In the case of Pyatkov v. Russia,
The European Court of Human
Rights (First Section), sitting as a Chamber composed of:
Nina Vajić,
President,
Anatoly Kovler,
Peer Lorenzen,
Elisabeth Steiner,
Khanlar Hajiyev,
Linos-Alexandre Sicilianos,
Erik Møse, judges,
and Søren Nielsen, Section Registrar,
Having deliberated in private on
23 October 2012,
Delivers the following judgment,
which was adopted on that date:
PROCEDURE
The case
originated in an application (no. 61767/08) 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 Yuriy Aleksandrovich Pyatkov (“the applicant”), on 1 December 2008.
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, in particular, that he had contracted tuberculosis during his
detention in the remand prison, that his pre-trial detention had been unlawful
and unreasonably long, and that there had been shortcomings in the proceedings
concerning the review of the lawfulness of his detention.
On 3 November 2009 the President of the First
Section decided to give notice of the application 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 1963 and lived before his arrest in Ufa, Republic of Bashkortostan. He is
currently detained in Ufa IZ-3/1 remand prison.
A. The applicant’s arrest and detention pending
investigation
. On 24
November 2006 the applicant was arrested on suspicion of drug trafficking.
. On 25
November 2006 he was charged with large-scale drug trafficking committed in
conspiracy with other drug dealers. On the same date Leninskiy District Court (Ufa) examined the investigator’s request to remand the applicant in custody. The court held
as follows:
“Mr Pyatkov Yu.A. is charged with a serious offence, which is
punishable by a term of imprisonment of more than two years.
Moreover, Mr Pyatkov Yu. A. was previously convicted of
criminal offences on several occasions; his most recent conviction was in 2006.
Furthermore, Mr Pyatkov Yu.A. is a drug addict, and if released,
he might engage in further criminal activities related to drugs in order to provide
himself with drugs and improve his financial situation.”
Taking into account the above elements, the danger to
society presented by the offences imputed to the applicant, and the need to
secure the execution of his sentence, Leninskiy District Court remanded the
applicant in custody. The applicant did not appeal against that decision.
9. On 23
January 2007 Leninskiy District Court extended the applicant’s detention until
17 May 2007, referring to the gravity of the charges against him. The court
further held that the applicant was a drug addict, had a criminal record and if
released he might abscond, continue his criminal activities or interfere with
the proceedings, and noted that his detention was necessary in order to secure
the execution of his sentence. The applicant did not appeal against that
decision.
10. On 11 May
2007 Kirovskiy District Court (Ufa) extended the applicant’s detention until 17
August 2007. The court held, in particular, that the period fixed by the court
for the applicant’s detention was not sufficient to allow a judge, who would
receive the case for examination on the merits, to take a decision concerning
the applicant’s detention during the trial. The court also held that the
applicant was charged with a serious offence presenting a danger to society,
and that if released he might continue criminal activities, abscond, or interfere
with the proceedings. The court also noted that the applicant’s detention was
necessary in order to secure the execution of the sentence.
11. On 14
August 2007 Kirovskiy District Court extended the applicant’s detention until
17 November 2007, on the same grounds as given in its decision of 11 May 2007.
12. On 29
September 2007 the applicant was presented with the final version of the
charges. He was accused of several episodes of large-scale drug trafficking
committed as a member of an organised criminal group.
. On 22
October 2007 the applicant and his counsel started familiarising themselves
with the materials of the criminal case as did the other twenty-nine defendants.
According to the Government, the file consisted of 160 volumes.
14. On 15
November 2007 the Supreme Court of the Republic of Bashkortostan (“the Supreme
Court”) extended the applicant’s detention until 17 February 2008, bringing its
total duration to fourteen months and twenty-four days. In taking that decision
the Supreme Court stated that the applicant was charged with a serious offence,
and that if released he might flee from justice, engage in criminal activities
or obstruct the establishment of the truth.
15. On 7
February 2008 the Supreme Court granted the investigation authorities’ request for
the applicant’s detention to be extended until 17 May 2008, bringing its
total duration to seventeen months and twenty-four days. The court held as
follows:
“Mr Pyatkov is charged with particularly serious offences punishable
by more than two years’ imprisonment. The grounds on which he was initially
remanded in custody ... had not changed. The investigation of the criminal case
is particularly complex. These circumstances should be regarded as
extraordinary circumstances which can serve as a basis for the extension of the
defendant’s detention.”
. In
his appeal against that detention order the applicant requested that the
preventive measure be changed to a written undertaking not to leave the town
since he was suffering from a serious disease.
. On
16 April 2008 the Supreme Court of the Russian Federation upheld the detention
order of 7 February 2008. It found, in particular, that the fact that the
applicant was under medical supervision in the remand prison because he had
been diagnosed with Human Immunodeficiency Virus (“HIV”) could not be a ground
for his release on a written undertaking.
18. On 15 May
2008 the Supreme Court, at the investigator’s request, extended the applicant’s
detention until 24 May 2008, thus bringing its total duration to eighteen
months. The court held as follows:
“... the grounds on which his [the applicant’s] detention had been
based had not changed. These grounds had been sufficient for placing him in
detention, since he had been charged with particularly serious offences as a
member of an organised criminal group. Therefore, the investigator’s request is
duly reasoned and should be granted.”
B. Further extension of
the applicant’s detention pending investigation
19. On 20 May
2008 the Supreme Court examined the investigator’s request, supported by the
prosecutor, for extension of the applicant’s detention beyond the maximum
period of eighteen months. The investigator submitted that owing to the volume
and complexity of the criminal case and the large number of co-defendants and
their counsel, the applicant and his counsel needed additional time to
familiarise themselves with the criminal case. The Supreme Court decided, referring
to Article 109 of the Criminal Procedure Code (“the CCrP”, see Relevant
domestic law below), to extend the applicant’s detention until 17 August 2008,
bringing its total duration to twenty-one months. The court held as follows:
“The term of Mr
Pyatkov’s detention is to expire on 24 May 2008. As required by Article 109 § 5
of the CCrP, the investigation was completed and the materials of the criminal
case presented to the applicant and his counsel no later than thirty days
before the expiration of the maximum period of detention. However, it appears
difficult to complete the pre-trial investigation by the above date, since the applicant
and his counsel need additional time to comply with the requirements of Article
217 of the CCrP.
The preventive measure applied to Mr Pyatkov had been duly
justified in accordance with Article 108 of the CCrP, since he had been charged
with a large number of particularly serious offences as a member of an
organised criminal group and if released he might interfere with the
proceedings or abscond, and therefore the court does not see any reason to
alter the preventive measure.”
. In
his appeal against that extension order the applicant submitted, among other
things, that having regard to his poor health, the absence of any intention to
abscond or interfere with the proceedings, and also the fact that he had a
permanent place of residence, he should have been released under a written
undertaking.
. On
29 July 2008 the Supreme Court of the Russian Federation examined the applicant’s
appeal. It held, in particular, that the 142 volumes of the criminal case had
been presented to the defendants, including the applicant, and their counsel,
for their perusal, and that the investigation of that voluminous and complex
criminal case had been carried out without any major delays. The Supreme Court
dismissed the applicant’s appeal, finding as follows:
“The large volume of evidence in the
criminal case and the need to comply with the requirements of Article 217 of
the CCrP in respect of all defendants and their counsel confirmed that the court
[Supreme Court of the Republic of Bashkortostan] had correctly concluded that
it was impossible to change the preventive measure applied to Mr Pyatkov and showed
that there existed grounds, provided for in Article 109 § 7 of the CCrP, for
further extension of the applicant’s detention.
The materials of the case do not
refer to any new circumstances which came to light after the preventive measure
- namely his placement in custody - was lawfully imposed on Mr Pyatkov in
accordance with Article 108 [of the CCrP] and which would make it necessary to
cancel or change that measure.
The court had every reason to
believe, having regard to the lengthy period of the criminal activities
concerned and their character, that if released Mr Pyatkov might interfere with
the proceedings or abscond from the investigation and trial.
The age [of the applicant] and [his]
permanent place of residence are not sufficient grounds to cancel or change the
measure of restraint.
There is nothing to indicate that Mr
Pyatkov cannot be detained in a remand prison due to his state of health.
In those circumstances the court rightly
found that there were grounds for extending Mr Pyatkov’s detention beyond eighteen
months.”
22. The Supreme
Court further extended the applicant’s detention on 14 August until 17
November 2008 and on 12 November 2008 until 17 February 2009
referring to the same grounds as in its decision of 20 May 2008. Those
detention orders were upheld by the Supreme Court of the Russian Federation on 15 October 2008 and 12 February 2009 respectively.
23. On 12
February 2009 the Supreme Court extended the applicant’s detention until 17 May
2009, bringing its duration to twenty-nine months and twenty-four days. That
decision was based on the same grounds as previous detention orders.
. On
22 February 2009 the applicant appealed against the detention order of 12
February 2009. He informed the appeal court that he would submit additional
grounds of appeal after he received a copy of the detention order of 12
February 2009. According to the applicant, on 24 February 2009 he
submitted additional grounds of appeal in which he requested the appeal court
to grant him leave to participate in the appeal hearing. He provided the Court
with a copy of that request. The Government claimed that the applicant had not
submitted a special request to take part in the hearing. However, they did not
contest the authenticity of a copy of that request provided by the applicant to
the Court.
25. In his
appeal against the detention order of 12 February 2009 the applicant complained
that the extension of his detention had been unlawful and was not based on
sufficient grounds. He also complained that he was not provided with an
opportunity to familiarise himself with the documents which had served a basis
for extension of his detention.
. On
6 March 2009 the applicant and his counsel finished familiarising themselves
with the materials of the criminal case.
. On
10 April 2009 the investigator in charge of the case informed the applicant
that while the defendants were familiarising themselves with the criminal case,
twenty volumes of the case file had been stolen. On 16 January 2009
criminal proceedings had been initiated in this respect and the lost volumes
had been restored. According to the investigator, the applicant could now
familiarise himself with those volumes of the case file.
28. On 23 April
2009 the Supreme Court of the Russian Federation examined and dismissed the
applicant’s appeal against the detention order of 12 February 2009. Neither the
applicant nor his counsel were present at the hearing, whereas the prosecutor was
present and requested that the appeal be dismissed.
29. On 8 May 2009
the Supreme Court extended the applicant’s detention until 17 August 2009,
bringing its total duration to thirty-two months and twenty-four days. That
detention order referred to Article 109 of the CCrP and was worded in the same
terms as the detention order of 20 May 2008.
. On
14 May 2009 the applicant appealed against the detention order of 8 May 2009 to
the Supreme Court of the Russian Federation. He submitted, in particular, that
he had finished familiarising himself with the materials of the criminal case
in April 2009, including with the copies of the lost volumes. He considered
that the extension of his detention was not based on sufficient grounds, since
his state of health would not allow him to influence witnesses or abscond. He
also requested the appeal court to examine his appeal in his presence or by
video link.
. According
to the Government, on 16 July 2009 notification of the date and the time of the
hearing on the applicant’s appeal against the decision of 8 May 2009 was sent
to the applicant and his counsel. The Government submitted that the applicant had
received that notification on 20 July 2009.
C. The applicant’s
detention during the trial and his release
32. On 3 August
2009 the criminal case against the applicant and his co-defendants was referred
to the Supreme Court for trial.
. On
5 August 2009 the Supreme Court set the preliminary hearing of the case for 13
August 2009. However, two of the applicant’s co-defendants (M. and T.), who
were under a written undertaking, did not appear on that date.
34. On 11
August 2009 the Supreme Court of the Russian Federation examined the applicant’s
appeal against the detention order of 8 May 2009. It dismissed the applicant’s
request for leave to appear at the hearing, finding that the criminal case
against the applicant and his co-accused had not yet arrived at the court for
trial and had not yet been examined, that the applicant had sent his written
submissions to the court, and that the prosecutor was not taking part in the
examination of his appeal. As to the merits of the applicant’s appeal, the
Supreme Court held that the detention order of 8 May 2009 was lawful and duly
reasoned. The applicant’s counsel was not present at the appeal hearing.
35. At the preliminary
hearing of 14 August 2009 the trial court held that the crimes of which the
absconded co-defendants were accused were closely linked to crimes allegedly
committed by other co-defendants, and that it would therefore be impossible to
examine the charges against them separately. The court accordingly decided to
put the missing co-defendants on the warrant list and suspended criminal
proceedings against all defendants until the missing co-defendants were
captured. Regarding the other co-defendants, including the applicant, the court
held as follows:
“... [the other co-defendants] are charged with serious and
particularly serious offences. The grounds on which they had been placed in
detention ... still remained valid. The defendants’ and their counsel’s
arguments about their permanent place of residence and job, family situation, and
serious health problems, cannot be regarded as grounds for changing the measure
of restraint. In such circumstances, the preventive measure applied to them in
the form of detention should not be changed until the preliminary hearing of
the case. However, taking into account the requirements of Article 255 § 2 [of
the CCrP], they should not stay in detention more than six months after the
criminal case has come to court ...
... the measure of restraint [applied to other co-defendants,
including the applicant] should be detention on remand, for a period which
should not go beyond 3 February 2010 ...”
At the hearing of 14 August 2009 the applicant was represented
by legal counsel.
. On
20 August 2009 the applicant appealed against the decision of 14 August
2009 to the Supreme Court of the Russian Federation. He complained that the
extension of his detention had been unlawful and excessively severe, since he
had been in detention for almost three years and his health was deteriorating.
37. On 17
November 2009 the Supreme Court of the Russian Federation upheld the detention
order of 14 August 2009 having found that the applicant’s detention had
been extended in compliance with Article 255 § 2 of the CCrP and that it was
based on sufficient reasons.
. By
a decision of 24 November 2009 the trial court decided to resume the
proceedings, and set the preliminary hearing of the case for 14 December
2009. By the same decision the trial court held that the measure of restraint
applied to the applicant and some of his co-defendants should remain unchanged.
The case was adjourned on 14 December and 18
January 2010 because two co-defendants were sick.
On 29 January 2010, after holding
a preliminary hearing, the trial court set the examination of the case for 10
February 2010. By the same decision the trial court severed the proceedings
against co-defendant T., who was still at large, into separate proceedings and
extended the applicant’s and his co-defendants’ detention until 3 May 2010. The
trial court held as follows:
“On 3 August 2009 the criminal case arrived to the Supreme
Court of the Republic of Bashkortostan ...
... They [the co-defendants, including the applicant] are
charged with serious and particularly serious offences relating to drug
trafficking as members of an organised criminal group. At present the grounds
on which their detention was ordered, namely the risk that they would interfere
with the proceedings, abscond or continue criminal activities, remain unchanged,
and they have not provided any guarantees of their appearance in court. In such
circumstances, the measure of restraint applied to them should remain
unchanged. Since the six-month time-limit running from the date of arrival of
the case to the trial court expires on 3 February 2010, and in accordance with
Article 255 § 3 of the CCrP, the defendants’ detention should be extended for
three months ...”.
On 28 April 2010 the trial court ordered the
applicant’s release under a written undertaking.
D. The applicant’s
conviction
On 20 April 2011 the Supreme Court found the
applicant guilty of attempted drug trafficking and acquitted him of the
remaining charges. The applicant was sentenced to nine years’ imprisonment. It
appears that appeal proceedings are pending.
E. Medical assistance
provided to the applicant in detention
. From
25 November 2006 and until his release on 28 April 2010 under a written
undertaking the applicant was detained in Ufa IZ-3/1 remand prison.
. On
his admission to the remand prison the applicant was examined by the prison
doctor and given a chest fluorography examination, which revealed no signs of
tuberculosis.
. According
to the information provided by the Government and not disputed by the
applicant, between June 2007 and July 2008 the applicant was given three more
fluorography tests, which revealed no pathology in his lungs.
. On
17 February 2009 a new fluorography test detected changes indicating
tuberculosis in the applicant’s lungs. On 18 February 2009 the applicant was
examined by a doctor who diagnosed him with infiltrative tuberculosis of the
right lung. The applicant was placed in the tuberculosis ward of the remand
centre and was prescribed anti-tuberculosis treatment.
. A
fluorography test carried out on 28 January 2010 detected improvement in the
applicant’s condition.
II. RELEVANT
DOMESTIC LAW AND PRACTICE
A. Code of Criminal
Procedure of the Russian Federation (“the CCrP”) of 2001, in force since 1 July
2002
1. Preventive measures
“Preventive measures” or
“measures of restraint” include an undertaking not to leave a town or region,
personal surety, bail and detention (Article 98). If necessary, the suspect or
accused may be asked to give an undertaking to appear (Article 112).
When deciding on a preventive measure, the
competent authority is required to consider whether there are “sufficient
grounds to believe” that the accused would abscond during the investigation or
trial, reoffend or obstruct the establishment of the truth (Article 97). It
must also take into account the gravity of the charge, information on the
accused’s character, his or her profession, age, state of health, family status
and other circumstances (Article 99).
Detention
may be ordered by a court in respect of a person suspected of or charged with a
criminal offence punishable by more than two years’ imprisonment, provided that
a less restrictive preventive measure cannot be applied (Article 108 § 1).
2. Time-limits for
detention “pending investigation”
(a) Initial detention
and its extensions
After arrest the suspect is placed in detention
“pending investigation”. Detention “pending investigation” must not exceed two
months (Article 109 § 1).
A judge may extend the detention up to six
months. Further extensions to up to twelve months may be granted by a judge only
in relation to those accused of serious or particularly serious criminal
offences, provided that the criminal case is particularly complex and there are
grounds justifying detention (Article 109 § 2).
An extension of detention
beyond twelve months and up to eighteen months may be authorised by a court only
in exceptional circumstances in respect of those accused of particularly
serious offences, upon an investigator’s request approved by the Prosecutor
General or his Deputy (Article 109 § 3).
Extension of detention beyond eighteen months is
prohibited, and the detainee must be immediately released, unless the
prosecution’s request for an extension for the purpose of studying the case has
been granted by a court in accordance with Article 109 § 8 of the CCrP (Article
109 § 4).
(b) Supplementary
extension for study of the case file
Upon completion of the
investigation, the detainee must be given access to the case file no later than
thirty days preceding the expiry of the maximum period of detention indicated in
paragraphs 2 and 3 of Article 109 (Article 109 § 5).
If access was granted at a later date, the
detainee must be released after the expiry of the maximum period of detention
(Article 109 § 6).
57. If access was granted thirty days before the
expiry of the maximum period of detention but the thirty-day period proved to
be insufficient to read the entire case file, the investigator may request the
court to extend the period of detention. The request must be submitted no later
than seven days before the expiry of the
detention period. If several defendants are involved in the proceedings and the
thirty-day period is insufficient for at least one of them to read the entire
case file, the investigator may request the court to extend the period of
detention in respect of those defendants who have completed reading the case
file, provided that the need to apply a custodial measure to them persists and
there are no grounds for choosing another preventive measure (Article 109 § 7).
58. Within five days of receipt of the request for
an extension the judge must decide whether to grant it or reject it and release
the detainee. If the extension is granted, the period of detention is extended until
such time as would be sufficient for the detainee and counsel to finish reading
the case file and for the prosecution to submit the case to the trial court
(Article 109 § 8).
3. Time-limits for
detention “during trial”
From the
date the prosecutor forwards the case to the trial court, the defendant’s
detention is “before the court” (or “during trial”). The period of detention
“during trial” is calculated from the date on which the court receives the
criminal case and to the date on which the judgment is adopted. Detention
“during 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).
4. Proceedings before
the appeal court
An appeal against a judicial decision ordering
or extending detention may be lodged with a higher court within three days. The
appeal court must decide on the appeal within three days of its receipt
(Article 108 § 11).
If a convict wishes to attend an appeal hearing,
he should indicate that wish in his statement of appeal (Article 375 § 2).
Upon receipt of the criminal case and the
statement of appeal, the judge fixes the date, time and place for a hearing.
The parties shall be notified of the date, time and venue of the hearing no
later than fourteen days before the scheduled hearing. The court shall decide
whether the detainee should be summoned to the hearing. A detainee held in custody who expresses a wish to be present at the
examination of the appeal shall be entitled to participate either directly in
the court session or to state his case by video link. The court shall make a
decision with respect to the form of participation of the detainee in the court
hearing. If individuals who have been given timely notice of the venue and time
of the appeal hearing fail to appear, this shall not preclude examination of
the case (Article 376).
B. Practice
of domestic courts
1. Detention pending
investigation and trial
63. By its
decision no. 184-O of 6 June 2003 the Constitutional Court of the Russian
Federation (“the Constitutional Court”) declined to examine a complaint by Mr Yest.,
in which he challenged compliance with the Constitution of Article 109 § 8
of the Code of Criminal Procedure, in so far as it allowed the extension of detention
pending investigation beyond the maximum time-limit and indefinitely while the
defendant finished reading the material in the case file. The Constitutional
Court held that such an extension was only possible if there still existed “sufficient
grounds to believe” that the accused might abscond during the investigation or
trial, reoffend or otherwise obstruct the establishment of the truth, as
provided by Article 97 of the Code of Criminal Procedure. In so far as the
challenged provision did not set a specific time-limit for holding the
defendant in custody while he studied the case file, the Constitutional Court
considered that it allowed for the possibility of determining such a time-limit
for each particular case, depending on its specific features, on condition that the grounds for detention established
in Article 97 had been sufficiently confirmed. The court concluded that
the challenged provision could not be interpreted as providing for superfluous
or unlimited detention. Neither did it deprive the defendant and his counsel of
the right to challenge before a higher court the lawfulness and validity of the
extension order, as well as the right to make an application for the custodial
measure to be overturned or altered.
64. In
its ruling no. 245-O-O of 20 March 2008, the Constitutional Court noted that it
had reiterated on several occasions (rulings nos. 14-П,
4-П, 417-O and 330-O of 13 June 1996, 22 March 2005,
4 December 2003 and 12 July 2005 respectively) that a court, when taking a
decision under Articles 100, 108, 109 and 255 of the CCrP on the placement of
an individual in detention or on the extension of a period of an individual’s
detention, was under obligation, inter alia, to calculate and specify a
time-limit for such detention.
By its decision no. 271-O-O
of 19 March 2009, the Constitutional Court declined
to examine a complaint by Mr R. With reference to its previous decisions of
13 June 1996, 25 December 1998 and 6 June 2003, the Constitutional
Court held that even though Article 109 § 8 did not
define the maximum period within which an extension could be granted for the
purpose of studying the case file, it did not imply the possibility of
excessive or unlimited detention because, in granting an extension, the court
should not rely solely on a well-founded suspicion that the defendant had
committed the offence, but should mainly base its decision on specific
circumstances justifying the continued detention, such as his potential to
exert pressure on witnesses or an established risk of his absconding or
reoffending, as well as the importance of the subject matter of the
proceedings, the complexity of the case, the conduct of the defendant and other
relevant factors.
In its decision no. 22 of
29 October 2009 “On the Practice of Application by the Courts of
Preventive Measures in the Form of Remand in Custody, Bail and House Arrest”
the Plenum of the Supreme Court of the Russian Federation held as follows:
“18. ... Pursuant to Article 109 § 7 of the CCrP [Code
of Criminal Procedure], following a request by an investigator the court may
extend an accused’s detention until such time as he and his defence counsel
have finished studying the case file and the prosecutor has submitted it to the
[trial] court, if upon completion of the pre-trial investigation the accused
has been given access to the case file no later than thirty days before the
expiry of the maximum period of detention indicated in Article 109 §§ 2 and
3 [six, twelve or eighteen months]. In that case the relevant extension order
should indicate the exact period for which the extension is made ...
20. After a court accepts for examination a criminal
case in which the defendant is remanded in custody, it should verify whether
the time-limit set by a court order for that detention has expired ... The
court decision to maintain the applicant in detention [taken after arrival of
the criminal case to the court for examination on the merits] should have an
indication of the end-date of the defendant’s detention”.
2. Proceedings before
the appeal court
On 22 January 2004 the Constitutional Court delivered decision no. 66-O on a complaint about the refusal to
permit a detainee to attend appeal hearings on the issue of detention. It held:
“Article 376 of the Code of Criminal Procedure regulating the
presence of a defendant remanded in custody before the appeal court... cannot
be read as depriving the defendant held in custody ... of the right to express
his opinion to the appeal court, by way of his personal attendance at the
hearing or by other lawful means, on matters relating to the examination of his
complaint about a judicial decision affecting his constitutional rights and freedoms
...”
By its decision no. 432-O of 24 November 2005
the Constitutional Court declined to examine a complaint by Mr G. With
reference to its previous decisions of 10 December 2002 and 25 March 2004, the
Constitutional Court held that convicts, but also others, including suspects in
criminal proceedings and those charged with criminal offences and remanded in
custody, had to be given the right to bring to the knowledge of the appeal
court their position in respect of issues which would be examined by that court
either by way of personal participation in the hearing or by other means. This
position was later confirmed in its decision no. 538-O of 16 November 2006.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE
CONVENTION
The applicant
complained under Article 3 of the Convention that he had contracted tuberculosis
during his detention in Ufa IZ-3/1 remand prison. Article 3 of the Convention reads
as follows:
“No one shall be subjected to
torture or to inhuman or degrading treatment or punishment.”
The applicant
maintained his complaint.
The Government submitted
that the applicant had failed to exhaust domestic remedies in respect of the
above complaint, as he had not brought any court proceedings against the
administration of the remand prison. They further argued that it had been
impossible to establish whether the applicant had contracted tuberculosis while
in detention. The majority of individuals entering the prison system were infected
with mycobacterium tuberculosis prior to their detention. Those with weak
immune systems, like the applicant, were prone to the infection. Throughout his
detention in the remand prison the applicant had been provided with adequate
medical assistance. After the applicant had been diagnosed with tuberculosis he
had undergone all necessary examinations and received treatment which showed positive
results. The Government provided the Court with the applicant’s medical
records.
The Court notes
the Government’s objection of non-exhaustion by the applicant of the
available avenues of domestic protection. However, it does not consider it
necessary to deal with the objection, as it, in any event, considers the
present complaint inadmissible, for the following reasons.
While finding it particularly disturbing that the applicant’s
infection with tuberculosis might have occurred in a custodial institution
within the State’s control, and as an apparent consequence of the authorities’
failure to eradicate or prevent the spread of the disease, the Court reiterates
its constant approach that this fact in itself would not imply a violation of
Article 3, provided that the applicant received treatment for it (see Alver v. Estonia, no.
64812/01, § 54, 8 November 2005; Babushkin
v. Russia, no. 67253/01, § 56, 18 October 2007; Pitalev v.
Russia, no. 34393/03, § 53, 30
July 2009; Pakhomov v. Russia, no. 44917/08, § 65, 30 September 2010; Gladkiy
v. Russia, no. 3242/03, § 88,
21 December 2010; Vasyukov
v. Russia, no. 2974/05, § 66, 5 April 2011 and Dmitriy Sazonov v. Russia, no. 30268/03, § 40, 1 March 2012).
In the present
case the Court observes that, according to the Government’s submissions, which
are not disputed by the applicant, the latter was under constant medical
supervision and had received adequate medical assistance when the tuberculosis
was detected. The medical records showed that the
treatment had produced positive results. Nothing in the case file leads
the Court to the conclusion that the applicant did not receive comprehensive
medical assistance for his tuberculosis. The applicant did not deny that
medical supervision had been provided and tests had been carried out, or that
the prescribed medication had been provided, as indicated in the medical
records submitted by the Government. In fact, he did not indicate any
shortcomings in his medical care.
In view of the above
considerations the Court finds that this part of the application must be
rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of
the Convention.
II. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE
CONVENTION
The applicant
complained under Article 5 that his detention between 24 May 2008 and 14 August
2009 had been unlawful because after the expiry of the maximum statutory period
of detention pending investigation the domestic courts had repeatedly extended
his detention on the ground that he needed additional time to read the case
file. The applicant further complained that his detention on the basis of
decision of 14 August 2009 had been unlawful because that decision had not set
a specific time-limit for his detention. The relevant parts of Article 5
provide as follows:
“1. Everyone has the
right to liberty and security of person. No one shall be deprived of his
liberty save in the following cases and in accordance with a procedure
prescribed by law ...
(c) the lawful arrest
or detention of a person effected for the purpose of bringing him before the
competent legal authority on reasonable suspicion of having committed an
offence or when it is reasonably considered necessary to prevent his committing
an offence or fleeing after having done so ...”
A. Admissibility
The Court
reiterates at the outset that, pursuant to Article 35 § 1 of the Convention, it
may only deal with a matter within a period of six months from the final decision
in the process of exhaustion of domestic remedies. If no remedies are available,
or if they are judged to be ineffective, the six-month period in principle runs
from the date of the act complained of (see Hazar
and Others v. Turkey (dec.), nos. 62566/00 et seq., 10 January
2002).
The Court further
points out that it is not open to it to set aside the application of the
six-month rule solely because a respondent Government have not made a
preliminary objection to that effect, since the said criterion, reflecting as
it does the wish of the Contracting Parties to prevent past events being called
into question after an indefinite lapse of time, serves the interests not only
of respondent Governments, but also of legal certainty as a value in itself. It
marks out the temporal limits of the supervision carried out by the organs of
the Convention and signals to both individuals and State authorities the period
beyond which such supervision is no longer possible (see Walker v. the
United Kingdom (dec.), no. 34979/97, ECHR 2000-I).
Turning to the present case, the Court observes that the applicant raised his
complaints under Article 5 § 1 of the Convention for the first time in his
application of 4 May 2009. It follows that the most recent period of detention
which the Court may examine was ordered on 12 November 2008 and commenced on 17
November 2008 (see paragraph 22 above). Therefore,
the applicant’s complaint concerning his detention between 24 May and 17
November 2008 was introduced out of time and must be rejected in accordance
with Article 35 §§ 1 and 4 of the Convention.
The Court further
notes that the applicant’s complaints about his detention between 17 November
2008 and 14 August 2009 and about the detention ordered on 14 August 2009 are
not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention. It further notes that they are not inadmissible on any other
grounds. They must therefore be declared admissible.
B. Merits
1. Submissions by the parties
The applicant maintained
his complaints.
Regarding the
first limb of the applicant’s complaint, the Government submitted that after the
expiry of the maximum eighteen- month period of detention the domestic courts had
extended the applicant’s detention in accordance with Article 109 §§ 7 and 8 of
the CCrP (cited in paragraphs 57 and 58 above), which provided for the
possibility of extending a defendant’s detention pending investigation beyond
the maximum period on the ground of the need for him or her to study the case
file. These provisions fully complied with the requirements of Article 5 of the
Convention since, aside from the need to study the case file, they made such an
extension conditional on the existence of relevant and sufficient reasons for
continued detention and the impossibility of applying another preventive
measure. The end of the period for which the detention was extended depended on
how soon the defendant and his counsel finished familiarising themselves with
the case file.
Regarding the
second limb of the applicant’s complaint, the Government submitted that on 14
August 2009 the domestic court had extended the applicant’s detention in
accordance with Article 255 § 2 of the CCrP (cited in paragraph 59 above),
which provided that the term of the
defendant’s detention after arrival of the case to the court and adoption of the
judgment should not exceed six months. Therefore, in its decision the court
indicated that the applicant should stay in detention but not beyond 3 February
2010, and thus has set a clear time-limit for the applicant’s detention.
2. The Court’s assessment
(a) General principles
It is well
established in the Court’s case-law under the sub-paragraphs of Article 5 § 1
that any deprivation of liberty must, in addition to falling within one of the
exceptions set out in sub-paragraphs (a)-(f), be “lawful”. Where the
“lawfulness” of detention is in issue, including the question whether “a
procedure prescribed by law” has been followed, the Convention refers
essentially to national law and lays down the obligation to conform to the
substantive and procedural rules of national law. Compliance with national law
is not, however, sufficient: Article 5 § 1 requires in addition that any
deprivation of liberty should be in keeping with the purpose of protecting the
individual from arbitrariness. It is a fundamental principle that no detention
which is arbitrary can be compatible with Article 5 § 1 and the notion of
“arbitrariness” in Article 5 § 1 extends beyond lack of conformity with
national law, so that a deprivation of liberty may be lawful in terms of
domestic law, but still arbitrary and thus contrary to the Convention (see Saadi
v. the United Kingdom [GC], no. 13229/03, § 67, ECHR 2008).
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 Baranowski v. Poland, no.
28358/95, §§ 51-52, ECHR 2000-III, and Khudoyorov v. Russia, no.
6847/02, §125, ECHR 2005-X (extracts)).
(b) Application of these principles in the present
case
(i) detention between 17 November 2008 and 14 August
2009
The Court
observes that the applicable provisions of domestic law permitted up to
eighteen months’ detention during investigation (hereinafter “the maximum
detention period”) in respect of individuals accused of particularly serious
offences (Article 109 § 3, cited in paragraph 53 above). The domestic law
further provided that the period in question could be extended by a judicial
decision if the defendant was granted access to the case file no later than
thirty days before the expiry of the maximum detention period and if the
thirty-day period proved insufficient for him or her to read the entire file (Article
109 §§ 7 and 8, cited in paragraphs 57 and 58 above).
In the present
case the maximum detention period expired on 24 May 2008 (see paragraph 18 above). The applicant was granted access to the
case file on 22 October 2007, which was over thirty days before the expiry of
the maximum detention period (see paragraphs 13
above), but the thirty-day period proved insufficient for him to read all the volumes
of the criminal case. For that reason, at the request of the investigator, on
20 May 2008 the Supreme Court extended the applicant’s detention until 17
August 2008 (see paragraph 19 above). The
court relied on Article 109 of the CCrP.
Subsequently, the
Supreme Court extended the applicant’s detention on four occasions (on 14
August and 12 November 2008 and 12 February and 8 May 2009) for the same
purpose and by reference to the same legal provision (see paragraphs 22, 23 and 29 above), bringing the overall duration of the
applicant’s detention pending the investigation to thirty-two months and twenty-four
days. Each of these extensions was limited to a specific date.
The Court has
previously examined a similar situation, in the
case of Tsarenko v. Russia (no. 5235/09, §§ 60-61, 3 March 2011). The Court applied the
following line of reasoning:
“60. In the present
case, the eighteen months’ detention of the applicant during the investigation
expired on 12 September 2008. Upon request of the investigator, the City Court
granted an extension until 4 October 2008 for the purpose of studying the case
file. It relied on Article 109 §§ 7 and 8 of the Code of Criminal Procedure.
Subsequently, further extensions for the same purpose and by reference to the
same legal provision were granted by the City Court on 1 October and 3 December
2008, 3 February, 1 and 28 April 2009. The parties disagreed on
whether such repeated extensions were permitted under the applicable provisions
of the domestic law. The Court has already examined a similar situation in the Korchuganova
v. Russia case, in which it had regard to the interpretation given by
the Russian Constitutional Court of the relevant provisions of the Code of
Criminal Procedure (§ 51, case cited above). The Court noted that, according to
the Constitutional Court’s binding clarifications of 13 June 1996 and 25
December 1998 [...], in the absence of an express legal provision for repeated
extensions of detention on the ground that the defendant has not finished
studying the file, the granting of such repeated applications for extension of
the defendant’s detention was not permitted by law and incompatible with the
guarantee against arbitrary detention. The restrictive interpretation adopted
by the Constitutional Court is consonant with the requirements of Article 5, a
provision which makes detention an exceptional departure from the right to
liberty and one that is only permissible in exhaustively enumerated and
strictly defined cases (see, among others, Sherstobitov v. Russia, no. 16266/03, § 113, 10 June 2010; Shukhardin
v. Russia, no. 65734/01, § 67, 28 June 2007; Nakhmanovich v. Russia,
no. 55669/00, § 79, 2 March 2006; and Khudoyorov, cited above,
§ 142).
61. The case-law of
the Russian Constitutional Court required that a possibility to grant multiple
extensions on the same ground be expressly mentioned and provided for in the
criminal-procedure law. The adoption of a new Code of Criminal Procedure in
2003 did not affect the validity or applicability of the Constitutional Court’s
case-law and the text of new Article 109 closely followed that of the former
Article 97. The Constitutional Court’s decision of 19 March 2009, to which
the Government referred, did not alter the Constitutional Court’s position [...].
The courts of general jurisdiction in the instant case, and the Government in
their submissions before the Court, adopted an extensive interpretation of
Article 109, claiming that, in the absence of an express prohibition on
multiple extensions on the same ground, the competent court should remain free
to grant as many extensions as it considered appropriate in the circumstances
of the case. However, neither the domestic courts nor the Government were able
to show that the new Article 109 contained an express provision for repeated
extensions of the detention period for this purpose. It follows that their
extensive interpretation of this provision sat ill with the restrictive
interpretation adopted by the Russian Constitutional Court and was incompatible
with the principle of the protection from arbitrariness enshrined in Article 5
of the Convention. Accordingly, the legal basis for the extension orders of
1 October and 3 December 2008, 3 February, 1 and 28 April 2009, which
covered the period of the applicant’s detention from 4 October 2008 to 20 May
2009, was deficient and the applicant’s detention for that period was in breach
of Article 5 § 1.”
The Court sees no
reason to depart from its previous conclusion to the effect that the provisions
of Russian law governing detention pending study of the case file by a
defendant or his or her co-defendants are not foreseeable in their application
and fall short of the “quality of law” standard required under the Convention
in so far as they do not contain any express rule regarding the possibility of
repeated extensions.
The Court notes that it has declared inadmissible the applicant’s complaint
about a part of his detention ordered after the expiry of the maximum period
(detention between 24 May and 17 November 2008, see paragraph 79 above).
However, as regards the subsequent period, between 17 November 2008 and 14
August 2009, in the absence of any express provision in Article 109 of the CCrP
for repeated extensions of the detention period in order to allow the defendant
to study the case file, the Court finds that there has been a violation of
Article 5 § 1 of the Convention.
(ii) detention on the basis of detention order of 14
August 2009
The Court
observes that the applicable provisions of domestic law (Article 255 § 2 of the
CCrP, cited in paragraph 59 above) provided that the detention “during trial”
should not exceed six months, but if the case concerned serious or particularly
serious offences, the trial court could approve one or more extensions of no
longer than three months each.
In the present
case the detention “during trial” started on 3 August 2009, when the prosecutor
forwarded the criminal case against the applicant and his co-defendants to the
trial court (see paragraph 32 above). At the
preliminary hearing of the case on 14 August 2009 the trial court decided
to suspend the criminal proceedings against the applicant and his co-defendants
until the capture of the two absconded defendants. On the same date the court
held that the grounds on which the applicant had been placed in detention still
remained valid and there were no reasons to alter the preventive measure. It
therefore considered that the applicant had to stay in detention. Referring to
Article 255 § 2 the court held that the applicant’s detention after the arrival
of the case at the court should not exceed six months and therefore he had to stay
in detention during the period which should not go beyond
3 February 2010 (see paragraph 35 above).
On 17 November 2009 the Supreme Court of the Russian Federation upheld the
decision of 14 August 2009, having found that the applicant’s detention had
been extended in compliance with Article 255 § 2 of the CCrP and that it was
based on sufficient reasons.
The parties
disagreed on whether the decision of 14 August 2009 had set a specific
time-limit for the applicant’s detention.
In that respect
the Court notes that the national legislation, as interpreted by the Russian
judicial authorities, imposed on the domestic courts an obligation to set a
specific time-limit when ordering an individual’s placement in, or extending
the period of, detention at any stage of criminal proceedings (see paragraphs 64 and 66 above).
Having regard to the
operative part of the decision of 14 August 2009 (cited in paragraph 35 above) the Court considers that the decision in
question had set a specific time-limit for the applicant’s detention, which was
3 February 2010. Even assuming that the way in which the decision was
formulated might have been unclear to the applicant, his counsel, who had represented
him at the hearing of 14 August 2009, could have explained to him until which date
his detention had been extended.
Having regard to
the above, the Court considers that the decision of 14 August 2009 served as a
legal basis for the applicant’s detention from 14 August 2009 until 3
February 2010 and was in conformity with domestic law. Furthermore, there is
nothing to indicate that the applicant’s detention during that period could
have been said to be arbitrary or that the domestic law in itself was not in
conformity with the Convention.
The Court finds
therefore that there has been no violation of Article 5 § 1 of the
Convention with regard to the detention order of 14 August 2009, which
served as the basis for the applicant’s detention between 14 August 2009
and 3 February 2010.
III. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE
CONVENTION
The applicant
complained that his pre-trial detention had not been founded on relevant and
sufficient reasons. He relied on Article 5 § 3 of the Convention,
which reads as follows:
“Everyone arrested or detained
in accordance with the provisions of paragraph 1 (c) of this Article
shall be ... entitled to trial within a reasonable time or to release pending
trial. Release may be conditioned by guarantees to appear for trial.”
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
1. Submissions by the parties
The applicant
maintained his complaint.
The Government
submitted that the entire period of the applicant’s detention had been based on
“relevant and sufficient” reasons and the proceedings were conducted with
“special diligence”. They pointed out that the applicant was suspected of
having committed a criminal offence as a member of an organised criminal group
and stood trial along with twenty-nine co-defendants. Therefore, the
investigation of that criminal case had been very complex.
2. The
Court’s assessment
(a) General principles
In determining
the length of detention pending trial under Article 5 § 3 of the
Convention, the period to be taken into consideration begins on the day the
accused is taken into custody and ends on the day when the charge is
determined, even if only by a court of first instance (see Wemhoff
v. Germany, 27 June 1968, § 9, Series A no. 7, and Labita
v. Italy [GC], no. 26772/95, §§ 145 and 147, ECHR 2000-IV).
Under Article 5
the presumption is in favour of release. 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 or granting him provisional release pending
trial. Until conviction, he 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 Neumeister v. Austria, 27 June 1968, p. 37, § 4, Series A no. 8; McKay v. the United Kingdom [GC], no. 543/03, § 41, ECHR 2006-X; and Bykov v. Russia [GC], no. 4378/02, § 61, 10 March 2009).
The issue of
whether a period of detention is reasonable cannot be assessed in abstracto.
Whether it is reasonable for an accused to remain in detention must be assessed
in each case according to its special features. Continued detention therefore
can be justified in a given case only if there are specific indications of a
genuine requirement of public interest which, notwithstanding the presumption
of innocence, outweighs the rule of respect for individual liberty laid down in
Article 5 of the Convention (see W. v. Switzerland, 26 January 1993, §
30, Series A no. 254-A, and Kudła v. Poland [GC], no.
30210/96, § 110, ECHR 2000-XI).
The
responsibility falls in the first place on the national judicial authorities to
ensure that, in a given case, the pre-trial detention of an accused person does
not exceed a reasonable time. To this end they must, paying due regard to the
principle of the presumption of innocence, examine all the facts arguing for or
against the existence of the above-mentioned demand of public interest
justifying a departure from the rule in Article 5 and must set them out in
their decisions on the applications for release. It is essentially on the basis
of the reasons given in these decisions and of the established facts stated 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 (see Muller
v. France, 17 March 1997, § 35, Reports of Judgments and Decisions
1997-II; Labita, cited above, § 152, and McKay v. the
United Kingdom, cited above, § 43).
The persistence
of a reasonable suspicion that the person arrested has committed an offence is
a condition sine qua non for the lawfulness of the continued detention, but with the lapse of time this no longer
suffices and the Court must then establish whether the other grounds given by
the judicial authorities continued to justify the deprivation of liberty.
Where such grounds are “relevant” and “sufficient”, the Court must also be
satisfied that the national authorities displayed “special diligence” in the
conduct of the proceedings (see, among other authorities, Letellier v. France, 26 June 1991, § 35, Series A no. 207; Yağcı and Sargın v.
Turkey, 8 June 1995, § 50, Series A no. 319-A; and Bykov, cited
above, § 64).
(b) Application of these principles in the present
case
The applicant was
arrested on 24 November 2006. On 28 April 2010 he was
released under a written undertaking not to leave the town. He remained under a
written undertaking until his conviction on 20 April 2011. It follows that the
applicant’s pre-trial detention lasted from 24 November 2006 until 28 April
2010, which is three years, five months and four days. In that respect the
Court notes that it has found above that the applicant’s detention from 17
November 2008 to 14 August 2009 was unlawful, and
therefore, in breach of Article 5 § 1 of the Convention (see paragraph 91 above). These findings may, in principle, make it
unnecessary to discuss, from the standpoint of Article 5 § 3 of the Convention,
the sufficiency and the relevance of the grounds given by the domestic courts
to justify the applicant’s detention during that period. Nevertheless, for the
sake of clarity the Court considers it appropriate to examine the entire period
of the applicant’s detention (see, for a similar approach, Fedorenko v.
Russia, no. 39602/05, §
64, 20 September 2011).
109. It
is not disputed by the parties that the applicant’s detention was initially
warranted by a reasonable suspicion that he had been involved in large-scale drug trafficking. The Court therefore
has to ascertain whether the other grounds given by the authorities continued to justify the deprivation of liberty.
. The
Court notes that pending the investigation of the case the domestic courts
authorised the applicant’s detention relying mainly on the seriousness of the
charges against him and his potential to abscond, reoffend or obstruct the
establishment of the truth, if released. Occasionally they cited other factors,
such as the “public danger” of the offence with which the applicant had been
charged (decisions of 25 November 2006 and 11 May and 14 August 2007), the need
to secure the execution of the sentence (decisions of 25 November 2006 and
23 January and 11 May 2007), the complexity of the criminal case (decision of 7
February 2008) or the need to allow additional time for the trial court to take
a decision on application of a custodial measure to the applicant during the
trial (decision of 11 May 2007). The applicant’s detention between 24 May 2008
and 14 August 2009 was, in addition, justified by the need to familiarise
himself with the materials of the case.
111. As
regards the courts’ reliance on the seriousness of charges, the Court has
repeatedly held that this reason cannot by itself serve to justify long periods
of detention (see, among other authorities, Khudoyorov, cited above §
180). Although the severity of the sentence faced is a relevant element in the
assessment of the risk of absconding or reoffending, the need to continue the
deprivation of liberty cannot be assessed from a purely abstract point of view,
taking into consideration only the gravity of the offence. Nor can continuation
of the detention be used to anticipate a custodial sentence (see Letellier, cited
above § 51; Ilijkov v. Bulgaria, no. 33977/96, § 81, 26 July
2001; and Panchenko v. Russia, no. 45100/98, § 102, 8 February
2005;).
The Government
have laid particular emphasis on the organised nature of the alleged criminal activities.
Indeed, the applicant was charged with
membership of a criminal gang, which is an offence under the Criminal Code, and
with particularly serious offences committed as part of such an organised
group. As the Court has previously observed, the existence of a general
risk flowing from the organised nature of criminal activities may be accepted
as the basis for detention at the initial stages of the proceedings (see Celejewski v. Poland,
no. 17584/04, §§ 37 and 38, 4 May 2006, and Kučera
v. Slovakia, no. 48666/99, § 95, ECHR 2007-... (extracts)). The
Court cannot agree, however, that the nature of those activities could form the
basis of detention orders at an advanced stage of the proceedings. Thus, the
above circumstances alone could not constitute a sufficient basis for holding
the applicant in detention for such a long period of time.
It remains to be ascertained whether the domestic courts
established and convincingly demonstrated the existence of concrete facts in
support of their conclusions that the applicant could abscond, obstruct justice
or reoffend.
The Court
observes that the domestic courts justified the risk that the applicant might
abscond, reoffend or obstruct the proceedings by reference to the applicant’s drug
addiction and criminal record. They underlined that his most recent conviction was
dated 2006. The Court agrees that these grounds might have been relevant for
the assessment of the need to keep the applicant in detention. However, the judiciary
merely cited them, without providing any further explanation. They did not
indicate whether the previous charges were comparable, either in nature or in
the degree of seriousness, to the charges in the pending proceedings. Neither
did they assess other aspects of the applicant’s personality and his personal
circumstances, or refer to any other
facts or evidence which could have substantiated the above risks.
. In any event, the Court considers
that the risks referred to by the domestic courts became less significant
in the course of time and, in particular, after the investigation of the case
was completed. However, after the referral of the case for trial, the domestic
courts kept the applicant in detention for several more months. Their reasoning
did not evolve to reflect the developing situation. They merely stated in their
decisions that the grounds on which the applicant’s detention had been ordered
still remained valid.
The Court also
observes that on several occasions the domestic courts extended the applicant’s
detention by means of identically or similarly worded detention orders (see
paragraphs 19 and 22,
23 and 29 above)
and issued “collective” detention orders in respect of the applicant and his
co-defendants (see paragraphs 35 and 40 above),
without having proper regard to the applicant’s individual circumstances.
Having regard to
the above, the Court considers that the domestic courts neither established nor convincingly demonstrated the existence of specific
facts in support of their conclusions that the applicant could abscond, obstruct
justice or reoffend.
118. As regards
the other grounds cited by the domestic courts when extending the applicant’s
detention (see paragraph 110 above), the Court notes that they were cited occasionally,
became negligible in the course of time, and in any event, were not such as
to outweigh the applicant’s right to trial within a reasonable time or to release
pending trial.
Overall, the
Court considers that that the authorities failed to adduce relevant and
sufficient reasons to justify extending the applicant’s detention pending trial
to three years, five months and four days. In
such circumstances it is not necessary to examine whether the case was complex
or whether the proceedings were conducted with “special diligence”.
There has
therefore been a violation of Article 5 § 3 of the Convention.
IV. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE
CONVENTION
The applicant
further complained that on 23 April and 11 August 2009 the Supreme Court of the
Russian Federation examined his appeals against the detention orders of 12
February and 8 May 2009 respectively in his absence, despite his request for
participation in these hearings. He relied on Article 5 § 4, which reads 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.”
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
1. Submissions by the
parties
The applicant maintained his complaint.
The Government considered that the proceedings
by which the lawfulness of the applicant’s detention had been examined had
fully complied with the requirements of Article 5 § 4. The applicant’s counsel
had been duly informed of both appeal hearings, but had failed to appear at
either of them. The applicant had been also duly notified of those hearings.
However, he had not made a special request to be present at the appeal hearing
of 23 April 2009. His request for leave to appear at the appeal hearing of 11
August 2009 had been dismissed by the appeal court on lawful grounds. According
to the position of the Constitutional Court, a defendant’s right to bring to
the knowledge of the appeal court his arguments concerning the lawfulness of a
decision to remand him in custody could be effected either by means of his
personal attendance at the hearing or by other means provided for by law (see
Relevant domestic law and practice above). In the present case the applicant
explained his position to the appeal court by submitting detailed grounds of
appeal and the prosecutor was not taking part in the appeal hearing. Bringing
the applicant to the appeal hearings could have delayed the proceedings and
would breach the rights of the other accused.
2. The Court’s
assessment
(a) General principles
The Court reiterates that by virtue of Article
5 § 4 an arrested or detained person is entitled to bring proceedings for
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 (see Brogan and Others
v. the United Kingdom, 29 November 1988, § 65, Series A no. 154-B).
Although the Convention does not compel the
Contracting States to set up a second level of jurisdiction for the examination
of the lawfulness of detention, “a State which institutes such a system must in
principle accord to the detainees the same guarantees on appeal as at first
instance” (see Navarra v. France,
judgment of 23 November 1993, Series A no. 273-B, § 28, and Toth v. Austria, judgment of 12
December 1991, Series A no. 224, § 84).
The requirement of procedural fairness under Article 5 § 4 does not impose a
uniform, unvarying standard to be applied irrespective of the context, facts
and circumstances (see A. and Others v. the United Kingdom [GC], no. 3455/05, § 203, ECHR 2009). Although
it is not always necessary for a procedure under Article 5 § 4 to be attended
by the same guarantees as those required under Article 6 § 1 of the Convention
for criminal or civil litigation, it must have a judicial character and provide
guarantees appropriate to the kind of deprivation of liberty in question (see Reinprecht v. Austria, no. 67175/01, §
31, ECHR 2005- ..., with further references). The proceedings must be
adversarial and must always ensure equality of arms between the parties. In the
case of a person whose detention falls within the ambit of Article 5 § 1 (c), a
hearing is required (see Nikolova v. Bulgaria [GC], no. 31195/96, § 58,
ECHR 1999-II). The opportunity for a detainee to be heard either in
person or through some form of representation features among the fundamental
guarantees of procedure applied in matters of deprivation of liberty (see Kampanis v. Greece, 13 July 1995,
§ 47, Series A no. 318-B).
(b) Application of
these principles in the present case
The Court observes that on 23 April and 11
August 2009 the Supreme Court of the Russian Federation examined and dismissed
the applicant’s appeals against the detention orders of 12 February and 8 May
2009 respectively (see paragraphs 28 and 34 above). The hearing of
23 April 2009 was held without the attendance of either the applicant or
his counsel, but in the presence of the prosecutor, who requested that the
applicant’s appeal be dismissed. The hearing of 11 August 2009 was held without
the attendance of the applicant, his counsel or the prosecution.
The Court has previously held that, in
principle, it was permissible for the court of appeal reviewing a detention
order issued by a lower court to examine it only in the presence of the
detainee’s lawyer, provided that the hearing before the first-instance court
offered sufficient procedural guarantees (see Lebedev v. Russia, no. 4493/04, § 114, 25 October 2007). However, depending on the circumstances of the
case, the detainee’s personal presence was required in order to be able to give
satisfactory information and instructions to his counsel (see Graužinis v.
Lithuania, no. 37975/97, §§ 34-35, 10 October 2000 and Mamedova v.
Russia, no. 7064/05, §§ 91-93, 1 June 2006).
In the present case the applicant complained
that his appeals against the detention orders had been examined in his absence
despite his request to participate in the appeal hearings. The Court will
therefore have to determine whether, in the particular circumstances of the present
case, the applicant’s personal presence was required at those hearings.
The Court observes that the
applicant’s counsel did not appear at either of the appeal hearings. The
Government claimed that she had been duly notified of the dates of the
hearings. However they have not provided the Court with any evidence to confirm
that the summonses had been in fact served on the applicant’s counsel. In such
circumstances the Court is not persuaded that the applicant’s counsel had been
duly notified of the hearings in question. Therefore, taking into account that
the applicant’s counsel was not present at the appeal hearings and also what
was at stake for the applicant, who, by the moment of examination of his
appeals had spent more than two years in detention, the Court considers that
the appeal court could not properly examine the applicant’s appeals in his
absence. The Court also considers that this conclusion is not undermined by the
fact that the prosecutor was not taking part in the hearing of 11 August 2009.
In so far as the Government
may be understood to argue that by failing to indicate in his statement of
appeal his wish to participate in the appeal hearing of 23 April 2009 the
applicant had waived his right to participate in that hearing, the Court considers
it necessary to note the following. The Court has previously held that the
requirement to lodge a prior request for participation in the appeal hearing
would not be contrary to the Convention, if the procedure was clearly set out
in the domestic law (see, mutatis mutandis, Sibgatullin v. Russia, no. 32165/02, § 45, 23 April 2009, in the context of appeal proceedings against
conviction). The applicant provided the Court with a copy of his additional
grounds of appeal against the detention order of 12 February 2009, which he
lodged on 24 February 2009 and in which he had indicated that he wished to
take part in the examination of his appeal. Having regard to the fact that the
Government did not contest the authenticity of that document, the Court
considers that the applicant did lodge a request for participation in the appeal
hearing and therefore, it cannot be said that he waived his rights. Therefore,
even assuming that for an unknown reason the request submitted by the applicant
did not reach the appeal court, the latter should have verified whether the
applicant had been duly notified of the appeal hearing and informed of the
steps to be taken in order to participate in it and if he had not, whether the
case should have been adjourned. There is nothing in the material before the
Court to suggest that the appeal court considered those issues in the present
case.
Having regard to its findings in paragraphs 131 and 132 above, the Court considers that by holding the appeal hearings of 23 April
and 11 August 2009 in the absence of the applicant the appeal court
deprived him of an effective control of the lawfulness of his detention. There
has therefore been a violation of Article 5 § 4 of the Convention.
V. OTHER ALLEGED
VIOLATIONS OF THE CONVENTION
Lastly,
the Court has examined the other complaints submitted by the applicant, and,
having regard to all the material in its possession and in so far as these
complaints fall within the Court’s competence, it 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 manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and
4 of the Convention.
VI. APPLICATION OF
ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the
Convention or the Protocols thereto, and if the internal law of the High
Contracting Party concerned allows only partial reparation to be made, the
Court shall, if necessary, afford just satisfaction to the injured party.”
A. Damage
The applicant claimed 100,000 euros (EUR) in
respect of pecuniary damage for the alleged infection with tuberculosis. He
also claimed compensation for non-pecuniary damage for the violation of his
rights under the Convention. He asked the Court to determine the amount of the
award in accordance with its case-law.
The Government considered that in the event
that a violation of the applicant’s rights was found, such a finding would
constitute sufficient just satisfaction.
The Court does not discern any causal link
between the violations found and the pecuniary damage alleged; it therefore
rejects this claim. On the other hand, it awards the applicant EUR 10,000 in
respect of non-pecuniary damage.
B. Costs and expenses
The applicant did not submit any claims for
costs and expenses. Accordingly, the Court makes no award under this head.
C. Default interest
The Court considers it appropriate that the
default interest rate should be based on the marginal lending rate of the
European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares admissible the complaints of unlawfulness
of the applicant’s detention between 17 November 2008 and 14 August 2009 and
the detention ordered by the decision of 14 August 2009, the length of his
pre-trial detention and the applicant’s absence from the appeal hearings of 23
April and 11 August 2009, and the remainder of the application inadmissible;
2. Holds that there has been a violation of
Article 5 § 1 of the Convention on account of the applicant’s detention between
17 November 2008 and 14 August 2009;
3. Holds that there has been no violation of
Article 5 § 1 of the Convention on account of the applicant’s detention ordered
by the decision of 14 August 2009;
4. Holds that there has been a violation of
Article 5 § 3 of the Convention on account of the length of the applicant’s
pre-trial detention;
5. Holds that there has been a violation of
Article 5 § 4 of the Convention as regards the applicant’s absence from the
appeal hearings of 23 April and 11 August 2009 concerning the review of the lawfulness
of his pre-trial detention;
6. Holds
(a) that the
respondent State is to pay the applicant, within three months of the date on
which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 10,000 (ten thousand euros)
in respect of non-pecuniary damage, to be converted into the currency of the
respondent State at the rate applicable on the date of settlement, plus any tax that may be chargeable on the applicant;
(b) that from the
expiry of the above-mentioned three months until settlement simple interest
shall be payable on the above amount at a rate equal to the marginal lending
rate of the European Central Bank during the default period plus three
percentage points;
7. Dismisses the
remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 13 November
2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Nina
Vajić
Registrar President
