FIRST SECTION

CASE OF MIKHALCHUK v. RUSSIA

(Application no. 33803/04)

JUDGMENT

STRASBOURG

23 April 2015

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Mikhalchuk v. Russia,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
	Elisabeth Steiner, President,
	Khanlar Hajiyev,
	Paulo Pinto de Albuquerque,
	Linos-Alexandre Sicilianos,
	Erik Møse,
	Ksenija Turković,
	Dmitry Dedov, judges,
and Søren Nielsen, Section Registrar,
Having deliberated in private on 31 March 2015,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 33803/04) 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 Aleksey Vasilyevich Mikhalchuk (“the applicant”), on 13 July 2004.
2.  The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Righs.
3.  The applicant complained, in particular, that he had been subjected to ill-treatment by police officers, that the authorities had not effectively investigated his complaints about the ill-treatment and that his pre-trial detention had not been based on relevant and sufficient reasons.
4.  On 19 October 2009 the application was communicated to the Government.
THE FACTS
Article I.	THE CIRCUMSTANCES OF THE CASE
5.  The applicant was born in 1969 and lives in Moscow.
6.  On 17 April 2003 the police arrested the applicant on suspicion of robbery and extortion and took him to the Yuzhnoye Tushino police station in Moscow. The applicant alleged that once at the police station, he had been beaten by police officers to make him confess to criminal offences and that he had then written a self-incriminating statement.
7.  On 18 April 2003 the Tushinskiy Interdistrict Prosecutor’s Office (“the prosecutor’s office”) instituted criminal proceedings against the applicant on suspicion of several criminal offences, including robbery and extortion. On the same date the applicant was released.
8.  On 24 April 2003 an investigator from the prosecutor’s office ordered that the applicant be taken to the police station for questioning. The order stated that despite numerous summonses, the applicant had failed to appear at the police station for questioning.
9.  On 25 April 2003 the investigator questioned the applicant in the presence of legal counsel. During the interview the applicant submitted that he had confessed to criminal offences on 17 April 2003 after having been beaten by police officers.
10.  On the same date the investigator charged the applicant with several criminal offences, including robbery and extortion, and made him sign a written undertaking not to leave his place of residence. The decision stated that the applicant had a permanent address and was not trying to abscond and that there was therefore no need to deprive him of his liberty. It appears from the material of the case file that starting from that date and throughout the criminal proceedings against him, the applicant was assisted by legal counsel.
11.  On 28 April 2003 the deputy prosecutor quashed that decision on the grounds that the applicant had failed to appear at the police station despite numerous summonses, had no permanent job, and might reoffend and interfere with the proceedings.
12.  On the same date the Tushinskiy District Court of Moscow (“the District Court”) authorised the applicant’s pre-trial detention, holding as follows:
“It transpires from the evidence at the disposal of the court that Mr Mikhalchuk A.V. has committed serious and particularly serious offences punishable by deprivation of liberty and that he has no job. Having regard to the nature of the offences committed by him, the court has grounds to believe that he might abscond and reoffend.
Having regard to the above, the court comes to the conclusion that there are no grounds to choose a more lenient measure of restraint, other than pre-trial detention.”
13.  On 19 May 2003, following the applicant’s statement that he had been beaten by police officers, the investigator ordered a forensic medical examination of the applicant.
14.  On 31 May 2003 a forensic expert concluded that the applicant had several bruises on his body and face. However, it was impossible to ascertain the date on which they had been sustained.
15.  On the same date the investigator refused to open criminal proceedings into the applicant’s complaints that he had been beaten by police officers on 17 April 2003. The decision stated that the applicant had the right to appeal against it either to a prosecutor or to a court. On the same date a copy of that decision was sent to the applicant.
16.  On 20 June 2003 the District Court extended the applicant’s detention until 28 July 2003, holding as follows:
“It transpires from the evidence at the court’s disposal that Mr Mikhalchuk A.V. is charged with serious and particularly serious criminal offences punishable by more than two years’ imprisonment and that he has no job.
Having regard to the above, the court has grounds to believe that if released Mr Mikhalchuk A.V. might abscond and therefore the court concludes that there are no grounds to choose a more lenient measure of restraint in respect of Mr Mikhalchuk.”
17.  On an unspecified the criminal case against the applicant was referred to the District Court for trial.
18.  On 4 August 2003 the District Court set the preliminary hearing of the case for 19 August 2003 and held that the measure of restraint applied to the applicant, namely, pre-trial detention, should remain unchanged.
19.  On 19 August 2003 the District Court held a preliminary hearing.
20.  On 12 January 2004 the District Court dismissed the applicant’s request for release and extended his and his co-defendant’s detention until 16 April 2004. The District Court held as follows:
“Mr Mikhalchuk and Mr Isayev are charged with serious and particularly serious offences. Mr Mikhalchuk was placed in pre-trial detention on 28 April 2003 ... Taking into account that the case had not yet been examined on the merits, a psychological expert examination of the victim had been arranged and had not yet been performed, and having regard to the gravity of charges against each of the co‑defendants, the court considers that no other measure of restraint can ensure their appropriate behaviour. Therefore the court cannot choose another, more lenient preventive measure.”
21.  In his appeal against the detention order the applicant submitted that the District Court had not given any grounds to support its assertion that it could not apply a different preventive measure.
22.  On 17 February 2004 the Moscow City Court (“the City Court”) dismissed the applicant’s appeal, finding that the decision of 12 January 2004 was lawful and justified, in particular, by the gravity of the charges against him.
23.  On 13 April 2004 the District Court extended the detention of the applicant and his co-defendants until 16 July 2004, on the same grounds as in its decision of 12 January 2004.
24.  On 14 July 2004 the District Court found the applicant guilty of several criminal offences, including robbery and extortion, and sentenced him to ten years’ imprisonment. At the trial the applicant pleaded not guilty and submitted that he had confessed to the criminal offences under physical pressure from police officers. The District Court did not address his complaint that he had been beaten by police officers. It based the applicant’s conviction on statements by victims, witnesses, his co-defendants and a large amount of material evidence. The District Court also held that the applicant’s statements made during the pre-trial proceedings could form the basis of a judgment since they had been made in the presence of legal counsel.
25.  In his appeal against the conviction the applicant submitted, among other things, that he had confessed to the crimes after being beaten by police officers and that the investigator had refused to institute criminal proceedings against them.
26.  On 19 October 2004 the City Court upheld the applicant’s conviction. It appears from the appeal decision that the City Court did not address the applicant’s complaint about his forced confessions.
27.  Following the applicant’s repeated complaints about the ill-treatment by police officers on 17 April 2003, on 4 May 2005 the prosecutor’s office again informed the applicant that it was open to him to challenge the decision of 31 May 2003 in court. It appears from the material in the case file that the applicant did not lodge a judicial appeal against the decision of 31 May 2003.
28.  On 16 June 2005, the Presidium of the City Court, by way of a supervisory review, modified the part of the judgment of 14 July 2004 concerning the legal classification of the offences and upheld the remaining part of the judgment.
THE LAW
Article II.	I.  ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
29.  The applicant complained under Article 3 of the Convention that on 17 April 2003 police officers had ill-treated him and that the authorities had failed to conduct an effective investigation into the alleged ill-treatment. Article 3 of the Convention reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
Section 2.01	Admissibility
30.  The Government submitted that the applicant had not exhausted available domestic remedies in respect of his complaint of ill-treatment. In particular, he had not lodged an appeal against the investigator’s decision of 31 May 2003 not to institute criminal proceedings.
31.  The applicant did not comment.
32.  As regards the applicant’s complaint under the substantive aspect of Article 3, the Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges applicants to first use the remedies that are normally available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged. Article 35 § 1 also requires that complaints intended to subsequently be brought before the Court should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements laid down in domestic law, but not that recourse should be had to remedies which are inadequate or ineffective (see Akdivar and Others v. Turkey, 16 September 1996, §§ 65-67, Reports of Judgments and Decisions 1996‑IV, and Aksoy v. Turkey, 18 December 1996, §§ 51-52, Reports 1996-VI).
33.  The Court has previously found that the possibility of challenging before a court of general jurisdiction a prosecutor’s decision not to institute criminal proceedings into a complaint of ill-treatment constitutes an effective remedy available in the Russian legal system in respect of such complaints (see Trubnikov v. Russia (dec.), no. 49790/99, 14 October 2003, and Belevitskiy v. Russia, no. 72967/01, §§ 54-67, 1 March 2007).
34.  Developing that position, the Court later ruled that challenging a prosecutor’s decision in civil proceedings (see Vladimir Romanov v. Russia, no. 41461/02, §§ 46-52, 24 July 2008) or even raising the issue of ill‑treatment before a trial court examining charges against an applicant (see
Akulinin and Babich v. Russia, no. 5742/02, §§ 25-34, 2 October 2008) could also, in certain circumstances, be regarded as an appropriate exhaustion of domestic remedies, provided that the courts examined the substance of the relevant allegations.
35.  Turning to the present case, the Court observes that following the applicant’s complaint of ill-treatment at the hands of the police, the investigator launched an inquiry and by a decision of 31 May 2003 decided not to institute criminal proceedings. The parties did not dispute the fact that the applicant had been notified in due time about that decision and his right to challenge it in court. From 25 April 2003 and throughout the criminal proceedings against him the applicant was assisted by legal counsel. However, neither the applicant nor his counsel lodged an appeal against the investigator’s decision of 31 May 2003. The applicant did not provide any explanation for their failure to do so (see, for example, Borgdorf v. Russia (dec.), no. 20427/05, §§ 29-32, 22 October 2013).
36.  It is true that during his trial and subsequently in his statement of appeal against his conviction the applicant claimed that his confession was inadmissible as evidence since he had allegedly signed it under physical pressure. However, there is no indication in the judgments of the Regional and District Courts that the issue of the alleged ill-treatment was examined by those courts. The applicant’s complaints were therefore never examined by the domestic courts.
37.  It follows, therefore, that the complaint of ill-treatment is inadmissible on account of the applicant’s failure to exhaust the available domestic remedies and must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.
38.  As to the part of the applicant’s complaint that the domestic authorities failed to investigate his allegations of ill-treatment, the Court reiterates that a preliminary inquiry into the applicant’s allegations was conducted by the competent authority. Those proceedings were terminated by the investigator’s decision against which the applicant failed to appeal before the domestic courts. As established above, the applicant has not shown convincingly that such a review was bound to be ineffective. It follows that the applicant’s allegation that the authorities failed to investigate his complaint is unsubstantiated.
39.  For these reasons, the Court finds that this part of the complaint must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
Article III.	II.  ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION
40.  The applicant complained that his pre-trial detention had not been based on relevant and sufficient reasons. He relied on Article 5 § 3 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.”
Section 3.01	A.  Admissibility
41.  The Court observes 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).
42.  The Court observes that the applicant’s detention consisted of two non-consecutive periods. The first period of his detention started on 17 April 2003, when he was arrested and brought to the police station, and ended on 18 April 2003, when he was released. The second period of his detention lasted from 28 April 2003, when he was taken into custody, and until 14 July 2004, when the District Court convicted him of criminal offences.
43.  In the case of Idalov v. Russia the Court held that non-consecutive periods of detention should be assessed separately and the six-month period should be applied separately to each period of detention (see Idalov v. Russia [GC], no. 5826/03, §§ 127-33, 22 May 2012). It follows, that any complaint in respect of the first period of the applicant’s detention should have been brought within six months of his release. The applicant lodged his application with the Court on 13 July 2004, more than six months after his release on 18 April 2003.
44.  Having regard to the above, the Court finds that the applicant’s complaint under Article 5 § 3 concerning his detention between 17 and 18 April 2003 has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
45.  The Court further considers that the applicant’s complaint under Article 5 § 3 concerning the length of his detention between 28 April 2003 and 14 July 2004 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.
Section 3.02	B.  Merits
(a)	1.  Submissions by the parties
46.  The applicant maintained his complaint.
47.  The Government submitted that the entire period of the applicant’s detention had been based on “relevant and sufficient” reasons and that the proceedings had been conducted with “special diligence”.
(b)	2.  The Court’s assessment
48.  The Court will examine the merits of the applicant’s complaint under Article 5 § 3 in the light of the applicable general principles set out in, among others, Idalov [GC] (cited above, §§ 139-41, with further references).
49.  The Court has found above that the second period of the applicant’s pre-trial detention lasted from 28 April 2003, when he was taken into custody, until 14 July 2004, when the District Court convicted him of criminal offences. The total duration of the detention thus amounted to one year, two months and seventeen days.
50.  The Court accepts that the applicant’s detention may initially have been warranted by a reasonable suspicion that he had been involved in criminal offences, including robbery and extortion. It remains to be ascertained whether the judicial authorities gave “relevant” and “sufficient” grounds to justify his continued detention and whether they displayed “special diligence” in the conduct of the proceedings.
51.  The Court observes that the judicial authorities refused to release the applicant, referring mainly to the gravity of the charges against him and the risk that if released he might abscond and reoffend.
52.  As regards the courts’ reference to the seriousness of the charges, the Court has repeatedly held that this reason cannot of itself serve to justify long periods of detention. This is particularly true in cases such as the present one, where the characterisation in law of the facts – and thus the sentence faced by the applicant – was determined by the prosecution without judicial review of the issue whether the evidence that had been obtained supported a reasonable suspicion that the applicant had committed the alleged offence (see, among other authorities Khudoyorov v. Russia, no. 6847/02, § 180, ECHR 2005‑X).
53.  The domestic courts justified their assertion that the applicant was at risk of absconding and reoffending by referring to the severity of the sentence which could be imposed on the applicant. On two occasions they relied on the fact that he had no job (the decisions of 28 April and 20 June 2003).
54. Regarding the severity of the sentence which the applicant faced, the Court considers that although it is relevant for the purposes of assessing whether he was at 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 v. France, 26 June 1991, § 51, Series A no. 207; Ilijkov v. Bulgaria, no. 33977/96, § 81, 26 July 2001; and Panchenko v. Russia, no. 45100/98, § 102, 8 February 2005).
55.  In so far as the domestic courts relied on the fact that the applicant had no job, the Court has previously held that it cannot be concluded that a person is inclined to commit new offences simply because he does not have a job (see Sulaoja v. Estonia, no. 55939/00, § 64, 15 February 2005).
56.  The Court notes that the domestic courts did not refer to any other factors or evidence which could have substantiated the assertion that the applicant might abscond and reoffend, but simply accepted the investigator’s allegations that the applicant was likely to do so. In those circumstances, the Court cannot but conclude that the domestic courts failed to assess the applicant’s personal situation and to give specific reasons, supported by evidence, for holding him in custody.
57.  The Court further emphasises that when deciding whether a person should be released or detained, the authorities have an obligation under Article 5 § 3 to consider alternative measures of ensuring his or her appearance at trial (see Jablonski v. Poland, no. 33492/96, § 83, 21 December 2000, and Sulaoja, cited above, § 64). In the present case, in most of their decisions the domestic courts held that they saw no grounds to cancel the preventive measure or to apply a more lenient measure. However, they omitted to set out why such alternatives would not have ensured that the trial followed its proper course.
58.  Having regard to the above, the Court considers that by failing to address specific facts or to properly consider alternative preventive measures and by relying essentially on the gravity of the charges, the authorities extended the applicant’s detention on grounds which, although “relevant”, cannot be regarded as “sufficient”. They thus failed to justify the applicant’s continued deprivation of liberty for a period of more than a year and two months. In these circumstances it is not necessary to examine whether the proceedings were conducted with “special diligence”.
59.  There has therefore been a violation of Article 5 § 3 of the Convention.
Article IV.	III.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION
60.  The Court has examined the other complaints submitted by the applicant. 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.
Article V.	IV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
61.  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.”
Section 5.01	A.  Damage
62.  The applicant claimed 50 million euros (EUR) in respect of non‑pecuniary damage.
63.  The Government submitted that if the Court found a violation of the Convention in the present case, such a finding would constitute adequate just satisfaction.
64.  The Court awards the applicant EUR 1,200 in respect of non‑pecuniary damage.
Section 5.02	B.  Costs and expenses
65. The applicant did not submit any claims for costs and expenses. Accordingly, the Court makes no award under this head.
Section 5.03	C.  Default interest
66.  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 the applicant’s complaint under Article 5 § 3 concerning the length of the applicant’s pre-trial detention between 28 April 2003 and 14 July 2004 admissible and the remainder of the application inadmissible;

2.  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 between 28 April 2003 and 14 July 2004;

3.  Holds
(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 1,200 (one thousand two hundred euros), plus any tax that may be chargeable, in respect of non‑pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at 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 23 April 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Søren Nielsen	Elisabeth Steiner
	Registrar	President