Boris Mironovich MALKIN v Russia - 67363/01 [2008] ECHR 1848 (16 December 2008)

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The European Court of Human Rights (First Section), sitting on 16 December 2008 as a Chamber composed of:

Christos Rozakis, President,
Nina Vajić,
Anatoly Kovler,
Elisabeth Steiner,
Khanlar Hajiyev,
Dean Spielmann,
Sverre Erik Jebens, judges,
and André Wampach, Deputy Section Registrar,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

The applicant, Mr Boris Mironovich Malkin, is a Russian national who was born in 1948 and lives in Barnaul, Altay region. He was represented before the Court by Mr V.V. An, a lawyer practising in Barnaul. The Russian Government (“the Government”) were represented by Mr P. Laptev, former Representative of the Russian Federation at the European Court of Human Rights.

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

On 11 January 1999 the Central district police department of Barnaul opened a criminal case in respect of the applicant's alleged misappropriation of funds from the Rosbankstroy building company. The applicant was the president and a majority shareholder of Rosbankstroy.

On 24 June 1999 the prosecutor's office of the Altay Region opened a criminal case concerning allegations of bribery. It was alleged that in order for Rosbankstroy to be chosen as a chief contractor for the building of the Russia Central Bank's main computer centre in Moscow the applicant had bribed a Mr K., who was the head of the Central Bank's construction department. On the same day the prosecutor's office joined both criminal cases into a single set of proceedings.

On 25 June 1999 the applicant was charged with bribery and his detention on remand was ordered by the prosecutor of the Altay Region. He was placed in pre-trial detention facility IZ-17/1 in Barnaul.

As the investigation into the bribery charge had been completed, on 5 November 1999 the prosecutor's office severed the proceedings concerning that charge from the other proceedings and on 2 December 1999 transmitted that case to court for trial. The remaining part of the case concerning the allegations of the applicant's misappropriation of Rosbankstroy's funds remained with the prosecutor's office for further investigation since there was insufficient evidence to bring charges against the applicant on that account. It was assigned no. 76574.

On 1 February 2000, having examined the materials in criminal case no. 76574, the prosecutor's office decided that it had sufficient evidence that funds belonging to the State-owned Central Bank had been misappropriated in the course of the construction of its main computer centre in Moscow by Rosbankstroy. Mr K. and the applicant were alleged to have unlawfully overpriced the construction works. The prosecutor's office decided to open a new criminal case and the next day brought misappropriation charges against the applicant.

On 14 March 2000 the Altay Regional Court convicted the applicant of bribery and sentenced him to three years' imprisonment.

On 28 March 2000 the new criminal case concerning the misappropriation of the Central Bank's funds was joined with the case concerning the misappropriation of Rosbankstroy's funds. The joined case retained no. 76574.

On 11 July 2000 the Supreme Court partly quashed the conviction of bribery, discharged the applicant from the obligation to serve his sentence on the basis of the State Duma's amnesty act and ordered his release. However, the applicant was not released and remained in detention facility IZ-17/1.

On 14 July 2000 the prosecutor of the Altay Region ordered the applicant's detention on remand on the charge of misappropriation of the Central Bank's funds in case no. 76574.

The applicant appealed. He argued, in particular, that he had been detained pending investigation since 25 June 1999 and the term of his detention had been extended for up to six months. The case concerning the bribery charge had been examined by a court and the Supreme Court had in the decision of 11 July 2000 exempted him from serving his sentence. The new case concerning the alleged misappropriation of the Central Bank's funds had been joined with the earlier case concerning the alleged misappropriation of Rosbankstroy's funds in which he had already been detained on remand. Accordingly, in the absence of a duly authorised extension his continuing detention was unlawful.

On 14 August 2000 the applicant's appeal was dismissed by a judge of the Barnaul Central District Court.

On 12 September 2000 an acting prosecutor of the Altay Region extended the applicant's detention for up to six months until 14 January 2001.

The District Court's decision of 14 August 2000 was appealed against by the applicant and quashed on 21 September 2000 by the Altay Regional Court for failure to state sufficient reasons. The lawfulness of the detention order of 14 July 2000 was re-examined on 12 October 2000 by another judge of the District Court, who found that before 14 July 2000 the applicant had not been detained within the framework of criminal case no. 76574 and that therefore his detention was lawful. The applicant appealed. On 9 November 2000 the Regional Court upheld the District Court's decision noting that before 11 July 2000 the applicant had been detained in another criminal case concerning the bribery charge and had been convicted on 14 March 2000.

On 15 December 2000 a Deputy Prosecutor General extended the term of the applicant's detention for up to eight months and six days until 20 March 2001 and on the latter date until 20 June 2001.

On 18 June 2001 case no. 76574 was forwarded to the Leninskiy District Court of Barnaul for trial. On 14 December 2001 the District Court extended the applicant's detention until 20 March 2002 and on the latter date ordered his immediate release since the period of his detention pending the court's examination had reached the nine month time-limit.

On 28 June 2002 the Leninskiy District Court of Barnaul convicted the applicant of large-scale fraud in respect of the Central Bank's funds and of attempted large-scale fraud in respect of the property of the Altaymarketcentre Karavan company. The applicant was sentenced to five years and one month's imprisonment and an order was also made for the confiscation of his property. The judgment was upheld by the Altay Regional Court on 31 October 2002.

The applicant lodged an application for supervisory review of his case. On 19 October 2004 the Presidium of the Altay Regional Court granted his application, quashed the judgment of 28 June 2002, as upheld on 31 October 2002, and terminated the criminal proceedings for the lack of corpus delicti.

The Code of Criminal Procedure of 1960 in force until 1 July 2002 provided as follows:

“No one may be arrested otherwise than on the basis of a judicial decision or a prosecutor's order. ...

A prosecutor shall immediately [order the] release [of] anybody ... who is held in detention beyond the term provided for by law or in a court sentence.”

Under Article 89 of the Code, detention on remand as a preventive measure could be applied to an accused. Under Article 143 of the Code, a decision to bring a charge was to be made if there was sufficient evidence to accuse a person of committing a crime.

“A period of detention during the investigation of offences in criminal cases may not last longer than two months. This time-limit may be extended for up to three months by a district or municipal prosecutor ... if it is impossible to complete the investigation and there are no grounds for altering the preventive measure. A further extension of up to six months from the date the detainee was taken into custody may be ordered only by the prosecutor of the subject of the Russian Federation in cases of special complexity.

An extension of the time-limit for such detention beyond six months shall be permissible in exceptional cases and solely in respect of persons accused of committing serious or very serious criminal offences. [An order for] such an extension shall be made by a deputy of the Prosecutor General of the Russian Federation (for up to one year) and by the Prosecutor General of the Russian Federation (for up to 18 months).

No further extension of the time-limit shall be permissible, and an accused held in custody shall be entitled to immediate release ...”

Under paragraph 19 of the Prosecutor General's Office Directive no. 38/36 of 18 June 1998 on 'the organisation of the supervision by the prosecutor's office of compliance with the law on the extension of time-limits for preliminary investigations, inquiries and detention on remand' (which was in force until 5 July 2002), the time-limit for detention on remand when cases were joined comprised the whole time actually spent in detention in all the joined cases.

The applicant complained under Article 5 § 1 of the Convention that he had not been released on 11 July 2000 as ordered by the Supreme Court in its judgment. Furthermore, the order for his detention of 14 July 2000 was unlawful because his detention could not be ordered anew within the framework of the same criminal case but only extended by a competent authority within the time-limits prescribed by law. Thus, under Article 97 of the Code of Criminal Procedure it could have been extended by a deputy prosecutor general of the Russian Federation for up to one year. However, that had not been done.

“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:

(b) the lawful arrest or detention of a person for non- compliance with the lawful order of a court or in order to secure the fulfilment of any obligation 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;

(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;

(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;

(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.”

The Government submitted that the Supreme Court's decision of 11 July 2000, in which it had ordered the applicant's release, had arrived at the court registry at the end of the same working day. The next day the decision had been typed up, the required number of copies made and a copy sent with an accompanying letter to the relevant department for dispatch to the applicant's detention facility. On 13 July 2000 the documents had been dispatched by special mail to the IZ-17/1 facility in Barnaul, Altay region. As a result of the large distance they were delivered after the order of 14 July 2000 for the applicant's detention on remand in another criminal case had been issued. The Government noted that the aforementioned procedure complied with the relevant domestic regulations. In particular, under paragraph 10.21 of the Instruction on clerical work at the Supreme Court of 18 November 1996, a copy of the court's decision ordering a convict's release was to be dispatched with an accompanying letter not later than the day following its arrival at the registry. Documents concerning a release from custody were to be sent out by special mail on Tuesdays and Thursdays.

The applicant maintained that he should have been immediately released on 11 July 2000 in accordance with Article 11 of the Code of Criminal Procedure. The Supreme Court's Instruction on clerical work of 18 November 1996 ranked below the provisions of the Code of Criminal Procedure and other federal laws. The large distance to Barnaul could not justify the delay.

The Court considers, in the light of the parties' submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

The Government stated that the applicant had been lawfully detained by the decision of 14 July 2000 within the framework of another criminal case on charges of misappropriation brought against him on 2 February 2000.

The applicant submitted that from 25 June to 2 December 1999 he had been detained on the basis of the order by the Altay regional prosecutor for five months and seven days. As the Altay regional prosecutor's authority to order detention on remand during the investigation was limited to six months, his detention pending the investigation could only have continued for a further 23 days. Therefore, when he was redetained on 14 July 2000 his detention could only have lasted until 7 August 2000. Any extension beyond that date required authorisation by the Deputy Prosecutor General. However, his detention was extended by the Altay regional prosecutor for up to a further six months until 14 January 2001. Despite the fact that the old and new sets of criminal proceedings against him had been joined into a single case on 28 March 2000, no account had been taken of the period which the applicant had already spent in detention pending investigation, in breach of paragraph 19 of the Prosecutor General's Office Directive no. 38/36 of 18 June 1998.

The Court reiterates that Article 5 of the Convention guarantees the fundamental right to liberty and security. Its key purpose is to prevent arbitrary or unjustified deprivations of liberty (see McKay v. the United Kingdom [GC], no. 543/03, § 30, ECHR 2006-X). The expressions “lawful” and “in accordance with a procedure prescribed by law” in Article 5 § 1 essentially refer back to national law and enshrine the obligation to conform to substantive and procedural rules thereof. Although it is in the first place for the national authorities, notably the courts, to interpret and apply domestic law, under Article 5 § 1 failure to comply with domestic law entails a breach of the Convention and the Court can and should review whether this law has been complied with (see, among many other authorities, Benham v. the United Kingdom, 10 June 1996, § 41, Reports of Judgments and Decisions 1996-III, and Assanidze v. Georgia [GC], no. 71503/01, § 171, ECHR 2004-II).

The Court observes that under the Code of Criminal Procedure in force at the material time detention on remand as a preventive measure was applicable to persons accused of having committed crimes. Authority to order detention on remand for a period of up to six months during the investigation was vested in the prosecutor of the subject of the Russian Federation.

The Court notes the domestic courts' finding that the applicant's detention on 14 July 2000 was ordered in connection with the new charge against him and was therefore lawful. Their decisions of 12 October and 9 November 2000 do not appear arbitrary or unreasonable. Indeed, the applicant was first detained on the bribery charge which was determined by the Altay Regional Court in its judgment of 14 March 2000. Subsequently, on 14 July 2000, he was detained on the new charge of misappropriation of the Central Bank's funds. Therefore, the time-limit for his detention on the latter charge started to run on 14 July 2000 and his detention was, during the first six months, within the competence of the prosecutor of the Altay region. The new charge of misappropriation of the Central Bank's funds, which was never joined with the bribery charge into a single case, afforded a new basis for detention on remand under the Code of Criminal Procedure.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

Declares admissible, without prejudging the merits, the applicant's complaint concerning the State's failure to release him in accordance with the Supreme Court's decision of 11 July 2000;

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You are here: BAILII >> Databases >> European Court of Human Rights >> Boris Mironovich MALKIN v Russia - 67363/01 [2008] ECHR 1848 (16 December 2008) URL: http://www.bailii.org/eu/cases/ECHR/2008/1848.html Cite as: [2008] ECHR 1848