BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
FIRST
SECTION
CASE OF RAZHEV v. RUSSIA
(Application
no. 29448/05)
JUDGMENT
STRASBOURG
12
June 2012
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 Razhev v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina Vajić,
President,
Anatoly Kovler,
Elisabeth
Steiner,
Mirjana Lazarova Trajkovska,
Julia
Laffranque,
Linos-Alexandre Sicilianos,
Erik
Møse, judges,
and Søren Nielsen,
Section Registrar,
Having
deliberated in private on 22 May 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 29448/05) 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 Oleg Mikhaylovich Razhev
(“the applicant”), on 24 June 2005.
- The
Russian Government (“the Government”) were represented by
Mr G. Matyushkin,
Representative of the Russian Federation at the European Court of
Human Rights.
- The
applicant alleged that his pre-trial detention in the period from
4 to 17 March 2005 had not been covered by a valid detention
order and that the lawfulness of his detention during that period was
not amenable to judicial review.
- On
17 November 2009 the application was communicated to the Government.
It was also decided to rule on the admissibility and merits of the
application at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1958 and lives in Nizhniy Novgorod.
- On
3 March 2004 the applicant was detained as a suspect in a criminal
case concerning embezzlement, and on 4 March 2004 his pre-trial
detention was authorised by a court. On 27 December 2004 the
Sormovskiy District Court, Nizhniy Novgorod, extended the term of
pre-trial detention until 3 March 2005 (inclusive of the latter
date).
- On
the latter date the period of detention authorised by the court
expired, but the applicant remained in detention although no
extension of his detention was ordered.
- On
9 March 2005 the criminal case file was submitted to the Kanavinskiy
District Court of Nizhniy Novgorod.
- On
17 March 2005 the Kanavinskiy District Court declined jurisdiction
over the criminal case in favour of the Sormovskiy District Court,
and decided at the same time to extend the applicant’s
detention, placing him “in the charge of the Sormovskiy
District Court”. On 24 March 2005 the applicant lodged an
appeal against the extension of the detention order. On an
unidentified date several days later he lodged a complaint with the
Presidium of the Nizhniy Novgorod Regional Court; he expressly
complained that he had been detained without any detention order
after the expiry of the detention term on 3 March 2005, and claimed
that in any event his further detention had ceased to be justified.
- On
11 April 2005 the Sormovskiy District Court extended the applicant’s
detention until 11 May 2005. This decision was upheld by the Nizhniy
Novgorod Regional Court on 11 May 2005.
- On
22 April 2005 the Nizhniy Novgorod Regional Court examined the
applicant’s appeal against the decision of 17 March 2005, by
which the applicant’s detention had been extended. It held that
the extension had been lawful and justified. The period of detention
between 4 and 17 March 2005 was not examined by the appeal court.
- On
6 May 2005 the Sormovskiy District Court scheduled a hearing of the
applicant’s criminal case and held that “the measure of
restraint, namely pre-trial detention, [was] to remain unchanged”.
This decision was upheld by the Nizhniy Novgorod Regional Court on 1
June 2005.
- On
19 May 2005 the Sormovskiy District Court examined and dismissed the
applicant’s application for release. This decision was upheld
by the Nizhniy Novgorod Regional Court on 1 June 2005.
- On
27 July 2005 the Nizhniy Novgorod Regional Court judge examined and
dismissed the applicant’s request for supervisory review of the
appeal decision of 22 April 2005. The decision upheld the reasons for
the applicant’s further detention, without any mention of the
period between 4 and 17 March 2005.
- On
9 September 2005 the Sormovskiy District Court extended the
applicant’s detention until 9 December 2005.
- On
6 December 2005 the Sormovskiy District Court convicted the applicant
of embezzlement. The applicant’s appeal was dismissed by the
Nizhniy Novgorod Regional Court on 4 April 2006. On 3 July 2006 the
applicant was released on parole.
- On
27 December 2006 the Nizhniy Novgorod Regional Court examined a
criminal case in which the applicant was a victim of unauthorised
telephone tapping. The court convicted the implicated police officer
of abuse of powers and awarded the applicant non-pecuniary damages.
II. RELEVANT DOMESTIC LAW
- The
Code of Criminal Procedure of the Russian Federation, in force from 1
July 2002, provides that from the date the prosecutor forwards the
case to the trial court, the defendant’s detention is “before
the court” (or “during the trial”). Upon receipt of
the case file, the judge must determine, in particular, whether the
defendant should remain in custody or be released pending trial
(Articles 228 (3) and 231 § 2 (6)).
- The
term of detention “during the trial” is calculated from
the date the court received the file and to the date the judgment is
given. The period of detention “during the trial” 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).
- At any time during the trial the court may order, vary
or revoke any preventive measure, including detention (Article 255 §
1). An appeal against such a decision lies to the higher court. It
must be lodged within ten days and examined no later than one month
after its receipt (Articles 255 § 4 and 374).
- On 22 March 2005 the Constitutional Court of the
Russian Federation adopted Ruling no. 4-P on a complaint
lodged by a group of individuals concerning the de facto
extension of detention after the transfer of a case file to a trial
court by the prosecution. In part 3.2 of the ruling the
Constitutional Court held:
“The second part of Article 22 of the Constitution
of the Russian Federation provides that ... detention is permitted
only on the basis of a court order ... Consequently, if the term of
detention, as defined in the court order, expires, the court must
decide on the extension of the detention, otherwise the accused
person must be released ...
These rules are common to all stages of criminal
proceedings, and also cover the transition from one stage to another.
... The transition of the case to another stage does not
automatically put an end to a preventive measure applied at previous
stages.”
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 from 4 to 17 March 2005 was not based on any
judicial order. Article 5 § 1 (c) 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.”
- The
Government confirmed that that from 4 to 17 March 2005 the applicant
was held in custody without judicial authorisation. On the former
date the detention order expired, and no decision was taken to extend
the term of pre-trial detention. The Government referred to the
decision of the Constitutional Court that found, on 22 March 2005,
that the practice permitting the detention of an accused without a
court order for up to six months from the date of receipt of the case
file by the trial court was tainted with arbitrariness and therefore
incompatible with the Constitution. However, the relevant period of
the applicant’s detention ended before the Constitutional
Court’s ruling, and therefore the conclusion made therein had
not been taken into account. The Government accepted that the
applicant’s detention in that period was in breach of Article 5
§ 1 of the Convention.
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- 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, among many other
authorities, Khudoyorov v. Russia, no. 6847/02, §
124, ECHR 2005-X).
- The Court observes that in the instant case the period
of the applicant’s detention authorised by the decision of 27
December 2004 expired on 3 March 2005, but the applicant remained in
detention. It appears that anticipating the transfer of the case the
investigating authority overlooked the expiry of the term of
detention, and so did the court which received the criminal case file
on 9 March 2005, which declined jurisdiction. Accordingly, no
decision extending the detention order was granted until 17 March
2005. It follows that the applicant’s detention between 4 and
17 March 2005 was not covered by a detention order.
- The Court has already found a violation of Article 5
§ 1 of the Convention in many cases against Russia
concerning the practice of holding defendants in custody solely on
the strength of the fact that their case has been referred to the
trial court. It has held that the practice of keeping defendants in
detention without judicial authorisation or clear rules governing
their situation was incompatible with the principles of legal
certainty and the protection from arbitrariness, which are common
threads throughout the Convention and the rule of law (see Isayev
v. Russia, no. 20756/04, §§ 131-33, 22 October
2009; Yudayev v. Russia, no. 40258/03, §§
59-61, 15 January 2009; Belov v. Russia, no. 22053/02,
§§ 90-91, 3 July 2008; Lebedev v. Russia, no.
4493/04, §§ 55-58, 25 October 2007; Shukhardin v.
Russia, no. 65734/01, §§ 84-85, 28 June 2007;
Belevitskiy v. Russia, no. 72967/01, §§ 88-90, 1
March 2007; Korchuganova v. Russia, no. 75039/01, § 57, 8
June 2006; and Khudoyorov, cited above, §§ 147-51).
The Court sees no reason to reach a different conclusion in the
present case. It notes that the Government have also accepted that
that this period of the applicant’s detention did not comply
with domestic law, and considers that it was not “lawful”
within the meaning of Article 5 § 1 of the Convention.
- In
the light of the foregoing considerations, the Court finds that there
has been a violation of Article 5 § 1 of the Convention on
account of the applicant’s detention from 4 to 17 March 2005.
II. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE
CONVENTION
- The
applicant complained that he did not have at his disposal an
effective procedure by which he could challenge the lawfulness of his
detention in the period from 4 to 17 March 2005, as required by
Article 5 § 4 of the Convention. This Article provides as
follows:
“4. 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.”
- The
Government considered that the applicant could have challenged the
allegedly unlawful detention before a court, and allegedly did so by
lodging, on 24 March 2005, a complaint about the extension of the
pre-trial detention which was decided upon on 17 March 2005. On 22
April 2005 the Kanavinskiy District Court of Nizhniy Novgorod
examined his complaint and upheld the first-instance decision. The
Government therefore considered that the complaint under Article 5 §
4 was manifestly ill founded.
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- The
Court reiterates that by virtue of Article 5 § 4, an arrested or
detained person is entitled to bring proceedings for the review by a
court of the procedural and substantive conditions which are
essential for the “lawfulness”, in the sense of Article 5
§ 1, of his or her deprivation of liberty. This means that the
competent court has to examine not only compliance with the
procedural requirements set out in domestic law but also the
reasonableness of the suspicion grounding the arrest and the
legitimacy of the purpose pursued by the arrest and the ensuing
detention (see Brogan and Others v. the United Kingdom, 29
November 1988, Series A no. 145-B, § 65; Grauslys
v. Lithuania, no. 36743/97, §§ 51-55, 10 October
2000; and Ilijkov v. Bulgaria, no. 33977/96, § 94, 26
July 2001).
- As
the Court has found above, in the period from 4 to 17 March 2005 the
applicant’s detention was not covered by any detention order
(see paragraph 26 above). The applicant was not therefore able to
initiate a judicial review of his detention during that period
because Russian law provides only for a procedure for an appeal
against formal detention orders (see paragraph 20 above). In the
absence of such an order the applicant did not have a clear means
available to him of seeking a review of the lawfulness of his
detention (see, mutatis mutandis, Belevitskiy, cited
above, § 109). Furthermore, when the applicant did complain to
the Nizhniy Novgorod Regional Court, alleging unlawful detention in
that period, it treated this complaint as an application for release,
and did not make a retrospective assessment of the lawfulness of the
previous detention periods. In particular, in the decision of 22
April 2005 the court limited itself to stating reasons for the
prospective detention but did not examine the question as to whether
there existed an authorisation in respect of the period at issue.
Moreover, the subsequent supervisory review conducted on 27 July 2005
omitted this issue as well. Accordingly, the domestic courts did not
consider this part of the applicant’s detention to be subject
to a judicial review.
- It
follows that in the instant case the applicant was not able to take
proceedings to examine the lawfulness of his detention of 4 and 17
March 2005.
- There
has therefore been a violation of Article 5 § 4 of the
Convention.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- Lastly,
the applicant complained under Article 6 §§ 1, 2 and
3 (b) and (d) of the Convention of a violation of the
presumption of innocence, a violation of his right to defend himself
through legal assistance of his own choosing and a violation of the
guarantees relating to the examination of witnesses. He also
complained under Article 8 of the Convention that there had been
unlawful telephone tapping.
- However,
in the light of all the material in its possession, and in so far 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 is manifestly ill-founded and must
be rejected in accordance with Article 35 §§ 3 (a) and 4 of
the Convention.
IV. 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.”
- The
applicant did not submit a claim for just satisfaction within the
indicated time-limit. Accordingly, the Court considers that there is
no call to award him any sum on that account.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaints concerning the
applicant’s pre-trial detention without a detention order in
the period between 4 and 17 March 2005 and the lack of judicial
review thereof admissible and the remainder of the application
inadmissible;
- Holds that there has been a violation of Article
5 § 1 of the Convention;
- Holds that there has been a violation of Article
5 § 4 of the Convention.
Done in English, and notified in writing on 12 June 2012, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Nina Vajić
Registrar President
