Legal positions of the European Court of Human Rights on the right to a reasonable period of criminal proceedings and their application in Russian law

Bormotova Ladmila ORCID: 0000-0002-6003-2675 PhD in Law Associate Professor, Department of Criminal Procedure and Criminalistics, Orenburg State University 460018, Russia, Orenburgskaya oblast', g. Orenburg, prosp. Pobedy, 13 ogulada@rambler.ru

Tarnavskii Oleg Aleksandrovich ORCID: 0000-0002-4062-2045 PhD in Law Deputy General Director for Legal and General Issues, Gazprom Energo LLC 117647, Russia, g. Moscow, ul. Profsoyuznaya, 125 mellert.@bk.ru

The interest of timely resolution of the criminal law conflict is mutually acute for the State and, equally, for the victim of the crime and the person who committed it. The obligation of the state to ensure the rights and legitimate interests as soon as possible and the search for effective tools for restoring justice are the subject of scientific research in Russia ^{[1, 2, 3, 6, 9, 10, 11, 13, 15, 16]} and abroad ^{[4, 5, 7, 17]}.

Legal consolidation of the principle of a reasonable period of criminal proceedings (Article 6.1 of the Criminal Procedure Code of the Russian Federation)^[1] and the regulation in the norms of Russian legislation of mechanisms for compensation for damage caused by violation of this principle (in accordance with Federal Law No. 68-FZ of April 30, 2010 "On Compensation for Violation of the Right to Legal Proceedings within a Reasonable Time or the Right to execute a Judicial Act within a Reasonable time"), received their positive reflection in Statistical indicators of appeals of citizens of the Russian Federation to the European Court of Human Rights in the context of violation of Part 1 of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms (Federal Law No. 54-FZ of March 30, 1998 "On Ratification of the Convention for the Protection of Human Rights and Fundamental Freedoms and Protocols thereto").

According to official data, from the period 1959 to 2020 inclusive, the European Court of Human Rights detected and suppressed violations of the articles of the Convention by the Russian Federation on 2,884 complaints, of which 207 complaints were filed for violation of the duration of the proceedings (Violations by Article and by State (1959-2020).

Scientist S. S. Semchenko as of 2013 indicated that the number of complaints about violations of procedural deadlines by the courts of the Russian Federation is quite high ^{[12, p. 207]}. However, an analysis of official statistical indicators suggests that out of a significant number of complaints, real violations of the provisions of the convention are found only in isolated cases. So, in 2020, out of 185 violations of the Convention, only two were related to the excessive length of the trial in a criminal case (Violations by Article and by State (2020). At the same time, it should be taken into account that complaints of violation of Article 6.1 of the Code of Criminal Procedure of the Russian Federation are regularly considered in the Russian Federation. As part of the preparation of this article, we have studied 105 court decisions for the period 2020-2021. All of them concerned, in the applicants' opinion, violations by the courts and the preliminary investigation bodies of the right to a reasonable period of time. But, what exactly is the content of this principle, in addition to assessing the duration of the investigation and judicial review, the complainants do not have a clear idea. It is noteworthy that in some cases we found a lack of proper motivation in the decisions themselves when using provisions on the reasonableness of the terms of criminal proceedings.

Thus, the Orenburg Regional Court on appeal considered the defendant's complaint about changing the regime of serving a sentence. The court of appeal overturned the verdict with the referral of the criminal case for a new trial, finding a violation of the conditions for the application of a special procedure provided for by Chapter 40 of the Code of Criminal Procedure of the Russian Federation. Along the way, the court referred to the existing violation of Article 6.1 of the Code of Criminal Procedure of the Russian Federation, but did not explain what it was expressed in (Appeal Decision of the Orenburg Regional Court No. 22-3185/2020 of December 15, 2020 in case No. 1-124/2020). Moreover, under the circumstances specified in the appeal decision (the appointment of a special procedure for judicial proceedings against a person about whom there is a conclusion of a comprehensive forensic psychological and psychiatric examination of insanity), there were all grounds for an acquittal in the regional court. As we will show below, failure to comply with this requirement by the European Court of Human Rights is recognized as a violation of Article 6 of the Convention.

According to the fair instructions of T.G. Morchakova, the establishment of requirements for a reasonable period of criminal proceedings meets the need to achieve a balance between a quick and fair investigation, resolution and consideration of a criminal case. Therefore, the regulation in national legislation of the terms corresponding to the investigated procedural principle acts as "an expression of concern for the proper administration of justice" ^{[8, p. 142]}.

A systematic analysis of the practice of the European Court of Human Rights allows us to conclude that the content of this principle is based not only on the idea of the time period of the criminal procedure. Two main aspects should be highlighted here. Firstly, the definition of the duration of the trial, which includes the following aspects: the beginning of the term and the end of the term, which can be considered reasonable in relation to a particular criminal case. Secondly, the aspect characterizing the assessment of the reasonableness of the duration of the proceedings, which includes such sub-aspects as basic principles and evaluation criteria.

We will consistently analyze their significance based on the legal positions of the European Court of Human Rights expressed in specific rulings.

1 Determination of the duration of the trial.

With regard to this aspect, the European Court of Human Rights concluded that the starting point of the term, which must be taken into account when determining a reasonable period of criminal proceedings, is the day when the person is charged. This universal rule is formulated in the case of Neumeister v. Austria (Case "Neumeister v. Austria": ECHR Ruling of June 27, 1968 on Complaint No. 1936/63). Its significance implies that a reasonable period of criminal proceedings includes not only the period when the trial in a criminal case begins directly, but also the period of pre-trial procedural procedures. Such a systematic conclusion was made by the European Court of Human Rights in the case of Davir v. Belgium (The case "Devir (Deweer) v. Belgium": ECHR Ruling of February 27, 1980 on Complaint No. 6903/75).

Since such procedures vary in the legal systems of States, the European Court of Human Rights points to the need to take into account the specifics of national criminal procedure legislation. In this regard , as examples of the beginning of a reasonable period of criminal proceedings , the following can be distinguished:

- in the case of Wemhoff v. Germany, the start of a reasonable period of criminal proceedings should have been made from the moment of arrest of the person who filed the complaint (The case "Wemhoff v. Germany": ECHR Ruling of June 27, 1968 on Complaint No. 2122/64);

- in the case of Neumeister v. Austria, the moment of the beginning of a reasonable period of criminal proceedings should be considered the presentation of charges to the person who filed the complaint;

- in the case of Shubinsky v. Slovenia, such a moment was the beginning of the preliminary investigation of the criminal case (Case "?ubinski v. Slovenia": ECHR Ruling of April 18, 2007 on Complaint No. 19611/04);

- In the case of Kaliya v. Latvia, the moment of the beginning of a reasonable period of criminal proceedings was the interrogation of the applicant as a suspect in the commission of a crime (The case "Kaliya (Kal?ja) v. Latvia": ECHR Ruling of May 01, 2018 on complaint No. 22059/08).

Unifying the presented understandings, the European Court of Human Rights in the case of Lieblik and Others v. Estonia concluded that, regardless of the difference in legal regulation characteristic of different States, the moment of the beginning of a reasonable period of criminal proceedings should be considered the moment when a person became aware of the charge against him or when in relation to him Other measures of criminal prosecution have begun to be taken (the case "Liblik and Others v. Estonia": ECHR Ruling of October 07, 2019 on Complaint No. 173/15).

The fundamental position of the European Court of Human Rights regarding the end of a reasonable period of criminal proceedings is expressed in the ruling in the case of Delcourt v. Belgium (Case "Delcourt v. Belgium": ECHR Ruling of January 17, 1970 on Complaint No. 2689/65). The general term of criminal proceedings covers the time period up to the end of the proceedings for the revision of judicial acts. Accordingly, in criminal cases brought to the plane of judicial proceedings, the end of a reasonable period of criminal proceedings is mediated by the issuance of an acquittal or conviction, taking into account also cases when the question of a person's guilt is finally resolved within the framework of an instance review of judicial acts.

In the context of analyzing the issue of the end of a reasonable period of legal proceedings, it is necessary to pay attention to the position of the European Court of Human Rights, expressed in the case of Assanidze v. Georgia, that the stage of execution of a judgment (sentence) is an integral part of any judicial proceedings (The case "Assanidze v. Georgia": ECHR ruling of April 08 2004 on complaint No. 71503/01). In accordance with this legal position, the law of the Convention, namely the provisions of Article 6, would be illusory in the absence of domestic norms ensuring the final and binding nature of the judicial act.

Therefore, the protection of the rights of the acquitted person does not stop due to the fact of his acquittal. State authorities do not have the right to refuse to execute an acquittal or to postpone its execution, since this violates the principle of reasonableness of the terms of criminal proceedings in the context of unjustifiably delaying the implementation of mandatory procedural procedures.

Regarding the situation in which the criminal prosecution of a person ends before the transfer of the case to the court, that is, in connection with the refusal of the investigating authorities from suspicion or accusation by issuing a decision to terminate the criminal case and criminal prosecution, the European Court of Human Rights expressed its legal position in the case of Nakhmanovich v. the Russian Federation, in according to which a reasonable period of criminal proceedings as a principle of criminal procedure is aimed at calculating the appropriate period of time during which a person "suffers from uncertainty" (The case "Nakhmanovich v. the Russian Federation": ECHR Ruling of March 02, 2006 on Complaint No. 55669/00). Accordingly, when an authorized entity issues a resolution on the termination of a criminal case, the calculation of a reasonable period of criminal proceedings is also terminated.

In this matter, the fact of timely notification to the person concerned about the termination of criminal prosecution is of the utmost importance. Only from the moment when the interested person was notified of the adopted procedural decision, it is necessary to talk about the expiration of a reasonable period of criminal proceedings. In particular, such a conclusion was made by the European Court of Human Rights in the case of Borzhonov v. the Russian Federation (The case of Borzhonov v. the Russian Federation: ECHR Ruling of January 22, 2009 on Complaint No. 18274/04).

2 Assessment of the reasonableness of the terms of criminal proceedings.

This aspect, which determines the content of the principle of a reasonable period of criminal proceedings, is determined by the European Court of Human Rights through the need to achieve a fair balance between the various elements of the fundamental right to a fair trial established by Article 6 of the Convention.

In particular, in the case of Dobbertin v. France, it was concluded that in a situation where each of the stages of criminal proceedings itself occurs at an acceptable speed, the total duration of criminal proceedings may still exceed a reasonable time (The case of Dobbertin v. France: ECHR ruling of February 25, 1995 on complaint No. 13089/87). In this regard, it is necessary to justify the reasonable duration of criminal proceedings in relation to each specific case, taking into account the circumstances of the case subject to a cumulative assessment, as indicated by the European Court of Human Rights in the case of Boddar v. Belgium (Case "Boddar (Boddaert) v. Belgium": ECHR Ruling of October 12, 1992 on complaint No. 12919/87).

In the context of the problem of determining individual criteria for assessing the reasonableness of the duration of criminal proceedings, the European Court of Human Rights, in its ruling in the case of Neumeister v. Austria, refers to them:

- complexity of the case;

- the applicant's behavior (meaning the person who appealed to the European Court of Human Rights with a complaint about the violation of the principle of a reasonable period of criminal proceedings);

- The conduct of the bodies conducting the investigation of the criminal case and the judicial authorities (The case "Neumeister v. Austria": ECHR Ruling of June 27, 1968 on Complaint No. 1936/63).

In the content of the above-mentioned resolution, the criterion of the complexity of the case was interpreted. It may be due to the number of subjects against whom criminal prosecution is being conducted, the number of participants in criminal proceedings in general (including persons assisting in the administration of justice), the need to resort to international means of legal communication in criminal proceedings, for example, by seeking the help of Interpol or other international organizations ^{[14, p. 220]}.

Of crucial importance is the indication of the European Court of Human Rights that the complexity of the case may justify a certain departure beyond the reasonable time of criminal proceedings, but is not the only sufficient criterion to justify its excessive duration.

For example, in the case of Adilleta and Others v. Italy, a legal position is expressed, according to which a certain complexity of the case cannot be considered as a sufficient criterion justifying long periods of unexplained inaction by public authorities (The case of Adilleta and Others v. Italy: ECHR Ruling of February 19, 1992 on Complaint No. 13978/88). Of interest is that the total duration of the criminal proceedings in the applicant's case was 13 years and 5 months.

The criterion of the applicants' procedural behavior is not connected with his obligation to actively cooperate with the investigation authorities and the court, since this does not follow from the provisions of Article 6 of the Convention. Moreover, the applicant's conduct related to the full implementation of all legal remedies available to him in accordance with domestic legislation cannot be considered unacceptable (contrary to the principle of a reasonable period of criminal proceedings).

However, the European Court of Human Rights concludes that the applicant's procedural conduct must necessarily be taken into account when determining a reasonable period of criminal proceedings (Eckle v. Germany: ECHR Ruling of July 15, 1982 on Complaint No. 8130/78). In particular, it is indicated that if the applicant resorts to actions that may delay the investigation of a criminal case or judicial proceedings by systematically challenging a judge, investigator, or otherwise intentionally obstructing the administration of justice in a criminal case, then this may be regarded as a criterion that causes an objective delay in the timing of criminal proceedings.

Of interest is the legal position of the European Court of Human Rights, expressed in the case of Vaish v. Turkey, regarding the fact that the presence of a person on the run, that is, evading criminal prosecution, is not a circumstance that allows him to claim an unjustifiably long duration of criminal proceedings (The case "Vaish (Vayi?) v. Turkey": ECHR ruling from September 20, 2006 on complaint No. 18078/02). This constitutes a legal presumption, therefore its refutation is permissible only if sufficient evidence is provided.

Finally, the criterion of procedural behavior of State authorities investigating a criminal case and the court is conditioned by the provisions of part 1 of Article 6 of the Convention, which impose on the States parties to an international treaty the obligation to organize investigative and judicial systems in such a way that they can fully implement the functions assigned to them. This conclusion is reflected, for example, in the case of Dobbertin v. France (The case "Dobbertin v. France": ECHR Ruling of February 25, 1995 on Complaint No. 13089/87). It follows from this that the justification for the violation of the principle of a reasonable period of criminal proceedings cannot be based on the fact of the high workload of the preliminary investigation bodies, as indicated in the ruling in the case and Eckle v. Germany (The case "Eckle v. Germany": ECHR Ruling of July 15, 1982 on Complaint No. 8130/78). In addition, the judicial authorities are responsible for the facts of adjournment of the trial, for example, in case of non-appearance of participants in criminal proceedings, as indicated in the ruling in the case of Tychko v. the Russian Federation (The case "Tychko v. the Russian Federation": ECHR Ruling of June 11, 2015 on complaint No. 56097/07).

In this regard, inaction or improper procedural behavior of public authorities cannot be considered as a criterion that causes going beyond a reasonable period of criminal proceedings.

Thus, a correct understanding of the essence of the reasonableness of the terms of criminal proceedings requires a thorough study of the practice of the European Court of Human Rights, comparison and comparison with the practice of the Russian law enforcement officer and identification of additional criteria that contribute to making fair judgments in criminal cases.

^[1] Further in the text: the Code of Criminal Procedure of the Russian Federation.