ZENEVICH proti Rusku

FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 4567/02
by Yuriy Anatolyevich ZENEVICH
against Russia

The European Court of Human Rights (First Section), sitting on
6 July 2006 as a Chamber composed of:

Mr C.L. Rozakis, President,
Mrs N. Vajić,
Mr A. Kovler,
Mrs E. Steiner,
Mr K. Hajiyev,
Mr D. Spielmann,
Mr S.E. Jebens, judges,
and Mr S. Nielsen, Section Registrar,

Having regard to the above application lodged on 6 November 2001,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together.

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 Yuriy Anatolyevich Zenevich, is a Russian national who was born in 1947 and lives in the town of Volkhov of the Leningrad Region. The Russian Government (“the Government”) were represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights.

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

The applicant worked as a doctor anaesthesiologist and reanimatologist in a local hospital of the town of Volkhov.

1. Institution of criminal proceedings against the applicant

In November 1994 he took part in a medical operation on a third person. The third person died during this operation and some time later, on 27 September 1995, a local prosecutor’s office brought criminal proceedings against the applicant on suspicion of negligent homicide.

On 22 December 1995 he was accused of negligent homicide and as of that date the investigative authority imposed on him an undertaking not to leave his usual place of residence.

Between 22 December 1995 and 19 January 1996 the applicant studied the case-file.

On 31 January 1996 the bill of indictment was completed and on 5 May 1996 the case was transferred to the Volkhov Town Court (“the Town Court”) for an examination on the merits.

2. First round of court proceeding

(a) Trial proceedings

By decision of 5 May 1996 the Town Court scheduled the hearing of the case on 28 October 1996.

The hearings of 28 October 1996 and 13 February 1997 were adjourned due to the applicant’s counsel engagement in a different set of proceedings and the failure of a number of witnesses to appear.

At the next hearing, the applicant’s counsel moved to summon a number of additional witnesses. The motion was granted and the hearing was adjourned accordingly.

The next hearing took place on 24 October 1997. The applicant’s counsel requested the court to order an additional forensic medical examination. The motion was granted and the case-file, along with fourteen questions on the merits of the case, was referred to an expert.

According to the Government, as of that date the court faced a number of administrative issues such as the financing side of expert examination and the search for qualified experts in medicine.

The expert examination was carried out by the Republican Centre of Forensic Medical Examinations of the Ministry of Health in Moscow and on 4 December 1998 it was received by the Town Court.

The hearing of 20 April 1999 did not take place due to the applicant’s failure to appear and was adjourned.

On 29 June 1999 the hearing was again adjourned as the applicant’s counsel was on holiday.

Between 25 and 26 October 1999 the Town Court examined the merits of the applicant’s case and by first instance judgment of 26 October 1999 fully acquitted him.

(b) Appeal proceedings

On 19 May 2000 the Leningrad Regional Court (“the Regional Court”) quashed the judgment of 26 October 1999 on appeal and remitted the case for a fresh consideration at first instance.

3. Second round of court proceedings

(a) Trial proceedings

By decision of 31 May 2000 the Town Court scheduled the hearing in the case on 13 October 2000.

The hearing did not take place due the judge’s engagement in a different set of proceedings.

The hearings of 18 December 2000 and 23 January 2001 did not take place due the applicant’s failure to appear. The Government submit that the applicant did not excuse his absence by reference to any good reason and on 23 January 2001 the court ordered to bring the applicant to the next hearing by force.

The hearing scheduled on 19 April 2001 did not take place because the applicant’s counsel requested the court to summon a number of new witnesses. Accordingly, it was adjourned until 25 May 2001.

On 25 May 2001 the applicant’s counsel request to adjourn the hearing due to his involvement in another set of proceedings.

At the hearing of 23 August 2001 the Town Court ordered the investigative authority to carry out an additional investigation of the case.

This decision was quashed on appeal by the Regional Court on 29 November 2001 as unlawful and groundless and the case was again referred to the Town Court.

At the hearing of 15 February 2002 the applicant again requested the court to order an additional forensic medical examination and to adjourn the hearing for the formulation of questions to an expert.

On 28 February 2002 the court granted that motion and ordered an additional examination.

After the completion of the examination, the case was returned to the court on 17 July 2002.

The next hearings scheduled on 16 September, 15 November, 16 December 2002 and 4 January 2003 did not take place as the court found necessary to invite a number of experts, forcibly to summon a witness G and to grant the prosecutor’s request for more time for the preparation for the hearings.

It does not appear that on any of these occasions the defence objected to the adjournment of the proceedings.

On 8 January 2003 the hearings resumed and by judgment of 15 January 2003 the Town Court convicted the applicant as charged. By the same judgment he was relieved from serving the sentence by reference to the statutory time-bar.

(b) Appeal proceedings

The judgment of 15 January 2003 was upheld by the Leningrad Regional Court on appeal on 10 September 2003.

COMPLAINTS

1. The applicant complained that the length of proceedings was excessive.

2. The applicant also complained about the criminal proceedings against him, alleging, in particular, that the evidence in his case had been forged and inadmissible and that there had been numerous breaches of the domestic law in his case.

THE LAW

1. The applicant complained that the criminal proceedings against him had lasted too long, in breach of Article 6 of 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 ... hearing within a reasonable time by [a] ... tribunal...”

1. The parties’ submissions

The Government admitted that the criminal proceedings against the applicant lasted for a considerable period of time and that there were some delays which may be attributed to the conduct of the judicial authorities. However, the Government argued that the applicant and his counsel, too, had been responsible for many delays in the case, that the defence failed to attend several court hearings and made request and motions which on several occasions had lead to considerable protractions in the course of the proceedings. Overall, the Government considered that the applicant’s length complaint was ungrounded.

The applicant disagreed with the Government’s arguments and maintained his complaint.

2. The Court’s assessment

The Court recalls that the proceedings in question commenced on 27 September 1995 when the prosecution instituted investigation against the applicant on suspicion of negligent homicide. However, the period to be taken into consideration began on 5 May 1998, when the Convention entered into force in respect of Russia. Nevertheless, in assessing the reasonableness of the time that elapsed after that date, account may be taken of the state of proceedings at the time.

In the circumstances of the present case, the Court finds that the period in question ended on 10 September 2003 with the delivery of the appeal decision in the applicant’s criminal case. Thus, the length of the proceedings which falls within the Court’s competence was of five years, four months and seven days. During that period the case was examined twice by the courts at two instances.

The Court further reiterates that the reasonableness of the length of the proceedings is to be assessed in the light of the particular circumstances of the case, regard being had to the criteria laid down in the Court’s case-law, in particular the complexity of the case, the applicant’s conduct and the conduct of the competent authorities (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII)

The Court observes that the criminal proceedings against the applicant concerned the charges of negligent homicide in the exercise of the applicant’s duties as a doctor. The examination of the merits of the case necessarily involved prior assessment of the relevant facts and resolution of highly technical medical questions by independent experts. Thus it can be said that the applicant’s case was of some complexity. As regards the applicant’s conduct, the Court finds that during the first round of proceedings two adjournments, dated 20 April and 29 June 1999 respectively, were clearly attributable to the applicant and his counsel and resulted in a overall delay of almost six months. Also, during the second round of proceedings, not only the applicant failed to appear at the hearings at least twice, on 18 December 2000 and 23 January 2001, and the Town Court had to bring him to the next hearing by force, but also the requests made by the defence on 19 April, 25 May 2001 and 15 February 2002 clearly resulted in postponement of the hearings on these dates.

As regards the conduct of the judicial authorities, the Court notes that it, at least to a certain extent, contributed to the length of proceedings as the hearing of 13 October 2000 was cancelled and adjourned for almost two months due to the judge’s involvement in a different set of proceedings and the decision of the Town Court of 23 August 2001, subsequently quashed on appeal as unlawful and groundless, lead to a delay in the proceedings between 23 August 2001 and 15 February 2002 for another five months and twenty-four days.

Overall, the Court finds no indication of any serious delays in the proceedings imputable to the judicial authorities, whilst the applicant’s conduct clearly made an important contribution to the overall length of proceedings (see, e.g. Moushouri v. Greece (dec.), no. 49433/98, 15 July 2000). In view of the above, the Court concludes that the length of the proceedings was not in breach of the reasonable time requirement.

Accordingly, this complaint is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

2. Insofar as the applicant is dissatisfied with the outcome of criminal proceedings against him, the Court observes that it is not called upon to examine alleged errors of fact and law committed by the domestic judicial authorities, provided that there is no indication of unfairness in the proceedings and provided the decisions reached cannot be considered arbitrary. On the basis of the materials submitted by the applicant, the Court notes that the applicant, personally and through his defence counsel, was able to present his arguments as he wished, and the judicial authorities gave them due consideration. Having regard to the facts, as submitted by the applicant, the Court has not found any reason to believe that the proceedings did not comply with the fairness requirement of Article 6 of the Convention.

Accordingly, this part of the application is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to discontinue the application of Article 29 § 3 of the Convention and declares the application inadmissible.

Søren Nielsen Christos Rozakis
Registrar President