Last Updated on April 30, 2020 by LawEuro
THIRD SECTION
CASE OF KUSTOVA AND BIBANIN v. RUSSIA
(Applications nos. 44309/06 and 39973/08)
JUDGMENT
STRASBOURG
28 January 2020
This judgment is final but it may be subject to editorial revision.
In the case of Kustova and Bibanin v. Russia,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
Alena Poláčková, President,
Dmitry Dedov,
Gilberto Felici, judges,
and Stephen Phillips, Section Registrar,
Having deliberated in private on 17 December 2019,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in two applications (nos. 44309/06 and 39973/08) 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 two Russian nationals, Ms Olga Vitalyevna Kustova[1] and Mr Aleksandr Andreyevich Bibanin (“the applicants”), on 5 October 2006 and 17 June 2008 respectively.
2. The first applicant was represented by Ms N. Shcherbatyuk, a lawyer practising in Krasnoyarsk. The Russian Government (“the Government”) were represented by Mr M. Galperin, Representative of the Russian Federation to the European Court of Human Rights.
3. The applicants alleged, in particular, that they had not been properly notified of court hearings in administrative-offence cases against them.
4. On 19 September 2016 notice of the complaints under Article 6 of the Conventionwas given to the Government and the remainder of the applications was declared inadmissiblepursuant to Rule 54 § 3 of the Rules of Court.
THE FACTS
THE CIRCUMSTANCES OF THE CASES
A. Application no. 44309/06
5. The applicant was born on 6 August 1979 and lives in Krasnoyarsk.
6. On 22 January 2006 the police stopped the applicant’s car andshe tested positive for alcohol. A police officer compiled an administrative‑offence record, mentioning the applicant’s home address (her registered residence address) and indicating that the case would be examined by a justice of the peace of the Leninskiy District Court on 10 February 2006.
7. It appears that on an unspecified date a summons for a hearing on 10 February 2006 before the Sovetskiy District Court was sent to the applicant’s registered address (the address that was also indicated on the offence record) (see also the findings in paragraph12below).
8. On 10 February 2006 the applicant sought an adjournment, but the Leninskiy District Court informed her that they had no administrative‑offence case pending in respect of her. It then emerged that on the same day a justice of the peace of the Sovetskiy District Court had examined the case and suspended the applicant’s driving licence for eighteen months.
9. The judgment of 10 February 2006 reads as follows:
“[The defendant] did not appear at the trial hearing, having been promptly and properly notified of the time and place of this hearing, as confirmed by her signature on the administrative-offence record; she has not informed this court of the reasons for her absence.”
10. On 18 February 2006 the applicant received a letter (apparently at her registered address) enclosing a copy of the judgment. The applicant appealed, indicating her registered address for the purpose of correspondence in the case. The applicant argued that the offence record referred to a different court rather than the court that had actually examined the charge against her. Thus, she had not been properly summoned and had been deprived of any opportunity to attend the trial hearing or lodge anapplication for an adjournment on the grounds of illness at the relevant time.
11. On 11 April 2006 the Sovetskiy District Court of Krasnoyarsk upheld the judgment of the justice of the peace. The appeal court stated as follows:
“[The defendant] did not appear before the appeal court, having been properly notified, by registered mail, of the time and place of the appeal hearing …
The case file contains [evidence of] the defendant having been properly notified of the time and place of the trial hearing; however, she did not attend it.”
12. It appears that the appeal decision was then sent to the applicant’s registered address. Having received it, the applicant applied for supervisory review. By a letter of 3 July 2006 the Krasnoyarsk Regional Court dismissed that application.It stated as follows:
“The case file contains court summonses regarding the hearing on 10 February 2006 and the [appeal] hearing that were sent to your[the defendant’s] residential address well in advance (pages 7-10[and] 21-24 of the case file) … The postal notifications that were returned to the court bear notes stating that the summonseswere not handed over to you because you did not reside at that address. In those circumstances, the court rightly decided to examine the case despite your absence from the hearing.”
B. Application no. 39973/08
13. The applicant was born on 28 February 1959 and lives in Divnomorskoye.
14. On 24 January 2008, in administrative-offence proceedings, a justice of the peace heard the applicant, convicted him of a traffic offence under Article 12.15 of the Code of Administrative Offences (“the CAO”) and banned him from driving for four months.The justice of the peace held as follows:
“… Driving down the opposite side of the road against traffic amounts to an offence under Article 12.15 § 4 of the CAO. This is confirmed by the offence record, written statements from traffic police officers, the diagram of the traffic offence and the case‑file material taken as a whole.”
15. The applicant instructed a lawyer, who lodged a statement of appealwith the Gelendzhik Town Court.
16. On 5 February 2008 the justice of the peace who had convicted the applicant forwarded the applicant’s appeal and the case file tothe Gelendzhik Town Court. A cover letter attached to this correspondence bore a handwritten note containing the following instruction (apparently from a judge of that court to a court clerk) “Bibanin to be summoned for a hearing at 3 p.m. on 15 February 2008”.
17. On 15 February 2008 the Gelenzhik Town Court upheld the judgment in a summary manner. The appeal court did not hear any testimonies, and no party attended the appeal hearing.
18. The applicant received a copy of the appeal decision on an unspecified date. He then sought review of the lower courts’ judgments before the Krasnodar Regional Court.
19. The applicant also complained that he had not been properly notified of the appeal hearing. On 11 April 2008 the President of theGelendzhik Town Court acknowledged that the case file contained no evidence showing that the applicant had been duly summoned, and that for this reason a court clerk had been issued with a reprimand.
20. The prosecutor’s office of the Krasnodar Region also lodged an appeal, indicating that the applicant’s guilt had not been properly established on the strength of incriminating evidence. In particular, in view of the nature of the offence and the facts held against the defendant, it would have been appropriate to interview the driver whose vehicle the applicant’s vehicle had overtaken.The diagram of the trafficoffence was inadmissible evidence because, inter alia, it did not indicate essential elements such as road signs and had not been signed by the defendant or attesting witnesses.
21. On 25 April 2008 the Krasnodar Regional Court examined the appeals and upheld the judgment of 24 January 2008.
22. On 11 July 2008 the Supreme Court of the Russian Federation dismissed a further application for review by the applicant.
THE LAW
I. JOINDER OF THE APPLICATIONS
23. In accordance with Rule 42 § 1 of the Rules of Court, the Court decides to join the applications, given their factual and legal similarities.
II. ALLEGED VIOLATIONS OF ARTICLE 6 OF THE CONVENTION
24. The applicants complained that the notifications in theirrespective trial and appeal hearings in CAO cases had been deficient, in breach of Article 6 of the Convention.
25. The second applicant also complained that his conviction had not been supported by any evidence, and, in substance,that both his conviction solely on the basis of the offence record and, in general, the documents originating from the traffic police had disclosed arbitrariness and a violation of the presumption of innocence, in breach of Article 6 §§ 1 and 2 of the Convention.
26. 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 and public hearing …
2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
3. Everyone charged with a criminal offence has the following minimum rights:
…
(c) to defend himself in person …;”
A. The parties’ submissions
1. The Government
27. Firstly, the Government argued that matters relating to traffic regulations did not raise any important human-rights issue, and thus the application could be dismissed for lack of any significant disadvantage to the applicants. Secondly, the Government argued that the criminal limb of Article 6 of the Convention was not applicable in the applicants’ cases. Assumingthat the civil limb of Article 6 was applicable (as inBecker v. Austria, no. 19844/08, §§ 30-34, 11 June 2015), the applicants could not rely on paragraphs 2 and 3 of that Article.
28. In application no. 44309/06 the Government submitted that the CAO required that a defendant be effectively notified of the examination of a case against him or her. The domestic court decisions indicated that the applicant had been properly notified of the trial and appeal hearings by way of summonses dispatched by the courts by registered mail. However, those summonses could not be delivered because the applicant had not been residing at the address she had specified at the initial stage of the proceedings. The Government indicated that as the domestic case file had been destroyed after the expiry of the statutory retention period (prior to the Government being given notice of the case by the Court), they had no means of providing the Court with copies of the documents from that file.
29. As to application no. 39973/08, the Government argued that the trial court had found the applicant’s guilt proven on the strength of such incriminating evidence as the offence record, a police officer’s report and a diagram of the traffic offence.In substance, the applicant’s complaint amounted to challenging the findings relating to his guilt and the application of domestic law. Lastly, as regards notification in the appeal proceedings, the letter dated 5 February 2008 indicated that the applicant had been apprised of the appeal hearing (see paragraph 16 above).
2. The applicants
30. The first applicant argued that she had been deprived of an opportunity to put forward her arguments at an oral hearing before the trial judge, to adduce evidence and to contest incriminating evidence submitted to the judge by the police.
31. The second applicant maintained his complaints.
B. The Court’s assessment
1. Admissibility
(a) Compatibility ratione materiae and lack of significant disadvantage
32. Having regard to its reasoning in earlier cases relating to various provisions of the Russian CAO (see Vyacheslav Korchagin v. Russia, no. 12307/16, § 51, 28 August 2018 and the cases cited therein; see also Yegorov and Others v. Russia [Committee], nos. 77208/16 and 4 others, § 10, 28 May 2019 concerning similar proceedings), the Court considers that the criminal limb of Article 6 of the Convention was applicable in the proceedings against the applicantsconcerning the charges relating to traffic regulations. Having reached this conclusion, the Court finds it unnecessary to determine whether the civil limb of Article 6 § 1 of the Convention was also applicable.
33. The Court next notes that the impugned proceedings resulted in the first applicant and the second applicant receiving penalties– their driving licenceswere suspended for eighteen and four months respectively. In the Court’s view, the complaints under Article 6 of the Convention in respect of those proceedings cannot be dismissed on account of there being no “significant disadvantage” (compare Rinck v. France (dec.), no. 18774/09, 19 October 2010,where the proceedings resulted in a fine of 150 euros (EUR) and one penalty pointon the applicant’s driving licence, and where the applicant was ordered to pay EUR 22 in costs).
(b) Application no. 44309/06
34. As to the first applicant’s complaint under Article 6 § 1 of the Convention that she was not properly notified of thetrial hearing in her CAO case, 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.
(c) Application no. 39973/08
(i) Arbitrary conviction
35. The applicant argued, in substance, that both his conviction solely on the basis of the offence record and, in general, the documents originating from the traffic police (an offence record and a traffic offence diagram compiled by the traffic police, and statements by traffic police officers) had disclosed arbitrariness and a violation of the presumption of innocence, in breach of Article 6 §§ 1 and 2 of the Convention.
36. As regards Article 6 of the Convention, as a general rule, it is for the national courts to assess the evidence before them, to apply the relevant standard of proof, and to evaluate whether the admitted evidence is sufficient for a conviction. It is for the Court to ascertain that the proceedings, considered as a whole, were fair (see SA-Capital Oy v. Finland, no. 5556/10, § 106, 14 February 2019). Fairness with regard to criminal proceedings also includes respecting the presumption of innocence. Article 6 § 2 requires, inter alia, that when carrying out their duties, the members of a court should not start with the preconceived idea that the accused has committed the offence charged; the burden of proof is on the prosecution, and any doubt should benefit the accused. Thus, the presumption of innocence will be infringed where the burden of proof is shifted from the prosecution to the defence (ibid, § 107 and the cases cited therein).Furthermore, while it is incompatible with Article 6 to base a conviction in criminal proceedings solely or mainly on an accused’s silence or his refusal to answer questions or give evidence himself, in situations which clearly call for an explanation from the accused, his silence or other response can be taken into account in assessing the persuasiveness of the evidence adduced by the prosecution (ibid, § 108) for proving the defendant’s guilt and for rebutting the presumption of innocence.
37. The Court notes that the domestic courts found the applicant guilty on the basis of the relevant administrative-offence record, which should indeed have been considered as a bill of indictment laying down the factual circumstances against the defendant, rather than incriminating evidence. However, the Court notes that the trial judge also relied on reports from traffic officers and a traffic offence diagram. Thus, while the trial judgment did not elaborate on that evidence, the Court considers that the presumption of innocence was rebutted in the present case. Therefore, the manner in which the applicant’s guilt was substantiatedwas not arbitrary or manifestly unreasonable, and the body of incriminating evidence was not so insubstantial that this amounted to a violation of Article 6§ 1 (see Moreira Ferreira v. Portugal (no. 2) [GC], no. 19867/12, § 83, 11 July 2017) or Article 6 § 2 of the Convention.
38. Accordingly, these complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
(ii) Oral hearing and adversarial procedure on appeal
39. As tothe second applicant’s complaint under Article 6 § 1 of the Convention relating to his being notified of the appeal hearing in his CAO case, the Court notes that this complaintis 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. Merits
40. The applicable principles were summarised in Vyacheslav Korchagin, cited above, §§ 58-65.
41. It is essentially on the basis of the reasons relied on by the domestic courts that the Court assesses the respondent State’s compliance with Article 6 of the Convention as regards the notification of court hearings (see, mutatis mutandis, Gankin and Others v. Russia, nos. 2430/06 and 3 others, § 38-39, 31 May 2016, albeit in the context of civil court proceedings).
42. The Court notes that the Russian CAO provided for an oral hearing before a first-instance court that determined a charge and then an oral hearing on appeal (see Vyacheslav Korchagin, cited above, §§ 37-38; compare Marčan v. Croatia, no. 40820/12, §§ 40-41, 10 July 2014).
(a) Application no. 44309/06
43. The applicant’s only argument was that wrong information on the relevant offence record – information about the court to which she had been summoned –had entailed a violation of her procedural rights,as she had not been present at the trial hearing. It is uncontested that the court indicated on the offence record was not the court which then examined the applicant’s case.
44. The Court notes that the trial judge’s finding about the defendant having been properly notified of the hearing was solely based on the latter’s signature on the offence record, rather than any judicial summons issued by that judge (see paragraph 9 above). At the same time, the Court notes that subsequently the judge reviewing the applicant’s case stated, with reference to specific pages of the case file, that it contained the judicial summons issued in relation to the trial hearing, and that postal notifications had been returned to the court bearing notes stating that the summonshad not been handed over to the defendant because she had not been residing at the registered address (see paragraph 12 above). The Courttakes note of the Government’s submission about the unavailability of the CAO case file following its lawful destruction after the expiry of the retention period (which was prior to the Government being notified of the present case).
45. The applicant made no comment before the Court in relation to the circumstances indicated in the above paragraph.
46. The Court accepts that a judicial summons was sent to the applicant’s registered address and was then returned undelivered to the justice of the peace (the one that then examined the case against the applicant). It is also uncontested: that the applicant’s address on the offence record was correct; that it was that address that had to be used, as a rule,in accordance with the Russian law on judicial notifications;and that the applicant did not reside there and did not inform the police (in charge of the pre-trial proceedings) of another valid address to which judicial summonses could be sent later on. It is also unclear why, after receiving the trial judgment at her registered address andseeing that the summons had been sent to that address, the applicant still took no steps to make sure that she could receive notifications relating to appeal proceedings at the same address or another address. In fact, she continued to indicate that address for the purpose of correspondence in the case.
47. Regard being had to the scope of the complaint before the Court, it cannot be said that the wrong information on the offence record entailed a violation of the applicant’s procedural rights at trialper se.
48. It has not been argued that the domestic authorities should have made further attempts to ensure that the applicant received notifications in respect of the trial proceedings, and in the specific circumstances of the present case,the Court does not find it necessary to delve into such matters in the particular context of the present case(see S.C. Raisa M. Shipping S.R.L. v. Romania, no. 37576/05, §§28-35, 8 January 2013;Gakharia v. Georgia, no. 30459/13, §§ 39-51, 17 January 2017; and Lena Atanasova v. Bulgaria, no. 52009/07, § 52, 26 January 2017).
49. There has therefore been no violation of Article 6 § 1 in respect of the first applicant.
(b) Application no. 39973/08
50. The Government have submitted no evidence showing that the applicant was notified of the appeal hearing. The letter of 5 February 2008 did not constitute such proof (see paragraph 16 above). The President of the Gelendzhik Town Courtacknowledged that there was no proof of any such notification (see paragraph 19 above). In such circumstances, the Court considers that the applicant was not notified of the appeal hearing in his case.
51. It has not been suggested, and on the basis of the available material the Court does not find it established, that the above violation was remedied,because after the appeal proceedings the applicant had his case assessed by way of a written review procedure (see paragraphs 21-22 above).
52. There has therefore been a violation of Article 6 § 1 in respect of the second applicant.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
53. 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.”
54. The second applicant did not submit a claim for just satisfaction within the prescribed time-limit. Accordingly, the Court makes no award.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Decides to join the applications;
2. Declares the complaints under Article 6 § 1 of the Convention relating to the notification of court hearingsadmissible,and the remainder of application no.39973/08inadmissible;
3. Holdsthat there has been no violation of Article 6 § 1 of the Convention in respect of the first applicant;
4. Holdsthat there has been a violation of Article 6 § 1 of the Convention in respect of the second applicant.
Done in English, and notified in writing on 28 January 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Alena Poláčková
Registrar President
_________
[1]. Lopatina, her last name at the time of the domestic proceedings
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