TARAKANOV v. RUSSIA - 20403/05 - Chamber Judgment [2013] ECHR 1209 (28 November 2013)

In the case of Tarakanov v. Russia,

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

          Isabelle Berro-Lefèvre, President,
          Elisabeth Steiner,
          Khanlar Hajiyev,
          Mirjana Lazarova Trajkovska,
          Julia Laffranque,
          Ksenija Turković,
          Dmitry Dedov, judges,
and Søren Nielsen, Section Registrar,

Having deliberated in private on 5 November 2013,

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

PROCEDURE

1. The case originated in an application (no. 20403/05) 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 Viktor Mikhaylovich Tarakanov (“the applicant”), on 16 May 2005.

2. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.

3. The applicant alleged, in particular, that his detention from 18 to 19 August 2004 had been unlawful and that he had had no effective remedy against that violation of the Convention.

4. On 26 April 2010 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1974 and is serving a prison sentence in the town of Rubtsovsk (Altay Region).

6. On 10 February 2003 the applicant was detained on suspicion of theft.

7. On 12 February 2003 the Altayskiy District Court of the Khakasiya Republic (“the District Court”) remanded the applicant in custody pending investigation. The applicant remained in custody after the start of the trial. The applicant’s detention pending trial was due to expire on 17 December 2003.

8. On 10 December 2003 the District Court extended the applicant’s detention “for three months, until 17 March 2004”.

9. On 28 January 2004 the District Court convicted the applicant of theft, and sentenced him to five years’ imprisonment. The District Court stated in the operative part of its judgment that the applicant should remain in custody until the judgment became final. The applicant appealed against the judgment.

10. On 30 June 2004 the Khakasiya Supreme Court quashed the judgment of 28 January 2004 and remitted the case to the first-instance court for a fresh examination. It left the preventive measure unchanged, stating that there were “no reasons to release [the applicant]”. The Supreme Court did not specify the time-limit for the applicant’s detention. The detention order was based on Article 388 § 1 (8) of the Code of Criminal Procedure.

11. On 13 July 2004 the District Court received the applicant’s case for re-examination.

12. On 3 August 2004 the District Court set a date for a hearing and ordered that the preventive measure in respect of the applicant should remain unchanged. The detention order was based on Article 231 § 2 (6) of the Code of Criminal Procedure The detention order neither specified the period of the applicant’s detention nor gave any reasons therefor. The applicant did not appeal against that detention order.

13. On 12 August 2004 the applicant lodged an application for release. On the same day the District Court rejected it. The applicant appealed. By a letter of 19 August 2004 the Khakasiya Supreme Court informed the applicant that his appeal against the decision of 12 August 2004 had been struck off the list, since the above-mentioned decision was not amenable to judicial review.

14. On 19 August 2004 the District Court extended the applicant’s detention from 19 August to 19 October 2004 and noted as follows:

“On 12 February 2003 [the applicant] was remanded in custody. On 17 March 2003 [his] criminal case was submitted to the court for trial. On 17 September 2003 his detention was extended for three months, until 17 December 2003. On the latter date [sic] his detention was extended until 17 March 2004. On 28 January 2004 [the applicant] was convicted and sentenced to a term of imprisonment. On 30 June 2004 the [conviction] judgment was quashed on appeal and the case was remitted for a new examination to the first-instance court. On 13 July 2004 the case arrived at the court. The authorised period of [the applicant’s] detention expires on 19 August 2004 ...”

15. The applicant appealed, arguing that the previous term of his detention had expired on 18 August 2004.

16. On 13 October 2004 the District Court extended the applicant’s detention for one month and seventeen days, until 30 November 2004.

17. On 23 November 2004 the District Court convicted the applicant of theft and sentenced him to three years and six months’ imprisonment. The applicant appealed.

18. On 9 February 2005 the Khakasiya Supreme Court, having applied a more lenient criminal law, upheld the judgment of 23 November 2004.

19. On the same date the Khakasiya Supreme Court also rejected the applicant’s appeal against the detention order of 19 August 2005 (see paragraph 14 above) and held as follows:

“The [the applicant’s] argument that the [District Court] issued the detention order on 19 August 2005, while his term of detention had expired on 18 August 2004, cannot serve as a ground for quashing of that detention order. According to Article 255 § 3 of the Code of Criminal Procedure, a court extends a term of detention upon its expiry (по истечении ранее установленного срока). Thus, the law does not forbid the court to extend a term of detention on the next day after the previous term of detention had expired.”

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. Constitution of the Russian Federation of 1993

20. Everyone has a right to liberty and security (Article 22 § 1). Arrest, placement in custody and custodial detention are permissible only on the basis of a court order (Article 22 § 2).

B. Code of Criminal Procedure of 2001

21. After arrest the suspect is placed in custody “pending investigation”. Custody may be ordered by a court on application by an investigator or a prosecutor if a person has been charged with an offence carrying a sentence of at least two years’ imprisonment, provided that a less restrictive measure of restraint cannot be used (Article 108 §§ 1 and 3).

22. A period of detention “pending investigation” may not exceed two months (Article 109 § 1). A judge may extend that period to six months (Article 109 § 2). Further extensions up to twelve months, or in exceptional circumstances, up to eighteen months, may only be granted if the person is charged with serious or particularly serious criminal offences (Article 109 § 3). The period of detention “pending investigation” is calculated up to the day when the prosecutor sends the case to the trial court (Article 109 § 9).

23. From the date the prosecutor forwards the case to the trial court, the defendant’s detention is “before the court” (or “pending 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)).

24. The period of detention “pending trial” is calculated up to the date the judgment is given. It may not normally exceed six months (Article 255 § 2). Upon expiry of that period the trial court can extend the defendant’s detention if the case concerns serious or particularly serious criminal offences for not longer than three months each time (Article 255 § 3).

25. Terms established by the Code are calculated in hours, days and months. A term calculated in days expires at midnight on the last day. A term calculated in months expires on the last day of the respective month (Article 128 §§ 1-2).

26. When determining a judgement, the criminal court shall decide whether the preventive measure imposed on the defendant is to be revoked or altered (Article 299 § 1 (17)). The operative part of a judgment of conviction and sentence must indicate, inter alia, a decision concerning any preventive measure to be imposed on the defendant until the judgment takes legal effect (Article 308 § 1 (10)). When quashing a judgment of a first- instance court, the appeal court shall indicate in its judgment a decision on any preventive measure (Article 388 § 1 (8)).

27. If the grounds serving as the basis for a preventive measure have changed, the preventive measure must be cancelled or amended. A decision to cancel or amend a preventive measure may be taken by an investigator, a prosecutor or a court (Article 110).

C. Custody Act of 1995

28. Under Law of 15 July 1995 no. 103-FZ “On Detention of Persons Suspected and Accused of Criminal Offences” (the Custody Act), the prison governor should release the detainee, having received a court order or a decision of the investigator or prosecutor to this effect. The prison governor should notify the authority in charge of the criminal case and the prosecutor that the authorised period of detention expires within twenty-four hours. If the authorised period of detention has expired and no decision to extend it or release the detainee has been received, the prison governor should immediately release the detainee (section 50).

D. Criminal Code of 1996

29. The time spent by the accused person in pre-trial detention and detention pending trial is included in the duration of the deprivation of liberty pursuant to the conviction (Article 72 §§ 3 and 4).

E. Relevant case-law of the Constitutional Court

30. On 22 March 2005 the Constitutional Court of the Russian Federation adopted judgment no. 4-P in respect of a complaint concerning the de facto extension of pre-trial detention after the case file had been transmitted from the prosecution authorities to the trial court. It found that the challenged provisions of the new Code of Criminal Procedure complied with the Constitution of the Russian Federation. However, their practical interpretation by the courts may have contradicted their constitutional meaning. In part 3.2. of the judgment the Constitutional Court held as follows:

“The second part of Article 22 of the Constitution of the Russian Federation provides that ... the 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 shall decide on the extension of the detention, otherwise the accused person should be released ...

These rules are common for 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 the preventive measure applied at previous stages.

Therefore, when the case is transmitted by the prosecution to the trial court, the preventive measure applied at the pre-trial stage ... may continue to apply until the expiry of the term, for which it has been set in the respective court decision [imposing it] ...

[Under Articles 227 and 228 of the Code of Criminal Procedure] a judge should, after receiving a criminal case concerning a detained defendant, set a hearing within fourteen days and establish ‘whether the preventive measure applied should be lifted or changed’. This wording implies that the decision to detain the accused or extend his detention, taken at the pre-trial stage, may stand after the completion of the pre-trial investigation and transmittal of the case to the court, but only until the end of the term for which the preventive measure has been set.”

31. In its ruling no. 245-O-O of 20 March 2008, the Russian Constitutional Court noted that it had reiterated on several occasions (judgments nos. 14-P and 4-P of 13 June 1996 and 22 March 2005, and rulings nos. 417-O and 330-O of 4 December 2003 and 12 July 2005 respectively) that a court, when taking a decision under Articles 100, 108, 109 and 255 of the Code of Criminal Procedure on the placement of an individual in detention or on the extension of a period of an individual’s detention, was under an obligation to indicate the grounds justifying his/her deprivation of liberty and its time-limit.

F. Resolution of the Supreme Court no. 1 of 5 March 2004

32. In its Resolution no. 1 of 5 March 2004 “On the Application by Courts of the Russian Code of Criminal Procedure”, as in force at the relevant time, the Russian Supreme Court noted with regard to the provisions of Article 255 § 3 of the Code, that, when deciding on an extension of a defendant’s detention pending trial, the court should indicate the grounds justifying the extension and its time-limit (paragraph 16).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION

33. The applicant complained under Article 5 § 1 (c) of the Convention that his detention from 18 to 19 August 2004 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 ...”

A. Submissions by the parties

1. The Government

34. The Government claimed that the applicant had failed to comply with the six-month rule. His complaint was lodged with the Court on 16 May 2005. His detention until 19 August 2004 was based on the detention orders issued prior to that date. The appeal decision of 9 February 2005, therefore, cannot be considered the final decision in respect of the applicant’s detention prior to 19 August 2004 because it was delivered in respect of the detention order of 19 August 2004 which was related to the applicant’s detention after 19 August 2004.

35. On the merits the Government submitted that the entire period of the applicant’s detention had been duly authorised and had been in accordance with a procedure established by law, as required by Article 5 § 1 of the Convention. In particular, after the District Court had received the applicant’s case for re-trial, the applicant’s detention pending trial had been covered by Article 255 § 3 of the Code of Criminal Procedure. By virtue of that provision the period of the applicant’s detention was to expire six months later after receipt of the applicant’s case by the District Court. The extension of the applicant’s detention on 19 August 2004 was therefore not necessary. The Government added that the applicant did not specify the basis for his conclusion that his detention had expired on 18 August 2004.

2. The applicant

36. As regards admissibility, the applicant insisted that he had complied with the six-month rule.

37. On the merits the applicant maintained his complaint. In particular, the applicant pointed out that the Government had not submitted any detention order covering the period between 18 and 19 August 2004. Referring to the case-law of the Constitutional Court of Russia (see paragraph 30 above), the applicant argued that the sole ground that the case had been transmitted to the District Court for re-trial on 13 July 2004 did not constitute a “lawful” basis, within the meaning of Article 5 § 1 of the Convention.

B. The Court’s assessment

1. Admissibility

38. The Court reiterates that according to Article 35 § 1 of the Convention the Court may only deal with a matter within a period of six months from the date on which the final decision was taken. The parties seem to disagree on what should be considered a “final decision” in the present case. To answer this question the Court must look at the essence of the applicant’s complaint. The applicant alleged that for a short period of time (from 18 to 19 August 2004) his detention was not covered by any valid order, since the previous order had expired and a new one had not yet been issued.

39. The applicant raised this grievance in the proceedings concerning the lawfulness of the detention order of 19 August 2004. Even if those proceedings were primarily aimed at the examination of the applicant’s detention as from 19 August 2004 onwards, within those proceedings the applicant also complained that there was a “gap”, not covered by any lawful detention order, and the courts examined this complaint on the merits. The appeal court found that under the Code of Criminal Procedure the courts had the power to extend the term of detention on the day after the previous term of detention had expired (see paragraph 19 above). Thus, in essence the courts addressed the issue of the alleged “gap”.

40. The Court concludes that the applicant afforded the national authorities an adequate opportunity to examine his complaint raised before the Court, and that the appeal decision of 9 February 2005 must be retained as the “final decision” for the purposes of Article 35 § 1 of the Convention (see Arefyev v. Russia, no. 29464/03, § 69, 4 November 2010). Given that the applicant lodged his application with the Court on 16 May 2005, the Court finds that the applicant has complied with the six-month rule. The Government’s objection should therefore be dismissed.

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

2. Merits

(a) General principles

42. 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 the 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.

43. 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 a person - if need be with appropriate advice - to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail (see Ječius v. Lithuania, no. 34578/97, § 56, ECHR 2000-IX, and Baranowski v. Poland, no. 28358/95, §§ 50-52, ECHR 2000-III).

44. The Court has previously found violations of Article 5 § 1 (c) of the Convention in many Russian cases where the domestic court has maintained a custodial measure in respect of applicants, without indicating any particular reason for such a decision or setting a specific time-limit for the continued detention or for a periodic review of the preventive measure (see Strelets v. Russia, no. 28018/05, § 72, 6 November 2012, with further references). The Court considered that such detention orders did not comply with the requirements of clarity, foreseeability and protection from arbitrariness, and therefore the applicants’ detention pursuant to such detention orders was not “lawful” for the purposes of Article 5 § 1 of the Convention.

(b) Application of the general principles to the present case

45. The Court has taken note of the detention orders which authorised the applicant’s detention in 2004. It observes that on 10 December 2003 the District Court extended the applicant’s detention “for three months, until 17 March 2004”. On 28 January 2004 the applicant was convicted by the first-instance court. With effect from this date his detention was no longer covered by Article 5 § 1 (c) (see Panchenko v. Russia, no. 45100/98, § 92, 8 February 2005, with further references), but was transformed into detention under Article 5 § 1 (a), at least in the Convention terms. In the domestic terms he remained in “detention until judgment takes legal effect” (see paragraph 26 above). That detention, however, had no fixed time-limits and was supposed to last as long as the appeal proceedings lasted.

46. On 30 June 2004 the applicant’s conviction was quashed by the court of appeal and the case was remitted to the District Court for re-examination. The applicant’s detention “pending appeal proceedings” therefore ended at that point, as the case then returned to the trial stage. However, by 30 June 2004 the detention order of 10 December 2003 had already expired. The Court reiterates in this respect that a period of detention cannot be considered “lawful” automatically, where a case has been transferred to the trial court for further examination. The Russian Constitution and rules of criminal procedure vest the domestic courts with the power to order or extend custodial detention (see §paragraphs 20-26 above, and also the judgment of the Constitutional Court in paragraph 30 above). No exceptions to that rule are permitted or provided for, no matter how short the duration of the detention (see Lamazhyk v. Russia, no. 20571/04, § 69, 30 July 2009). It follows that the applicant’s detention could not have been lawful on the sole ground that the case had been transmitted to the District Court for re-trial, as suggested by the Government (see Razhev v. Russia, no. 29448/05, § 27, 12 June 2012, with further references). Therefore, a new decision on the preventive measure was required.

47. After examining the merits of the applicant’s criminal case, the court of appeal held, on 30 June 2004, that the applicant should remain in detention on remand pending trial. Having so held, the court of appeal did not give reasons for that decision. Neither did it set a time-limit for the new period of detention (see paragraph 10 above). On 3 August 2004 the District Court confirmed that the applicant should remain in detention pending trial, again without giving reasons or setting time-limits (see paragraph 12 above). Neither of the two decisions contained any indication as to the method of calculation of the authorised period of the applicant’s detention.

48. The Court reiterates that court decisions extending detention without any reasoning and without setting any time-limit are as such “arbitrary” and contrary to Article 5 § 1 of the Convention (see paragraph 44 above). Thus, the decisions of 30 June and 3 August 2004 were deficient and, as such, did not create a lawful ground for the applicant’s further detention compatible with Article 5 § 1 of the Convention. Similarly, the District Court’s decision of 12 August 2004 dismissing the application for release lodged by the defence (see paragraph 13 above) could not serve as a “lawful ground” for the extension of the applicant’s detention during the period under consideration (see Melnikova v. Russia, no. 24552/02, § 62, 21 June 2007). The Court is not aware of any other court decisions which would make the applicant’s detention during the period under consideration “lawful” in domestic and Convention terms.

49. In view of the foregoing, the Court considers that the period complained of - from 18 to 19 August 2004 - was not covered by a lawful detention order (see, for similar reasoning, Kozhayev v. Russia, no. 60045/10, § 106, 5 June 2012). The Court concludes that there has been a violation of Article 5 § 1 (c) of the Convention on this account.

II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

50. The applicant also complained that he did not have an effective domestic remedy for his complaint concerning his unlawful detention from 18 to 19 August 2004, in breach of Article 13 of the Convention, which provides as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

51. The Government argued that the applicant’s complaint was manifestly ill-founded, since he could have lodged an application for release which would be an effective remedy in the circumstances of the present case. They added that, according to section 50 of the Custody Act (see paragraph 28 above), the prison governor should have immediately released the applicant if the authorised period of his detention had indeed expired on 18 August 2004.

52. The applicant maintained his complaint.

53. The Court notes that the applicant’s complaint under Article 13 concerns deprivation of his liberty for a short period of time (from 18 to 19 August 2004). That period amounted to several hours and ended on 19 August 2004 with the District Court’s authorisation of the applicant’s detention for further three months (from 19 August to 19 October 2004).

54. The Court reiterates that complaints about short periods of detention may be (and, in some circumstances, may exclusively be) adequately protected by recourse to a retrospective remedy (see M. v. Ukraine, no. 2452/04, § 84, 19 April 2012). The Court reiterates further that the word “remedy” within the meaning of Article 13 does not mean a remedy which is bound to succeed, but simply an accessible remedy before an authority competent to examine the merits of a complaint (see Šidlová v. Slovakia, no. 50224/99, § 77, 26 September 2006).

55. The Court notes that the applicant’s complaint concerning his unlawful detention from 18 to 19 August 2004 was examined on the merits by the appeal court on 9 February 2005. This remedy, in the circumstances of the present case, was found to be an effective one for the purposes of exhaustion of domestic remedies under Article 35 § 1 of the Convention (see paragraph 40 above). The mere fact that the outcome of the proceedings was not favourable to the applicant does not render this remedy ineffective (see Amann v. Switzerland [GC], no. 27798/95, § 89, ECHR 2000-II; Shchebetov v. Russia, no. 21731/02, § 91, 10 April 2012, with further references).

56. The Court concludes that, in the particular circumstances of the present case, the applicant’s appeal against the detention order of 19 August 2004 satisfied the requirements of Article 13. In view of this finding the Court is not required to examine compatibility with Article 13 of the other remedies referred to by the Government.

57. It follows that the complaint under Article 13 is manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, and that it must be rejected pursuant to Article 35 § 4.

III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

58. The applicant further complained of other violations, referring to Articles 3, 5, 6 and 13 of the Convention, and to Article 2 § 1 of Protocol no. 7 to the Convention.

59. The Court has examined those complaints and considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. Accordingly, the Court rejects them as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

60. 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

61. The applicant claimed 6,000 euros (EUR) in compensation for non-pecuniary damage. He argued that he had suffered severe distress as a result of being arbitrarily deprived of his liberty for several hours on 19 August 2004.

62. The Government stated that the finding of a violation would be adequate just satisfaction in the applicant’s case, taking into account that the period of his unlawful detention had been deducted from the term of his imprisonment and also given the nature of the violation.

63. The Court considers that the breach of the Convention established in the case cannot be compensated solely by the finding of a violation and accordingly awards the applicant 500 euros (EUR) in respect of non-pecuniary damage, plus any tax that may be chargeable to him.

B. Costs and expenses

64. The applicant did not make any claims for costs and expenses incurred before the domestic courts and the Court.

65. Accordingly, the Court does not award anything under this head.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Declares the complaint concerning the unlawfulness of the applicant’s detention from 18 to 19 August 2004 admissible and the remainder of the application inadmissible;

2. Holds that there has been a violation of Article 5 § 1 (c) of the Convention;

3. 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 500 (five hundred euros) in respect of non-pecuniary damage, plus any tax that may be chargeable, to be converted into Russian Roubles at the rate applicable on the date of settlement;

(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;

4. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 28 November 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Søren Nielsen Isabelle Berro-Lefèvre
Registrar President

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