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FIFTH
SECTION
CASE OF SHUKHARDIN v. RUSSIA
(Application
no. 65734/01)
JUDGMENT
STRASBOURG
28 June
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 Shukhardin v. Russia,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Mr P. Lorenzen, President,
Mrs S.
Botoucharova,
Mr K. Jungwiert,
Mr R.
Maruste,
Mr A. Kovler,
Mr J. Borrego
Borrego,
Mr M. Villiger, judges,
and Mrs C.
Westerdiek, Section Registrar,
Having
deliberated in private on 5 June 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 65734/01) 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 Russian national, Mr Valeriy Vladimirovich
Shukhardin (“the applicant”), on 11 January 2001.
- The
applicant, who had been granted legal aid, was represented by Mrs Y.
Liptser, 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
8 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
applicant was born in 1967 and lived until his arrest in Moscow.
A. The applicant's arrest and detention until 8
September 2000
- On
8 March 1999 the applicant was arrested on suspicion of having
committed franchise fraud, that is, having organised a financial
pyramid scheme in which more than one hundred persons had been
enrolled and which had caused fraud losses of over 23,000,000 Russian
roubles. Three days later a prosecutor authorised the applicant's
placement in custody on the ground that he was charged with a serious
criminal offence and did not have a permanent place of residence and
work in the Omsk Region, thus being liable to abscond and pervert the
course of justice.
- On
6 May and 2 July 1999 the Omsk Regional Prosecutor extended the
applicant's detention until 8 July and 8 September 1999 respectively,
having regard to the gravity of the charges.
- On
3 September and 29 November 1999 a deputy Prosecutor General of the
Russian Federation, invoking the same grounds as in the previous
detention orders, authorised the extension of the applicant's
detention until 8 December 1999 and 8 March 2000 respectively.
- On
25 February and 26 June 2000 the acting Prosecutor General of the
Russian Federation authorised further extensions of the applicant's
detention until 8 July and 8 September 2000 respectively. The reasons
for both extensions were similar: the gravity of the charges and the
applicant's liability to abscond and pervert the course of justice.
B. The applicant's consultation of the case file and
detention until 8 March 2001
- According to the Government, on 11 July 2000 the
pre-trial investigation was closed and three days later the applicant
began studying the case file. However, as appears from a report
issued on 5 July 2000 by a senior investigator from the Omsk Regional
Police Department, the applicant was provided with the case file on
11 May 2000. According to the same report, the applicant had
“intentionally procrastinated in reading the material in the
case file” because between 15 May and 1 June 2000 he had read
from 26 to 42 pages each day and in June 2000 he had read from 2 to
50 pages each day. He was warned that such behaviour was not
permissible. The applicant countersigned the report and made a
handwritten note stating that he had been able to study the file from
two to five hours each day, had made notes and had copied documents
with which he had not been issued.
- The Government submitted a detailed schedule showing
the times and dates when the applicant had consulted the file and the
volumes and pages of the file which he had studied. As appears from
the schedule, in July and August 2000 the applicant studied from 20
to several hundred pages each day. On 17 August 2000 the applicant
made a handwritten note in the schedule which reads as follows:
“I have read the entire case file. I ask you to
provide me with a copy of a record certifying that the pre-trial
investigation has ended and that the defendants and counsel have
finished reading the file in accordance with Articles 201-203 of the
RSFSR Code of Criminal Procedure.”
- On
15 August 2000 the Omsk Regional Prosecutor asked the Omsk Regional
Court to extend the applicant's detention for an additional six
months because the applicant needed additional time to read the case
file. The prosecutor also noted that the applicant and his
co-defendants had participated in an organised criminal offence, had
been charged with serious criminal offences, and had influenced other
defendants, witnesses and victims. They were liable to abscond and
pervert the course of justice.
- On 23 August 2000 the President of the Omsk Regional
Court wrote in the corner on the first page of the prosecutor's
application that he authorised the extension of the applicant's and
his co-defendants' detention until 8 March 2001.
- On the same day the applicant was provided with
several volumes of the case file for consultation. He refused to read
them and an entry to this effect was made in the schedule. On 25 and
28 August 2000 an investigator brought the case file to facility no.
1, where the applicant was detained. The applicant confirmed his
refusal to consult the file. According to a handwritten note made by
the investigator in the schedule, on 29 August 2000 the applicant
began reading volume no. 66. However, a subsequent handwritten note
made by the applicant indicated that he had finished studying the
file on 17 August 2000 and had no intention to do so any further.
Statements with similar contents were made by the investigator and
the applicant in the schedule on 30 and 31 August 2000. The schedule
for September 2000 consisted of notes to similar effect by the
applicant and the investigator.
- On
an unspecified date the applicant appealed against the order of
23 August 2000. He claimed that the maximum eighteen-month
period of his detention would expire on 8 September 2000. An
extension of the detention beyond eighteen months was only possible
if the defendant needed more time to read the case file. The
applicant insisted that on 17 August 2000 he had finished
studying the file and that there were therefore no grounds for a
further extension.
- On
22 November 2000 the Supreme Court of the Russian Federation examined
the applicant's and his co-defendants' appeals against the order of
23 August 2000, quashed it and remitted the matter to the Omsk
Regional Court for a fresh examination. The relevant part of the
Supreme Court's decision reads as follows:
“By virtue of Articles 220-1 and 220-2 of the
RSFSR Code of Criminal Procedure the judge has to examine the
lawfulness and well-foundedness of the request for extension of the
detention of Mr Shukhardin... and has to issue a reasoned decision as
required by paragraph 8 of Article 220-2 of the RSFSR Code of
Criminal Procedure.
Moreover, paragraph 2 of Article 102 of the RSFSR Code
of Criminal Procedure requires that [a court] should prepare minutes
of a court hearing in which the issue of extension of detention is
examined... [the minutes] should indicate who participated in the
hearing and should reflect the progress of the examination of the
materials.
The minutes of the court hearing and the reasoned
decision of the judge were not included in the materials presented to
the Supreme Court of the Russian Federation, which constitutes a
gross violation of the requirements of the RSFSR Code of Criminal
Procedure.
Accordingly, the decision [of the President of the
Regional Court] should be quashed and the case file should be sent
for re-examination.
The Supreme Court cannot accept counsel's requests for
release of Mr Shukhardin... because [the Supreme Court] is
unable to conclude from the presented decision whether [he] is
detained lawfully or unlawfully, and counsel's arguments are based on
this circumstance.
In the course of the fresh consideration of the file,
the [Regional] Court has to examine thoroughly all the arguments set
out in the application by the Omsk Regional Prosecutor and to give a
reasoned decision.
On the basis of the foregoing, and in accordance with
Articles 332 and 339 of the RSFSR Code of Criminal Procedure, the
Court decides:
To quash the decision of 23 August 2000 of the President
of the Omsk Regional Court by which an extension of Mr
Shukhardin's... detention was authorised and to refer the case back
for fresh consideration...
The measure of restraint applied to Mr Shukhardin...
should remain unchanged, namely detention on remand.”
- On 19 January 2001 the Omsk Regional Court extended
the applicant's detention until 8 March 2001, noting the gravity of
the charges against him. The Regional Court held that the gravity of
the charges could serve as the sole ground for the detention, but it
also pointed to the applicant's failure to finish studying the file.
- According
to the Government, on 21 February 2001 the applicant finished reading
the file.
- On 3 May 2001 the Supreme Court upheld the decision of
19 January 2001, stating that the applicant had been charged
with especially serious criminal offences and his detention had been
authorised and extended a number of times in accordance with the
requirements of the RSFSR Code of Criminal Procedure. The request for
extension of the applicant's detention until 8 March 2001 had also
been lodged in compliance with Russian law. The applicant did not
have a permanent place of residence in the Omsk Region, where the
investigation was being conducted, and he was liable to abscond. The
extension of the applicant's detention was necessary because he had
refused to read all the material in the case file.
C. The applicant's committal for trial and his
detention until 1 July 2002
- On
2 March 2001 the bill of indictment was served on the applicant. He
was charged with aggravated fraud, forgery of documents, money
laundering and organisation of a criminal enterprise. Five days later
the case was referred for trial.
- On 10 July 2001 the Omsk Regional Court scheduled the
first trial hearing. It also examined requests by the applicant and
his co-defendants for release and dismissed them on the ground of the
gravity of the charges.
- In
July 2001 the applicant and his lawyer appealed against the order,
arguing that the Regional Court had failed to issue a reasoned
decision concerning the extension of his detention.
- On 25 October 2002 the Supreme Court of the Russian
Federation upheld the decision of 10 July 2001, noting that the
Regional Court had acted within its competence. The Supreme Court
further held as follows:
“By virtue of Article 96 § 1 of the RSFSR
Code of Criminal Procedure... in force at the time the Regional Court
issued its decision [of 10 July 2001], detention could be authorised
as a measure of restraint in respect of persons suspected or accused
of having committed a criminal offence punishable by more than two
years' imprisonment.
As appears from the presented materials, Mr
Shukhardin... was charged with criminal offences punishable by more
than two years' imprisonment. Having regard to this circumstance, the
investigating authorities correctly applied the measure of restraint.
By virtue of Article 222 of the RSFSR Code of Criminal
Procedure, when a judge schedules a court hearing, he should, among
other issues, determine matters concerning the adjustment or
annulment of measures of restraint.
When there is a necessity to annul a measure of
restraint or to change it to a stricter or a more lenient one, a
judge determines the matter and gives a decision accordingly.
As appears from the materials submitted, the [Regional
Court] did not determine an issue concerning the change or annulment
of the measure of restraint, and accordingly there was no need to
issue a decision on the matter.”
D. The applicant's detention until 21 April 2003
1. Decision of 1 July 2002
- On
1 July 2002 the new Code of Criminal Procedure became effective.
- On the same day the Omsk Regional Court, by the same
decision, extended the applicant's and his co-defendants' detention
until 1 October 2002, holding that they were charged with especially
serious criminal offences, had no place of residence in the Omsk
Region and were liable to abscond.
- Ten days later the applicant lodged an appeal against
the decision of 1 July 2002. In October 2002 he amended his grounds
of appeal, asking to be released on the basis of guarantees provided
by two persons, the president of a regional NGO working in the field
of human-rights protection and a representative of the Moscow-based
NGO “Assistance to the Reform of Criminal Justice”.
- On 25 October 2002 the Supreme Court of the Russian
Federation upheld the decision of 1 July 2002, confirming that the
gravity of the charges could serve as the sole ground for the
applicant's and his co-defendants' continuing detention.
2. Decision of 1 October 2002
- On 1 October 2002 the Omsk Regional Court authorised a
further extension of the applicant's and his co-defendants' detention
until 1 January 2003. It relied on the gravity of the charges against
them as the ground for the extension.
- The
applicant and his lawyer appealed, arguing that the gravity of the
charges could no longer serve as the reason for the applicant's
continuing detention and that his detention was excessively long.
- On 17 April 2003 the Supreme Court of the Russian
Federation upheld the decision of 1 October 2002, holding that the
applicant and his co-defendants were charged with serious criminal
offences and that that ground was sufficient to authorise their
detention for an additional three months.
3. Decision of 25 December 2002
- On 25 December 2002 the Omsk Regional Court, once
again relying on the gravity of the charges, extended the applicant's
and his co-defendants' detention for an additional three months,
until 1 April 2003.
- The
applicant and his lawyer appealed. In the meantime, on 31 March
2003 the Omsk Regional Court authorised a further extension of the
detention for an additional three months, until 1 July 2003, on the
ground of the gravity of the charges.
- On 17 April 2003 the Supreme Court of the Russian
Federation quashed the decision of 25 December 2002 and authorised
the applicant's release on a written undertaking not to leave the
town. The relevant part of the decision reads as follows:
“By virtue of Article 255 of the Russian
Federation Code of Criminal Procedure, a court which has jurisdiction
to examine a case has the right to extend the detention of a
defendant after the expiry of the six-month period following the
committal of the case for trial.
A court decision concerning a measure of restraint, the
type of measure taken, an extension of detention or a change of a
measure of restraint should be reasoned.
When indicating the grounds for its decision concerning
the extension of the detention, the court has to take into account
not only the seriousness of a criminal offence with which a defendant
was charged, but also other grounds and circumstances, as indicated
in Articles 97 and 99 of the Code of Criminal Procedure.
This requirement of the law was not complied with when
the [Regional] Court determined the matter of the extension of the
defendants' detention.
As follows from the materials submitted, when extending
the detention of Mr Shukhardin... and identifying the grounds
for the extension of the detention, the court referred only to the
fact that the defendants were charged with serious and particularly
serious criminal offences.
Furthermore, the court decision did not indicate what
had served as the ground for the extension of the detention or
whether the court could have concluded that the defendants would
abscond, continue criminal activities, threaten witnesses and other
parties to the proceedings, and so on.
When the gravity of the charges is taken into account,
[the court] should also have regard to all the legal characteristics
of the criminal offence and of the person who committed it.
In particular, it is necessary to consider the character
and degree of a threat to society posed by the criminal offence in
question, the state of health of the defendant, his family status,
including the right of detainees to trial within a reasonable time or
to release pending trial as provided for by Article 5 of the European
Convention on Human Rights.
As is rightfully pointed out in the grounds of appeal,
the court did not take into account those circumstances and did not
examine the [defendants'] arguments.
...
Having regard to the fact that the court breached the
requirements of the law while determining the issue of detention and
that the case is currently at the final stage of court
proceedings..., the [Supreme Court] considers that the defendants
cannot influence other parties to the proceedings, that they have
permanent places of residence, and that they were detained for a long
time [over four years], which had a negative influence on the state
of their health,... and the measure of restraint should be changed to
written undertakings not to leave the town.”
- According to the Government, on 17 April 2003 a copy
of the decision of the Supreme Court was sent by special courier to
Omsk, where the applicant was being detained, and arrived there on 21
April 2003. The applicant was released on the same day. According to
the applicant, a copy of the decision of 17 April 2003 was sent by
regular mail and arrived in Omsk on 27 April 2003. However, his
lawyer brought a certified copy of that decision to Omsk on 21 April
2001. That is why he was released on the same day.
D. Trial and appeal proceedings
- On
21 April 2004 the Omsk Regional Court found the applicant guilty of
aggravated fraud and sentenced him to nine years' imprisonment. On 25
November 2004 the Supreme Court upheld the conviction and reduced the
sentence by one year.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- 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”).
A. Preventive measures
- “Preventive measures” or “measures
of restraint” include an undertaking not to leave a town or
region, a personal guarantee, bail and detention on remand (Article
89 of the old CCrP, Article 98 of the new CCrP).
B. Authorities ordering detention on remand
- The Russian Constitution of 12 December 1993 provides
that a judicial decision is required before a defendant can be
detained or his or her detention extended (Article 22).
Under
the old CCrP, a decision ordering detention on remand could be taken
by a prosecutor or a court (Articles 11, 89 and 96).
The
new CCrP requires a judicial decision by a district or town court on
a reasoned request by a prosecutor supported by appropriate evidence
(Article 108 §§ 1, 3-6).
C. Grounds for ordering detention on remand
- When
deciding whether to remand an accused in custody, the competent
authority is required to consider whether there are “sufficient
grounds to believe” that he or she would abscond during the
investigation or trial or obstruct the establishment of the truth or
reoffend (Article 89 of the old CCrP). It must also take into account
the gravity of the charge, information on the accused's character,
his or her profession, age, state of health, family status and other
circumstances (Article 91 of the old CCrP, Article 99 of the new
CCrP).
- Before 14 March 2001, detention on remand was
authorised if the accused was charged with a criminal offence
carrying a sentence of at least one year's imprisonment or if there
were “exceptional circumstances” in the case (Article
96). On 14 March 2001 the old CCrP was amended to permit defendants
to be detained on remand if the charge carried a sentence of at least
two years' imprisonment, if they had previously defaulted, had no
permanent residence in Russia or if their identity could not be
ascertained. The amendments of 14 March 2001 also repealed the
provision that permitted defendants to be detained on remand on the
sole ground of the dangerous nature of the criminal offence they had
allegedly committed. The new CCrP reproduced the amended provisions
(Articles 97 § 1 and 108 § 1) and added that a defendant
should not be detained on remand if a less severe preventive measure
was available.
D. Time-limits for detention on remand
1. Two types of detention on remand
- The
Codes make a distinction between two types of detention on remand:
the first being “during the investigation”, that is,
while a competent agency – the police or a prosecutor's office
– is investigating the case, and the second being “before
the court” (or “during the trial proceedings”), at
the judicial stage. Although there is no difference in practice
between them (the detainee is held in the same detention facility),
the calculation of the time-limits is different.
2. Time-limits for detention “during the
investigation”
- After arrest the suspect is placed in custody “during
the investigation”. The maximum permitted period of detention
“during the investigation” is two months but this can be
extended for up to eighteen months in “exceptional
circumstances”. Under the old CCrP, extensions were authorised
by prosecutors of ascending hierarchical levels but they must now be
authorised by judicial decisions, taken by courts of ascending levels
(under the new CCrP). No extension of detention “during the
investigation” beyond eighteen months is possible (Article 97
of the old CCrP, Article 109 § 4 of the new CCrP).
- The period of detention “during the
investigation” is calculated up to the day when the prosecutor
sends the case to the trial court (Article 97 of the old CCrP,
Article 109 § 9 of the new CCrP).
- Access to the materials in the file is to be granted
no later than one month before the expiry of the authorised detention
period (Article 97 of the old CCrP, Article 109 § 5 of the new
CCrP). If the defendant needs more time to study the case file, a
judge, on a request by a prosecutor, may grant an extension of the
detention until such time as the file has been read in full and the
case sent for trial (Article 97 of the old CCrP, Article 109 § 8
(1) of the new CCrP). Under the old CCrP, such an extension could not
be granted for longer than six months.
- Under the old CCrP, the trial court had the right to
refer the case back for “additional investigation” if it
established that procedural defects existed that could not be
remedied at the trial. In such cases the defendant's detention was
again classified as “during the investigation” and the
relevant time-limit continued to apply. If, however, the case was
remitted for additional investigation but the investigators had
already used up all the time authorised for detention “during
the investigation”, a supervising prosecutor could nevertheless
extend the detention period for one additional month starting from
the date he received the case. Subsequent extensions could only be
granted if the detention “during the investigation” had
not exceeded eighteen months (Article 97).
3. Time-limits for detention “before the
court”/”during the judicial proceedings”
- From
the date the prosecutor refers the case to the trial court, the
defendant's detention is classified as “before the court”
(or “during the judicial proceedings”).
- Before 14 March 2001 the old CCrP set no
time-limit for detention “during the judicial proceedings”.
On 14 March 2001 a new Article 239-1 was inserted which established
that the period of detention “during the judicial proceedings”
could not generally exceed six months from the date the court
received the file. However, if there was evidence to show that the
defendant's release might impede a thorough, complete and objective
examination of the case, a court could – of its own motion or
on a request by a prosecutor – extend the detention by no
longer than three months. These provisions did not apply to
defendants charged with particularly serious criminal offences.
- The new CCrP provides that the term of detention
“during the judicial proceedings” is calculated from the
date the court received the file up to the date on which the judgment
is given. The period of detention “during the judicial
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 §§ 2 and 3).
E. Proceedings to examine the lawfulness of detention
1. As regards detention “during the
investigation”
- Under
the old CCrP, the detainee or his or her counsel or representative
could challenge the detention order issued by a prosecutor, and any
subsequent extension order, before a court. The judge was required to
review the lawfulness of and justification for a detention or
extension order no later than three days after receipt of the
relevant papers. The review was to be conducted in camera in the
presence of a prosecutor and the detainee's counsel or
representative. The detainee was to be summoned and a review in his
absence was only permissible in exceptional circumstances if the
detainee waived his right to be present of his own free will. The
judge could either dismiss the challenge or revoke the pre-trial
detention and order the detainee's release (Article 220-1). An appeal
to a higher court lay against the judge's decision. It had to be
examined within the same time-limit as appeals against a judgment on
the merits (see paragraph 96 below) (Article 331 in fine).
- Under
the new CCrP, an appeal may be lodged with a higher court within
three days against a judicial decision ordering or extending
detention on remand. The appeal court must rule on the appeal within
three days of its receipt (Article 108 § 10).
2. During the judicial proceedings
- Upon receipt of the case file, the judge must
determine, in particular, whether the defendant should be held in
custody or released pending the trial hearings (Article 222 § 5
and Article 230 of the old CCrP, Article 228 (3) and Article 231 §
2 (6) of the new CCrP) and rule on any application by the defendant
for release (Article 223 of the old CCrP).
- At
any time during the judicial proceedings the court may order, vary or
revoke any preventive measure, including detention on remand (Article
260 of the old CCrP, Article 255 § 1 of the new CCrP). Any such
decision must be given in the deliberation room and signed by all the
judges on the bench (Article 261 of the old CCrP, Article 256 of the
new CCrP).
- An
appeal against such a decision lies to a higher court. It must be
lodged within ten days and examined within the same time-limit as an
appeal against the judgment on the merits (Article 331 of the old
CCrP, Article 255 § 4 of the new CCrP – see paragraph 96
below).
F. Time-limits for trial proceedings
54. Under the old CCrP,
within fourteen days after receipt of the case file (if the defendant
was in custody), the judge was required either: (1) to fix the trial
date; (2) to refer the case back for further investigation; (3) to
stay or discontinue the proceedings; or (4) to refer the case to a
court having jurisdiction to hear it (Article 221). The new CCrP
empowers the judge, within the same time-limit, (1) to refer the case
to a competent court; (2) to fix a date for a preliminary hearing; or
(3) to fix a trial date (Article 227). In the latter case, the trial
proceedings must begin no later than fourteen days
after the judge has fixed the trial date (Article 239 of the old
CCrP, Article 233 § 1 of the new CCrP). There are no
restrictions on fixing the date of a preliminary hearing.
- The
duration of the entire trial proceedings is not limited in time.
- Under the old CCrP, the appeal court was required to
examine an appeal against the first-instance judgment within ten days
after it was lodged. In exceptional circumstances or in complex cases
or in proceedings before the Supreme Court this period could be
extended by up to two months (Article 333). No further extensions
were possible.
The
new CCrP provides that the appeal court must start the examination of
the appeal no later than one month after it is lodged (Article 374).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE
CONVENTION
- The
applicant complained under Article 5 § 1 (c) of the Convention
that his detention on remand after 8 September 2000 had been
unlawful. The relevant parts of Article 5 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...”
A. Submissions by the parties
- The
Government argued that the entire term of the applicant's detention
was compatible with the domestic procedural rules and free from
arbitrariness. They further submitted that owing to the expiry of the
maximum (eighteen-month) permitted period of detention on 8 September
2000 and the fact that the applicant needed additional time to study
the voluminous case file, the domestic courts had extended his
detention for six months. In particular, on 23 August 2000 the
President of the Omsk Regional Court had accepted the application by
the Omsk Regional Prosecutor and extended the applicant's detention
for a further six months. That decision had subsequently been quashed
on appeal because it had been issued in violation of the requirements
of the RSFSR Code of Criminal Procedure. However, when quashing the
decision of 23 August 2000 the Supreme Court had decided that
the applicant should remain in detention pending the re-examination
of his case. On 19 January 2001 and 3 May 2001, the domestic
courts had confirmed the lawfulness of the extension authorised for
the purpose of providing the applicant with time to study the case
file. The Government pointed out that the applicant had taken every
possible step to procrastinate while consulting the file. They
enclosed the detailed schedule for the months of May to September
2000 to confirm their assertion.
- The Government stated that the subsequent decision
extending the applicant's detention had been given on 10 July 2001 in
compliance with the requirements of the RSFSR Code of Criminal
Procedure. On 1 July 2002 the new Code of Criminal Procedure had
become effective and the applicant's detention had been extended at
regular intervals in accordance with the rules laid down in the Code.
On 17 April 2003 the Supreme Court of the Russian Federation had
ordered the applicant's release. It had taken five days to deliver a
copy of that decision to Omsk, which was situated more than 2,500 km
from Moscow. There were no other means of expediting the delivery as
such means would not have guaranteed the authenticity of the
decision. The applicant had been released on 21 April 2003.
- The
applicant argued that on 17 August 2000, twenty-two days before the
expiry of the maximum (eighteen-month) permitted period of his
detention, he and his lawyer had finished studying the case file and
had made an entry in the schedule to that effect. There had therefore
been no valid reasons for extending his detention by an additional
six months. The Government had not provided any evidence showing that
he had studied the file after 17 August 2000.
- The
applicant further submitted that from 8 March 2001 to 1 July 2002 he
had been detained without any legal order having been given.
Furthermore, his detention from 17 to 21 April 2003 had not had any
legal grounds. The Government should have taken measures to ensure
his release on the same day when the Supreme Court had given its
decision on that matter. In any event, the decision of 17 April 2003
had been sent by regular mail and had arrived in Omsk on 27 April
2003. The applicant had been released on 21 April 2003 because his
lawyer had been issued with a copy of that decision in Moscow and had
brought it to Omsk.
B. The Court's assessment
1. Admissibility
- The Court notes that the present complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 of
the Convention. It further notes that it is not inadmissible on any
other grounds. It must therefore be declared admissible.
2. Merits
(a) General principles
- The Court reiterates that the expressions “lawful”
and “in accordance with a procedure prescribed by law” in
Article 5 § 1 essentially refer back to national law and state
the obligation to conform to the substantive and procedural rules
thereof.
However,
the “lawfulness” of detention under domestic law is not
always the decisive element. The Court must in addition be satisfied
that detention during the period under consideration was compatible
with the purpose of Article 5 § 1 of the Convention, which is to
prevent persons from being deprived of their liberty in an arbitrary
fashion.
- The
Court must, moreover, ascertain whether domestic law itself is in
conformity with the Convention, including the general principles
expressed or implied therein. On this last point, the Court stresses
that, where deprivation of liberty is concerned, it is particularly
important that the general principle of legal certainty is satisfied.
It is therefore essential that the conditions for deprivation of
liberty under domestic law are clearly defined and that the law
itself is foreseeable in its application, so that it meets the
standard of “lawfulness” set by the Convention, a
standard which requires that all law be sufficiently precise to allow
the person – if need be, with appropriate advice – to
foresee, to a degree that is reasonable in the circumstances, the
consequences which a given action may entail (see Ječius v.
Lithuania, no. 34578/97, § 56, ECHR 2000-IX, and Baranowski
v. Poland, no. 28358/95, §§ 50-52, ECHR 2000-III).
(b) The applicant's detention from 8
September 2000 to 19 January 2001
- The Court notes that on 23 August 2000 the President
of the Omsk Regional Court accepted the application by the Omsk
Regional Prosecutor and extended the applicant's detention for six
months. On 22 November 2000 the Supreme Court quashed that decision
on the ground that the President of the Regional Court had committed
a “gross violation of the requirements” of the Russian
law by failing to give a formal reasoned decision. It ordered a
re-examination of the issue of detention and held that the preventive
measure applied to the applicant “should remain unchanged”.
On 19 January 2001 the Omsk Regional Court re-examined the
matter and authorised the extension until 8 March 2001.
-
The Court observes that on 23 August and 22 November 2000 the
President of the Regional Court and the Supreme Court, respectively,
did not give any reasons for their decisions to remand the applicant
in custody. The Court finds it particularly striking that on 23
August 2000 the President of the Regional Court merely made a note in
the corner of the prosecutor's application, authorising the
applicant's detention for an additional six months. Furthermore, the
Court notes that the Supreme Court, when quashing the order of 23
August 2000, did not set a time-limit for the continued detention and
for the re-examination of the detention by the Regional Court.
Leaving aside the concurrent developments in the applicant's case, it
transpires that for more than four months the applicant remained in a
state of uncertainty as to the grounds for his detention from
8 September 2000 to 19 January 2001, when the Regional Court
eventually re-examined the detention.
- The
Court has already examined and found a violation of Article 5 § 1
(c) of the Convention in a number of cases concerning a similar set
of facts. In particular, the Court has held that the absence of any
grounds given by the judicial authorities in their decisions
authorising detention for a prolonged period of time is incompatible
with the principle of protection from arbitrariness enshrined in
Article 5 § 1 (see Nakhmanovich v. Russia, no. 55669/00,
§§ 70-71, 2 March 2006, and Stašaitis v.
Lithuania, no. 47679/99, § 67, 21 March 2002).
Permitting a prisoner to languish in detention on remand without a
judicial decision based on concrete grounds and without setting a
specific time-limit would be tantamount to overriding Article 5, 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 Khudoyorov v. Russia,
no. 6847/02, § 142, ECHR 2005-X).
- The
Court sees no reason to reach a different conclusion in the present
case. It considers that the order of 23 August 2000 and the Supreme
Court's decision of 22 November 2000 did not comply with the
requirements of clarity, foreseeability and protection from
arbitrariness, which together constitute the essential elements of
the “lawfulness” of detention within the meaning of
Article 5 § 1.
- The Court also finds
that the Regional Court's decision of 19 January 2001, as upheld
on appeal on 3 May 2001, could not have constituted a “lawful”
basis for the applicant's detention in the preceding period (ibid.,
§ 139). That
decision authorised the applicant's detention from 8 September
2000 to 8 March 2001, out of which a period of four months and eleven
days was thus authorised retrospectively. The Government did not
indicate any domestic legal provision that permitted a decision to be
taken authorising a period of detention retrospectively. It follows
that the applicant's detention, in so far as it had been authorised
by a judicial decision in respect of the preceding period, was not
“lawful” under domestic law. Furthermore, the
Court reiterates that any ex post facto authorisation of
detention on remand is incompatible with the “right to security
of person” as it is necessarily tainted with arbitrariness
(ibid., § 142).
- The Court therefore considers that there was a
violation of Article 5 § 1 of the Convention on
account of the applicant's detention on remand from 8 September 2000
to 19 January 2001.
(c) The applicant's detention from 19
January to 8 March 2001
- The
Court notes that by 8 September 2000 the applicant had been detained
for eighteen months. The rules on detention at the time permitted up
to eighteen months' detention “during the investigation”,
plus up to six months when authorised by a judicial decision if the
defendants required more time to study the file (see paragraph 44
above).
- On
19 January 2001 the Omsk Regional Court authorised the applicant's
detention for an additional six months, from 8 September 2000 to
8 March 2001, citing the need for him to study the case file as the
main reason. On 3 May 2001 the Supreme Court of the Russian
Federation upheld that order.
- Having
regard to its findings concerning the applicant's detention from 8
September 2000 to 19 January 2001 (see paragraphs 65-70 above), the
Court will now consider whether the detention order of 19 January
2001 constituted a lawful basis for the applicant's detention from 19
January to 8 March 2001.
- The
Court once again reiterates that the expressions “lawful”
and “in accordance with a procedure prescribed by law” in
Article 5 § 1 state the obligation to conform to the substantive
and procedural rules of national law. The Court further
observes that it is in the first place for the national authorities,
notably the courts, to interpret and apply domestic law. However,
since under Article 5 § 1 failure to comply with domestic law
entails a breach of the Convention, it follows that the Court can and
should exercise a certain power to review whether this law has been
complied with (see N.C. v. Italy, no. 24952/94, § 42,
11 January 2001, with further references).
- Turning
to the domestic law, the Court observes that the RSFSR Code of
Criminal Procedure, as in force at the material time, provided for a
sole legal possibility of extending detention “during the
investigation” after the expiry of the maximum (eighteen-month)
period. Such an extension was legally possible only in a case when a
defendant needed additional time to study the case file.
- The
Court notes that as follows from the documents presented by the
parties the applicant began studying the case file on 11 May 2000
(see paragraphs 10 and 11 above). The Court does not have to
determine whether it was the applicant's behaviour, in particular his
attempts to procrastinate in the consultation of the file, which
allegedly compelled the investigating authorities to apply for the
extension of his detention for an additional six months. What matters
in the present case is that on 17 August 2000, that is twenty-two
days before the expiry on 8 September 2000 of the maximum
(eighteen-month) permitted period of the applicant's detention, he
and his lawyer finished reading the file and made an entry to that
effect in the schedule (see paragraph 11 above). Furthermore, the
applicant persistently refused to read the file in August and
September 2000, each time making a note in the schedule confirming
that he had finished studying the file and had no intention to start
reading it again (see paragraph 14 above). The Court further observes
that the Government did not submit any evidence showing that after
September 2000 the applicant was even given access to the case file.
- The
Court therefore finds that by 19 January 2001, when the Omsk Regional
Court re-examined the issue of the applicant's detention and
authorised an extension for the purpose of providing him with
additional time to study the case file, there was no evidence showing
that his consultation of the file was anything but completed. Since
there is no evidence indicating that additional time was needed to
study the file, the authorities exhausted the legal possibilities for
extending the applicant's detention “during the investigation”.
The Government did not indicate any legal provision that permitted a
defendant to be held in custody after the expiry of the
eighteen-month time-limit, if the defendant, by that time, had
finished studying the file. In these circumstances, no further
extensions have been possible under the domestic law (see, mutatis
mutandis, Khudoyorov, cited above, § 156).
The Court also finds it particularly striking that being fully aware
of the applicant's persistent refusals to read the file, the domestic
courts extended his detention on the ground that he needed additional
time to study the file (see paragraphs 17 and 19 above), thus denying
him a right to decide for himself whether he had completed studying
the file and had been ready to proceed with the trial.
- The
Court therefore finds that there has been a violation of Article 5 §
1 of the Convention on account of the applicant's detention on remand
from 19 January 2001 to 8 March 2001.
(d) The applicant's detention from 8 March
2001 to 1 July 2002
- The
Court reiterates that on 8 March 2001 the period of the applicant's
detention “during the investigation”, authorised by the
Regional Court's decision of 19 January 2001, expired. On the same
day the pre-trial investigation was closed and the case was set down
for trial. On 1 July 2002 the Regional Court extended the applicant's
detention by three months in compliance with the requirements of the
new Code of Criminal Procedure.
- According to the applicant, between 8 March 2001 and
the Regional Court's decision of 1 July 2002, there was no decision –
either by a prosecutor or a judge – authorising his detention.
The Government argued that the applicant's detention, at least after
10 July 2001, was based on the Regional Court's decision (see
paragraph 21 above) by which his request for release had been
dismissed.
- The
Court notes that the parties did not dispute that from 8 March 2001
to at least 10 July 2001 there was no legal order authorising the
applicant's detention. As regards the period from 10 July
2001 to 1 July 2002, the Court does not need to examine whether on
10 July 2001 the Regional Court, in rejecting his request for
release, implicitly authorised the applicant's continued detention
because on 25 October 2002 the Supreme Court, when dealing with the
applicant's appeal, found that on 10 July 2001 the Regional
Court had not examined the issue of detention (see paragraph 23
above). As follows from the Supreme Court's reasoning, the decision
of 10 July 2001 could not be construed as a formal order authorising
the applicant's continued detention.
- The
Court further notes that the decision of 10 July 2001 did not refer
to any legal provision which would have permitted the applicant's
further detention and set no time-limit either for his continued
detention or for a periodic review of the preventive measure, which
would have been required for a detention order to comply with the
requirements of clarity, forseeability and protection from
arbitrariness (see Korchuganova v. Russia, no. 75039/01,
§ 58, 8 June 2006). The applicant's detention continued on
obviously spurious grounds. Furthermore, the Court notes that, having
found that on 10 July 2001 the Regional Court had not given a
decision authorising an extension of the applicant's detention, the
Supreme Court did nothing to rectify the situation.
- Having
regard to the above finding, the Court considers that there was no
decision authorising the applicant's detention from 8 March 2001 to 1
July 2002. During that period the applicant was kept in detention on
the basis of the fact that the criminal case against him had been
referred to the court competent to deal with it.
- The
Court has already examined and found a violation of Article 5 § 1
in a number of cases concerning the practice of holding defendants in
custody solely on the basis of the fact that a bill of indictment has
been lodged with the court competent to try the case (see Baranowski,
cited above, §§ 53-58, and Ječius, cited above,
§§ 60-64). It has held that the practice of keeping
defendants in detention without a specific legal basis or clear rules
governing their situation – with the result that they may be
deprived of their liberty for an unlimited period without judicial
authorisation – is incompatible with the principles of legal
certainty and protection from arbitrariness, which are common threads
throughout the Convention and the rule of law (ibid.). The Court has
repeated this finding in several cases against Russia concerning a
similar set of facts (see, for example, Khudoyorov, cited
above, §§ 147-151, and Korchuganova, cited above,
§ 57).
- The
Court sees no reason to reach a different conclusion in the present
case. It reiterates that for the detention to meet the standard of
“lawfulness”, it must have a basis in domestic law. The
Government, however, did not point to any legal provision which
permitted an accused to continue to be held once the authorised
detention period had expired. The Russian Constitution and rules of
criminal procedure vested the power to order or prolong detention on
remand in prosecutors and courts (see paragraph 38 above). No
exceptions to that rule were permitted or provided for, no matter how
short the duration of the detention. As noted above, from 8 March
2001 to 1 July 2002 there was no formal decision authorising the
applicant's detention. The applicant was in a legal vacuum that was
not covered by any domestic legal provision.
- It follows that from 8 March 2001 to 1 July 2002 there
was no valid domestic decision or other “lawful” basis
for the applicant's detention on remand. By itself, the fact that the
case had been sent to the court for trial did not constitute a
“lawful” basis, within the meaning of Article 5 § 1
of the Convention, for the applicant's continued detention. There has
thus been a violation of Article 5 § 1 of the Convention in
respect of that period.
(e) The applicant's detention from 1 July
2002 to 17 April 2003
- The
Court observes that the applicant's detention during the period from
1 July 2002 to 17 April 2003 was extended by the Regional Court on
four occasions on the grounds that the charges against him were
serious.
- The
Court reiterates that the trial court's decision to maintain a
custodial measure would not breach Article 5 § 1 provided that
the trial court “had acted within its jurisdiction... [and] had
power to make an appropriate order” (see Korchuganova,
cited above, § 62).
- The
trial court acted within its jurisdiction in making those decisions
and there is nothing to suggest that they were invalid or unlawful
under domestic law. It has not been claimed that those decisions were
otherwise incompatible with the requirements of Article 5 § 1,
the question of the sufficiency and relevance of the grounds invoked
being analysed below in the context of compliance with Article 5 §
3 of the Convention.
- Accordingly,
the Court finds that there has been no violation of Article 5 §
1 of the Convention in respect of the detention orders issued between
1 July 2002 and 17 April 2003.
(f) The applicant's detention from 17 to
21 April 2003
- The
Court observes that on 17 April 2003 the Supreme Court authorised the
applicant's release subject to a written undertaking not to leave the
town. The applicant was released on 21 April 2003. According to the
Government, the delay in his release was caused by the large distance
between Moscow, where the Supreme Court is situated, and the Omsk
Region, where the applicant was detained, and the time it took a
courier to deliver a certified copy of the decision of 17 April 2003
to the Omsk Region.
- In
this connection, the Court notes that it is common ground between the
parties that the applicant's detention from 17 to 21 April 2003 was
not based on any legal order. Nor has it been disputed that the sole
basis for his detention during those four days was the need to avoid
the forgery of the decision of 17 April 2003 and to ensure that his
release was effected in compliance with the established domestic
procedure. At the same time the parties disputed the method of
communication of that decision to the authorities responsible for the
applicant's release (see paragraph 34 above). However, the Court does
not consider it necessary to establish the veracity of the parties'
allegations in this respect, because it finds a violation of Article
5 § 1 on the basis of the facts that have been presented and are
undisputed by the respondent Government.
- The Court reiterates that it must scrutinise
complaints of delays in the release of detainees with particular
vigilance (see Nikolov v. Bulgaria, no. 38884/97,
§ 80, 30 January 2003). Some delay in implementing a
decision to release a detainee is understandable and often inevitable
in view of practical considerations relating to the running of the
courts and the observance of particular formalities. However, the
national authorities must attempt to keep it to a minimum (see Quinn
v. France, judgment of 22 March 1995, Series A
no. 311, p. 17, § 42; Giulia Manzoni v. Italy,
judgment of 1 July 1997, Reports 1997-IV, p. 1191, § 25
in fine; K.-F. v. Germany, judgment of 27 November
1997, Reports 1997-VII, p. 2675, § 71; and
Mancini v. Italy, no. 44955/98, § 24, ECHR 2001-IX).
The Court reiterates that administrative formalities connected with
release cannot justify a delay of more than several hours (see
Nikolov, cited above, § 82). It is for the
Contracting States to organise their legal system in such a way that
their law-enforcement authorities can meet the obligation to avoid
unjustified deprivation of liberty.
- In
the instant case the applicant remained in detention for four days
after the Supreme Court's decision directing that he should be
released. Having regard to the prominent place which the right to
liberty holds in a democratic society, the respondent State should
have introduced appropriate legislation and deployed all modern means
of communication of information to keep to a minimum the delay in
implementing the decision to release the applicant as required by the
relevant case-law. The Court is not satisfied that the Russian
officials complied with that requirement in the present case.
- The Court notes that the applicant's continued
detention after 17 April 2003 was clearly not covered by
sub-paragraph (c) of paragraph 1 of Article 5 and did not fall within
the scope of any other of the sub-paragraphs of that provision. There
has accordingly been a breach of Article 5 § 1 in this
respect.
3. Summary of the findings
- The
Court has found a violation of Article 5 § 1 of the Convention
on account of the applicant's detention on remand from 8 September
2000 to 1 July 2002 and from 17 to 21 April 2003.
- The
Court has found no violation of Article 5 § 1 of the Convention
on account of the applicant's detention on remand from 1 July 2002 to
17 April 2003.
II. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE
CONVENTION
- The
applicant complained that his detention on remand had been
excessively long. The Court considers that this complaint falls to be
examined under Article 5 § 3 of the Convention, which provides:
“Everyone arrested or detained in accordance with
the provisions of paragraph 1 (c) of this Article 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 applicant's detention on
remand had not been excessive. It had not exceeded the maximum period
of detention established under Russian law for persons accused of
serious and particularly serious criminal offences.
- The
applicant submitted in reply that his detention on remand had lasted
four years, one month and twelve days. It had been extremely long,
particularly taking into account the fact that neither the domestic
courts nor the Government had put forward any valid reasons to
justify such a lengthy detention. Furthermore, he had been released
almost a year before his conviction. He had not attempted to abscond
and had not perverted the course of justice in any way.
B. The Court's assessment
1. Admissibility
-
The Court notes that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention. It
further notes that it is not inadmissible on any other grounds. It
must therefore be declared admissible.
2. 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
(i) Period to be taken into consideration
- The
Court observes that the applicant's detention on remand lasted from 8
March 1999, the date of his arrest, to 21 April 2003, the date of his
release. The overall duration thus amounted to four years, one month
and fourteen days. In carrying out its assessment, the Court will not
lose sight of its finding that from 8 September 2000 to 1 July 2002
and from 17 to 21 April 2003 the applicant's detention was not
in accordance with the provisions of Article 5 § 1 (c) of the
Convention (see Goral v. Poland, no. 38654/97, §§
58 and 61, 30 October 2003, and Stašaitis, cited above,
§§ 81-85).
(ii) The reasonableness of the length of
detention
- The
Court accepts that the applicant's detention may initially have been
warranted by a reasonable suspicion that he was involved in
large-scale franchise fraud. In the decision of 11 March 1999 a
prosecutor cited the gravity of the charges and the need to prevent
the applicant from absconding and obstructing as the grounds for his
placement in custody. At that stage of the proceedings those reasons
were sufficient to justify keeping the applicant in custody (see
Khudoyorov, cited above, § 176).
- However,
with the passage of time those grounds inevitably became less and
less relevant. Accordingly, the authorities were under an obligation
to analyse the applicant's personal situation in greater detail and
to give specific reasons for holding him in custody.
- The
Court reiterates that after 11 March 1999 the applicant's detention
on remand was extended fourteen times. When extending the applicant's
detention or examining the lawfulness of, and justification for, his
continued detention, the domestic authorities consistently relied on
the gravity of the charges as the main factor and on the applicant's
potential to abscond and pervert the course of justice.
- As
regards the domestic authorities' reliance on the gravity of the
charges as 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, cited
above, § 68; 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 applicant – is determined by the prosecution
without judicial review of whether the evidence obtained supports a
reasonable suspicion that the applicant has committed the alleged
offence (see Khudoyorov, cited above, § 180).
- The
other grounds for the applicant's continued detention were the
domestic authorities' findings that the applicant could abscond and
pervert the course of justice. 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 applicant's
potential to abscond by reference to the fact that he had been
charged with serious criminal offences, thus facing a severe
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 reoffending, 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 reoffending 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 applicant's detention on that ground,
save for a reference to his lack of a permanent place of residence
and work. In this connection, the Court reiterates that the mere
absence of a fixed residence and work 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 a single circumstance suggesting
that, if released, the applicant would abscond or evade justice, or
that he would otherwise upset the course of the trial. The Court
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 of
ensuring 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 applicant's attendance by the use of other
“preventive measures” – such as a written
undertaking or bail – which are expressly provided for by
Russian law to secure the proper conduct of criminal proceedings. In
this connection, the Court does not lose sight of the fact that the
applicant offered guarantees by the two well-known persons to ensure
his release. However, those guarantees were rejected without due
consideration (see paragraphs 26 and 27 above). Furthermore, the
Court finds it particularly striking that the applicant was kept in
custody for six months, from 8 September 2000 to 8 March 2001,
for the sole purpose of studying the case file. However, at no point
did either the Regional Court or the Supreme Court, which examined
the issue of the lawfulness of the applicant's detention during that
period, 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 applicant's release pending
trial. It is of particular concern to the Court that the Russian
authorities persistently used a stereotyped summary formula to
justify the extension of the applicant's detention; the prosecutors
reproduced the same formula in all their decisions. The Court also
notes that the domestic authorities, using the same formula,
simultaneously extended the detention of the applicant and his
co-defendants. In the Court's view, this approach is incompatible, in
itself, with the guarantees enshrined in Article 5 § 3 of the
Convention in so far as it permits the continued detention of a group
of persons without a case-by-case assessment of the grounds for
detention or of compliance with the “reasonable-time”
requirement in respect of each individual member of the group (see
Dolgova v. Russia, no. 11886/05, § 49, 2 March
2006).
- Having
regard to the above, the Court considers that by failing to refer to
concrete relevant facts or consider alternative “preventive
measures” and by relying essentially on the gravity of the
charges, the authorities prolonged the applicant's detention on
grounds which cannot be regarded as “sufficient”. They
thus failed to justify the applicant's continued deprivation of
liberty for a period of four years and almost two months. It is hence
not necessary to examine whether the proceedings against the
applicant were conducted with due diligence during that period (see
Pekov v. Bulgaria, no. 50358/99, § 85, 30 March
2006).
- There
has therefore been a violation of Article 5 § 3 of the
Convention.
III. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE
CONVENTION
- The
applicant complained under Article 5 § 4 of the Convention that
the courts had not decided the lawfulness of his detention
“speedily”. Article 5 § 4 provides:
“Everyone who is deprived of his liberty by arrest
or detention shall be entitled to take proceedings by which the
lawfulness of his detention shall be decided speedily by a court and
his release ordered if the detention is not lawful...”
A. Submissions by the parties
- The
Government submitted that, according to information submitted by the
Supreme Court of the Russian Federation, the domestic courts had
“speedily” examined the applicant's complaints concerning
the lawfulness of his detention on remand. Delays in the examination
of the applicant's appeals against the detention orders had been
caused by “objective reasons” in that the applicant and
his co-defendants had needed time to study court records and
prosecutors' observations and to prepare grounds of appeal. The
Government noted that the applicant had been found guilty of a
criminal offence and that the term of his pre-trial detention had
counted towards his sentence.
- The
applicant maintained his complaint. He argued that it had taken the
domestic courts from three to fifteen months to examine his appeals
against the detention orders.
B. The Court's assessment
1. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
2. Merits
(a) General principles
- The
Court reiterates that Article 5 § 4, in guaranteeing to persons
arrested or detained a right to take proceedings to challenge the
lawfulness of their detention, also proclaims their right, following
the institution of such proceedings, to a speedy judicial decision
concerning the lawfulness of detention and ordering its termination
if it proves unlawful. Although it does not compel the Contracting
States to set up a second level of jurisdiction for the examination
of the lawfulness of detention, a State which institutes such a
system must in principle accord to detainees the same guarantees on
appeal as at first instance (see Navarra v. France,
judgment of 23 November 1993, Series A no. 273-B, p.
28, § 28, and Toth v. Austria, judgment of
12 December 1991, Series A no. 224, p. 23, § 84).
The requirement that a decision be given “speedily” is
undeniably one such guarantee; while one year per level of
jurisdiction may be a rough rule of thumb in Article 6 § 1
cases, Article 5 § 4, concerning issues of liberty, requires
particular expedition (see Hutchison Reid v. the United
Kingdom, no. 50272/99, § 79, ECHR 2003-IV).
In that context, the Court also observes that there is a special need
for a swift decision determining the lawfulness of detention in cases
where a trial is pending because the defendant should benefit fully
from the principle of the presumption of innocence (see Iłowiecki
v. Poland, no. 27504/95, § 76, 4 October
2001).
(b) Application of the general principles
to the present case
- The
Court notes that it took the domestic courts approximately eight,
fifteen, three, six and four months to examine the applicant's
various requests for release or his appeals against the detention
orders (see paragraphs 13-19, 21-23, 25-27, 28-30 and 31-33 above).
There is nothing to suggest that the applicant caused delays in the
examination of his requests for release or his appeals against the
detention orders. The Government did not indicate any particular
instance when the applicant had allegedly applied for a stay of the
proceedings by which the lawfulness of his detention had been
reviewed or had in any other way caused a delay in those proceedings.
The Court therefore considers that these five periods cannot be
considered compatible with the “speediness” requirement
of Article 5 § 4, especially taking into account that their
entire duration was attributable to the authorities (see, for
example, Mamedova v. Russia, no. 7064/05, § 96,
1 June 2006; Khudoyorov, cited above, §§ 198
and 203; and Rehbock v. Slovenia, no. 29462/95, §§
85-86, ECHR 2000-XII, where review proceedings which lasted
twenty-three days were found not to have been “speedy”).
- The
Court also notes that the fact that the applicant was found guilty of
a criminal offence and that the duration of his pre-trial detention
counted towards his sentence cannot in principle justify the failure
to examine speedily his applications for release or his appeals
against the detention orders (see Bednov v. Russia, no.
21153/02, § 33, 1 June 2006).
- There
has therefore been a violation of Article 5 § 4 of the
Convention.
IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- Lastly,
the applicant complained that the decisions of 22 November 2000 and 3
May 2001 had been unfair in that the Supreme Court had not been
impartial. In his observations lodged on 13 February 2006 the
applicant further complained about the appalling conditions of his
detention on remand and publications in the press in 2001 concerning
the criminal proceedings against him.
- In
the light of all the material in its possession, and insofar as the
matters complained of are within its competence, the Court finds that
they do not disclose any 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
applicant claimed 478,000 euros (EUR) in respect of non-pecuniary
damage.
- The
Government argued that the sum was excessive and did not have any
“factual or legal ground”.
- The
Court observes that it has found a combination of particularly
grievous violations in the present case. The applicant spent more
than four years in custody. His detention was unlawful for almost two
years and, during the period when it was “lawful”, it was
not based on sufficient grounds. Finally, on various occasions he was
denied the right to have the lawfulness of his detention examined
speedily. In these circumstances, the Court considers that the
applicant's suffering and frustration cannot be compensated for by a
mere finding of a violation. Making its assessment on an equitable
basis, it awards the applicant EUR 15,000 in respect of non-pecuniary
damage, plus any tax that may be chargeable on that amount.
B. Costs and expenses
- The
applicant also claimed EUR 15,500 for the costs and expenses incurred
before the domestic courts and the Court, broken down as follows: EUR
3,000 for his representation by Ms Liptser before the Court,
EUR 4,500 for his representation by Ms Moskalenko and EUR 4,500
for his representation by Mr Shadrin before the domestic courts, EUR
1,500 in respect of travel expenses incurred by his lawyers, and EUR
2,000 in compensation for his expenses for buying food, medicines and
stationery during his detention on remand.
- The
Government submitted that the applicant had not provided any
documents to substantiate his claims.
- According
to the Court's case-law, an applicant is entitled to reimbursement of
his costs and expenses only in so far as it has been shown that these
have been actually and necessarily incurred and were reasonable as to
quantum. The Court notes, firstly, that the applicant was granted
EUR 850 in legal aid for his representation by Ms Liptser. As
the applicant did not provide justification of having incurred any
expenses exceeding that amount, the Court makes no award under this
head.
- As
to the remaining claims in respect of legal representation, the Court
notes that the applicant submitted two letters in which he promised
to pay Ms Moskalenko and Mr Shadrin certain sums on condition that
the domestic courts found his arrest and detention to be unlawful and
awarded him compensation. Those letters did not contain any
information as to the express nature of the legal work, the due dates
and the consent of the lawyers to perform such legal services. The
Court therefore finds that in the circumstances of the present case
those letters did not create a legally enforceable obligation on the
applicant to pay any fee to Ms Moskalenko and Mr Shadrin. This part
of the claim must also be rejected.
- The
Court further points out that the applicant did not produce any
document (vouchers, certificates, invoices) justifying his claims in
respect of travel and other expenses. Accordingly, the Court makes no
award under this head.
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 complaints concerning the
unlawfulness of the applicant's detention after 8 September 2000, the
excessive length of his detention on remand and the failure of the
domestic authorities to decide “speedily” on the
lawfulness of his detention admissible and the remainder of the
application inadmissible;
- Holds that there has been a violation of Article
5 § 1 of the Convention on account of the applicant's detention
from 8 September 2000 to 1 July 2002 and from 17 to 21 April
2003;
- Holds that there has been no violation of
Article 5 § 1 of the Convention on account of the applicant's
detention from 1 July 2002 to 17 April 2003;
- Holds that there has been a violation of Article
5 § 3 of the Convention;
- Holds that there has been a violation of Article
5 § 4 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 15,000
(fifteen 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 amount 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 applicant's claim
for just satisfaction.
Done in English, and notified in writing on 28 June 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
