SAMOLKIN v. RUSSIA

 
 
 
Communicated on 29 April 2019
 
THIRD SECTION
Application no. 23388/08
Yuriy Vladimirovich SAMOLKIN
against Russia
lodged on 21 April 2008
STATEMENT OF FACTS
The applicant, Mr Yuriy Vladimirovich Samolkin, is a Russian national, who was born in 1958 and lives in Moscow. He is represented before the Court by Ms M. Roslova, a lawyer practising in Moscow.
A.  The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant was a deputy head of one of the investigations department of the Moscow Criminal Police.
On unspecified dates the Military Court of the Moscow Garrison authorised interception of telephone communications of the applicant’s colleague, G., from March 2000 to August 2001. The applicant’s conversations with G. were recorded.
On 29 April 2003 criminal proceedings were opened against the applicant on suspicion of several counts of abuse of power, extortion and unlawful possession of arms. The records of telephone conversations with G. were attached to the criminal case-file.
The trial started in March 2005. The applicant’s counsel was absent from the hearings of 10 March and 15, 16, 19 and 22 June 2006 because of her illness. The applicant’s requests to adjourn those hearings were rejected. Some evidence was examined and the parties’ closing speeches were made at those hearings in counsel’s absence.
On 6 September 2006 the Military Court of the Moscow Command convicted the applicant as charged and sentenced him to twenty years’ imprisonment. It relied, in particular, on the records of his telephone conversations with G.
The applicant appealed. He complained, in particular, that the records of his telephone conversations had not been destroyed after the expiry of the maximum storage period permitted by the domestic law. They had been therefore inadmissible as evidence. He also complained about holding hearings in his counsel’s absence.
On 26 October 2007 the Military Chamber of the Supreme Court of the Russian Federation upheld the conviction on appeal.
B.  Relevant domestic law
The data collected in the course of operational-search activities in respect of a person whose guilt has not been proved in accordance with the procedure prescribed by law must be stored for a year and then destroyed, unless those data are needed in the interests of the authority or of justice. Audio-recordings and other materials collected as a result of intercepting telephone or other communications must be stored for six months and then destroyed if the person has not been charged with a criminal offence. The judge who authorised the interception must be informed of the scheduled destruction three months in advance (section 5(7) of the Operational-Search Activities Act of 12 August 1995 no. 144‑FZ).
COMPLAINTS
1.  The applicant complains under Article 6 §§ 1 and 3 (c) of the Convention about the refusals to adjourn the hearings which his counsel was unable to attend due to her illness.
2.  The applicant complains under Article 8 of the Convention that the records of his telephone conversations with G. were not destroyed after the expiry of the maximum storage period permitted by the domestic law and were instead used in the criminal proceedings against him.
 


 
QUESTIONS TO THE PARTIES
1.  Was the applicant able to defend himself through legal assistance of his own choosing, as required by Article 6 §§ 1 and 3 (c) of the Convention? In particular, were there relevant and sufficient grounds for the refusals to adjourn the hearings of 10 March and 15, 16, 19 and 22 June 2006? Did counsel’s absence at those hearings irretrievably prejudice the applicant’s defence rights or undermine the fairness of the proceedings as a whole? The parties are requested to submit full copies of the trial record for the hearings of 10 March and 15, 16, 19 and 22 June 2006.
 
2.  Has there been a violation of the applicant’s right to respect for his private life and correspondence, contrary to Article 8 of the Convention? In particular, given that the records of the applicant’s telephone conversations were not destroyed after the expiry of the maximum storage period permitted by section 5(7) of the Operational-Search Activities Act of 12 August 1995 no. 144‑FZ, was the interference with his rights in accordance with the domestic law? Was it “necessary in a democratic society”? The parties are requested to submit copies of decisions nos. 29, 128 and 193 by the Military Court of the Moscow Garrison authorising interception of G.’s communications.
 

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