FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 46503/99 
by Andrey Anatolyevich KLIMENTYEV 
against Russia

The European Court of Human Rights (Fourth Section), sitting on  
21 June 2005 as a Chamber composed of:

Sir Nicolas Bratza, President
 Mr J. Casadevall
 Mr G. Bonello
 Mr R. Maruste
 Mr A. Kovler
 Mr S. Pavlovschi, 
 Mr J. Borrego Borrego, 
and Mr M. O'Boyle, Section Registrar,

Having regard to the above application lodged with the European Commission of Human Rights on 11 August 1998,

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

The applicant, Mr Andrey Anatolyevich Klimentyev, is a Russian national, born in 1954 and living in the city of Nizhniy Novgorod. He is represented before the Court by Mrs K. Moskalenko, a lawyer practising in Moscow, and Mr G. R. Baum, a lawyer practising in Cologne. The respondent Government are represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights.

A.  The circumstances of the case

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

1.  The applicant's arrest and his appeals against the detention order

(a) First round of proceedings in the applicant's criminal case

On 7 March 1995 criminal proceedings were brought against the applicant on suspicion of his involvement in a number of economic crimes. By a judgment of 21 April 1997 the Nizhniy Novgorod Regional Court (“the Regional Court”, Судебная коллегия по уголовным делам Нижегородского областного суда) convicted the applicant on some of these charges and acquitted him on the rest, sentencing to one and a half year of imprisonment and the forfeiture of some of his property. The judgment of 21 April 1997 was quashed on appeal by the Supreme Court of the Russian Federation (“the Supreme Court”, Верховный Суд Российской Федерации) on 17 July 1997. The case was remitted for a fresh examination at first instance. It appears that at that time the court imposed on the applicant a measure of restraint in the form of an undertaking not to leave the city pending the criminal proceedings.

Simultaneously to these proceedings, the applicant stood and won in mayoral elections of the city of Nizhniy Novgorod on 29 March 1998. The results of these elections were subsequently annulled by a decision of the City Electoral Registry of 1 April 1998 for various breaches of electoral law committed by the applicant and other candidates.

(b) Detention order of 2 April 1998

On 30 March 1998, during the fresh round of criminal proceedings at first instance, a prosecutor moved to remand the applicant in custody for an alleged obstruction of justice. The Regional Court rejected the motion as unsubstantiated.

A few days later the prosecutor renewed his motion and on 2 April 1998 the Regional Court ordered the applicant's detention pending the trial. During this hearing the applicant was represented by three counsel and a “civil defender” who enjoyed a similar status. The court referred to the refusal of some witnesses to give evidence in court, the media and public pressure on the court instigated by the applicant as well as the breaches of order during the court sessions and established that the applicant had obstructed the course of justice and breached the undertaking not to leave his place of residence pending the proceedings. The applicant was arrested on the same day.

(c) Appeal proceedings against the detention order of 2 April 1998

On 23 April 1998 the applicant's “civil defender” challenged the detention order of 2 April 1998 before the Supreme Court.

On 5 May 1998 the Convention entered into force in respect of the Russian Federation.

The Supreme Court refused to examine the appeal on 19 May 1998, having ruled that national law did not allow appeals against such types of court orders separately from appeals against first instance judgments.

2.  First instance proceedings

(a) Bias episode and the applicant's request to admit Mrs Moskalenko

On 19 May 1998 the applicant's “civil defender” challenged a presiding judge for alleged bias. In this connection, the defender referred to the court's refusal to call certain high-ranking witnesses, such as a former regional governor, the Regional Prosecutor and other important officials, the court's previous order to detain the applicant, and its decision to admit certain evidence contested by the defence. The challenge was dismissed by the Regional Court as unfounded.

The applicant submits that on the same day he also unsuccessfully requested the court to admit Mrs Moskalenko as a replacement for one of his counsel who was sick. The Government submit that the applicant requested the court to admit Mrs Moskalenko as a “specialist in international law”, and not as his counsel. They further claim that she was not properly authorised by a local bar and by the applicant to take part in the proceedings and that such authorisation was not produced by her until 16 June 1998.

(b) Assessment of the witnesses' statements by the first instance court

During the trial the Regional Court heard more than thirty five witnesses in total, both for the prosecution and defence. The court refused the applicant's requests to call certain witnesses, including the former regional governor, the Regional Prosecutor and other officials, and admitted and considered five witness statements taken at the pre-trial stage of proceedings without hearing the respective witnesses in person.

i. Statements by witnesses R. and B.

Two of these witnesses were Norwegian nationals R. and B. who had both been questioned by the Norwegian police and the Russian investigators in Norway and in Russia earlier on unspecified dates. They did not attend the trial and it does not appear that the applicant could question them.

The applicant objected to the admission of their statements, claiming that, among other things, they were not affixed by an apostille, and, hence, in breach of the domestic legal requirements relating to foreign documents. The court dismissed these objections by reference to the 1961 Hague Convention Abolishing the Requirement for Legalisation of Foreign Public Documents, to which both Norway and Russia were parties.

ii. Statements by witnesses P., M. and A.

The third witness was a German national P. who gave evidence at the pre-trial stage of proceedings and during the first round of proceedings in 1997. The fourth and fifth witnesses, Russian nationals M. and A., were also questioned during the pre-trial investigation and during the trial in 1997. The court repeatedly summoned the latter two, but they failed to appear and could not be found. The court admitted their pre-trial statements after having viewed a video tape of their interrogation.

(c) Other pieces of evidence

It appears that, despite the applicant's objections, the court also admitted and considered several documents in English. The translated versions of these documents had not been made available to the defence until the beginning of the trial. The court also admitted certain expert reports in respect of which the defence claimed that the applicant had been informed of the dates of the respective expert examinations too late. The applicant also challenged the legality of the statements of certain witnesses, as they lacked indications of the time or place of the questionings.

(d) Judgment of 27 May 1998

On 27 May 1998 the Regional Court found the applicant guilty on charges of misappropriation, embezzlement, bribery and attempt not to return money from abroad. According to the judgment, the applicant and a co-accused Mr K., the director of a shipyard “Oka”, had tampered with documents with a view to embezzling the shipyard's property. The director, acting on behalf of the shipyard, was found to have arranged for money transfers under fraudulent contracts with the companies owned by the applicant, whereas the applicant was found to have bribed the director by opening bank accounts in the name of Mr K. in Norway and transferring the stolen money there. Among other things, the applicant was also convicted of having extorted money from a marketplace owned and run by companies “Zhanto” and “NL TOP”, and from a casino owned and run by a company “Slot”. In total, the court sentenced him to six years' imprisonment and the confiscation of some of his property. The court also granted civil claims for damages by the shipyard “Oka” and three other companies, “Zhanto”, “NL TOP” and “Slot”. It appears that the civil claims by the latter three companies were submitted on 20 April 1998, i.e. during the trial.

A copy of the judgment of 27 May 1998 was served on the applicant on 3 June 1998. Later it was discovered that the copy contained errors and misprints. On 8 June 1998 the Regional Court ordered that the applicant be furnished with an amended version. The applicant claims that he did not receive it. The Government submit that the amended copy of the judgment was served on the applicant on 11 June 1998.

(e) Trial records

The applicant submits that he was denied full access to the verbatim record and the case-file. He also alleges that the trial record consisting of two volumes was forwarded to the Supreme Court, but the verbatim record, which ran to 15 volumes, was not attached. The Government submit that the whole trial was taken down in shorthand and taped and that the respective records were available in total to all interested parties, including the applicant and his counsel. The Government further submit that the applicant never challenged the accuracy of these records.

(f) Separate rulings of 27 May 1998

On 27 May 1998 the Regional Court made a number of separate rulings (частные определения) in the case. In one of these rulings the court noted that there had been breaches of the relevant rules of criminal procedure during the investigation and that these breaches had been remedied during the trial. In particular, the court established that the defendants had been informed about the commissioning of expert reports in the case only after the respective examinations were over. The court considered that this failure did not invalidate the conclusions of the experts' reports, and that the applicant had failed to contest the results of the reports during the investigation or during the trial. The court also noted that a number of documents in the case-file were in foreign languages, but considered that this did not violate the defence rights because the documents were similar to, or copies of, other documents in Russian. In any event, all documents had been translated into Russian during the trial. The court further noted that certain witness statements had been admitted as evidence, even though they gave no indication as to the time or place of questioning. To verify these latter points, the witnesses in question (and other witnesses) had been questioned in the courtroom on the circumstances of the questioning. The court viewed a video tape of the questioning, and decided to admit the statements in question as evidence.

The applicant alleges that the court failed promptly to inform him of these rulings and, as a consequence, he was unable to appeal against them.

3.  Appeal proceedings

(a) Points raised by the defence on appeal

The defence appealed against the judgment of 27 May 1998 to the Supreme Court. In their appeal briefs, among other things, the applicant's counsel contested the admissibility of some evidence admitted by the court such as expert reports, documents in foreign languages, certain procedural documents, witness statements made during pre-trial investigation, witness statements taken by the Norwegian police, and other evidence obtained in Norway that were allegedly in breach of the domestic procedural rules. It further questioned the Regional Court's and the Regional Prosecutor's impartiality for their failure to react to the alleged mishandling of the applicant's property during the investigation. The appeal referred to the fact that the companies “Zhanto”, “NL TOP” and “Slot” filed their civil claims against the applicant after the beginning of the trial and argued that this was contrary to the national legislation. Also, it stated that the applicant's defence had had no proper access to the trial records and the quality of the defence had been impaired by the Regional Court's refusal to admit Mrs Moskalenko as a replacement for a lawyer who was sick.

(b) Mrs Moskalenko's motions to adjourn an appeal hearing

On 16 June 1998 Mrs Moskalenko joined the defence team. In July and on 10 August 1998 she referred to various difficulties in organising the defence and made several requests to the Supreme Court to adjourn the hearing. She also complained that the applicant had not been served with the final copy of the judgment as well as the rulings of 27 May 1998 and that the defence had had no access to the verbatim record and some volumes of the case-file.

The Supreme Court granted one of her requests to adjourn the hearing. The hearing initially scheduled on 29 June 1998 was postponed until 10 August 1998. The other motions by the defence to adjourn the hearing were rejected as unfounded.

(c) The applicant's request to secure his presence on appeal

On 29 July 1998 the applicant applied for permission to attend the hearing of 10 August 1998 in person, but the request was turned down as unfounded.

(d) Decision of 10 August 1998

On 10 August 1998, in the presence of the applicant's counsel, Mrs Moskalenko and Mr Chumak, and the prosecution, the Supreme Court examined the appeals and, with minor alterations, confirmed the judgment of 27 May 1998. The court concluded that there had been no significant breaches of national procedural law or international standards during the trial. As to the complaints about the handling and assessment of the evidence, the court held that the lower court had properly admitted and considered the evidence in the case, that the conclusions of the lower court had been reasonable and substantiated, and noted that the defence had been furnished with Russian translations of foreign documents during the hearing. As to the complaint about the alleged defects in the applicant's representation, the court concluded that the applicant had been adequately represented throughout the pre-trial investigation and the trial, and that at no time during the proceedings had he been deprived of professional legal advice. As to the events of 19 May 1998, the court noted that the applicant's lawyer had never applied for an adjournment of the hearing for health reasons and the Regional Court's refusal to admit Mrs Moskalenko as another lawyer did not constitute a violation of the applicant's right to defence. The decision of 10 August 1998 did not address the applicant's complaints about the seized property and the late admission of three civil claimants during the trial.

4.  Seizure and forfeiture of the applicant's property

(a) Events prior to 5 May 1998

On 5 October 1995, following the opening of investigation in the case, a local prosecutor's office froze the applicant's property, the ship Stavanger and a floating drydock. The Stavanger was built in Nizhniy Novgorod by the shipyard “Oka”.

i. Sale of the Stavanger to the Sea Port

Later in October 1995 the Makhachkala International Trade Sea Port (the Sea Port, Махачкалинский международный морской торговый порт) informed the prosecutor's office that the Stavanger had been purchased by the Port prior to the seizure and requested its release.

In December 1995 the Sea Port forwarded to the prosecutor's office a copy of the contract between the owner of the ship, the company “Russian Shipping” owned by the applicant and the Sea Port. The contract was dated 10 February 1995 and provided for the sale of the Stavanger to the Sea Port for USD 2,500,000. The copy bore the applicant's signature on behalf of “Russian Shipping”, but he later denied signing that contract.

The contract was to enter into force upon the receipt of the money by “Russian Shipping”. By the end of 1995 the money had not been transferred, but the Port indicated its willingness to transfer the money and argued that it had suffered heavy losses due to the seizure.

In January 1996 the Sea Port transferred 2.5 million US dollars to a special account of the Nizhniy Novgorod city council. On 19 January 1996 the prosecutor's office lifted the seizure of the Stavanger and some time later, on 11 March 1996, seized the proceeds from the sale of the ship.

ii. Decision to transfer the proceeds from the sale of the Stavanger to “Oka” shipyard

In May 1996 the Head of the Industry Department of the Nizhniy Novgorod regional administration applied to the prosecutor's office for permission to use the proceeds from the sale of the Stavanger to meet the needs of the “Oka” shipyard, which had produced the vessel and which had gone bankrupt in February 1996.

On 18 May 1996 the prosecutor's office unfroze the account and transferred the money to the yard. The decision stated that the applicant had been accused of economic crimes, which had caused damage to the shipyard, and that the applicant had purchased the Stavanger with the money stolen from the yard.

iii. Lifting of seizure in respect of the drydock and judgment of 21 April 1997

It appears that the order freezing the drydock was lifted in May 1996, as the dock was found to have been owned by a Norwegian company “Aroko”. The applicant was not given a copy of the order.

On 21 April 1997 the Regional Court rendered the judgment in the applicant's case in which, among other things, the applicant was convicted of misappropriation of the shipyard's property and ordered to pay damages in “Oka's” favour in the amount that had been transferred by the prosecutor to the shipyard on 18 May 1996. This judgment was later quashed by the Supreme Court and the case was remitted to the first instance court for a fresh examination.

(b) Events after 5 May 1998

On 5 May 1998 the Convention came into force in respect of Russia.

i. Judgment of 27 May 1998

The second round of trial proceedings ended with a judgment of the Regional Court of 27 May 1998 in which the applicant was, among other things, again convicted of misappropriation of the shipyard's property and ordered to pay damages in this connection. It appears that the proceeds from the sale of the Stavanger were deducted from the damages awarded to the yard.

ii. Separate ruling of 27 May 1998

On 27 May 1998 the Regional Court issued a separate ruling, noting that the investigators had violated the Code of Criminal Procedure by having transferred the money to “Oka” prior to a final court decision on the applicant's guilt. The court further noted that “such behaviour damaged the authority of the bodies of the preliminary investigation and may have given rise to doubts about the quality and professionalism of the investigation of a criminal case”. The court “brought to the attention” of the Nizhniy Novgorod regional prosecutor the investigators' infringements of the criminal procedural law.

iii. Decision of 10 August 1998

On appeal the defence argued that the Regional Court had failed properly to react to the mishandling of the applicant's property by the prosecutor's office during the investigation.

On 10 August 1998 the Supreme Court confirmed the first instance judgment of 27 May 1998. The court did not address the property issue, having generally concluded that there had been no significant breaches of national procedural law or international norms during the trial.

B.  Relevant domestic law

Appeals against decisions ordering detention pending trial

After a judge received the case-file and before the trial began, the judge had to decide, in particular, whether the defendant was to stay in custody or to be released pending trial (Section 222 § 5, hereinafter the provisions of the Code of Criminal Procedure of the RSFSR as in force at the relevant time) and to rule on the defendant's application for release, if submitted (Section 223). If the application was refused, the defendant was entitled to re-introduce it after the beginning of the trial (Section 223). At any moment during the trial the court could order, amend or revoke any preventive measure, including detention on remand (Section 260). Such decision was to be delivered in the form of a procedural order signed by all judges on the bench (Section 261) and was not subject to separate appeal proceedings (Sections 331 and 464). On 2 July 1998 the Federal Constitutional Court quashed the respective provisions as unconstitutional and authorised the bringing of separate appeals to a higher court against all procedural orders made during the trial having the effect of extending the applicant's detention on remand.

Civil claims in criminal proceedings, seizure of property and trial records

Persons who have suffered harm as a result of a crime could submit a civil claim at any time between the opening of a criminal case and the beginning of the trial (Section 29).

Under Sections 175 and 176 an investigator was competent to seize the property of the accused pending trial. Such decisions could be appealed to a higher prosecutor but not to a court (Sections 218 and 220). On 23 March 1999 the Federal Constitutional Court struck down the latter two provisions as unconstitutional insofar as they precluded the parties concerned from appealing against such decisions to a court.

Section 264 regulated the keeping of a trial record in the first instance court. It did not require a verbatim record of the trial to be kept, but “a detailed record of the submissions”. In practice, if a verbatim record existed, it was not attached to the trial record.

Separate ruling of a trial court

Under Sections 21.2 and 321 a trial court could, if the circumstances of the case so required, bring to the attention of state bodies, non-governmental organisations and officials, among other things, the established breaches of law as well as the causes and conditions which contributed to the commission of a crime and call for an appropriate response. This was done is the form of a separate ruling.

COMPLAINTS

1.  The applicant complains about his inability to appeal against the court decision of 2 April 1998 ordering his detention on remand. He relies on Article 5 of the Convention in this connection.

2.  Under Article 6 §§ 1 and 3 of the Convention the applicant complains that the court proceedings in his case were unfair, that the courts denied him adequate time and facilities for the preparation of the defence and breached his right to defend himself in person or through legal assistance of his choosing.

As regards the first instance proceedings, the applicant complains, in particular, that the first instance court accepted the evidence obtained in violation of the national law; that certain documents in the case-file were not translated into Russian until the beginning of the hearing; that the court rejected his requests to call additional witnesses and adduce further evidence; that he was unable to question witnesses whose statements were read out in court and take part in the ordering of expert examinations; that the events referred to in his conviction for bribery occurred in Norway and were thus outside the jurisdiction of Russia; that the first instance court allowed civil claims made by three private companies in breach of the domestic law; that the first instance court was biased, since it had ordered his detention on 2 April 1998; and that one of his lawyers was sick and the applicant was not permitted to take another one during the trial.

As to the appeal proceedings, the applicant complains that the quality of his defence on appeal was impaired in that the Regional Court failed to serve on him an amended copy of the first instance judgment; that the defence was denied access to certain documents in the case-file and their access to the case-file was unduly restricted in time, that he and his defence lawyers were not allowed to compare the official record of the first instance trial with the verbatim record; that that the national legislation did not require the keeping of a verbatim record of proceedings in the trial court; that the appeal court failed to adjourn the hearing and looked only at the trial record, but not at the verbatim record, that the absence of a requirement to keep trial record of the cassation proceedings violated his right to be able to defend himself, and that, finally, the applicant could not attend the appeal hearing, while the prosecution was present.

3.  Under Article 1 of Protocol No. 1 the applicant also complains that the authorities mishandled his property before the trial. The applicant also complains that the prosecutor's decision to transfer his seized property to the civil claimant in his criminal case before the conviction by a court breached his presumption of innocence. He refers to Article 6 § 2 of the Convention in this respect.

THE LAW

1.  The applicant complains that he was unable to bring appeal proceedings against the court decision of 2 April 1998 ordering his detention pending trial, in breach of Article 5 § 4 of the Convention which provides as follows:

“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”

The Government concede that Section 331 of the CCP as in force at the relevant time did not allow for appeals against court decisions ordering a measure of restraint in respect of the accused. They further submit that such an opportunity was not introduced until the decision of the Constitutional Court of the Russian Federation of 2 July 1998 in which the lack of an appeal review of such decisions was declared unconstitutional.

The applicant claims that the Regional Court decision of 2 April 1998 was unlawful and unfounded, that the Supreme Court ought to have interpreted the domestic law in line with Article 5 of the Convention and thus should have examined the appeal against the decision of 2 April 1998 on the merits despite the lack of a statutory provision providing for such review.

The Court will only examine this complaint insofar as it relates to the events which took place after 5 May 1998 (see Klimentyev v. Russia (dec.), no. 46503/99, 17 September 2002). It further observes that the applicant essentially complains about the Supreme Court's refusal on 19 May 1998 to review the Regional Court decision of 2 April 1998 on appeal. The Court notes that the domestic law as in force at that time did not provide for such a review and Article 5 § 4 of the Convention does not guarantee, as such, the right to appeal against decisions ordering or extending detention, as the provision speaks of “proceedings” and not of appeals (see Ječius v. Lithuania, no. 34578/97, § 100, ECHR 2000-IX). The Court further observes that under Sections 223, 260 and 261 of the CCP the applicant was entitled to apply for release to the trial court at any moment between 5 May 1998 and his first instance conviction on 27 May 1998. The applicant failed to submit any evidence that he availed himself of this opportunity or any argument as to why the respective procedure would have fallen short of the requirements of Article 5 § 4. It cannot therefore be said that on the facts of the present case the applicant was deprived of the protection afforded by the said Convention provision.

Accordingly, the Court finds this part of the application manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It must therefore be rejected pursuant to Article 35 § 4.

2.  The applicant complains that various defects in the criminal proceedings rendered his conviction unfair. He relies on Article 6 §§ 1 and 3 of the Convention which, insofar as relevant, reads 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:

(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 or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

(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 arguments of the parties

The Government submit that the applicant's arguments were carefully scrutinised by the domestic authorities which established no breaches of the domestic law provisions. As regards his alleged inability to study the case-file, according to the Government, the applicant studied the case-file at least three times, once during the preliminary investigation, once shortly before the trial between 29 September and 18 November 1997, and finally the entire case-file was examined in sequence and volume by volume during the trial. Furthermore, the courts gave reasoned answers to all of the applicant's submissions and allowed a considerable number of the applicant's motions and complaints. The mere fact that they rejected some of them cannot be incompatible with Article 6 of the Convention. The questioning of some of the witnesses in private was justified by the considerations of their security. As to the episode of 19 May 1998 with Mrs Moskalenko, the Government insist that on that day the applicant applied to allow Mrs Moskalenko's taking part in the proceedings as “an international law expert” and not as a defence counsel. The motion was rejected since no advice on international law was required and it was not until 16 June 1998 that Mrs Moskalenko first properly justified her participation in the proceedings. The Government further argue that the parties had ample opportunities to study the trial verbatim and audio records and the defence did not comment on any of them. Also, the applicant was in good time (3 June 1998) furnished with a copy of the first instance judgment. Even though admittedly there were some misprints and errors in the judgment, they were soon discovered, corrected and brought to the applicant's attention no later than 11 June 1998. The fact that the appeal briefs of the defence contained references to case-file documents was an indication that the defence had had ample and adequate opportunities to prepare for the appeal hearing in the case. The presence in the case-file of documents in foreign languages was mainly due to the fact that these documents had not been considered as evidence by the prosecution at the pre-trial stage of proceedings; in any event, the translation of all documents was provided to the defence during the trial. As to Mrs Moskalenko's attempts to adjourn the appeal hearings, the Supreme Court granted one of them (from 29 June 1998 to 10 August 1998) despite a one-month statutory time-limit for consideration of the case on appeal. Finally, at first instance the applicant plainly benefited from the legal advice of a lawyer (Mr Kozlov) and he never complained about the lawyer's performance, nor moved to change him; on appeal he and his two counsel (Mrs Moskalenko and Mr Chumak) each lodged appeal briefs and both were present in court personally.

The applicant disagrees with the Government. He submits, in particular, that the domestic court wrongly applied the substantive criminal law in the case; that the investigating body was biased in that it mishandled the applicant's property before the first instance conviction; that the applicant was refused proper access to a number of documents in the case-file as they were in English and Norwegian; that four days during which the defence examined the first instance court transcripts were clearly insufficient; that the applicant unsuccessfully requested to extend this term (volume 84, page 48) and that, according to the time-table of the study of the first instance court transcripts (volume 83, page 280), it follows that the applicant was denied access to pages 511-550 of the transcript audio and most of the shorthand records as well as volumes 83, 84 and all of the documents that the first instance court had admitted during the hearings. In addition, the case-file contained no evidence of any actions which could have jeopardised the witnesses and hence the questioning of certain witnesses in private was unjustified. Further, some documents in Norwegian from volumes 17 and 19 were left without translation, whereas 38 other documents, including the evidence given by witnesses B. and R., were admitted in the case-file only a few days prior to the applicant's first instance conviction which made it impossible for the defence effectively to contest them.

Furthermore, the courts failed to hear the latter two witnesses in person or give the applicant an opportunity to cross-examine them and admitted the transcripts of their pre-trial statements in breach of formal requirements (the date and place of drawing-up and proper signatures had allegedly been lacking). The applicant also submits that the courts wrongly assessed and interpreted the evidence in the case and failed to mention some evidence in the applicant's favour, that the applicant could not take part in any of the expert examinations in his case as he only became aware of the decisions ordering such examinations after the examinations had been completed and that the courts assumed the functions of the prosecution. As regards the appeal proceedings, the applicant submits that his rights were unduly impaired in that the Supreme Court refused the request to adjourn the hearing and, as a consequence, counsel Moskalenko was unable properly to study the case-file (she only read five volumes out of ninety-nine during the period between 3 and 10 August 1998). According to the applicant, his rights were breached on appeal by the courts' refusal to furnish him with a corrected copy of the first instance judgment and any copies of the first instance special rulings and by the Supreme Court's refusal to hear him in person. The applicant submits in this latter respect that the Supreme Court denied him an opportunity personally to state new arguments as to his innocence, that his participation on appeal was necessary in view of the fact that counsel Moskalenko had not been allowed properly to study the case-file and that the Supreme Court based its decision on an incorrect version of the first instance court transcripts. Referring to the episode of 19 May 1998, the applicant insists that he explicitly requested Mrs Moskalenko to be admitted as a counsel and not as a “specialist of international law” and that this is reflected on an audio record of the respective hearing. He also submits that he justified this request by reference to his intention in future to apply to this Court and that at the relevant time it was not uncommon for counsel to justify their authority to act on behalf of their clients only after the respective request to admit them had already been granted. Also, the applicant submits that the applicant's initial lawyer, Mr V. A. Kozlov, underwent an ophthalmologic treatment and was unable therefore appropriately to act on the applicant's behalf in the proceedings between 8 May 1995 and until 15 June 1998. The applicant disagrees with the Government's assertion that his counsel never challenged the content of the first instance court transcripts. He states that counsel Ostroumov did so but his request was turned down as unsubstantiated.

The Court's assessment

a) The Court need not decide on the question of its competence ratione temporis insofar as the applicant's complaints concern the admission of evidence allegedly obtained in violation of the national law; the first instance court's refusal to call additional witnesses and adduce further evidence and the appeal court's alleged failure to look at the verbatim record; the applicant's conviction for bribery allegedly outside the jurisdiction of Russia; the decision to allow civil claims made by three private companies allegedly in breach of the domestic law; the first instance court's bias; the impairment of the quality of defence on appeal by the lack of requirement to keep a verbatim record of proceedings in the trial court and the absence of the requirement to keep a trial record of the appeal proceedings. These complaints are in any event inadmissible for the following reasons.

Firstly, the Court reiterates that it is not its function to deal with errors of fact or of law allegedly committed by national courts unless and in so far as they may have infringed rights and freedoms protected by the Convention. While Article 6 guarantees the right to a fair hearing, it does not lay down any rules on the admissibility and assessment of evidence, which are primarily a matter for regulation under national law (see, among other authorities, Khan v. the United Kingdom, no. 35394/97, § 34, ECHR 2000-V). Furthermore, it is not the role of the Court to determine, as a matter of principle, whether a particular piece of evidence is necessary and essential to decide the case (see, for example, Elsholz v. Germany [GC], no. 25735/94, § 66, ECHR 2000-VIII) or, indeed, whether the applicant is guilty or not. The question which must be answered is whether the alleged defects impaired the fairness of the proceedings, taken as a whole. On the facts of the present case, the Court observes that the applicant was fully able to contest the authenticity and admissibility of the evidence at each stage of the proceedings and the courts addressed these arguments either by rectifying the alleged mistakes or rejecting his arguments as unsubstantiated. This being so and having regard to the extensive body of evidence which was presented by both parties and then carefully examined by the courts, the Court cannot conclude that the defects alleged by the applicant adversely affected the fairness of the proceedings as a whole.

The Court further notes, in respect of the complaints about the domestic courts' lack of jurisdiction and their decision to admit civil claimants allegedly in breach of the domestic law, that a court complies with the “established by law” criterion of Article 6 § 1 unless it acts in flagrant disregard of the applicable domestic laws governing its jurisdiction and procedures (see Coëme and Others v. Belgium, nos. 32492/96, 32547/96, 32548/96, 33209/96 and 33210/96, §§ 98-99, ECHR 2000-VII, Lavents v. Latvia, no. 58442/00, § 114, 28 November 2002 and Buscarini v. San Marino (dec.), no. 31657/96, 4 May 2000). The Court observes that the applicant was convicted of complex economic crimes involving several episodes both in Russia and abroad in the course of proceedings involving a case-file of more than eighty volumes and a number of actors other than the accused and prosecution, including civil claimants, witnesses, experts and translators. The Court finds nothing in the case-file or in the parties' submissions to suggest that the domestic courts erred in taking the impugned decisions.

Thirdly, as regards the applicant's inability personally to take part in the proceedings on appeal, the Court notes that at this stage of proceedings the applicant was represented by two counsel who both took part in the appeal hearing and filed several appeal briefs on his behalf as well commented, both orally and in writing, on the prosecutor's appeal arguments. There is nothing in the circumstances of the case to suggest that the defence was not afforded ample opportunities to state the applicant's case or that the applicant's personal presence was essential and necessary to ensure the fairness of the proceedings (see, for example, Ekbatani v. Sweden, judgment of 26 May 1988, Series A no. 134, § 32, Fejde v. Sweden, judgment of 29 October 1991, Series A no. 212-C, § 33 and Kremzow v. Austria, judgment of 21 September 1993, Series A no. 268-B, §§ 67-68).

Finally, in respect of the complaints about the absence of a requirement to keep a verbatim record of proceedings and trial record of the appeal proceedings, the Court finds that the applicant has presented no evidence that the alleged defects could have affected the fairness of the proceedings as whole. Furthermore, his allegations of the first instance court's bias are unsubstantiated.

Having regard to the above, the Court finds this part of the application manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It must therefore be rejected pursuant to Article 35 § 4.

b) As regards the question of ratione temporis in respect of the remaining complaints (his inability to question witnesses whose statements were read out in court, to take part in the ordering of expert examinations and to replace a lawyer who felt sick, the lack of translation of certain documents in the case-file, the denial of proper access to certain documents in the case-file, the first instance court's failure to serve on him an amended copy of the judgment of 28 May 1998 and the Supreme Court's failure to adjourn the appeal hearing), the Court recalls that in accordance with the generally recognised rules of international law, the Convention only governs, for each Contracting Party, facts subsequent to its entry into force with regard to that Party (see, for example, X. v. Portugal, application no. 9453/81, Commission decision of 13 December 1982, Decisions and Reports (DR) 31 pp. 204, 208, Kadikis v. Latvia (dec.), no. 47634/99, 29 June 2000 and Jovanović v. Croatia (dec.), no. 59109/00, 28 February 2002).

The Court notes that both the first instance judgment of 27 May and the appeal decision of 10 August 1998 that determined the merits of the applicant's criminal case were taken after 5 May 1998, which is the date of entry into force of the Convention in respect of Russia. Even though some of the alleged defects complained of by the applicant took place prior to that date, the Court recalls that the criminal proceedings conducted before a court are concluded by the final decision, which embodies any defects by which they may be affected (see Stoitchkov v. Bulgaria, no. 24571/94, Commission decision of 28 June 1995, Decisions and Reports (DR) 82-A, p. 94 and see the Klimentyev partial decision cited above). The Court is therefore competent to check that the proceedings which concluded with the judgment of 27 May and the decision of 10 August 1998 complied with the Convention.

In the light of the parties' submissions on these complaints, the Court finds that they raise serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes that the complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring them inadmissible have been established.

3.  The applicant complains that the investigative authorities mishandled his property before the trial and that his presumption of innocence was breached by the prosecutor's decision transferring the seized property to one of the civil claimants prior to the conviction of 27 May 1998. The applicant relies on Article 6 § 2 of the Convention and Article 1 of Protocol No. 1 which read as follows:

Article 6 § 2

“Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”

Article 1 of Protocol No. 1

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

The Government submit that the seizure and sale of the Stavanger as well the subsequent transfer of the money to the civil claimant were reasoned and lawful measures which were later confirmed by the applicant's conviction by the courts at two instances. They submit that they cannot be held responsible for what happened after the lifting of the seizure of the floating dock since this question did not fall within the competence of the investigative authorities. The Government also submit that the prosecutor's actions did not violate the applicant's presumption of innocence since they had no bearing on the first instance judgment of 27 May 1998 or any subsequent decision in the criminal case and their only purpose was to secure the applicant's fulfilment of obligations which could have arisen as a result of his conviction.

The applicant disagrees and claims that the measures in question were unlawful, that the prosecutor exceeded his statutory powers and acted in an arbitrary manner. The applicant further claims that the transfer of proceeds obtained from the sale of the Stavanger prior to first instance judgment in the case was disproportionate and that the lifting of the seizure of the floating dock in favour of the Norwegian company “Aroko” violated his property rights. The applicant argues that the prosecutor misappropriated his property and that the prosecutor's decision transferring the money to the civil claimant in the case was unlawful and breached his presumption of innocence.

The Court observes that when the prosecutor's office brought criminal proceedings against the applicant in 1995, it seized the applicant's ship and drydock as a security for possible civil claims and criminal penalties. In a series of decision taken and carried out in 1995 and 1996 the prosecutor released the seized drydock in favour of a foreign company which had claimed to be its lawful owner, lifted the seizure of the ship in favour of a third party in exchange for two and a half million US dollars and transferred this money to a civil claimant in the applicant's criminal case. As regards the property complaint, the Court finds that an interference with the applicant's property rights to the ship and drydock resulted from the decisions to lift the seizure in favour of third parties that both represented instantaneous acts and took place prior to 5 May 1998, which is the date of entry into force of the Convention in respect of Russia. As regards the presumption of innocence, the applicant essentially complains about the wording of the decision of 18 May 1996 by which the prosecutor transferred two and a half millions of US dollars to the civil claimant. The Court notes that this decision was never made public and there is nothing in the case-file or in the parties' submissions to suggest that it in any way influenced the first instance court which rendered the judgment of 27 May 1998 or otherwise could have created a continuing situation stretching beyond 5 May 1998. It is true that the applicant raised the arguments in this connection before the first instance and appeal courts and indeed the first instance court's special ruling of 27 May 1998 mentioned some of these episodes, whereas the first instance judgment of 27 May 1998 decided on the civil claims brought against the applicant by the victims. However, the Court notes that under the criminal procedural rules which were in force until 23 March 1999, when the Constitutional Court quashed the respective provisions as unconstitutional, decisions taken by a prosecutor in respect of the seized property could not be effectively and timously challenged in court. The fact that the separate ruling of 27 May 1998 mentioned some of the events at issue is irrelevant since the separate ruling was purely discretionary and advisory as it could only be initiated of the court's own motion and could only bring certain facts to the attention of the prosecutor rather than providing redress in the applicant's individual situation. As regards the judgment of 27 May 1998, the first instance court was called upon to decide on the civil claims by the victims rather than on the lawfulness of the prosecutor's actions as such and indeed it did not even mention them. Thus, neither the applicant's appeals nor the separate ruling and judgment of 27 May 1998 can be considered as in any way decisive for the applicant's grievance so as to create a continuing situation or otherwise bring the events complained of by the applicant within the Court's competence (see, by contrast, Olczak v. Poland (dec.), no. 30417/96, § 54, ECHR 2002-X).

It follows that this part of the application is incompatible ratione temporis with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

For these reasons, the Court unanimously

Declares the complaints about the applicant's inability to question witnesses whose statements were read out in court and to take part in ordering of expert examinations, lack of translation of certain documents in the case-file, denial of proper access to some documents in the case-file, first instance court's failure to furnish him with an amended copy of the judgment of 28 May 1998 and the applicant's inability to replace a lawyer who felt sick admissible, without prejudging the merits of the case;

Declares the remainder of the application inadmissible.

Michael O'Boyle Nicolas Bratza 
 Registrar President

KLIMENTYEV v. RUSSIA DECISION


KLIMENTYEV v. RUSSIA DECISION