

The Court considers it appropriate first to determine whether the applicant has complied with the admissibility requirements defined in Article 35 § 1 of the Convention, which provides as follows:

“The Court 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 application to the Court was introduced on 14 May 2003, i.e. more than six months from the date of the last decision concerning the lawfulness of the applicant’s detention dated 30 October 2002. It follows that the complaint has been 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 § 1 that the testimonies of the witness and a victim were read out during the trial, that the court draw wrongful conclusions and admitted unreliable evidence.

Article 6 § 1, insofar as relevant, reads as follows:

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

In so far as the applicant complains that the testimonies of the witness and a victim were read out, it should be noted that the admission of such evidence without an opportunity to cross-examine may render the trial unfair in breach of Article 6 § 1 of the Convention if the conviction is based wholly or mainly on such evidence (see  Unterpertinger v. Austria, judgment of 24 November 1986, Series A no. 110, §§ 28-33). However, in the present case in respect of the witness the applicant failed to exhaust the domestic remedies since he never raised it on appeal.

It follows that this part of the applicant’s complaint is out for non-exhaustion of the domestic remedies and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

In so far as the applicant complains about the non-attendance of the victim, the Court reiterates that while Article 6 guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence as such, which is therefore primarily a matter for regulation under national law (see Schenk v. Switzerland, judgment of 12 July 1988, Series A no. 140, §§ 45 and 46). Nothing suggests that the domestic court’s failure to examine this evidence upset the overall fairness of the trial. It is true that in the applicant’s case the victim, being on a long-term business trip, could not attend the hearing. However, his statements did not incriminate the applicant himself, but his co-accused, and they did not constitute the only item of evidence on which the domestic court based its decisions. Moreover, during the pre-trial investigation these statements were received and during the trial – read out - in compliance with the procedural rules.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

In so far as the applicant complains about the wrongful conclusions reached by the court and the admissibility of evidence, the Court reiterates that it is not its task to review alleged errors of fact and law committed by the domestic judicial authorities and that, as a general rule, it is for the national courts to assess the evidence before them and to apply domestic law. The Court’s task is to ascertain whether the proceedings as a whole were fair (see, inter alia, Bernard v. France, judgment of 23 April 1998, Reports of Judgments and Decisions 1998-II, § 37). In the applicant’s case there is no indication, nor has it been persuasively argued, that the courts went beyond their discretion to admit or refuse evidence or that they gave inappropriate weight to certain pieces of evidence.

Therefore, this part of the complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

3. The applicant complained under Article 6 § 3 (d) that the court refused his request to call the attesting witnesses of his search.

Article 6 § 3 (d) reads as follows:

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

... 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 reiterates that it is for the national courts to assess the evidence before them as well as the relevance of the evidence which defendant seeks to adduce (see Vidal v. Belgium, judgment of 22 April 1992, Series A no. 235-B, pp. 32-33, § 33). In the present case the domestic court thoroughly examined the applicant’s requests and came to the conclusion that the summoning of these witnesses was unnecessary. This decision was properly reasoned: the court held that the applicant did not challenge the lawfulness of the search when it was held, that the attesting witnesses had been informed on their rights and that when they were signing the record of the search they made no written remarks as to any possible irregularities in the way it was held. The decision of the domestic court does not seem arbitrary or unreasonable.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

4. The applicant complained under Article 6 § 1 about the wrong decisions of the domestic court in his civil trial and about the fact that it was held in absentia at both instances, which impaired the principle of equality of arms and the overall fairness of the proceedings to which he was a party. Article 6 § 1, insofar as relevant, reads as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”

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 the civil trial in absentia at both instances;

Declares the remainder of the application inadmissible.

Santiago Quesada Christos Rozakis 
 
Deputy Registrar President

KUPRYAKOV v. RUSSIA DECISION


KUPRYAKOV v. RUSSIA DECISION