CASE OF ZUBENKO v. RUSSIA
(Application no. 37397/15)
17 December 2019
This judgment is final but it may be subject to editorial revision.
In the case of Zubenko v. Russia,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
Alena Poláčková, President,
Gilberto Felici, judges,
and Stephen Phillips, Section Registrar,
Having deliberated in private on 26 November 2019,
Delivers the following judgment, which was adopted on that date:
1. The case originated in an application (no. 37397/15) 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 a Russian national, Mr Yevgeniy Nikolayevich Zubenko (“the applicant”), on 10 July 2015.
2. The applicant was represented by Mr A. Khlebnikov, a lawyer practising in the Stavropol region. The Russian Government (“the Government”) were represented by Mr M. Galperin, Representative of the Russian Federation to the European Court of Human Rights.
3. On 15 November 2017the Government were given notice of the application.
THE CIRCUMSTANCES OF THE CASE
4. The applicant was born in 1978 and lives in Levokumskoye, Stavropol Region.
5. On 2 September 2014 the justice of the peace of judicial circuit no. 1 of the Levokumskiy District of the Stavropol Region found the applicant guilty of refusing to take a breathalyser test, ordered him to pay a fine in the amount of 30,000 Russian roubles and suspended his driving licence for one and a half years. The applicant appealed.
6. On 7 October 2014 the Levokumskiy District Court of the Stavropol Region quashed the judgment of 2 September 2014 and discontinued the proceedings. On an unspecified date the judgment became final.
7. On 5 December 2012 the head of the traffic police asked the President of the Stavropol Regional Court to review the applicant’s case, claiming that the District Court had failed to establish correctly the circumstances of the case.
8. On 18 February 2015 the Deputy President of the Regional Court accepted the complaint lodged by the head of the traffic police for consideration.
9. On 10 March 2015 the Deputy President of the Regional Court quashed the judgment of 5 December 2012 and remitted the matter for fresh consideration to the District Court.
10. On 20 March 2015 (postmark) the Regional Court sent a letter to the applicant informing him of the decision of 18 February 2015 and advising him of his right to submit observations in response to the complaint by 27 February 2015. The applicant received the relevant letter on 24 March 2015.
11. On 27 May 2015 the District Court upheld the judgment of 2 September 2014 on appeal. The applicant and his lawyer were not present at the hearing.
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
12. The applicant complained that the Regional Court had not notified him of the application for review of his acquittal made by head of the traffic police and that, as a result, he had been deprived of a possibility to comment on it. He also complained that the Regional Court’s decision to quash by way of review the final judgment acquitting him had not been justified. He relied on Article 6 of the Convention and Article 4 § 2 of Protocol No. 7 to the Convention, which, in so far as relevant, read as follows:
“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:
(c) to defend himself in person …”
Article 4 of Protocol No. 7 (right not to be tried or punished twice)
“1. No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.
2. The provisions of the preceding paragraph shall not prevent the reopening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case.”
13. The Government considered that the applicant had not suffered a significant disadvantage as a result of the violation alleged and that the Court should declare his application inadmissible pursuant to Article 35 § 2 (b) of the Convention. They submitted that the present application bore close resemblance to the case of Rinck (see Rinck v. France (dec.) [Committee], no.18774/09, 19 October 2010, in which the Court found, inter alia, that a fine in the amount of 150 euros (EUR) imposed on the applicant and the deduction of one point from his driving licence for a violation of traffic rules had not had any significant consequences for his personal situation, and concluded that the applicant had not suffered a significant disadvantage in respect of the alleged violation of his right to a fair trial).
14. The applicant argued that the sanctions imposed on him had been severe.
15. The Court notes that the applicant did not expressly claim that the fine he had had to pay had constituted a financial burden for him. Nevertheless, it considers that the suspension of a driving licence for a year and a half, given that the applicant lived in a rural area, must have had significant consequences. The Government’s objection is therefore dismissed.
16. The Court notes that the application 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.
1. The parties’ submissions
17. The Government submitted that the judgment of 7 October 2014 had been quashed in view of a fundamental defect in the appellate proceedings resulting in the appellate court’s failure to consider the matter properly. Pursuant to the rules of administrative procedure, the presence of the parties had not been required. In any event, the applicant had been duly informed of the hearing and advised of his right to present his arguments in writing in response to the appeal lodged by the head of the traffic police. The applicant had been provided with an opportunity to defend his rights in court and to appeal against the new judgment in his case.
18. The applicant maintained his complaint.
2. The Court’s assessment
(a) Equality of arms
19. The Court reiterates that the right to an adversarial trial means, in a criminal case, that both prosecution and defence must be given the opportunity to have knowledge of and comment on the observations filed and the evidence adduced by the other party. There are various conceivable ways in which national law may ensure that this requirement is met. However, whichever method is chosen, it should ensure that the other party will be aware that observations have been filed and will get a real opportunity to comment thereon (see Brandstetter v. Austria, 28 August 1991, § 67, Series A no. 211).
20. Turning to the circumstances of the present case, the Court observes that according to the materials submitted by the applicant, the Deputy President of the Regional Court heard the applicant’s case and quashed the judgment in his favour on 10 March 2015. However, the Regional Court did not inform him of those proceedings and his right to submit observations on the matter until 20 March 2015, that is to say ten days after the decision had already been taken. The Court therefore rejects the Government’s argument that the applicant was duly informed of the relevant court hearing and advised of his rights. It concludes that the applicant was deprived of an opportunity to reply to the submissions made by the head of the traffic police and to communicate his position to the court reviewing the judgment in his case. There has accordingly been a violation of Article 6 § 1 of the Convention.
(b) Remainder of the applicant’s grievances
21. In view of the above findings, the Court considers that there is no need to examine the remainder of the applicant’s grievances.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
22. 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.”
23. The applicant claimed 30,900 Russian roubles (RUB) (the amount of the fine and fees paid) in respect of pecuniary damage and 3,000 euros (EUR) in respect of non-pecuniary damage. He also requested that the proceedings in his case be reopened.
24. The Government left the issue to the Court’s discretion.
25. As to the pecuniary damage claimed, the Court notes that an award of just satisfaction can only be based on the fact that the applicant did not have the benefit of the guarantees of Article 6 § 1 of the Convention. It cannot speculate as to what the outcome of proceedings compatible with Article 6 § 1 might have been, had the requirements of that provision not been violated (compare Menchinskaya v. Russia, no. 42454/02, § 46, 15 January 2009, and Popov v. Russia, no. 26853/04, § 260, 13 July 2006). It therefore rejects the applicant’s claim in respect of pecuniary damage. As to his claim in respect of non-pecuniary damage, the Court awards him EUR 1,000. Lastly, the Court notes that the proceedings in the applicant’s case which ended with the judgment of 27 May 2015 have not been the subject matter of the present application and dismisses the applicant’s request for their re-opening.
B. Costs and expenses
26. The applicant did not submit a claim for costs and expenses. Accordingly, the Court considers that there is no call to award him any sum on that account.
C. Default interest
27. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declaresthe application admissible;
2. Holdsthat there has been a violation of Article 6 § 1 of the Convention;
3. Holdsthat there is no need to examine the remainder of the complaints under Article 6 of the Convention and Article 4 § 2 of Protocol No. 7 to the Convention;
(a) that the respondent State is to pay the applicant, within three months, EUR 1,000 (one thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage,to be converted into the currency of the respondent State at the rate applicable at the date of settlement;
(b) that from the expiry of the above-mentioned three months until settlement, simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period, plus three percentage points;
5. Dismissesthe remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 17 December 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Alena Poláčková