CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 21 novembre 2017

.s800EAC49 { font-size:12pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sBB9EE52A { font-family:Arial } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s598389FB { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:14pt } .sF5E1C6CF { font-family:Arial; font-weight:bold; text-decoration:underline; color:#ff0000 } .sE208486F { font-family:Arial; color:#ff0000 } .s7BE5FA78 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:center; font-size:11pt } .s4ACA9207 { page-break-before:always; clear:both; mso-break-type:section-break } .sB9D5CABB { width:28.35pt; display:inline-block } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s79DE5897 { margin-top:18pt; margin-left:17.85pt; margin-bottom:12pt; text-indent:-17.85pt; page-break-inside:avoid; page-break-after:avoid } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .sBB355983 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s583D00FA { margin-top:0pt; margin-left:17pt; margin-bottom:0pt; text-indent:-17pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s4B243ECC { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .sF7A4323 { margin-top:36pt; margin-bottom:0pt; text-align:left } .s1B50D646 { width:185.6pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block }       THIRD SECTION               CASE OF LAMBIN v. RUSSIA   (Application no. 12668/08)                 JUDGMENT     STRASBOURG   21 November 2017     FINAL   09/04/2018   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Lambin v. Russia, The European Court of Human Rights (Third Section), sitting as a Chamber composed of:   Helena Jäderblom, President,   Branko Lubarda,   Helen Keller,   Dmitry Dedov,   Pere Pastor Vilanova,   Georgios A. Serghides,   Jolien Schukking, judges, and Stephen Phillips, Section Registrar, Having deliberated in private on 31   October 2017, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no.   12668/08) 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 Mr   Denis Aleksandrovich Lambin, a Russian national, on 28   January 2008. 2.     The Russian Government ("the Government") were represented initially by Mr G. Matyushkin, the Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin. 3.     The applicant complained, in particular, of having had insufficient time and facilities for the preparation of his defence and about his trial in camera. 4.     On 6   September 2016 those complaints were communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule   54 §   3 of the Rules of Court. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The applicant was born in 1984 and is currently being detained in a correctional colony in the village of Torbeyevo, Mordovia Republic, Russia. 6.     On 21   April 2005 the applicant was convicted during a public hearing of murder and was sentenced to imprisonment. He and his lawyer had had thirty-five minutes to study the case file, which consisted of five volumes. The conviction was upheld on appeal in a public hearing on 18   August 2005 (“the 2005 proceedings”). 7.     On 30   July 2010 the appeal judgment was quashed by way of a supervisory review (on grounds not related to the applicant’s Article   6 complaints in respect of the 2005 proceedings) as the applicant’s right to defence had been breached during the appeal hearing. The case was sent for fresh examination on appeal. 8.     The applicant was allowed to re-read the case file within the new appeal proceedings. He and his lawyer had five days, from 4   to 8   October 2010, to study the now six-volume case file (about 1,500   pages) in remand prison no.   IZ-24/1 in Krasnoyarsk, where the applicant was being detained. The applicant was allegedly held in a metal cage while studying the case, without a table or any other facilities to take notes. After studying the case file both the applicant and the lawyer filed appeals. In his appeal statements the applicant analysed the case materials in detail, referred extensively to all the main items of evidence, including expert opinions and witness testimony, and referred to exact pages in the case file. 9 .     The applicant’s case was examined by the Supreme Court of Russia (“the Supreme Court”) over four hearings, three of which (21   October, 30   November and 16   December 2010), according to the trial record and the court’s procedural decisions, were held in camera. The case file did not contain any formal decision by the Supreme Court to close the hearings to the public. The applicant was represented by two lawyers who confirmed to the court that they had had enough time to study the case file. 10.     On 16   December 2010 the Supreme Court upheld the judgment of 21   April 2005. The Supreme Court’s judgment was delivered to the remand prison, where the applicant was still being detained, on 11   January 2011 (“the 2010 proceedings”). II.     RELEVANT DOMESTIC LAW A.     In camera hearings 11.     Article   241 of the Russian Code of Criminal Procedure at the material time provided for public hearings by default, unless otherwise prescribed by law. 12.     Holding a hearing in camera was possible on the basis of a court decision if: - the proceedings could lead to the disclosure of a State secret or other classified information; - the case concerned crimes committed by minors; - proceedings concerning sex crimes or other crimes could lead to the disclosure of sensitive information on parties’ private lives or to the disclosure of humiliating information; - a hearing in camera was essential for the safety of parties and their relatives. 13.     A court decision on holding a hearing in camera was to give the exact factual circumstances on which that decision had been based. Such a decision could concern the entire proceedings or a part thereof. B.     Time for studying case file materials 14.     Article   217 of the Code of Criminal Procedure at the material time stated that after the completion of an investigation the investigator had to provide the accused and his or her lawyer with the case file. The time for studying the case file could not be limited unless the accused and the lawyer were manifestly prolonging the studying process. 15.     Under Article   227 of the Code an accused and his or her lawyer could ask for additional time to study the case file after a case had been remitted to the trial court. THE LAW I.     ALLEGED VIOLATION OF ARTICLE   6 OF THE CONVENTION 16.     The applicant complained that he had had insufficient time and facilities for the preparation of his defence during the criminal proceedings in 2005 and 2010 and about being tried and convicted in camera by the appeal court in 2010. He relied on Article   6 of the Convention which reads in the relevant part as follows: “1.     In the determination ... of any criminal charge against him, everyone is entitled to a fair and public hearing by ... [a] tribunal ... Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice. ... 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; ...” A.     Admissibility 17.     The Government argued that the complaints were belated as the application forms had been lodged with the Court on 28   January 2008 and 21   June 2011, more than six months after the final decisions had been taken in both the 2005 and the 2010 proceedings. 18.     The Government also argued that the applicant had failed to exhaust domestic remedies with regard to his complaint about the criminal proceedings of 2005. In particular, the Government stated that the applicant had never asked for additional time to study the case file. 19.     The applicant did not comment. 20.     The Court reiterates at the outset that according to Article   35 §   1 of the Convention it may only deal with an individual application lodged with it within six months of the date of the final decision in the case. The six ‑ month period starts running from the date on which the applicant and/or his or her representative has sufficient knowledge of the final domestic decision (see Koç and Tosun v.   Turkey (dec.), no.   23852/04, 13   November 2008). There are several exceptions to this general rule, in particular, where the reasons for a decision are necessary for the lodging of an application. In that case the six-month period will run from the date the full judgment was served on the applicant (see Monory v.   Romania and Hungary (dec.), no.   71099/01, 17   February 2004, and Baryshnikova v.   Russia (dec.), no.   37390/04, 12   November 2009). 21.     In cases where proceedings are reopened or a final decision is reviewed, the running of the six-month period in respect of the initial set of proceedings will only be interrupted in relation to those Convention issues which served as grounds for such a review or reopening and were the object of examination before the extraordinary appeal body in the case (see Sapeyan v.   Armenia , no.   35738/03, §   24, 13   January 2009). 22.     Before 2014 the Court considered as the date of the introduction of an application the date of the first letter indicating an intention to lodge an application and setting out, even summarily, its object. However, where a substantial interval followed before an applicant returned the application form, the Court could examine the particular circumstances of the case to determine what date should be regarded as the date of introduction with a view to calculating the running of the six-month period imposed by Article   35 of the Convention (see Chalkley v.   the United Kingdom (dec.), no.   63831/00, 26   September 2002). 1.     Complaint under Article   6 §   1 of the Convention with regard to the 2010 proceedings 23.     The complaint under Article   6 §   1 of the Convention about the in camera hearings was first raised by the applicant in his second application form that was sent on 21   June 2011, that is more than six months after the appeal judgment of 16   December 2010. However, the judgment had only been delivered to remand prison no.   IZ-24/1 of Krasnoyarsk, where the applicant was being detained, on 11   January 2011. 24.     The Court notes that the applicant needed the full text of the judgment to lodge his application as the judgment may have contained the reasons for holding hearings in camera. Having the text of the judgment was even more important given that until March 2011 the applicant did not have access to the record of the hearing of 16   December 2010. 25.     Therefore, the Court will consider that the six-month period with regard to this complaint runs from the date the full judgment was served on the applicant, that is from 11   January 2011. The Court therefore rejects the Government’s argument that this complaint is belated. 26.     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. 2.     Complaint under Article   6 §§   1 and 3 (b) of the Convention with regard to the 2005 proceedings 27.     The Court notes that the applicant complained to it for the first time on 1   March 2011 about a lack of time and facilities for the preparation of his defence in the proceedings in 2005. On 21   June 2011, within the time-limit indicated to him by the Registry, he submitted an application form. The Court therefore accepts the date of the applicant’s first letter as the date he lodged this complaint. 28.     The Court further observes that in 2010 a supervisory review court, an extraordinary instance, quashed the final appeal judgment of 18   August 2005 in the applicant’s case, referring only to a violation of his right to defence in the appeal proceedings. The supervisory review court did not deal with any of the complaints which the applicant has raised before the Court. The complaints raised by the applicant before the Court in connection to the 2005 proceedings were therefore not subject to examination by the supervisory review court. The grounds for the supervisory review of the final decision of 18   August 2005 cannot be seen as being in any way related to those complaints. The Court therefore concludes that the supervisory review of the final appeal decision of 18   August 2005 did not re-start the running of the six-month period in respect of the present complaints under Article   6 §§   1 and 3 (b) of the Convention (see, for similar reasoning, Sapeyan , cited above, §§   24-25). 29.     It follows that the applicant’s complaints concerning the 2005 proceedings were lodged out of time and must be rejected in accordance with Article   35 §§   1 and 4 of the Convention. Accordingly, there is no need to examine the Government’s arguments about the non-exhaustion of domestic remedies with regard to that complaint. 3.     Complaint under Article   6 §§   1 and 3 (b) of the Convention with regard to the 2010 proceedings 30.     The Court reiterates that the applicant complained about the lack of time he had had to study the case file in the appeal proceedings in 2010 in his letter to the Court on 1   March 2011. His application form, in which he repeated the complaint, was sent to the Court without any delay on 21   June 2011. The Court therefore considers that this complaint was introduced on 1   March 2011, which is less than six months after the appeal judgment of 16   December 2010. Therefore, the Court rejects the Government’s arguments that this complaint is belated. 31.     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 1.     Complaint about the lack of public hearings 32.     The applicant asserted that the appeal hearings had actually been held in camera without any valid reason following the quashing of the final judgment and the start of the new round of appeal proceedings in 2010. 33.     The Government argued that the indication “in camera hearing” in the procedural documents for the 2010 proceedings had merely been a technical error. No member of the general public had asked to be admitted to the courtroom, the applicant had never sought the attendance of any relative or journalist and had never complained to the appeal court about the lack of a public hearing. Accordingly, the hearings had been held in public. 34.     The Court reiterates that holding court hearings in public constitutes a fundamental principle enshrined in Article 6 § 1 of the Convention. It protects litigants against the administration of justice in secret with no public scrutiny. It is also one of the means whereby confidence in the courts can be maintained. The administration of justice, including trials, derives legitimacy from being conducted in public. By rendering the administration of justice transparent, publicity contributes to fulfilling the aim of Article   6 §   1, namely a fair trial (see Gautrin and Others v.   France , 20   May 1998, §   42, Reports of Judgments and Decisions 1998-III, and Pretto and Others v.   Italy , 8   December 1983, §   21, Series   A no.   71). There is a high expectation of publicity in criminal proceedings (see Campbell and Fell v.   the United Kingdom , 28   June 1984, §   87, Series   A no.   80). 35.     This general rule only permits a limited number of exceptions and in any case a court must have weighty reasons to circumvent it. 36.     Despite the Government’s arguments, the indication “in camera hearing” does not seem to be a technical error as that indication was repeatedly put in various procedural documents drafted on different dates (see paragraph 9 above). 37.     Rejecting the Government’s argument on that issue, the Court notes that the mere absence of potential spectators willing to attend a hearing does not mean that such potential spectators actually had a possibility to attend. 38.     The Government failed to submit any evidence confirming that the Supreme Court had actually ensured that the hearings were held in public and were freely accessible to all potential spectators. In those circumstances the Court has to rely on trial records and the applicant’s account of events. The Court therefore concludes that the hearings in question were closed to public. 39.     It was not disputed by the parties that the Supreme Court had neither taken any formal decision to close the hearings to the public nor explained, in any form, at any stage of the proceedings the reasons for holding in camera hearings. 40.     There has accordingly been a violation of Article   6 §   1 of the Convention due to the lack of public hearings. 2.     Complaint under Article   6 §§   1 and 3 (b) of the Convention with regard to the 2010 proceedings 41.     The applicant did not submit additional comments with regard to this complaint. 42.     The Government argued that the applicant, assisted by a lawyer, had studied the case file for the third time in 2010 and that he had then been represented at the appeal hearings by two other lawyers. The Supreme Court had suspended one of the hearings to give him the possibility to study the file and the applicant’s lawyers had stated that they had had enough time for that purpose. The applicant himself had filed several appeal statements, citing the case material extensively and referring to exact volume and page numbers. The Government insisted that the applicant’s right to have enough time for the preparation of his defence had not been breached. 43.     In light of the material in its possession, the Court notes that the applicant had already had the possibility to study the case file during the proceedings in 2005. Then, after the re-opening of the case in 2010, the applicant and his lawyer were given another possibility to study the case file (see, a contrario , Öcalan v.   Turkey , no.   46221/99, §   160, 12   March 2003). The applicant and his lawyers had five days to study a six-volume case file of about 1,500   pages. According to the records submitted to the Court, they studied between 187 and 413 pages per day. 44.     In the appeal statements filed in 2010 the applicant analysed the case material in detail, referred extensively to all the main items of evidence, including expert opinions and witness testimony, and referred to exact pages in the case file. 45.     The Court also notes that the applicant was represented before the appeal court by two lawyers who confirmed to the court that they had had enough time to study the file. Importantly, the applicant was not limited in the number and duration of his meetings with the lawyers (see Khodorkovskiy and Lebedev v.   Russia , nos.   11082/06 and 13772/05, §   581, 25   July 2013). 46.     The above considerations lead the Court to the conclusion that the time allocated to the defence for studying the case file was not such as to affect the essence of the right guaranteed by Article   6 §§   1 and 3 (b) of the Convention. 47.     As to the applicant’s complaint of inadequate conditions in Krasnoyarsk remand prison no.   IZ-24/1 for studying the file, the Court notes that he failed to provide any evidence for his allegations whatsoever. The Government did not provide any information to that effect either. The Court therefore concludes that it cannot establish that the facilities for the preparation of the applicant’s defence were inadequate. 48.     There has accordingly been no violation of Article   6 §§   1 and 3   (b) of the Convention on account of the time and facilities afforded to the applicant to prepare his defence during the appeal proceedings in 2010. II.     APPLICATION OF ARTICLE 41 OF THE CONVENTION 49.     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.” 50.     The applicant did not submit a claim for just satisfaction. Accordingly, the Court considers that there is no call to award him any sum on that account. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1.     Declares the complaints concerning the absence of public hearings and of insufficient time and facilities for the preparation of the applicant’s defence within the criminal proceedings in 2010 admissible and the remainder of the application inadmissible;   2.     Holds that there has been a violation of Article   6 §   1 of the Convention on account of the lack of public hearings;   3.     Holds that there has been no violation of Article   6 §§   1 and 3 (b) of the Convention on account of the allegedly insufficient time and facilities for the preparation of the applicant’s defence. Done in English, and notified in writing on 21 November 2017, pursuant to Rule   77   §§   2 and 3 of the Rules of Court. Stephen Phillips   Helena Jäderblom   Registrar   President