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FIRST
SECTION
CASE OF MISHKETKUL AND OTHERS v. RUSSIA
(Application
no. 36911/02)
JUDGMENT
STRASBOURG
24
May 2007
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Mishketkul and Others v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Mr C.L. Rozakis, President,
Mr L.
Loucaides,
Mrs N. Vajić,
Mr A.
Kovler,
Mr D. Spielmann,
Mr S.E. Jebens,
Mr G.
Malinverni, judges,
and Mr S. Nielsen, Section
Registrar,
Having
deliberated in private on 3 May 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 36911/02) 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 three Russian nationals, Mr Sergey
Aleksandrovich Mishketkul, Mr Georgiy Aleksandrovich Georgobiani and
Ms Tatyana Ivanovna Turuntayeva (“the applicants”), on 31
August 2002.
- The
applicants were represented by Mr Y. Vasichkin, a lawyer practising
in Moscow. The Russian Government (“the Government”) were
represented by Mr P. Laptev, the Representative of the Russian
Federation at the European Court of Human Rights.
- On
12 September 2005 the Court decided to give notice of the application
to the Government. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the application at
the same time as its admissibility.
- The
Government objected to the joint examination of the admissibility and
merits of the application. Having examined the Government's
objection, the Court dismissed it.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
first two applicants were born in 1977 and 1975 respectively and live
in the town of Noginsk in the Moscow region. The third applicant was
born in 1948 and lives in Moscow.
A. The first two applicants' arrest and alleged
ill-treatment by the police
- On
27 April 2001 the police were called to a flat owned by the third
applicant. Upon their arrival, the police officers discovered the
first applicant in the flat. He jumped out of the kitchen window and
ran away trying to escape. The policemen fired several shots in the
air, but the first applicant did not stop. A policeman pursued him,
knocked him down to the ground and handcuffed him.
- The
first applicant was taken to the Lyublino police station, where he
was allegedly beaten up for four hours. He signed a statement
confessing to having broken into the flat attempting to commit theft.
Mr Kostyukov, appointed to act as the first applicant's counsel, was
present when he made that statement.
- An
investigator of the Lyublino District Police Department drew up the
record of the first applicant's arrest. He indicated that the first
applicant had been apprehended at the crime scene, that eyewitnesses,
including the victims, had identified him as the perpetrator of the
criminal offence, that he had tried to escape and that he had no
permanent place of residence.
- On
the same day the second applicant was arrested as the first
applicant's accomplice to the theft.
- The
first two applicants were charged with theft and on 30 April 2001 the
Lyublino District Prosecutor, by separate decisions, authorised their
placement in custody. The prosecutor noted that the first two
applicants were charged with a serious criminal offence carrying a
sentence of imprisonment; that they did not have a permanent place of
residence in Moscow; that the second applicant was a “citizen
of the Republic of Abkhazia” and the first two applicants were
liable to abscond and evade justice. The decisions were amenable to
appeal, but the first two applicants did not make use of this avenue.
- On
25 June 2001 the first two applicants and their lawyers started
reading the case file. An investigator drew up records in which the
two applicants and their lawyers made handwritten notes confirming
that they had been provided with the entire file and that no time
restrictions had been imposed on them.
B. Extension order of 28 June 2001 and the first set of
trial proceedings
- On
28 June 2001 the pre-trial investigation was closed, the first two
applicants were served with the bill of indictment and the case was
set down for trial in the Lyublinskiy District Court of Moscow. On
the same day the District Court fixed the first trial hearing and
extended the two applicants' detention. That decision was not
appealed against and became final.
- On
25 December 2001 the Lyublinskiy District Court found the first two
applicants guilty as charged and sentenced the first applicant to
four years and two months' imprisonment and the second applicant to
four years' imprisonment. The District Court based its judgment on
statements by the victims, including the third applicant, witnesses,
expert opinions, documentary evidence and the confession made by the
first applicant on 27 April 2001. That judgment was upheld by
the Moscow City Court on 3 April 2002.
C. Supervisory review, the second set of judicial
proceedings and extension of the detention
- In
March 2003 the applicants requested a review of the judgment of
25 December 2001, as upheld on appeal on 3 April 2002.
- On 11 September 2003 the Presidium of the Moscow City
Court, by way of supervisory review, quashed the judgments of 25
December 2001 and 3 April 2002 and remitted the case to the District
Court for a fresh examination. The Presidium held that the first two
applicants should “remain in detention”. No reason for
the extension was cited.
- On
10 October 2003 the Lyublinskiy District Court scheduled the first
trial hearing, appointed Mr Vasichkin to act as counsel for the first
two applicants and ordered that witnesses should be called according
to lists prepared by the parties. As follows from the decision, the
District Court did not determine the issue of detention. According to
the Government, the District Court held that the measure of restraint
to which the first two applicants were subject should “remain
unchanged”.
- On 16 March 2004 the District Court found the first
two applicants guilty of aggravated theft and sentenced them to four
years' imprisonment. The District Court relied, inter alia, on
the statement made by the first applicant on 27 April 2001.
- The Moscow City Court, on appeal, quashed the judgment
on 27 April 2004 and remitted the case to the District Court for
a fresh examination. The City Court, without indicating any reasons,
held that the first two applicants should “remain in
detention”.
D. Extensions of the detention and the third set of
judicial proceedings
- The
Lyublinskiy District Court received the case file on 17 May 2004. On
1 June 2004 the District Court fixed the hearing date, appointed
counsel for the first two applicants and held that the preventive
measure “should remain unchanged”.
1. Order of 7 June 2004
- Six
days later the Lyublinskiy District Court extended the detention of
the first two applicants until 30 August 2004. It held that the
applicants had been charged with a serious criminal offence and
“there were no grounds for changing the measure of restraint”.
- The
first two applicants appealed, arguing that there were no grounds for
their continued detention and that they should be released subject to
a written undertaking. They further complained that the length of
their detention was excessive and that the District Court had failed
to provide reasons for extending it.
- On 1 July 2004 the Moscow City Court upheld the order
of 7 June 2004, relying on the gravity of the charges and the fact
that the trial proceedings were pending. It also noted that the
entire period of the detention of the first two applicants had been
authorised in compliance with the procedural requirements and had not
been excessively long.
2. Order of 17 August 2004
- On
17 August 2004 the Lyublinskiy District Court extended the detention
of the first two applicants until 30 November 2004, holding that
in view of the complexity of the case it needed additional time for
the trial, that the first two applicants were charged with a serious
criminal offence and that there was no reason to release them.
- On
13 September 2004 the Moscow City Court upheld the order, noting the
gravity of the charges against the first two applicants and the
absence of any grounds for their release.
3. Examination of the merits of the case
- On 19 October 2004 the Lyublinskiy District Court
found the first two applicants guilty of aggravated theft, sentenced
them to four years' imprisonment and ordered that they should jointly
pay the third applicant 81,000 Russian roubles in compensation for
damage. The District Court did not make any reference to the
confession made by the first applicant on 27 April 2001. At the
same time it noted that the prosecution authorities had examined the
complaints alleging ill-treatment and had dismissed them as
unfounded. The first applicant and his lawyer had not appealed
against that prosecutor's decision and had therefore agreed with the
prosecutor's findings.
- On 23 December 2004 the Moscow City Court upheld the
judgment. In response to the first applicant's complaint that his
confession of 27 April 2001 had been obtained under duress, it
noted that the District Court had not taken the confession into
consideration and had not based its findings on it. The City Court
once again indicated that the first applicant had not appealed
against the prosecutor's decision.
-
The first two applicants were released on 27 April 2005 after having
served their sentence.
E. Proceedings concerning ill-treatment by the police
- The
first applicant complained to the prosecutor that on 27 April 2001
the policemen had beaten him up and had forged evidence in his case.
- On
1 July 2001 an assistant of the Lyublinskiy District Prosecutor
refused to institute criminal proceedings in connection with the
applicant's claim of ill-treatment. He studied a record of the
medical examination of the first applicant on 27 April 2001, in which
multiple bruises on his face, upper body and legs had been noted. The
assistant prosecutor found that the first applicant could have
received those injuries on 27 April 2001 as a result of falling down
when trying to escape from the policemen. The reasoning of the
two-page decision was founded on the statements by the police officer
who had apprehended the applicant on 27 April 2001 and Mr O., a
neighbour of the third applicant, who had seen the first applicant
immediately after his arrest. The decision of 1 July 2001 was
promptly notified to the first applicant.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Placement in custody and detention
- Until
1 July 2002 criminal-law matters were governed by the Code of
Criminal Procedure of the Russian Soviet Federalist Socialist
Republic (Law of 27 October 1960, “the old CCrP”). From 1
July 2002 the old CCrP was replaced by the Code of Criminal Procedure
of the Russian Federation (Law no. 174-FZ of 18 December 2001, “the
new CCrP”).
- Before 14 March 2001, pre-trial detention was
authorised if the accused was charged with a criminal offence
carrying a sentence of at least one year's imprisonment (Article 96).
The amendments of 14 March 2001 repealed the provision that permitted
defendants to be remanded in custody on the sole ground of the
dangerous nature of the criminal offence they were charged with. The
new CCrP reproduced the amended provisions (Articles 97 § 1 and
108 § 1) and added that a defendant should not be remanded in
custody if a less severe preventive measure was available.
- After the arrest the suspect is placed in custody
during the investigation. The period of detention during the
investigation may be extended beyond six months only if the detainee
is charged with a serious or particularly serious criminal offence.
No extension beyond eighteen months is possible (Article 97 of
the old CCrP, Article 109 of the new CCrP).
- Before 14 March 2001 the old CCrP set no time-limit
for detention during the trial proceedings. On 14 March 2001 a new
Article 239-1 was inserted which established that the period of
detention during the trial proceedings could not generally exceed six
months from the date the court received the file. That limitation did
not apply to defendants charged with particularly serious criminal
offences. The new CCrP establishes that the detention during the
trial proceedings may not normally exceed six months, but if the case
concerns serious or particularly serious criminal offences, the trial
court may approve one or more extensions of no longer than three
months each (Article 255).
B. Investigation of criminal offences
- The RSFSR Code of Criminal Procedure (in force until 1
July 2002, “the CCrP”) established that a criminal
investigation could be initiated by an investigator upon the
complaint of an individual or on the investigative authorities' own
initiative when there were reasons to believe that a crime had been
committed (Articles 108 and 125). A prosecutor was responsible for
general supervision of the investigation (Articles 210 and 211). He
could order a specific investigative action, transfer the case from
one investigator to another or order an additional investigation. If
there were no grounds to initiate a criminal investigation, the
prosecutor or investigator issued a reasoned decision to that effect
which had to be notified to the interested party. The decision was
amenable to an appeal to a higher prosecutor or to a court of general
jurisdiction (Article 113).
- On
29 April 1998 the Constitutional Court of the Russian Federation held
that anyone whose legitimate rights and interests had been affected
by a decision not to institute criminal proceedings should have the
right to appeal against that decision to a court.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE
CONVENTION
- The
first two applicants complained that the length of their pre-trial
detention was unreasonable, in breach of Article 5 § 3 of the
Convention, which reads as follows:
“Everyone arrested or detained in accordance with
the provisions of paragraph 1 (c) of this Article shall be
brought promptly before a judge or other officer authorised by law to
exercise judicial power and shall be entitled to trial within a
reasonable time or to release pending trial.”
A. Submissions by the parties
- The
Government submitted that the length of the pre-trial detention of
the first two applicants had complied with the requirements of
domestic law. It had been necessary for the first two applicants to
remain in custody because they were charged with a serious criminal
offence and, if released, they were liable to abscond. The extension
orders had been “founded on relevant and sufficient reasons”.
The Government further noted that the first two applicants had not
appealed against the majority of the detention orders and asked the
Court to dismiss the present complaint because it was manifestly
ill-founded.
- The
first two applicants replied that their detention on remand had
lasted from 27 April 2001 to 19 October 2004, that is for nearly
three years and six months. That period appeared to be excessive. The
domestic authorities had relied on the gravity of the charges and the
risk of their absconding. However, there was no evidence showing that
they had wanted to evade justice. Since 1992 the second applicant had
lived in Moscow and since 1998 he had lived with his mother in her
flat in Moscow. He was not “a citizen of the Republic of
Abkhazia” as such a State did not exist. The first applicant
had lived with his parents in the town of Noginsk, not far from
Moscow. The authorities had not taken into consideration any other
preventive measure, such as a written undertaking or bail.
A. The Court's assessment
1. Admissibility
(a) Period to be taken into consideration
and compliance with the six-month rule
- The
Court observes that the pre-trial detention of the first two
applicants commenced when they were arrested on 27 April 2001. They
were detained within the meaning of Article 5 § 3 of the
Convention until their conviction by the Lyublinskiy District Court
on 25 December 2001. From that date until 11 September 2003,
when the Presidium of the Moscow City Court quashed the judgment of
25 December 2001, they were detained “after conviction by a
competent court”, within the meaning of Article 5 § 1 (a),
and therefore that period of their detention falls outside the scope
of Article 5 § 3 (see B. v Austria, judgment of
28 March 1990, Series A no. 175, §§ 33 39,
and Kudła v. Poland [GC], no. 30210/96, § 104, ECHR
2000-XI). From 11 September 2003 to 16 March 2004, when the District
Court again convicted the first two applicants, and from 27 April
2004, when the Moscow City Court quashed the conviction and sent the
case back for re-examination, to 19 October 2004, when the
Lyublinskiy District Court delivered another judgment, the first two
applicants were again in pre-trial detention falling under Article 5
§ 3 of the Convention (see paragraphs 15, 17, 18 and 25
above).
-
The Court considers that, in the instant case, the multiple,
consecutive detention periods should be regarded as a whole, and the
six-month period should only start to run from the end of the last
period of pre-trial custody, that is from 19 October 2004 (see
Kemmache v. France (no. 1), judgment of 27 November 1991,
Series A no. 218, p. 23, § 44; I.A. v. France, judgment
of 23 September 1998, Reports of Judgments and Decisions
1998 VII, p. 2979, § 98; Mitev v. Bulgaria, no.
40063/98, § 102, 22 December 2004; and Solmaz v.
Turkey, no. 27561/02, §§ 34-37, 16 January
2007).
- In
order to assess the length of the pre-trial detention of the first
two applicants, the Court should therefore make an overall evaluation
of the accumulated periods of detention under Article 5 § 3 of
the Convention (see, mutatis mutandis, Neumeister v.
Austria, judgment of 27 June 1968, Series A no. 8, p. 37, §
6). Consequently, the Court concludes that, after deducting the
periods when the first two applicants were detained after conviction
under Article 5 § 1 (a) of the Convention from the total time
that they were deprived of their liberty, the period to be taken into
consideration in the instant case is nearly twenty months.
(b) Exhaustion of domestic remedies
- The
Court notes that the Government
did not argue that the first two applicants had failed to exhaust
domestic remedies in respect of their complaint under Article 5 §
3 of the Convention. In fact, the Government insisted that the
present complaint should be dismissed under Article 35 §§ 3
and 4 of the Convention as being manifestly ill-founded. At the same
time they noted that the first two applicants had not appealed
against any detention orders, save for those issued on 7 June and 17
August 2004.
43. In this connection,
the Court reiterates that its normal practice has been, where a case
has been communicated to the respondent Government, not to declare
the application inadmissible for failure to exhaust domestic remedies
unless this matter has been raised by the Government in their
observations (see Sejdovic v. Italy [GC], no. 56581/00,
§§ 40-41, ECHR 2006-..., with further references, and
Dobrev v. Bulgaria, no. 55389/00, § 112,
10 August 2006). However, the
Court finds that it is not necessary to consider whether the
Government's comment on the failure of the first two applicants to
appeal amounts to an objection of non-exhaustion because the
objection should, in any event, be dismissed for the following
reasons.
- The
Court reiterates that the purpose of the rule requiring domestic
remedies to be exhausted is to afford the Contracting States the
opportunity of preventing or putting right the alleged violations
before those allegations are submitted to the Court (see, among many
other authorities, Selmouni v. France [GC], no. 25803/94,
§ 74, ECHR 1999-V). In the context of an alleged violation
of Article 5 § 3 of the Convention, this rule requires that the
applicant give the domestic authorities an opportunity to consider
whether his right to trial within a reasonable time has been
respected and whether there exist relevant and sufficient grounds
continuing to justify the deprivation of liberty.
- Turning
to the facts of the present case, the Court notes that following
their arrest on 27 April 2001 the first two applicants continuously
remained in custody. It is not disputed that they did not lodge
appeals against the extension orders issued before 7 June 2004. They
did, however, challenge the Lyublinskiy District Court's decision of
7 June 2004 before the Moscow City Court, which, on 1 July 2004,
held that the entire period of their detention had been lawful and
that it had not been excessively long (see paragraph 22 above). In
these circumstances, the objection of non-exhaustion of domestic
remedies must be dismissed (see Shcheglyuk v. Russia, no.
7649/02, §§ 35-37, 14 December 2006).
- The
Court further notes that the present complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention and is not inadmissible on any other grounds. It must
therefore be declared admissible.
1. Merits
(a) General principles
- Under
the Court's case-law, the issue of whether a period of detention is
reasonable cannot be assessed in abstracto. Whether it is
reasonable for an accused to remain in detention must be assessed in
each case according to its special features. Continued detention can
be justified only if there are specific indications of a genuine
requirement of public interest which, notwithstanding the presumption
of innocence, outweighs the rule of respect for individual liberty.
It
falls in the first place to the national judicial authorities to
ensure that, in a given case, the pre-trial detention of an accused
person does not exceed a reasonable time. To this end they must
examine all the facts arguing for or against the existence of a
genuine requirement of public interest justifying, with due regard to
the principle of the presumption of innocence, a departure from the
rule of respect for individual liberty and set them out in their
decisions dismissing the applications for release. It is essentially
on the basis of the reasons given in these decisions and of the true
facts mentioned by the applicant in his appeals that the Court is
called upon to decide whether or not there has been a violation of
Article 5 § 3 of the Convention (see Labita v.
Italy [GC], no. 26772/95, § 152, ECHR 2000 IV).
- The
arguments for and against release must not be “general and
abstract” (see Smirnova v. Russia, nos. 46133/99
and 48183/99, § 63, ECHR 2003-IX). Where the law provides
for a presumption in respect of factors relevant to the grounds for
continued detention, the existence of the concrete facts outweighing
the rule of respect for individual liberty must be convincingly
demonstrated (see Ilijkov v. Bulgaria, no. 33977/96,
§ 84 in fine, 26 July 2001).
- The
persistence of a reasonable suspicion that the person arrested has
committed an offence is a condition sine qua non for the
lawfulness of the continued detention, but after a certain lapse of
time it no longer suffices. In such cases, the Court must establish
whether the other grounds given by the judicial authorities continued
to justify the deprivation of liberty. Where such grounds were
“relevant” and “sufficient”, the Court must
also ascertain whether the competent national authorities displayed
“special diligence” in the conduct of the proceedings
(see Labita, cited above, § 153).
(b) Application of the general principles
to the present case
- The
Court accepts that the detention of the first two applicants may
initially have been warranted by a reasonable suspicion that they had
committed an aggravated theft. In the decision of 30 April 2001 the
Lyublino District Prosecutor cited the gravity of the charges and the
need to ensure the proper conduct of the investigation and to prevent
the first two applicants from absconding and evading justice as the
grounds for placing them in custody. At that stage of the proceedings
those reasons were sufficient to justify keeping the first two
applicants in custody (see Khudoyorov v. Russia, no. 6847/02,
§ 176, ECHR 2005-X).
- However,
with the passage of time those grounds inevitably became less and
less relevant. Accordingly, the authorities were under an obligation
to analyse the personal situation of the first two applicants in
greater detail and to give specific reasons for holding them in
custody.
- The
Court reiterates that from 27 April 2001, the date of the arrest, to
19 October 2004, the date of the final conviction, the detention on
remand of the first two applicants was extended seven times. When
extending the detention or examining the lawfulness of, and
justification for, the continued detention the domestic authorities
relied on the gravity of the charges, as the main factor, and the
risk of the first two applicants' absconding.
- As
regards the domestic authorities' reliance on the gravity of the
charges as being the decisive element, the Court has repeatedly held
that the gravity of the charges cannot by itself serve to justify
long periods of detention on remand (see Panchenko v. Russia,
no. 45100/98, § 102, 8 February 2005; Goral v.
Poland, no. 38654/97, § 68, 30 October 2003; and
Ilijkov, cited above, § 81). This is particularly
true in the Russian legal system, where the characterisation in law
of the facts – and thus the sentence faced by the applicants –
is determined by the prosecution without judicial review of the issue
whether the evidence that has been obtained supports a reasonable
suspicion that the applicants have committed the alleged offence (see
Khudoyorov, cited above, § 180).
- The
other ground for the continued detention of the first two applicants
was the domestic authorities' findings that they were liable to
abscond. The Court reiterates that it is incumbent on the domestic
authorities to establish the existence of concrete facts relevant to
the grounds for continued detention. Shifting the burden of proof to
the detained person in such matters is tantamount to overturning the
rule of Article 5 of the Convention, a provision which makes
detention an exceptional departure from the right to liberty and one
that is only permissible in exhaustively enumerated and strictly
defined cases (see Rokhlina v. Russia, no. 54071/00,
§ 67, 7 April 2005). It remains to be ascertained whether
the domestic authorities established and convincingly demonstrated
the existence of concrete facts in support of their conclusions.
- The
Court notes that the domestic authorities gauged the risk of the
first two applicants' absconding by reference to the fact that they
had been charged with a serious criminal offence and so faced a heavy
sentence. In this connection, the Court reiterates that, although the
severity of the sentence faced is a relevant element in the
assessment of the risk of absconding or re-offending, the need to
continue the deprivation of liberty cannot be assessed from a purely
abstract point of view. It must be examined with reference to a
number of other relevant factors which may either confirm the
existence of a danger of absconding and re-offending or make it
appear so slight that it cannot justify detention pending trial (see
Letellier v. France, judgment of 26 June 1991, Series A no.
207, p. 19, § 43; and Panchenko, cited above, §
106).
- In
the present case the domestic authorities did not mention any
concrete facts warranting the detention of the first two applicants
on that ground, save for a reference to their lack of a permanent
place of residence. In this connection, the Court reiterates that the
mere absence of a fixed residence does not give rise to a danger of
absconding (see Sulaoja v. Estonia, no. 55939/00, § 64,
15 February 2005). The Court further observes that the
authorities did not indicate any other circumstance to suggest that,
if released, the first two applicants would abscond or otherwise
upset the course of the trial. Even though other facts that could
have warranted the authorities' conclusion about their potential to
abscond may have existed, they were not mentioned in the decisions
and it is not the Court's task to establish such facts and take the
place of the national authorities who ruled on the issue of detention
(see Korchuganova v. Russia, no. 75039/01, § 72,
8 June 2006). The Court therefore finds that the existence of
such a risk was not established.
- The
Court further emphasises that when deciding whether a person should
be released or detained, the authorities have an obligation under
Article 5 § 3 to consider alternative measures to ensure
his or her appearance at the trial (see Sulaoja, cited above,
§ 64, and Jabłoński v. Poland, no.
33492/96, § 83, 21 December 2000). During the entire period
under consideration the authorities did not consider the possibility
of ensuring the attendance of the first two applicants by the use of
other “preventive measures”, such as a written
undertaking or bail. At no point did the authorities consider having
recourse to such alternative measures or, at the very minimum, seek
to explain in their decisions why such alternatives would not have
ensured that the trial would follow its proper course.
- In
sum, the Court finds that the domestic authorities' decisions were
not based on an analysis of all the pertinent facts. They took no
notice of the arguments in favour of the release of the first two
applicants pending trial. It is also of concern to the Court that the
Russian authorities persistently used a stereotyped summary formula
to justify the extension of the two applicants' detention, without
giving reference to particular facts of the case. Furthermore, the
Court finds it particularly striking that the four of the seven
extension orders issued by the domestic authorities did not indicate
any reason for the continued detention of the first two applicants.
These detention orders merely mentioned that the first two applicants
should remain in detention.
- Having
regard to the above, the Court considers that by failing to address
concrete relevant facts or consider alternative “preventive
measures” and by relying essentially on the gravity of the
charges or failing to indicate any ground for the extension, the
authorities prolonged the detention of the first two applicants on
grounds which cannot be regarded as “sufficient”. The
authorities thus failed to justify the applicant's continued
deprivation of liberty for the period of nearly twenty months. It is
hence not necessary to examine whether the proceedings against the
applicant were conducted with due diligence during that period as
such a lengthy period cannot in the circumstances be regarded as
“reasonable” within the meaning of Article 5 §
3 of the Convention (see Pekov v. Bulgaria, no. 50358/99,
§ 85, 30 March 2006).
- There
has therefore been a violation of this provision.
II. ALLEGED VIOLATION OF ARTICLES 3 AND 13 OF THE
CONVENTION
- The
first applicant complained that on 27 April 2001 the police officers
had beaten him up and that the authorities had not carried out an
effective investigation into his allegations of ill-treatment. He
invoked Articles 3 and 13 of the Convention, which read as follows:
Article 3
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
Article 13
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
- The Court reiterates that the rule of exhaustion of
domestic remedies referred to in Article 35 § 1 of the
Convention obliges applicants to use first the remedies that are
normally available and sufficient in the domestic legal system to
enable them to obtain redress for the breaches alleged. Article 35 §
1 also requires that the complaints intended to be brought
subsequently before the Court should have been made to the
appropriate domestic body, at least in substance, and in compliance
with the formal requirements laid down in domestic law, but not that
recourse should be had to remedies which are inadequate or
ineffective (see Aksoy v. Turkey, judgment of 18 December
1996, Reports 1996-VI, pp. 2275-76, §§ 51-52,
and Akdıvar and Others v. Turkey, judgment of
16 September 1996, Reports 1996-IV, p. 1210,
§§ 65-67).
- The
first applicant's allegations of ill-treatment were examined by the
prosecutor, who did not find a prima facie case of ill-treatment and,
in a decision of 1 July 2001, decided not to institute criminal
proceedings. Under Article 113 of the RSFSR Code of Criminal
Procedure, which was in force at the material time, that decision was
amenable to an appeal to a higher prosecutor or a court of general
jurisdiction (see paragraph 34 above). The Lyublinskiy District Court
and Moscow City Court pointed out that the first applicant had not
used either avenue of appeal (see paragraphs 25 and 26 above).
- As
regards an appeal to a higher prosecutor, the Court has already held
on several occasions that an appeal to a higher prosecutor does not
give the person employing it a personal right to the exercise by the
State of its supervisory powers, and that such an appeal does not
therefore constitute an effective remedy within the meaning of
Article 35 of the Convention (see Slyusarev v. Russia (dec.),
no. 60333/00, 9 November 2006).
- The
position is, however, different with regard to the possibility of
challenging before a court of general jurisdiction a prosecutor's
decision not to investigate complaints of ill-treatment. In such
cases contentious proceedings are instituted, to which the applicant
and the prosecutor are parties. In public and adversarial proceedings
an independent tribunal is called upon to assess whether the
applicant has a prima facie case of ill-treatment and, if he has, to
reverse the prosecutor's decision and order a criminal investigation.
The Court has already found that in the Russian legal system, the
power of a court to reverse a decision not to institute criminal
proceedings is a substantial safeguard against the arbitrary exercise
of powers by the investigating authorities (see Trubnikov v.
Russia (dec.), no. 49790/99, 14 October
2003).
- In
the present case the first applicant did not make use of the judicial
appeal option. Instead, he preferred to raise the ill-treatment issue
before the trial court which determined the criminal charge against
him. In this connection, the Court notes that the purpose of the
criminal proceedings against the first applicant was to find him
innocent or guilty of the criminal charges levelled against him
rather than to attribute responsibility for alleged beatings or to
afford redress for an alleged breach of Article 3 of the Convention
(see Toteva v. Bulgaria (dec.), no. 42027/98, 3 April
2003). The submissions of the first applicant to the trial court
concerning his alleged ill-treatment were designed to demonstrate
that his confession had been obtained by force and was therefore
inadmissible in evidence (see Ksenzov v. Russia (dec.),
no. 75386/01, 27 January 2005). He did not ask that the
investigation be reopened nor did he raise the issue of its alleged
deficiencies before the trial court, although these matters form part
of his grievances under Articles 3 and 13 of the Convention. In such
circumstances, the remedy employed by the first applicant cannot be
regarded as a part of the normal process of exhaustion of domestic
remedies in respect of the complaints he made to the Court (see
Slyusarev, cited above).
- The
Court also notes that the first applicant was represented, from the
pre-trial stage of the proceedings, by a lawyer with considerable
experience in criminal matters. No explanation has been offered for
the lawyer's failure to lodge, or to advise the first applicant to
lodge, a judicial appeal against the prosecutor's decision not to
investigate his allegations of ill-treatment.
- In
the light of the above considerations, the Court finds that the first
applicant's complaints concerning his alleged ill-treatment by the
police must be dismissed for non-exhaustion of domestic remedies
pursuant to Article 35 § 1 of the Convention.
- Having
regard to the above finding, the Court also considers that the
applicant's complaint under Article 13 of the Convention is
manifestly ill-founded and must be rejected pursuant to Article 35 §§
3 and 4 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 5 §§ 1 AND 2
OF THE CONVENTION
- The
first two applicants complained under Article 5 §§ 1 and 2
of the Convention that their arrest had not been authorised by a
competent court and that they had not been promptly informed of the
reasons for it. The relevant provisions of this Article read as
follows:
“1. Everyone has the right to liberty
and security of person. No one shall be deprived of his liberty save
in the following cases and in accordance with a procedure prescribed
by law:
...
(c) the lawful arrest or detention of a
person effected for the purpose of bringing him before the competent
legal authority on reasonable suspicion of having committed an
offence or when it is reasonably considered necessary to prevent his
committing an offence or fleeing after having done so;
...
2. Everyone who is arrested shall be informed
promptly, in a language which he understands, of the reasons for his
arrest and of any charge against him.”
- The
Court is not required to decide whether or not the present complaint
discloses an appearance of a violation of the Convention. It once
again reiterates that Article 35 § 1 of the Convention requires
that the complaint to be submitted to the Court must first be
submitted to the appropriate national courts, at least in substance,
in accordance with the formal requirements of the domestic law and
within the prescribed time-limits. The Court notes that the first two
applicants did not raise the present complaint before any competent
domestic court, they did not appeal against the decision authorising
their arrest on 27 April 2001 and they did not argue that there had
been a delay in informing them of the grounds for the arrest.
- It
follows that the first two applicants did not make use of the avenues
available to them under domestic law (see Fedosov v. Russia
(dec.), no. 42237/02, 25 January 2006) and that this part of the
application must be rejected pursuant to Article 35 §§ 1
and 4 of the Convention for non-exhaustion of domestic remedies.
IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- Invoking
Article 6 §§ 1, 2 and 3 of the Convention, the three
applicants complained that the criminal proceedings had been
excessively long and unfair in that the judges had been partial and
had incorrectly assessed the facts and applied the law, that the
judgments of 25 December 2001 and 16 March 2004 had been based
on the first applicant's confession made under duress and that the
courts had denied various applications lodged by the three
applicants. The third applicant also complained that the domestic
courts had found the first two applicants guilty and had awarded her
compensation for damage although they were innocent.
- Having
regard to all the material in its possession, and in so far as these
complaints fall within its competence ratione materiae and
ratione personae, the Court finds that the evidence discloses no
appearance of a violation of the rights and freedoms set out in the
Convention or its Protocols. It follows that this part of the
application must be rejected as being manifestly ill-founded,
pursuant to Article 35 §§ 3 and 4 of the Convention.
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If 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.”
A. Damage
- The
first two applicants claimed 100,000 euros (EUR) each in respect of
non-pecuniary damage.
- The
Government argued that the claims were excessive and unsubstantiated.
- The
Court reiterates, firstly, that the applicants cannot be required to
furnish any proof of the non-pecuniary damage they sustained (see
Gridin v. Russia, no. 4171/04, § 20, 1 June
2006).
- The
Court further observes that that the first two applicants spent a
long period in custody without relevant and sufficient grounds. In
these circumstances, it considers that their suffering and
frustration cannot be compensated for by a mere finding of a
violation. Making its assessment on an equitable basis, it awards
each of the first two applicants EUR 5,000 in respect of
non-pecuniary damage, plus any tax that may be chargeable on that
amount.
B. Costs and expenses
- The
first two applicants did not seek reimbursement of costs and expenses
relating to the proceedings before the domestic courts or the Court
and this is not a matter which the Court is required to examine of
its own motion (see Motière v. France, no. 39615/98,
§ 26, 5 December 2000).
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint of the first two
applicants concerning an alleged violation of their right to a trial
within a reasonable time or release pending trial admissible and the
remainder of the application inadmissible;
- Holds that there has been a violation of Article
5 § 3 of the Convention;
- Holds
(a) that
the respondent State is to pay each of the first two applicants,
within three months from the date on which the judgment becomes final
in accordance with Article 44 § 2 of the
Convention, EUR 5,000 (five thousand euros) in respect of
non-pecuniary damage, to be converted into Russian roubles at the
rate applicable at the date of the settlement, plus any tax that may
be chargeable;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicants' claim
for just satisfaction.
Done in English, and notified in writing on 24 May 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
