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    European Court of Human Rights
    You are here: BAILII >> Databases >> European Court of Human Rights >> MOSKOVETS v. RUSSIA - 14370/03 [2009] ECHR 675 (23 April 2009)
    URL: http://www.bailii.org/eu/cases/ECHR/2009/675.html
    Cite as: [2009] ECHR 675

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    FIRST SECTION







    CASE OF MOSKOVETS v. RUSSIA


    (Application no. 14370/03)












    JUDGMENT




    STRASBOURG


    23 April 2009



    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 Moskovets v. Russia,

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

    Christos Rozakis, President,
     Nina Vajić,
     Anatoly Kovler,
     Elisabeth Steiner,
     Khanlar Hajiyev,
     Giorgio Malinverni,
     George Nicolaou, judges,
    and Søren Nielsen, Section Registrar,

    Having deliberated in private on 2 April 2009,

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

    PROCEDURE

  1. The case originated in an application (no. 14370/03) 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 Nikita Nikolayevich Moskovets (“the applicant”), on 2 April 2003.

  2. The applicant was represented by Ms T. Klykova, a lawyer practising in St Petersburg. The Russian Government (“the Government”) were represented by Ms V. Milinchuk and Mr A. Savenkov, former Representative and former acting Representative of the Russian Federation at the European Court of Human Rights respectively.

  3. On 18 June 2007 the President of the First Section decided to give notice of the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3).

    4. THE FACTS

    I.  THE CIRCUMSTANCES OF THE CASE

  4. The applicant was born in 1977 and is currently serving a prison sentence.

    5. A.  The applicant’s arrest and alleged ill-treatment

  5. On 25 December 1999 the applicant was arrested on suspicion of several counts of aggravated murder and taken to a police station. The police officers allegedly intimidated the applicant and forced him to confess. The applicant’s representative was present when the applicant made his confession.

  6. On 26 December 1999 a medical examination was conducted on the applicant. The expert recorded a bruise on the left side of the applicant’s chest and three abrasions on the backs of his hands, which did not cause harm to the applicant’s health. The above injuries were caused in the period from one to three days prior to the examination. The applicant stated that on the night of 24 December 1999 he had tried to stop a fight, and that as a result he had scratched his hand and been punched in the chest.

  7. The applicant sought to have criminal proceedings instituted against the police officers, however his allegations were found to be unsubstantiated.

    8. B.  The applicant’s detention pending the investigation

  8. On 28 December 1999 the applicant was detained in custody.

  9. On 3 January 2000 the applicant was charged with murder under Article 105 of the Criminal Code.

  10. On 9 February, 27 March, 6 April and 19 December 2000 the applicant’s detention pending investigation was extended until 18 June, 25 June, 25 September 2000 and 25 February 2001 respectively. The extension orders referred to the particular gravity of the charges against the applicant, the fact that he had no permanent place of residence and that he had previously absconded, thus breaching the preventive measure applied to him in connection with another criminal case.

  11. On 23 February 2001 the investigation was completed, and the case file was submitted to the St. Petersburg City Court for trial.

    12. C.  Decision to remit the case for additional investigation and subsequent extensions of the applicant’s detention

  12. On 25 April 2001 the St. Petersburg City Court referred the case back to the prosecution authorities for additional investigation on account of serious breaches of procedure. The court held that the preventive measure applied to the applicant “should remain unchanged”.

  13. On 25 May, 18 June and 11 September 2001 the applicant’s detention pending investigation was extended until 24 June, 26 September 2001 and 26 March 2002 respectively, for the reasons set out above.

  14. On 25 December 2001 the additional investigation was completed and the case was resubmitted to St. Petersburg City Court for trial.

    15. D.  The applicant’s detention pending trial

  15. On 8 January 2002 the St. Petersburg City Court accepted the case for trial and held that the preventive measure applied to the applicant “should remain unchanged”.

  16. Starting from 1 July 2002 the St. Petersburg City Court extended the applicant’s detention every three months. In particular, on 1 July 2002 it extended the applicant’s detention from 1 July 2002 until 1 October 2002; on 24 September 2002 from 30 September until 30 December 2002; on 15 December 2002 from 30 December 2002 until 30 March 2003; on 11 March 2003 from 30 March to 30 June 2003; on 13 May 2003 from 30 June to 30 September 2003; on 4 July 2003 from 30 September to 30 December 2003; on 28 November 2003 from 30 December 2003 until 30 March 2004, and on 26 February 2004 from 30 March 2004 until 20 June 2004.

  17. The above extension orders concerned the applicant and five other co-defendants. All of the extension orders referred to the gravity of the charges against the applicant and his co-defendants and the risk of their absconding, without providing any further detail. The extension order of 28 November 2003 was more elaborate and, in so far as it concerned the applicant, read as follows:

    18. “[The applicant] is charged with particularly serious crimes, including several counts of aggravated murder, committed while under a written undertaking not to leave applied in the framework of another criminal case on the charges of, inter alia, several aggravated murders and other serious and particularly serious crimes ... Even after being detained in custody [the applicant] had committed a crime for which on 26 November 2001 he had been sentenced by St Petersburg Dzerzhinskiy (Tsentralniy) District Court to one year and six months’ imprisonment.”

  18. The applicant appealed to the Supreme Court of Russia against these extension orders. The extension orders of 1 July and 24 September 2002 were found to be unlawful, on 11 November and 2 December 2002 respectively, because in the first case neither the applicant nor his representative were given proper notice of the hearing and, as a consequence, were absent, and in the second case the hearing took place in the absence of the applicant’s representative. The remaining extension orders of 15 December 2002, 11 March, 13 May, 4 July and 28 November 2003, and 26 February 2004, were upheld on appeal by the Supreme Court on 27 March, 4 June, 11 August and 22 September 2003 and on 18 February and 11 May 2004 respectively.

  19. On 11 March 2003 the St Petersburg City Court ex post facto authorised the applicant’s detention from 1 July to 30 December 2002.

    20. E.  The applicant’s conviction in an unrelated criminal case

  20. On 26 November 2001 the Dzerzhinskiy (Tsentralniy) District Court of St Petersburg convicted the applicant of stealing and destruction of official documents and attempted forgery of documents and sentenced him to two years’ imprisonment starting from 26 November 2001. The court further held that the applicant’s detention from 27 September 2000 to 19 July 2001 in the above case should be counted toward the applicant’s prison term.

  21. On 28 February 2002 the St Petersburg City Court commuted the applicant’s sentence to one year and six months’ imprisonment.

  22. It appears that the applicant completed his sentence in August 2002.

    23. F.  The applicant’s trial

  23. Having studied the case file before the completion of the preliminary investigation, in November 2001 the applicant requested that his case be dealt with by one professional and two lay judges.

  24. On 8 January 2002 St Petersburg City Court scheduled the first hearing for 5 August 2002.

  25. On 5 August 2002, however, the proceedings were suspended in view of the necessity to search for Zh. – one of the applicant’s co-defendants.

  26. On 15 December 2002 the proceedings were resumed despite the failure to find Zh. Starting from that date the court was composed of a professional judge, Mr Kurguzov, and two lay judges, Ms D. and Mr S. Prior to that, on 27 September 2002 in accordance with Section 6 of the Lay Judges Act the acting president of the St Petersburg City Court selected 102 lay judges, including Ms D. and Mr S., to sit at the examination of the cases by the St Peterburg City Court; and on 11 November 2002 Judge Kurguzov, to whom the case had been assigned, drew lots between six unidentified lay judges (their names did not appear in the relevant decision) and determined that lay judges Ms D. and Mr S. should sit with him on the bench.

  27. The applicant challenged the composition of the bench. He alleged a breach of rules on the appointment of lay judges in that lay judges Ms D. and Mr S. had not been drawn by lot, contrary to the requirements of the Federal Law on Lay Judges of the Federal Courts of General Jurisdiction (Федеральный Закон «О народных заседателях федеральных судов общей юрисдикции в Российской Федерации», “the Lay Judges Act”). However, the applicant’s challenge was dismissed by the court. No breach of the rules governing the calling of lay judges was established.

  28. Of thirty-one hearings scheduled between 15 December 2002 and 19 April 2004 twenty-two were adjourned for various reasons: five due to the submission by the applicant of requests and the prosecution’s need to study the case file, three due to the failure of the guard unit to deliver the applicant and his co-defendants to the court, nine because the lawyers were either sick or absent, three due to the necessity to summon witnesses, and two on the court’s initiative, on the first occasion because the applicant’s co-defendants had agreed to testify at the forthcoming court hearing, and on the second because the applicant had refused to testify.

  29. On 19 April 2004 the applicant again challenged the composition of the bench, without success.

  30. On 30 April 2004 the St. Petersburg City Court convicted the applicant of aggravated murder, theft and fraud and sentenced him to life imprisonment.

  31. On 30 September 2004 the Supreme Court of Russia modified the qualification of the applicant’s crime and left the sentence unchanged.

  32. At the applicant’s request, on 24 April 2008 the Supreme Court of Russia by way of supervisory review modified the qualification of the charges against the applicant and left the sentence unchanged.

    33. II.  RELEVANT DOMESTIC LAW

    A.  Pre-trial detention and time-limits for trial

  33. For a summary of domestic law provisions on pre-trial detention and time-limits for trial see Khudoyorov v. Russia (no. 6847/02, §§ 76-96, ECHR 2005 X (extracts)).

    34. B.  Composition of courts in criminal proceedings

  34. The Code of Criminal Procedure of the RSFSR (Law of 27 October 1960, “the old CCrP”) provided that hearings in first-instance courts dealing with criminal cases were to be conducted, subject to certain exceptions, by a single professional judge or by one professional and two lay judges. In their judicial capacity, lay judges enjoyed the same rights as professional judges (Article 15).

  35. The Code of Criminal Procedure of the Russian Federation (Law no. 174-FZ of 18 December 2001, “the new CCrP”) does not provide for participation of non-professional judges in administration of justice in criminal matters. It provides that serious crimes should be dealt with by a single professional judge or by three professional judges provided that the accused has submitted such a request prior to the appointment of a trial hearing (Article 30 § 2 (3)). It further provides that the composition of the court examining the case should remain unchanged throughout the trial (Article 242 § 1).

  36. The Federal Law on enactment of the new CCrP (Law no. 177-FZ of 18 December 2001) provides as follows:

    37. Section 2.1 provides that the Federal Law on the Lay Judges of the Federal Courts of General Jurisdiction becomes ineffective as from 1 January 2004.

    Section 7 provides that Article 30 § 2 (3) of the Code of Criminal Procedure, in so far as it concerns the examination of serious crimes by three professional judges, becomes effective as from 1 January 2004. Before that date serious crimes should be dealt with by a single professional judge or by one professional and two lay judges if an accused has made such a request prior to the appointment of a trial hearing.

    C.  Lay judges

    1.  General rules on the procedure for the selection of lay judges

  37. On 10 January 2000, the Federal Law on the Lay Judges of the Federal Courts of General Jurisdiction in the Russian Federation (“the Lay Judges Act” or “the Act”) came into effect. Under Section 1 § 2 of the Act, lay judges were persons authorised to sit in civil and criminal cases as non-professional judges.

  38. Section 2 of the Act provided that lists of lay judges had to be compiled for every district court by local self-government bodies, such lists being subject to validation by the regional legislature.

  39. Section 5 of the Act determined the procedure for the selection of lay judges for the examination of cases by district courts. It provided that the president of a district court had to draw at random from the list a certain number of lay judges to be called to the competent district court. The number of lay judges assigned to every professional judge had to be at least three times the number of persons needed for a hearing.

  40. Section 6 of the Act provided that the selection of the lay judges for the examination of cases by regional (city) courts was carried out by the president of the relevant court in accordance with the rules set out by Section 5 of the Act on the basis of the general lists of lay judges of the district courts situated on the territory of the relevant region (city). It further provided that the selection of lay judges for examination of a particular case in a regional (city) court was carried out by the judge to whom the case in question had been assigned in accordance with the rules set out by Section 5 of the Act.

  41. In accordance with Section 9, lay judges were to be called to serve in a district court for a period of fourteen days, or as long as the proceedings in a particular case lasted. Lay judges could not be called more than once a year.

    42. 2.  Validation of the general lists of lay judges

  42. On 18 September 2002 the St Petersburg City Legislature validated the general list of lay judges assigned to the Krasnogvardeyskiy District Court of St Petersburg. The addendum to the above regulation contained the general list of 514 lay judges.

    43. 3.  Regulation on appointment of lay judges

  43. On 14 January 2000 the Presidium of the Supreme Court of Russia on the basis of Section 5 of the Lay Judges Act issued a regulation on the procedure for selection of lay judges. The regulation provided that the president of a district court should draw at random from the general list of lay judges 156 names for each judge. The lay judges for a particular case were to be drawn by lot by the judge to whom the case had been assigned.

    44. D.  Reopening of the proceedings following a finding of a violation by the Court

  44. The new CCrP provides for a possibility to re-open criminal proceedings on the basis of a finding of a violation of the Convention made by the European Court of Human Rights (Article 413).

    45. THE LAW

    I.  ALLEGED VIOLATION OF ARTICLE 5 § 1 (c) OF THE CONVENTION

  45. The applicant complained under Article 5 § 1 (c) of the Convention that his detention had not been lawful. The relevant parts of Article 5 read as follows:

    46. “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

  46. The Government submitted that the applicant’s detention from 1 July to 1 October 2002 had been lawful even though the relevant extension order had subsequently been quashed on appeal, on 11 November 2002. The detention was extended by the court having the power to do so and in full compliance with the time-limits set out in the domestic law. The quashing of the extension order in question was carried out on procedural grounds, and it did not affect the lawfulness of the applicant’s detention in the relevant period. In any event, the Government considered that the ruling of 11 November 2002 had affected the applicant’s status as a victim and made available to the applicant the possibility of claiming compensation in separate civil proceedings for the non-pecuniary damage caused by the unlawful deprivation of liberty, as provided by Articles 1070 and 1100 of the Civil Code. The Government further noted that on 24 September 2002 the applicant’s detention was extended until 30 December 2002. On 2 December 2002 the above extension order was quashed on appeal. This situation, however, had been subsequently rectified by the St Petersburg City Court which on 11 March 2003 authorised the applicant’s detention in the period from 1 July to 30 December 2002. As regards the subsequent detention orders, the Government submitted that they had been issued in full compliance with the procedure prescribed by domestic law.

  47. The applicant maintained his position in respect of the entire period of detention and submitted, in particular, that his detention in the period from 1 July to 2 December 2002 had been unlawful and that the relevant detention orders of 1 July and 24 September 2002 had been ex facie invalid. In particular, the extension of 1 July 2002 had been issued without either he or his representative being given proper notice of the hearing, and the extension order of 24 September 2002 without the lawyer being present at the hearing. He further submitted that his detention in the period from 2 December to 30 December 2002 had also been unlawful in the absence of any valid decision authorising his detention in the relevant period.

    48. B.  The Court’s assessment

    1.  Admissibility

  48. The Court observes at the outset that a part of the applicant’s complaint concerning the lawfulness of all detention orders refers to a period of pre-trial detention which ended more than six months before he lodged the application with the Court on 2 April 2003. The most recent period of detention that the Court may examine commenced on 1 July 2002. The Court therefore considers that the part of the applicant’s complaint concerning the detention orders issued before 1 July 2002 has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention (see Vladimir Solovyev v. Russia, no. 2708/02, § 83, 24 May 2007).

  49. The Court notes the Government’s argument about the applicant’s having lost his status as a victim and his failure to exhaust domestic remedies in so far as his detention in the period from 1 July to 1 October 2002 is concerned.

  50. As regards the applicant’s victim status, the Court reiterates that a decision or measure favourable to the applicant is not in principle sufficient to deprive the applicant of his status as a “victim” unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see Amuur v. France, 25 June 1996, § 36, Reports of Judgments and Decisions 1996-III, and Dalban v. Romania [GC], no. 28114/95, § 44, ECHR 1999-VI). In the present case, however, although the domestic courts acknowledged the unlawfulness of the applicant’s detention from 1 July to 1 October 2002 by quashing the extension order of 1 July 2002, by the time the quashing took place, on 11 November 2002, the applicant had already spent three months in detention as a result of the unlawful order, and no compensation was offered by the authorities in this respect. The Court therefore concludes that the applicant can still claim to be a “victim” within the meaning of Article 34 of the Convention.

  51. In so far as the argument about the applicant’s failure to apply for compensation is concerned, the Court reiterates that the right not to be deprived of one’s liberty “save in accordance with a procedure prescribed by law” is not the same as the right to receive compensation for detention. Paragraph 1 of Article 5 of the Convention covers the former and paragraph 5 of Article 5 the latter. The court invited to rule on an action for damages caused by unlawful detention examines the matter after the events and therefore does not have jurisdiction to order release if the detention is unlawful, as Article 5 § 4 requires it should (see Weeks v. the United Kingdom, 2 March 1987, § 61, Series A no. 114). A civil action for damages has accordingly no bearing on the question of exhaustion of domestic remedies in respect of the applicant’s complaint under Article 5 § 1 (see Belchev v. Bulgaria (dec.), no. 39270/98, 6 February 2003; Nakhmanovich v. Russia (dec.), no. 55669/00, 28 October 2004; and, most recently, Shcheglyuk v. Russia, no. 7649/02, § 34, 14 December 2006). The Government’s objection must therefore be dismissed.

  52. The Court notes, therefore, that the remainder of the 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.

    53. 2.  Merits

    (a)  General principles

  53. 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 (see Khudoyorov, cited above, § 124, and Fedotov v. Russia, no. 5140/02, § 74, 25 October 2005).

  54. 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 be satisfied. It is therefore essential that the conditions for deprivation of liberty under domestic law be clearly defined and that the law itself be 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).

    55. (b)  Application to the present case

    (i)  Applicant’s detention from 1 July to 2 December 2002

  55. The Court observes that on 1 July 2002 St Petersburg City Court extended the applicant’s detention until 1 October 2002. On 11 November 2002 the Supreme Court quashed the above decision, because neither the applicant nor his representative had been given proper notice of the hearing and had been absent as a result, and ordered a re-examination of his detention in respect of the above period.

  56. The Court further observes that on 24 September 2002 St Petersburg City Court extended the applicant’s detention from 30 September to 30 December 2002. On 2 December 2002, however, the Supreme Court quashed the above decision because the applicant’s representative was absent from the hearing and ordered a re-examination of his detention in respect of the above period.

  57. The issue to be determined is whether the applicant’s detention in the above periods was “lawful”, including whether it complied with “a procedure prescribed by law”. The Court reiterates that a period of detention will in principle be lawful if served pursuant to a court order. A subsequent finding that the court erred under domestic law in making the order will not necessarily affect retrospectively the validity of the intervening period of detention.

  58. In the present case the Court will consider whether the detention order of 1 July 2002 constituted a lawful basis for the applicant’s detention until 1 October 2002, and whether the detention order of 24 September 2002 constituted a lawful basis for the applicant’s detention until its quashing on 2 December 2002. The mere fact that the orders were set aside on appeal did not in itself affect the lawfulness of the detention in the preceding periods (see Benham v. the United Kingdom, 10 June 1996, §§ 43 and 46, Reports 1996-III).

  59. It has not been alleged that on 1 July and 24 September 2002 the City Court acted in excess of its jurisdiction. Indeed, as a matter of domestic law, it had the authority to examine the issue of extension of the applicant’s detention and to grant further extensions, not exceeding three months. Furthermore, the Court finds that the applicant’s detention on the basis of the orders of 1 July and 24 September 2002 cannot be said to have been arbitrary as the court gave certain grounds justifying the continued detention on remand. The sufficiency and relevance of these grounds will be discussed below from the standpoint of Article 5 § 3 of the Convention.

  60. It has not therefore been established that, in issuing the detention orders of 1 July and 24 September 2002, the City Court acted in bad faith, or that it neglected to attempt to apply the relevant legislation correctly. The fact that certain flaws in the procedure were found on appeal does not in itself mean that the detention was unlawful (see Vladimir Solovyev v. Russia, no. 2708/02, § 93, 24 May 2007, and Khudoyorov, cited above, § 132, with further references).

  61. In these circumstances, the Court finds that there was no violation of Article 5 § 1 (c) of the Convention on account of the applicant’s detention on remand from 1 July to 2 December 2002.

    62. (ii)  Applicant’s detention from 2 December to 30 December 2002

  62. The Court notes that on 2 December 2002 the Supreme Court, having quashed the City Court’s decision of 24 September 2002, ordered a re-examination of the applicant’s detention. On 15 December 2002, while the re-examination proceedings were still pending, the City Court extended the applicant’s detention on remand from 30 December 2002 to 30 March 2003.

  63. The Court further observes that on 11 March 2003 the St Petersburg City Court ex post facto authorised the applicant’s detention from 1 July to 30 December 2002. It follows, therefore, that for almost a month from 2 December to 30 December 2002 there was no valid decision authorising the applicant’s detention.

  64. The Court considers that the decision of the St Petersburg City Court of 11 March 2003 did not constitute a “lawful” basis for the applicant’s detention from 2 December to 30 December 2002. The Government did not indicate any domestic legal provision that permitted a decision to be taken authorising a period of detention retrospectively. 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 (see Khudoyorov, cited above, § 142; Vladimir Solovyev, cited above, § 99; and Shukhardin v. Russia, no. 65734/01, § 69, 28 June 2007).

  65. The Court therefore considers that there was a violation of Article 5 § 1 (c) of the Convention on account of the applicant’s detention on remand from 2 December to 30 December 2002.

    66. (iii)  Applicant’s detention from 30 December 2002 to 30 April 2004

  66. The Court observes that in the period from 30 December 2002 to 30 April 2004 the applicant’s detention was extended by the St Petersburg City Court on six occasions.

  67. 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 v. Russia, no. 75039/01, § 62, 8 June 2006).

  68. In the present case the trial court acted within its powers in making the above decisions, and there is nothing to suggest that they were invalid or unlawful under domestic law. The question whether the reasons for the decisions were sufficient and relevant is analysed below in connection with the issue of compliance with Article 5 § 3.

  69. Accordingly, the Court finds that there has been no violation of Article 5 § 1 (c) of the Convention in respect of the detention orders issued in the period from 30 December 2002 to 30 April 2004.

    70. II.  ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION

  70. The applicant complained under Article 5 § 3 of the Convention that the duration of his pre-trial detention had been in breach of the reasonable-time requirement. Article 5 § 3 provides as follows:

    71. “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. Release may be conditioned by guarantees to appear for trial.”

    A.  Submissions by the parties

  71. The Government submitted that the period of the applicant’s detention had been reasonable, that it had been in accordance with the national legislation and had been based on relevant and sufficient grounds: the applicant was accused of having committed several grave crimes; he had no permanent residence and had previously breached another preventive measure. Besides, the applicant had committed a number of especially serious crimes in the period of application to him, within another criminal case, of restraint in the form of a written undertaking not to leave, and a number of crimes while he was in the pre-trial detention facility. In these circumstances the application of a more lenient preventive measure would have represented a real threat to others, as well as to the prompt administration of justice.

  72. The applicant submitted that his pre-trial detention had lasted four years, four months and five days from 25 December 1999 to 30 April 2004. He agreed that until 25 December 2001 his detention had been justified by the reasonable suspicion that he had committed several murders. However, with the lapse of time this ground became less relevant, and the domestic court should have put forward more weighty grounds justifying his continued detention. The applicant drew the Court’s attention to the fact that on 8 January 2002 St Petersburg City Court ordered that the preventive measure applied to the applicant should remain unchanged, without citing any particular reason for that decision. The subsequent extension orders referred solely to the gravity of the charges against the applicant and the risk of him absconding and also concerned five other co-defendants without regard to their individual situation. The applicant therefore concluded that his continued detention had not been based on relevant and sufficient grounds, and that the domestic court had failed to show particular diligence in deciding this matter.

    73. B.  The Court’s assessment

    1.  Admissibility

  73. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and is not inadmissible on any other grounds. It must therefore be declared admissible.

    74. 2.  Merits

    (a)  General principles

  74. The Court reiterates that the persistence of reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the lawfulness of the continued detention. However 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 v. Italy [GC], no. 26772/95, §§ 152 and 153, ECHR 2000-IV).

  75. The presumption is in favour of release. As the Court has consistently held, the second limb of Article 5 § 3 does not give judicial authorities a choice between either bringing an accused to trial within a reasonable time and granting him provisional release pending trial. Until his conviction the accused must be presumed innocent, and the purpose of the provision under consideration is essentially to require his provisional release once his continuing detention ceases to be reasonable (see, among other authorities, Castravet v. Moldova, no. 23393/05, § 30, 13 March 2007; McKay v. the United Kingdom [GC], no. 543/03, § 41, ECHR 2006-...; Jablonski v. Poland, no. 33492/96, § 83, 21 December 2000; and Neumeister v. Austria, 27 June 1968, § 4, Series A no. 8). Article 5 § 3 of the Convention cannot be seen as unconditionally authorising detention provided that it lasts no longer than a certain period. Justification for any period of detention, no matter how short, must be convincingly demonstrated by the authorities (see Shishkov v. Bulgaria, no. 38822/97, § 66, ECHR 2003-I (extracts)).

  76. It is incumbent on the domestic authorities to establish the existence of specific 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, and Ilijkov v. Bulgaria, no. 33977/96, §§ 84-85, 26 July 2001). The national judicial authorities 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 must set them out in their decisions dismissing the applications for release. It is not the Court’s task to establish such facts and take the place of the national authorities who ruled on the applicant’s detention. It is essentially on the basis of the reasons given in the domestic courts’ 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 Korchuganova, cited above, § 72; Ilijkov, cited above, § 86; and Labita, cited above, § 152).

    77. (b)  Application to the present case

    (i)  Period to be taken into consideration

  77. The Court observes that Article 5 § 3 applies solely in the situation envisaged in Article 5 § 1 (c) with which it forms a whole. It ceases to apply on the day when the charge is determined, even if only by a court of first instance, as from that day on the person is detained “after conviction by a competent court” within the meaning of Article 5 § 1 (a) (see Solmaz v. Turkey, no. 27561/02, §§ 24-26, ECHR 2007-..., and B. v. Austria, 28 March 1990, §§ 36-39, Series A no. 175).

  78. The applicant was arrested on 25 December 1999 on suspicion of several counts of murder and was held in custody until his conviction by the first-instance court on 30 April 2004. During part of that period, from 26 November 2001 to August 2002, he was concurrently serving his sentence after conviction in an unrelated criminal case (see paragraphs 20-22 above). The Court must verify which subparagraph of Article 5 § 1 was applicable during that period with a view to determining whether it should be taken into consideration for the purposes of Article 5 § 3.

  79. The Court reiterates in this connection that the applicability of one ground listed in Article 5 § 1 does not necessarily preclude the applicability of another and detention may be justified under more than one sub-paragraph of that provision (see, among many others, Brand v. the Netherlands, no. 49902/99, § 58, 11 May 2004, and Johnson v. the United Kingdom, 24 October 1997, § 58, Reports 1997-VII). In particular, in the case of Eriksen v. Norway, the Court considered that the applicant’s detention was justified under both sub-paragraphs (a) and (c) of Article 5 § 1 and found that Article 5 § 3 was applicable (see Eriksen v. Norway, 27 May 1997, § 92, Reports 1997-III).

  80. In the present case, on 26 November 2001 the applicant was convicted in an unrelated criminal case and sentenced to a term of imprisonment which he completed in August 2002. During that period he was detained “after conviction by a competent court” within the meaning of Article 5 § 1 (a). At the same time, he was held in custody in connection with another set of criminal proceedings for the purpose of bringing him before the competent legal authority on suspicion of several counts of murder, a situation envisaged in Article 5 § 1 (c). It accordingly follows that, from 26 November 2001 to August 2002, the applicant’s deprivation of liberty fell within the ambit of both sub-paragraphs (a) and (c) of Article 5 § 1. Taking into account that the applicant was detained on the basis of Article 5 § 1 (c), and notwithstanding the fact that his detention was also grounded on Article 5 § 1 (a), the Court considers that this period should be taken into consideration for the purposes of Article 5 § 3. Therefore, the applicant has been continuously detained pending trial on the charges of several counts of murder, since his arrest on 25 December 1999 until his conviction by the first-instance court on 30 April 2004. The period to be taken into consideration therefore lasted approximately four years and four months.

    81. (ii)  Reasonableness of the length of the period in issue

  81. It is not disputed by the parties that the applicant’s detention was initially warranted by a reasonable suspicion of his having committed several murders. It remains to be ascertained whether the judicial authorities gave “relevant” and “sufficient” grounds to justify his continued detention and whether they displayed “special diligence” in the conduct of the proceedings. The inordinate length of the applicant’s detention is a matter of grave concern for the Court. In these circumstances, the Russian authorities should have put forward very weighty reasons for keeping the applicant in detention.

  82. The Court observes that after the case had been submitted for trial in December 2001, on 8 January 2002 the applicant’s detention was maintained with no reference to any grounds for continued detention. The City Court only noted that the preventive measure applied to the applicant “should remain unchanged” (see paragraph 15 above). Subsequently, in the period from 1 July 2002 to 30 April 2004 the court extended the applicant’s detention on eight occasions. Save for the extension order of 28 November 2003, which relied on very weighty and persuasive grounds for keeping the applicant in detention, the remaining seven extension orders referred solely to the gravity of the charges against the applicant and the risk of him absconding (see paragraph 17 above).

  83. The Court has repeatedly held that, although the severity of the sentence faced is a relevant element in the assessment of the risk of an accused absconding or reoffending, the need to continue the deprivation of liberty cannot be assessed from a purely abstract point of view, taking into consideration only the gravity of the offence. Nor can continuation of detention be used to anticipate a custodial sentence (see Belevitskiy v. Russia, no. 72967/01, § 101, 1 March 2007; Panchenko v. Russia, no. 45100/98, § 102, 8 February 2005; Goral v. Poland, no. 38654/97, § 68, 30 October 2003; and Ilijkov, cited above, § 81). The Court further reiterates that any system of mandatory detention pending trial is incompatible per se with Article 5 § 3 of the Convention, it being incumbent on the domestic authorities to establish and demonstrate the existence of concrete facts outweighing the rule of respect for individual liberty (see Belevitskiy, cited above, § 102, with further references).

  84. The Court further notes that with the exception of the above-mentioned extension order of 28 November 2003 all decisions extending the applicant’s detention in the period from 1 July 2002 to 30 April 2004 were stereotypically worded and in summary form. Besides, they concerned six persons without describing in detail their individual situations.

  85. The Court has already found that the practice of issuing collective detention orders without a case-by-case assessment of the grounds for detention in respect of each detainee is incompatible in itself with Article 5 § 3 of the Convention (see Aleksey Makarov v. Russia, no. 3223/07, § 53, 12 June 2008; Shcheglyuk v. Russia, no. 7649/02, § 45, 14 December 2006; Korchuganova, cited above, § 76; and Dolgova v. Russia, no. 11886/05, § 49, 2 March 2006). By extending the applicant’s detention by means of collective detention orders the domestic authorities had no proper regard to his individual circumstances.

  86. The Court has frequently found a violation of Article 5 § 3 of the Convention in Russian cases where the domestic courts extended an applicant’s detention relying essentially on the gravity of the charges and using stereotyped formulae without addressing specific facts or considering alternative preventive measures (see Belevitskiy, cited above, §§ 99 et seq.; Khudobin v. Russia, no. 59696/00, §§ 103 et seq., ECHR 2006-... (extracts); Mamedova v. Russia, no. 7064/05, §§ 72 et seq., 1 June 2006; Dolgova, cited above, §§ 38 et seq.; Khudoyorov, cited above, §§ 172 et seq., ECHR 2005 X (extracts); Rokhlina, cited above, §§ 63 et seq.; Panchenko, cited above, §§ 91 et seq.; and Smirnova v. Russia, nos. 46133/99 and 48183/99, §§ 56 et seq., ECHR 2003-IX (extracts)).

  87. Having regard to the above, the Court considers that by failing to address specific facts or consider alternative “preventive measures” and by relying essentially on the gravity of the charges, the authorities extended the applicant’s detention on grounds which, although “relevant”, cannot be regarded as “sufficient” to justify its more than four-year duration. In these circumstances it would not be necessary to examine under Article 5 § 3 of the Convention whether the proceedings were conducted with “special diligence”.

  88. There has therefore been a violation of Article 5 § 3 of the Convention.

    89. III.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF THE COMPOSITION OF THE TRIAL COURT

  89. The applicant complained under Article 6 § 1 of the Convention that the St Petersburg City Court which convicted him on 30 April 2004 had not been composed in accordance with the law and had no power to deal with his case after 1 January 2004. The relevant part of Article 6 § 1 reads as follows:

    90. “In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal established by law.”

    A.  Submissions by the parties

    1.  The Government

  90. The Government submitted that in accordance with Section 7 of the Federal law on enactment of the new Code of Criminal Procedure until 1 January 2004 grave crimes were to be examined by a single professional judge or, if the accused so wished, - by one professional and two lay judges. Having studied the material of the case file the applicant submitted a request for examination of his case by one professional and two lay judges. The lay judges Ms D. and Mr S. who sat on the bench with Judge Kurguzov had been approved by the St Petersburg City Legislature on 18 September 2002, and later on 27 September 2002 the acting president of the St Petersburg City Court selected them from 102 lay judges to participate in the examination of cases by St Petersburg City Court. Therefore, the domestic law in that respect had been complied with (unlike the situation in the cases of Posokhov v. Russia, no. 63486/00, ECHR 2003 IV, and Fedotova v. Russia, no. 73225/01, 13 April 2006).

  91. The Government further indicated that in accordance with Section 9 of the Lay Judges Act lay judges Ms D. and Mr S. had served in the City Court until the applicant’s conviction on 30 April 2004. The Government noted that after 1 January 2004 the examination of the applicant’s case continued with the participation of the above lay judges in accordance with Article 242 of the Code of Criminal Procedure of Russia which provided for the principle of invariance of the court’s composition throughout the trial. Besides, by 1 January 2004 almost all the witnesses in the applicant’s case had been questioned, and the applicant had remained in custody for four years. Therefore, the interests of justice and the interests of the applicant himself called for the continuation of the proceedings by the same court. Otherwise a differently composed court would have been obliged to restart the trial from the very beginning. The Government concluded, therefore, that there had been no interference with the applicant’s right under Article 6 § 1 of the Convention to have the criminal charge against him determined by a tribunal established by law.

    92. 2.  The applicant

  92. The applicant disputed the arguments put forward by the Government. He referred, firstly, to Section 6 of the Lay Judges Act, which outlined the procedure for the selection of the lay judges for the examination of cases by regional (city) courts. In particular, the above provision stipulated that the president of the relevant court in accordance with the rules set out by Section 5 of the Act (that is by drawing random lots) was to select the lay judges for the examination of cases by the relevant regional (city) court. Such a selection was to be carried out on the basis of the general lists of lay judges of the district courts situated on the territory of the relevant region (city). The selection of lay judges for examination of a particular case in a regional (city) court was to be carried out by the judge to whom the case in question had been assigned in accordance with the rules set out by Section 5 of the Act. In pursuance of the enforcement of Section 5 of the Act the Presidium of the Supreme Court on 14 January 2000 clarified that the selection of the lay judges was to be carried out by the president of the relevant court by drawing random lots among the lay judges on the general list(s). The number of lay judges selected for each judge should be equal to 156.

  93. Turning to the facts of his case, the applicant submitted that on 27 September 2002 the acting president of the St Petersburg City Court instead of selecting the lay judges from the general lists of all the district courts of St Petersburg had selected them on the basis of the general list of only one district court – the Krasnogvardeyskiy District Court of St Petersburg. Besides, the total number of the selected lay judges was 102, whereas there should have been 156 names selected for each judge of the court. Moreover, the selected 102 lay judges were not distributed between the judges of the City Court. Therefore, when it came to the selection of the two lay judges for a particular case it would have been impossible for the judge to whom the case had been assigned to determine which lay judges would take part in the drawing of lots. The applicant further submitted that on 11 November 2002 Judge Kurguzov “drew lots” between six unidentified lay judges, and therefore it is impossible to verify whether the remaining four persons had had the status of lay judges and had been on the relevant lists of lay judges. The anonymity of those four participants of the drawing of lots therefore does not allow determination of the lawfulness of the selection of lay judges Ms D. and Mr S. by Judge Kurguzov.

  94. The applicant further argued that after 1 January 2004 the participation of lay judges Ms D. and Mr S. in his trial had been unlawful since starting from the above date there had ceased to exist any basis in the domestic law for their further involvement in the proceedings.

    95. B.  The Court’s assessment

    1.  Admissibility

  95. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and is not inadmissible on any other grounds. It must therefore be declared admissible.

    96. 2.  Merits

  96. The Court notes at the outset that the applicant’s complaint is twofold. First of all, he challenges the lawfulness of the appointment of the lay judges who sat on the bench in his case, and secondly he questions the judicial capacity of the above lay judges after 1 January 2004.

  97. The Court reiterates that the phrase “established by law” covers not only the legal basis for the very existence of a “tribunal” but also the composition of the bench in each case (see Buscarini v. San Marino (dec.), no. 31657/96, 4 May 2000). The Court is therefore requested to examine allegations such as those made in the present case concerning a breach of the domestic rules for appointment of judicial officers. The fact that the allegation in the present case concerned lay judges does not make it any less important as, pursuant to Article 15 of the Code of Criminal Procedure then in force, in their judicial capacity lay judges enjoyed the same rights as professional judges (see paragraph 34 above).

  98. The Court observes that the parties’ dispute focuses on the extent to which the participation of lay judges Ms D. and Mr S. in the applicant’s trial complied with the domestic legislation, notably the Lay Judges Act.

  99. The Court notes that in compliance with Section 2 of the Lay Judges Act on 18 September 2002 the St Petersburg City Legislature validated the general list of 514 lay judges assigned to the Krasnogvardeyskiy District Court of St Petersburg (see paragraphs 38 and 42 above). The Court notes, however, that no information on the general lists of lay judges for other district courts of St Petersburg were provided by the Government. Thereafter the president of the City Court had to select from the general lists of the district courts situated in St Petersburg 156 lay judges for each judge of the City Court (see paragraphs 39, 40 and 43 above). In this connection the Court observes, first of all, that on 27 September 2002 the acting president of the City Court conducted the selection only on the basis of the general list of lay judges assigned to the Krasnogvardeyskiy District Court. Besides, only 102 lay judges were selected and there was no further reassignment between the judges of the City Court. The Court further observes that on 11 November 2002 Judge Kurguzov, to whom the applicant’s case had been assigned, instead of drawing lots among 156 lay judges in order to select two to sit on the bench for the hearing of the applicant’s case, drew lots among six unidentified lay judges and as a result selected lay judges Ms D. and Mr S. Regard being had to the above circumstances, the Court considers that the procedure provided for by the domestic law for selection of lay judges and drawing of random lots for their participation in the applicant’s case had been breached on several occasions.

  100. The Court reiterates that it has found a violation of Article 6 § 1 of the Convention in other Russian cases in which it had been established that the selection of lay judges had been conducted contrary to the requirements of the Lay Judges Act (see Posokhov v. Russia, no. 63486/00, §§ 40-44, ECHR 2003-IV; Fedotova v. Russia, no. 73225/05, §§ 38-44, 13 April 2006; Shabanov and Tren v. Russia, no. 5433/02, §§ 28-32, 14 December 2006; and, most recently, Barashkova v. Russia, no. 26716/03, §§ 30-34, 29 April 2008). There is no reason to reach a different conclusion in the present case, and, therefore, no need to examine further the second aspect of the applicant’s complaint concerning the judicial capacity of the lay judges Ms D. and Mr S. after 1 January 2004.

  101. The Court concludes, therefore, that the St Petersburg City Court which convicted the applicant on 30 April 2004 cannot be regarded as a “tribunal established by law” and that there has been a violation of Article 6 § 1 of the Convention on that account.

    102. IV.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF EXCESSIVE LENGTH OF PROCEEDINGS

  102. The applicant complained that the length of the criminal proceedings against him had been incompatible with the “reasonable time” requirement of Article 6 § 1 of the Convention, which provides, in the relevant part, as follows:

    103. “In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”

    A.  Submissions by the parties

  103. The Government submitted that the proceedings against the applicant had lasted four years, four months and five days, from 25 December 1999 to 30 April 2004. The preliminary investigation of the case lasted one year and nine months, which was reasonable, taking into consideration the complexity of the case. On 25 December 2001 the case was taken over by the St Petersburg City Court for trial. On 8 January 2002 the first hearing was scheduled for 5 August 2002 due to the workload of the judge and the necessity to select the lay judges. On 5 August 2002 the hearing was adjourned due to the necessity to search for one of the applicant’s co-defendants. The proceedings were resumed on 15 December 2002. In this connection the Government pointed out that the separation of the criminal case against the applicant would have not resulted, in view of the specific nature of the case, in facilitation of the court proceedings. The Government further submitted that after the resumption of the proceedings in December 2002 the hearings were adjourned on many occasions. They considered, however, that only the adjournments resulting from the failure to deliver the applicant and his co-defendants to the courtroom can be attributed to the domestic authorities. The Government concluded therefore that the length of the proceedings in the applicant’s case did not exceed the “reasonable time” requirement of Article 6 § 1 of the Convention.

  104. The applicant submitted that the proceedings against him lasted four years, nine months and five days from 25 December 1999 to 30 September 2004. The applicant noted the following periods of inactivity of the domestic authorities: two months from 23 February 2001 when the preliminary investigation of the case was completed to 23 April 2001 when the City Court referred the case for an additional investigation; one month from 23 April 2001 to 24 May 2001 when the Prosecutor’s Office started the additional investigation; seven months from 24 May to 25 December 2001 during which time the additional investigation was carried out; seven months from 8 January 2002 when the City Court decided to set the commencement of the trial for 5 August 2002 when the first hearing took place; almost four months from 5 August 2002 when the proceedings were suspended to 15 December 2002 when they were resumed; almost three months from 3 July 2003 when the hearing was adjourned until 29 September 2003; and five months from 30 April 2004 when the applicant was convicted by the City Court to 30 September 2004 when his conviction was upheld on appeal by the Supreme Court. The applicant further argued that although his case was not an easy one, it was not especially intricate either: when the case file was transmitted to the trial court it contained eighteen volumes, of which six represented copies of documents from the case file of one of the applicant’s co-defendants. The applicant concluded that the domestic authorities did not show particular diligence while examining his case and did not respect the requirement of the reasonable duration of the proceedings.

    105. B.  The Court’s assessment

    1.  Admissibility

  105. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and is not inadmissible on any other grounds. It must therefore be declared admissible.

    106. 2.  Merits

    (a)  Period to be taken into consideration

  106. The Court notes that the period to be taken into consideration in determining the length of criminal proceedings begins with the day on which a person is “charged” within the autonomous and substantive meaning to be given to that term. It ends with the day on which a charge is finally determined or the proceedings are discontinued (see, among many authorities, Rokhlina, cited above, § 81).

  107. The period to be taken into consideration in the present case began on 25 December 1999 when the applicant was arrested and suspicion of several counts of murder was raised against him and ended on 30 September 2004 when his conviction became final. It follows that the period to be taken into consideration has lasted four years, nine months and seven days. Throughout this period the case spanned the investigation stage and two levels of jurisdiction.

    108. (b)  The reasonableness of the length of proceedings

  108. The Court reiterates that the reasonableness of the length of the proceedings is to be assessed in the light of the particular circumstances of the case, regard being had to the criteria laid down in the Court’s case-law, in particular the complexity of the case, the applicant’s conduct and the conduct of the competent authorities. On the latter point, what is at stake for the applicant has also to be taken into consideration (see, among many other authorities, Korshunov v. Russia, no. 38971/06, § 70, 25 October 2007; Rokhlina, cited above, § 86; and Nakhmanovich v. Russia, no. 55669/00, § 95, 2 March 2006).

  109. The Court accepts that the involvement of several co-defendants in the proceedings and the seriousness of the charges against them in itself made the trial complex. However, in the Court’s view, the complexity of the case does not suffice, in itself, to account for the length of the proceedings.

  110. The Court notes that the applicant does not appear to have caused any delays in the proceedings. Moreover, the fact that he was held in custody required particular diligence on the part of the authorities dealing with the case to administer justice expeditiously (see Panchenko, cited above, § 133, and Kalashnikov v. Russia, no. 47095/99, § 132, ECHR 2002 VI).

  111. On the other hand, several manifest delays in the proceedings were caused by the conduct of the domestic authorities. The Court observes, in particular, that on 25 April 2001 the City Court referred the case for an additional investigation owing to serious breaches of the procedure. The resulting delay of eight months (from 25 April 2001 to 25 December 2001) could have been avoided had the relevant domestic authorities complied more strictly with the rules set out in the domestic law.

  112. After the case was submitted to the City Court on 25 December 2001, the first hearing was scheduled for 5 August 2002. The Government explained the resulting seven months’ delay by the heavy workload of the judge and the necessity to select the lay judges. In this respect the Court recalls that it is for Contracting States to organise their legal systems in such a way that their courts can guarantee the right of everyone to obtain a final decision within a reasonable time (see Löffler v. Austria, no. 30546/96, § 21, 3 October 2000, and Bakhitov v. Russia, no. 4026/03, § 29, 4 December 2008). The Court also deplores the fact that although the domestic authorities were made aware of the applicant’s preference as to the composition of the court as early as November 2001, the selection of the lay judges for the hearing of the applicant’s case was conducted a year later, on 11 November 2002.

  113. The Court further observes that on 5 August 2002 the proceedings were suspended in view of the necessity to search for one of the applicant’s co-defendants. Four months later, on 15 December 2002 the proceedings were resumed despite the fact that the search had yielded no results. It appears that nothing precluded the domestic court from starting the trial four months earlier in the absence of the applicant’s co-defendant, and the delay in question should, therefore, be also attributed to the domestic authorities. Another delay, amounting to five months, for which the domestic authorities can be held responsible, occurred from 30 April 2004 when the trial court pronounced the judgment until the appeal hearing of 30 September 2004.

  114. Having regard to the foregoing, and especially to what was at stake for the applicant, given that he had been held in detention throughout the whole period while the proceedings were pending, the Court considers that the length of the proceedings in the present case did not satisfy the “reasonable time” requirement.

  115. There has accordingly been a breach of Article 6 § 1 of the Convention.

    116. V.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION

  116. Lastly, the applicant complained under Article 3 that he had been intimidated by police officers following his arrest, under Article 6 that the trial court had admitted allegedly unreliable evidence, that the court had failed to obtain the attendance of two defence witnesses and that his request to postpone the pleadings had been refused. He further complained under Article 8 that the inquiry into his long-distance calls at the stage of the pre-trial investigation had been unlawful.

  117. However, having regard to all the material in its possession, and in so far as these complaints fall 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.

    118. VI.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

  118. Article 41 of the Convention provides:

    119. “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

  119. The applicant claimed 250,000 euros (EUR) in respect of non-pecuniary damage.

  120. The Government submitted that the claim was excessive and that it contradicted the Court’s case-law.

  121. The Court notes that it has found a combination of serious violations in the present case. The applicant spent over four years in custody, his detention was not based on sufficient grounds; it was excessively long and partly unlawful. He was also denied the right to a trial within a reasonable time by a tribunal established by law. 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, the Court awards the applicant EUR 10,000 in respect of non-pecuniary damage, plus any tax that may be chargeable on it. The Court further notes that Article 413 of the Russian Code of Criminal Procedure provides that criminal proceedings may be reopened if the Court finds a violation of the Convention.

    122. B.  Costs and expenses

  122. The applicant, relying on contracts with his lawyer and receipts showing that the money had been paid, claimed 130,000 Russian roubles (RUB) for legal fees incurred during the proceedings before the domestic courts and RUB 350,000 for legal fees incurred before the Court.

  123. The Government expressed doubts as to whether the costs and expenses claimed by the applicant were actually and necessarily incurred and reasonable as to quantum.

  124. The Court reiterates that only such costs and expenses as were actually and necessarily incurred in connection with the violation or violations found, and are reasonable as to quantum, are recoverable under Article 41 of the Convention (see, for example, Sahin v. Germany [GC], no. 30943/96, § 105, ECHR 2003-VIII). The Court observes that the applicant was represented by a lawyer in the domestic proceedings, which involved complex issues, and required qualified legal advice. The Court further observes that in October 2005 the applicant issued the same lawyer with authority to represent his interests in the proceedings before the European Court of Human Rights. It is clear from the length and detail of the pleadings submitted by the applicant, including extensive references to the Court’s case-law, that a great deal of work was carried out on his behalf. Having regard to the material in its possession, the Court awards the applicant EUR 12,500 for his legal representation in the domestic proceedings and before the Court plus any tax that may be chargeable to the applicant on that amount.

    125. C.  Default interest

  125. 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.

    126. FOR THESE REASONS, THE COURT UNANIMOUSLY

  126. Declares admissible

    127. (a)  the complaint under Article 5 § 1 (c) concerning the alleged unlawfulness of the applicant’s detention from 1 July 2002 to 30 April 2004;

    (b)  the complaint under Article 5 § 3 concerning the length of the applicant’s pre-trial detention;

    (c)  the complaint under Article 6 § 1 concerning the allegedly unlawful composition of the trial court;

    (d)  the complaint under Article 6 § 1 concerning the length of the criminal proceedings against the applicant;

    and inadmissible the remainder of the application;


  127. Holds that there has been no violation of Article 5 § 1 (c) of the Convention on account of the applicant’s detention from 1 July to 2 December 2002 and from 30 December 2002 to 30 April 2004;


  128. Holds that there has been a violation of Article 5 § 1 (c) of the Convention on account of the applicant’s detention from 2 December to 30 December 2002;


  129. Holds that there has been a violation of Article 5 § 3 of the Convention;


  130. Holds that there has been a violation of Article 6 § 1 of the Convention on account of the unlawful composition of the trial court;


  131. Holds that there has been a violation of Article 6 § 1 of the Convention on account of an excessive length of proceedings against the applicant;


  132. Holds

    133. (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 the following amounts, to be converted into Russian roubles at the rate applicable at the date of settlement:

    (i)  EUR 10,000 (ten thousand euros) in respect of non-pecuniary damage, plus any tax that may be chargeable;

    (ii)  EUR 12,500 (twelve thousand five hundred euros) in respect of costs and expenses, plus any tax that may be chargeable to the applicant;

    (b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;


  133. Dismisses the remainder of the applicant’s claims for just satisfaction.

    134. Done in English, and notified in writing on 23 April 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

    Søren Nielsen Christos Rozakis
    Registrar President


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