Y.B. v. RUSSIA

• Judgment Date: 20 July 2021
• ECLI: ECLI:CE:ECHR:2021:0720JUD007115517
• Counsel: ARNOD O.
• Date: 20 July 2021
• Application Number: 71155/17
• Court: Third Section (European Court of Human Rights)
• Respondent State: Rusia
• Applied Rules: 35;35-1;41;P7-2

THIRD SECTION

CASE OF Y.B. v. RUSSIA

(Application no. 71155/17)

JUDGMENT

Art 2 P7 ● Review of conviction ● Applicant deprived of possibility to have a hearing, even in his absence, on a request for reinstating the time-limit for appeal against his in absentia conviction, as provided by domestic law

Art 35 § 1 ● Exhaustion of domestic remedies ● Applicant not required to appeal against non-procedural letter from domestic court president devoid of the applicable procedure for challenging it

STRASBOURG

20 July 2021

FINAL

20/10/2021

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Y.B. v. Russia,

The European Court of Human Rights (Third Section), sitting as a Chamber composed of:

Paul Lemmens, President,
Georgios A. Serghides,
Dmitry Dedov,
Georges Ravarani,
Darian Pavli,
Anja Seibert-Fohr,
Peeter Roosma, judges,
and Milan Blaško, Section Registrar,

Having regard to:

the application (no. 71155/17) 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 French national, Mr Y.B. (“the applicant”), on 27 September 2017;

the decision to give notice to the Russian Government (“the Government”) of the complaints concerning the alleged lack of an opportunity to appeal against conviction in absentia and to declare the remainder of the application inadmissible;

the decision to grant the applicant anonymity under Rule 47 § 4 of the Rules of Court;

the parties’ observations;

the decision of the French Government, who had been notified of their right to intervene in the proceedings (Article 36 § 1 of the Convention and Rule 44 § 1 of the Rules of the Court), not to exercise their right in the present case;

Having deliberated in private on 22 June 2021,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 71155/17) 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 French national, Mr Y.B. (“the applicant”), on 27 September 2017.

2. On 21 November 2017 notice of the complaint under Article 2 of Protocol No. 7 to the Convention was given to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

INTRODUCTION

3. The case concerns, under Article 2 of Protocol No. 7 to the Convention, the domestic courts’ refusal to accept and examine the applicant’s statement of appeal.

THE FACTS

4. The applicant was born in 1978 and lives in France. He was represented by Mr O. Arnod, a lawyer practising in Bobigny, France.

5. The Government were represented by Mr M. Galperin, Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr A. Fedorov.

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

1. Investigation

7. On 16 December 2014 a number of photographs and a video were published on a Russian-language website for young parents. The photographs featured (1) the applicant and his wife engaged in sexual intercourse and (2) the applicant and his daughter, born in 2009, naked.

8. On an unspecified date a certain Ms V. complained to the Russian police about the above-mentioned material published on the website.

9. On 28 January 2015 the regional investigative committee opened a criminal investigation into the offences of production and distribution of child pornography. The investigators established that the photographs and the video had been uploaded from an IP address that could be traced to the applicant’s wife.

10. On 11 February 2015 the applicant, who at the time lived in Russia, was arrested as a suspect and the Kuybyshevskiy District Court of Irkutsk authorised his detention pending investigation.

11. On the same date the investigators searched the applicant’s flat and seized electronic equipment belonging to him, including his laptops and cameras. In the files stored on the laptops, they discovered, inter alia, forty‑nine photographs of a naked girl (the applicant’s daughter).

12. On 26 March 2015 the District Court extended the applicant’s detention until 28 April 2015.

13. On 21 April 2015 the Irkutsk Regional Court quashed the decision of 26 March 2015 and imposed house arrest on the applicant in lieu of detention pending investigation. On several occasions the District Court extended the applicant’s house arrest.

14. On 7 April 2016 the investigation was completed and the applicant’s case file was transferred to the Kirovskiy District Court of Irkutsk. The applicant was accused of production and distribution of pornography and child pornography and of child molestation.

2. Trial

15. On 14 June 2016 the District Court opened the trial in the applicant’s case.

16. On 11 September 2016 the applicant absconded. The District Court continued the trial in his absence.

17. On 26 December 2016 the District Court found the applicant guilty as charged and sentenced him to fifteen years’ imprisonment. The court relied on the statements of numerous witnesses (including members of the applicant’s family, his colleagues, computer experts and psychologists) and on physical evidence and forensic reports. The applicant’s counsel attended the hearing and was issued with a copy of the judgment. According to the text of the judgment, it was amenable to appeal during 10 days following its pronouncement.

18. Neither the applicant nor his counsel appealed against the judgment of 26 ...