THIRD SECTION
\nCASE OF ZUBENKO v. RUSSIA
\n(Application no. 37397\/15)<\/p>\n
JUDGMENT
\nSTRASBOURG
\n17 December 2019<\/p>\n
This judgment is final but it may be subject to editorial revision.<\/p>\n
In the case of Zubenko v. Russia,<\/strong><\/p>\n The European Court of Human Rights (Third Section), sitting as a Committee composed of:<\/p>\n Alena Pol\u00e1\u010dkov\u00e1, President, Having deliberated in private on 26 November 2019,<\/p>\n Delivers the following judgment, which was adopted on that date:<\/p>\n PROCEDURE<\/strong><\/p>\n 1. The case originated in an application (no. 37397\/15) against the Russian Federation lodged with the Court under Article\u00a034 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) by a Russian national, Mr Yevgeniy Nikolayevich Zubenko (\u201cthe applicant\u201d), on 10 July 2015.<\/p>\n 2. The applicant was represented by Mr A.\u00a0Khlebnikov, a lawyer practising in the Stavropol region. The Russian Government (\u201cthe Government\u201d) were represented by Mr M.\u00a0Galperin, Representative of the Russian Federation to the European Court of Human Rights.<\/p>\n 3. On 15\u00a0November 2017the Government were given notice of the application.<\/p>\n THE FACTS<\/strong><\/p>\n THE CIRCUMSTANCES OF THE CASE<\/p>\n 4. The applicant was born in 1978 and lives in Levokumskoye, Stavropol Region.<\/p>\n 5. On 2\u00a0September 2014 the justice of the peace of judicial circuit no.\u00a01 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.<\/p>\n 6. On 7\u00a0October 2014 the Levokumskiy District Court of the Stavropol Region quashed the judgment of 2\u00a0September 2014 and discontinued the proceedings. On an unspecified date the judgment became final.<\/p>\n 7. On 5\u00a0December 2012 the head of the traffic police asked the President of the Stavropol Regional Court to review the applicant\u2019s case, claiming that the District Court had failed to establish correctly the circumstances of the case.<\/p>\n 8. On 18\u00a0February 2015 the Deputy President of the Regional Court accepted the complaint lodged by the head of the traffic police for consideration.<\/p>\n 9. On 10\u00a0March 2015 the Deputy President of the Regional Court quashed the judgment of 5\u00a0December 2012 and remitted the matter for fresh consideration to the District Court.<\/p>\n 10. On 20\u00a0March 2015 (postmark) the Regional Court sent a letter to the applicant informing him of the decision of 18\u00a0February 2015 and advising him of his right to submit observations in response to the complaint by 27\u00a0February 2015. The applicant received the relevant letter on 24\u00a0March 2015.<\/p>\n 11. On 27\u00a0May 2015 the District Court upheld the judgment of 2\u00a0September 2014 on appeal. The applicant and his lawyer were not present at the hearing.<\/p>\n THE LAW<\/strong><\/p>\n I. ALLEGED VIOLATION OF ARTICLE 6\u00a0\u00a7\u00a01 OF THE CONVENTION<\/p>\n 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\u2019s 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\u00a04 \u00a7\u00a02 of Protocol No.\u00a07 to the Convention, which, in so far as relevant, read as follows:<\/p>\n Article\u00a06<\/p>\n \u201cIn the determination of … any criminal charge against him, everyone is entitled to a fair … hearing … by [a] … tribunal …<\/p>\n 3. Everyone charged with a criminal offence has the following minimum rights:<\/p>\n …<\/p>\n (c) to defend himself in person …\u201d<\/p>\n Article 4 of Protocol No. 7 (right not to be tried or punished twice)<\/p>\n \u201c1. 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.<\/p>\n 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.\u201d<\/p>\n A. Admissibility<\/strong><\/p>\n 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\u00a035 \u00a7\u00a02\u00a0(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\u00a0October 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).<\/p>\n 14. The applicant argued that the sanctions imposed on him had been severe.<\/p>\n 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\u2019s objection is therefore dismissed.<\/p>\n 16. The Court notes that the application is not manifestly ill-founded within the meaning of Article\u00a035\u00a0\u00a7\u00a03\u00a0(a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.<\/p>\n B. Merits<\/strong><\/p>\n 1. The parties\u2019 submissions<\/em><\/p>\n 17. The Government submitted that the judgment of 7\u00a0October 2014 had been quashed in view of a fundamental defect in the appellate proceedings resulting in the appellate court\u2019s 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.<\/p>\n 18. The applicant maintained his complaint.<\/p>\n 2. The Court\u2019s assessment<\/em><\/p>\n (a) Equality of arms<\/p>\n 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\u00a01991, \u00a7\u00a067, Series A no. 211).<\/p>\n 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\u2019s case and quashed the judgment in his favour on 10\u00a0March 2015. However, the Regional Court did not inform him of those proceedings and his right to submit observations on the matter until 20\u00a0March 2015, that is to say ten days after the decision had already been taken. The Court therefore rejects the Government\u2019s 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\u00a0\u00a7\u00a01 of the Convention.<\/p>\n (b) Remainder of the applicant\u2019s grievances<\/p>\n 21. In view of the above findings, the Court considers that there is no need to examine the remainder of the applicant\u2019s grievances.<\/p>\n II. APPLICATION OF ARTICLE\u00a041 OF THE CONVENTION<\/p>\n 22. Article\u00a041 of the Convention provides:<\/p>\n \u201cIf 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.\u201d<\/p>\n A. Damage<\/strong><\/p>\n 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.<\/p>\n 24. The Government left the issue to the Court\u2019s discretion.<\/p>\n 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 \u00a7 1 of the Convention. It cannot speculate as to what the outcome of proceedings compatible with Article 6 \u00a7 1 might have been, had the requirements of that provision not been violated (compare Menchinskaya v. Russia, no. 42454\/02, \u00a7\u00a046, 15\u00a0January 2009, and Popov v. Russia, no. 26853\/04, \u00a7\u00a0260, 13 July 2006). It therefore rejects the applicant\u2019s claim in respect of pecuniary damage. As to his claim in respect of non-pecuniary damage, the Court awards him EUR\u00a01,000. Lastly, the Court notes that the proceedings in the applicant\u2019s case which ended with the judgment of 27\u00a0May 2015 have not been the subject matter of the present application and dismisses the applicant\u2019s request for their re-opening.<\/p>\n B. Costs and expenses<\/strong><\/p>\n 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.<\/p>\n C. Default interest<\/strong><\/p>\n 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.<\/p>\n FOR THESE REASONS, THE COURT, UNANIMOUSLY,<\/strong><\/p>\n 1. Declaresthe application admissible;<\/p>\n 2. Holdsthat there has been a violation of Article 6\u00a0\u00a7\u00a01 of the Convention;<\/p>\n 3. Holdsthat there is no need to examine the remainder of the complaints under Article 6 of the Convention and Article\u00a04 \u00a7\u00a02 of Protocol No.\u00a07 to the Convention;<\/p>\n 4. Holds<\/p>\n (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;<\/p>\n (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;<\/p>\n 5. Dismissesthe remainder of the applicant\u2019s claim for just satisfaction.<\/p>\n Done in English, and notified in writing on 17 December 2019, pursuant to Rule\u00a077\u00a0\u00a7\u00a7\u00a02 and 3 of the Rules of Court.<\/p>\n Stephen Phillips \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0Alena Pol\u00e1\u010dkov\u00e1
\nDmitry Dedov,
\nGilberto Felici, judges,
\nand Stephen Phillips, Section Registrar,<\/p>\n
\nRegistrar \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 President<\/p>\n