CASE OF BELOZOROV v. RUSSIA AND UKRAINE
(Application no. 43611/02)
15 October 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 Belozorov v. Russia and Ukraine,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
Mirjana Lazarova Trajkovska,
Dmitry Dedov, judges,
Stanislav Shevchuk, ad hoc judge,
and Søren Nielsen, Section Registrar,
Having deliberated in private on 22 September 2015,
Delivers the following judgment, which was adopted on that date:
1. The case originated in an application (no. 43611/02) against the Russian Federation and Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Ukrainian national, Mr Aleksandr Belozorov (the applicant), on 10 December 2002.
2. The applicant, who had been granted legal aid, was represented by Ms Y.A. Bugayenko, a lawyer practising in Moscow. The Russian Government were initially represented by Mr P. Laptev, the former Representative of the Russian Federation at the European Court of Human Rights, and subsequently by their representative, Mr G. Matyushkin. The Ukrainian Government were represented by their Agent, Mr N. Kulchytskyy, from the Ministry of Justice.
3. The applicant complained, among other things, that the Ukrainian and Russian authorities had searched his apartment in Ukraine, had arrested him and had subsequently transferred him to Russia for trial. In connection with the actions of the Russian authorities the applicant complained that the length of his detention on remand had been excessive and that he had been unable to appeal in court against his detention.
4. By a decision of 16 October 2012 the Court declared the application partly admissible.
5. The applicant and the Government each filed further written observations (Rule 59 § 1) on the merits.
I. THE CIRCUMSTANCES OF THE CASE
6. The applicant was born in 1967 and lives in the town of Feodosiya, the Autonomous Republic of Crimea.
A. The criminal case against the applicant, his arrest and subsequent transfer to Moscow
7. On 19 September 2000 the Prosecutor’s office of the North-Western Administrative District of the city of Moscow (“the Prosecutor’s office”) opened a criminal investigation into the murder of a businessman.
8. By a decision of 30 October 2000 the Prosecutor’s office ordered the applicant to appear as a witness in this case. Since at that time the applicant resided in the town of Feodosiya in the Autonomous Republic of Crimea, the prosecutor also ordered the police to take measures with a view to ensuring the applicant’s attendance. It appears that the relevant summons was sent to the applicant’s only known address in Russia, that of his sister, who resided in Moscow. The applicant denied having received the summons at that time.
9. On 1 and 2 November 2000 the Prosecutor’s office ordered the applicant’s apartment in Feodosiya to be searched, requested the cooperation of the Ukrainian authorities in conducting the search, and also dispatched a team of police officers from the Department of Criminal Investigations of the Moscow City Department of the Interior to Ukraine. In his letter dated 1 November 2000 a prosecutor from the Prosecutor’s office specifically mentioned that he had decided to send two police officers from that Department to Feodosiya for “operative follow-up”.
10. Two Russian police officers, Ti. and Go., were entrusted with this operation and at once sent to Ukraine. It appears that they had secured the support of the head of the Department of Criminal Investigation of the Feodosiya Department of the Interior, lieutenant-colonel Mir., who had apparently instructed his subordinate, police officer Kov., to assist the Russian police officers in their task. The exact mandate of police officer Kov. is unclear.
11. On 3 November 2000 police officer Kov. and the two Russian police officers, Ti. and Go., located and arrested the applicant. He was handcuffed and his apartment was searched. The search took place in the presence of the applicant’s mother, B.N., and her neighbours K.M. and P.N. acting as witnesses; it was documented in a report drawn up by Kov. on 3 November 2000. The report stated that the applicant had been given a copy of the report on the day of the search.
12. According to the applicant, after the search he remained in the custody of the Ukrainian and Russian police, who the next day escorted him to a local airport. The Russian officers and the applicant took the first flight to Moscow. On arrival, the applicant was formally arrested by the same two officers and detained on suspicion of murder.
13. The applicant submitted a copy of the passenger manifest for Aeroflot flight Su-200 dated 4 November 2000. The document showed that the applicant and police officers Go. and Ti. had travelled on the same flight and occupied seats nos. 5 (Go.), 6 (the applicant) and 7 (Ti.).
14. According to the Russian Government, after the search the applicant had been taken to the Ukrainian police and shortly thereafter had been released. The next day he had bought a ticket and took a flight to Moscow. Two police officers, Ti. and Go., had been tipped off about the applicant’s decision to buy a ticket and managed to buy tickets for the same flight. When the applicant arrived at a Moscow airport, he had been arrested by Ti. and Go. and brought before an investigator from the Prosecutor’s office.
15. The Ukrainian Government did not submit their own version of these events.
B. The applicant’s attempts to challenge the actions of the Russian and Ukrainian authorities
1. The applicant’s complaints to the Ukrainian authorities
16. After the events of 3 and 4 November 2000 the applicant’s parents made a number of complaints to various Ukrainian officials and bodies about the actions of the Ukrainian policemen and requested assistance from the Ukrainian Ministry of Foreign Affairs in repatriating the applicant to Ukraine from Russia.
17. More specifically, on 25 November 2000 the applicant made a criminal complaint to the Ukrainian Prosecutor General’s office, alleging abuse of power and the unlawfulness of the search, arrest and detention.
18. In response to one of the complaints of the applicant’s parents’, on 8 December 2000 a prosecutor from the Feodosiya Prosecutor’s office initiated administrative proceedings regarding the events of 3 November 2000 against the Ukrainian officials involved. The decision stated that:
“... On 3 November 2000 police officers from the Moscow department of criminal investigations arrived at the town of Feodosiya with a warrant to carry out a search at [the applicant’s home address], this decision having been authorised by [a] prosecutor from the Moscow North-Western District.
The head of the criminal investigation department of the Department of the Interior ... police lieutenant-colonel Mir., seriously breached the requirements of Article 177 of the Code of Criminal Procedure of Ukraine and Article 80 of the Minsk Convention ... according to which contact concerning questions of extradition, criminal prosecution, and the execution of investigatory missions ... is to be made by the Prosecutor General’s offices of the respective parties. He directed his [subordinates] to render assistance [to the Russian police] in carrying out their search.
Before the start of the search the Moscow police officers, in the presence of Ukrainian police officers Kov., Ga., and Bol., arrested [the applicant] and handcuffed him: this was confirmed by [the applicant’s parents and witnesses] K.M. and P.N.
After the search, a Ukrainian national [the applicant] was apprehended by the Russian police and taken to an unknown location ...”
19. On 9 December 2000 the head of the Feodosiya Department of the Interior, lieutenant-colonel Mir., issued order no. 478, in which he reprimanded police officer Kov. who had taken part in the events of 3 November 2000, for “incorrect and unathorised actions while assisting the police of other states”.
20. On 22 December 2000 the same official from the Feodosiya Department of the Interior issued order no. 501, in which he mentioned that the initial authorisation given to police officer Kov. had only included the instruction “to locate [the applicant] and indicate that location to the police officers from Moscow”.
21. By a letter dated 30 December 2000 the Ukrainian authorities informed the applicant’s mother that police officer Kov. had been reprimanded and that the question of the disciplinary liability of lieutenant-colonel Mir. would be decided when he returned from holiday.
22. On 22 January 2001 a prosecutor from the Ukrainian Prosecutor General’s office wrote a letter to the applicant’s father and informed him that they “had requested legal assistance [from the Russian authorities] in resolving [the applicant’s complaint] about his unlawful arrest ... and his ... subsequent transfer to [Russia]”. By the same letter the applicant’s father was informed that the applicant’s complaint about unlawful actions on the part of the Ukrainian policemen had been forwarded to a prosecutor’s office for further investigation.
23. By a letter dated 23 April 2001, in response to one of the complaints from the applicant’s family, a prosecutor from the Feodosiya Prosecutor’s office informed the applicant that the Russian law-enforcement bodies had never formally asked the Ukrainian authorities to conduct a search at the applicant’s address in Ukraine.
24. By a letter dated 7 February 2002 a prosecutor from the Ukrainian Prosecutor General’s office informed the applicant’s mother that the inquiry into the events conducted by the Prosecutor’s office of the Autonomous Republic of Crimea revealed that officers from both the Russian and the Ukrainian police had been present during the search. The inquiry resulted in the decision to bring administrative proceedings in respect of the Ukrainian police officers who had breached the rules of criminal procedure and the Minsk Convention.
25. In July 2004 the applicant’s mother lodged a complaint about the events of 3 November 2000 with the Feodosiya Town Court. This complaint remained unexamined and on 19 August 2004 it was forwarded instead to the Feodosiya Town Prosecutor’s office. A covering letter signed by the President of the Feodosiya Town Court explained to the applicant’s mother that the complaint had been forwarded to the Prosecutor’s office for examination.
28. It is unclear whether the applicant or his family received a copy of the decision of 6 April 2001. According to a certificate submitted by the Ukrainian Government, the inquiry case file was destroyed owing to expiry of the retention period on 4 May 2006.
2. The applicant’s complaints before the Russian authorities
29. On 6 December 2000 the applicant lodged a similar complaint with the Russian Prosecutor General, stating that his arrest in Ukraine, subsequent transfer to Moscow and detention in custody by the Russian authorities had been unlawful.
“... on 1 November 2000 the prosecutor’s office of the Northern Western Administrative District issued an international request for the search of [the applicant’s apartment] and the applicant’s arrest. Whether it reached the police of Feodosiya I am not sure, but as far as I understood it [did].
In order to execute the request, [officer] Go. and I set off for Feodosiya in possession of a copy of the international request.
Having arrived in Feodosiya, we contacted the Department of the Interior of Feodosiya and asked them to be present during the search and other activities within the framework of the request. On 3 November 2000 we attended the search at [the applicant’s] place of residence. The search of [the applicant’s] apartment was conducted by the [Feodosiya] police officers and they drew up a record in this respect. Go. and I were present at the search, but did not actively participate in it. After the search [the applicant] was invited by the [Feodosiya] police officers to the premises of the Department of the Interior for questioning.
I was informed by one of the [Feodosiya] police officers that [the applicant] refused to answer any questions concerning the matter. No documents were given either to me or to Go. We were only given a copy of the search record.
I knew that we had no right to carry out any operative search activities on the territory of Ukraine, and therefore we did not personally participate in the verbal exchanges with [the applicant]. Having refused to make any statements, [the applicant] was released.
The next day, 4 November 2000, the [Feodosiya] policemen - I don’t remember who exactly - informed Go. and myself that [the applicant] had bought a ticket for a plane to Moscow and told us the flight and seat number. At once we set off for the sales office and, since very few tickets were sold, managed to buy tickets for seats close to [the applicant] so as to be able to observe him. The plane was not full, since few people were flying to Moscow. We did not show any interest or attention towards [the applicant]. I don’t know whether [the applicant] recognised us. In any event, had he had any concerns, he could have expressed them to the officers [of the law enforcement agencies in the airport]. [The applicant] did not do this, from which I deduce that he was not aware of either me or Go., nor had he recognised [us], and he expected to go into hiding in Moscow.
We knew about the investigator’s decision to arrest [the applicant] because he had no place of residence in Moscow. Upon his arrival in Moscow, we decided to arrest [the applicant] and bring him [to the police station of the Northern Western Administrative District] for investigative actions ...”
31. On 22 December 2000 an investigator from the Prosecutor’s office questioned officer Go. in connection with the circumstances of the applicant’s arrest in Ukraine. Go. repeated word for word the statements given earlier by Ti.
32. By a decision of 26 December 2000 an investigator from the Prosecutor’s office rejected the applicant’s complaint on the grounds that the applicant had travelled to Moscow of his own free will and had been detained on arrival in accordance with domestic law. The prosecutor relied principally on the evidence given by the two Russian police officers, who explained that they had happened by mere chance to be on the same plane to Moscow as the applicant. They denied that they had taken an active part in the events in Ukraine and stated that the applicant had been released after the search and had then bought a plane ticket to Moscow on his own. The officers had been tipped off by an undisclosed source within the Ukrainian police and had managed to buy tickets for the same flight, “sitting not very far from the applicant’s seat”. On arrival in Moscow the officers arrested the applicant in the airport terminal and took him to the investigating authorities.
“... I was arrested on 3 November 2000 in the town of Feodosiya, in the Krym Region. The arrest was carried out by five police officers from the Feodosiya Town Police and two other police officers, who I later learned were from Moscow. Once the policemen had identified me I was handcuffed. Thereafter they conducted a search of my home. I was shown a search warrant signed by the Prosecutor from the Northern-Western Administrative District of Moscow but no other documents were provided. After the search I was brought to the police station in Feodosiya. I was not shown any documents justifying my arrest. I was refused a phone call. After that I was transported to hotel “Sailor” in Feodosiya where the policemen from Moscow were staying and where I was handcuffed to a radiator. We spent about an hour in the hotel but after that I was taken to the police station because the hotel manager objected to the presence of three men in a room designed only for two. The rest of the night I spent in an office belonging to the police, attached by handcuffs to the radiator. The next morning the policemen from Moscow took me to the passport office of Feodosiya Police Station to collect my ID card and thereafter we went by car to the airport. At the airport I was in the car with the policemen from Feodosiya. The policemen bought a ticket in my name. Then we took flight 200 from Simferopol to Moscow. Before boarding we went through the customs and border control. As we were passing it, my handcuffs were removed and the policemen showed their licences to use special devices. Upon landing in Moscow, the policemen and I did not go through the border and customs control, but went out through [a special] exit. Thereafter I was put in a car and brought to the [police station] of the Northern-Western Administrative District of Moscow ...”
34. In decisions of 16 February and 16 April 2001, in response to further complaints by the applicant, the prosecutor reiterated his earlier findings.
35. By a judgment of 2 September 2002 the Khoroshevskiy District Court of the city of Moscow confirmed the prosecutor’s decision to dispense with criminal proceedings in respect of the allegedly unlawful arrest, search and detention. Among other things, the court referred to the Minsk Convention.
36. The Moscow City Court quashed this judgment on 31 October 2002 on the grounds that the questions of the lawfulness of the applicant’s arrest and the search of his apartment were inextricably linked to the merits of the applicant’s criminal case and could not be decided before the trial court judgment.
37. The case was remitted for fresh examination at first instance and on 27 November 2002 the Khoroshevskiy District Court of Moscow rejected the applicant’s appeal. This judgment was upheld on appeal by the Moscow City Court on 9 January 2003.
38. It appears that the applicant subsequently tried to institute court proceedings in respect of the same questions before the domestic courts. By a judgment of 18 July 2003, given in the applicant’s absence, the Khoroshevskiy District Court of Moscow rejected these arguments. The court held, in particular, that:
“... as is apparent from the case file, [the applicant] was arrested by the [police officers] Go. and Ti. on 4 November 2000 at Sheremetyevo airport as ordered by the investigator in his decision of 30 October 2000 ...
When questioned in this connection, Go. and Ti. stated that they did not arrest [the applicant] in Ukraine and did not take any part in the search of his apartment, but were simply in attendance.
According to the search record of 5 November 2000, the search was carried out in [the applicant’s] apartment in Feodosiya by the local police and the request to carry it out had been made to the Feodosiya prosecutor by the prosecutor of the North Western Administrative District of Moscow.
The order to execute the request is defined by the party to which the request is addressed. In accordance with the Criminal Procedure Code of RSFSR and the Law on Operative and Search Activities, the said norms applied only on the territory of RSFSR but they did not contain any rules preventing [investigation and operative] activities on the territory of another state. The [Minsk] Convention sets out the possibility of legal assistance and does not contain a ban on procedural actions on the territory of Contracting States, recognising the lawfulness of such actions if they are authorised by the law of the party to which the request was addressed (Article 6 of the Convention). According to part 3 of Article 8 of the Convention, the presence of officers acting for the requesting party during such actions is possible.
In the view of the above, the court considers that the search was carried out fully and properly. In the present case the prosecutor’s office was only competent to assess the events which took place on the territory of Russia, as the norms of the code of criminal procedure of RSFSR only applied there, and any decision concerning events which took place on the territory on Ukraine could only be taken by the competent body in Ukraine and the corresponding investigation could only be initiated upon a request from the party to which the request was addressed, that is to say Ukraine. However, no such request was ever made, and, as is apparent from the letter from the Feodosiya prosecutor, the request to bring a criminal case in this connection had been refused ...”
39. According to the applicant, he received only a copy of the judgment on 28 July 2003 and tried to appeal against it on 30 July 2003. His request for restoration of the time-limits for appeal, submitted on 31 October 2003, was refused by the Khoroshevskiy District Court of Moscow on 19 November 2003 for the applicant’s failure to justify the filing of the appeal outside of the ten days’ statutory time-limit. The Moscow City Court upheld the decision of 19 November 2003 on 13 January 2004.
40. After the Court had communicated the case to the Russian Government on 30 November 2005, police officers Ti. and Go. wrote explanatory reports to their superiors dated 13 March 2006 concerning the events of 3 and 4 November 2000, with the following content:
“... After the search had been carried out, [the applicant] went to the Police Department along with [the Ukrainian police officials] to give further explanations about the circumstances of the case. Subsequently [the Ukrainian police officials] explained to us that the applicant had refused to give any further comments and had been released from the Police Department.
The next day officer Go. and I departed for Moscow by air. We were told by one of the Ukrainian police officers that [the applicant] had bought a ticket to Moscow; we managed to buy tickets for the same flight.
Upon arrival in Moscow, after going through customs and border control in the airport terminal, we ... approached [the applicant and arrested him].
No physical or psychological pressure was exercised on [the applicant] ...”
C. The applicant’s detention in Russia and his attempts to challenge detention orders
41. At around 9 p.m. on 4 November 2000 an investigator from the Prosecutor’s Office in Moscow drew up a report on the applicant’s arrest, having ascertained that the applicant was wanted on suspicion of murder. The report noted that the applicant had the status of an accused in the case and confirmed that he had been notified of his rights.
1. The applicant’s detention pending investigation
42. It appears that the applicant’s detention was first authorised by a decision of 7 November 2000 taken by the District Prosecutor of the Prosecutor’s office in Moscow. The decision stated that the applicant had been detained on 4 November 2000. It further referred to the gravity of the charge against him, the risk of his fleeing or interfering with the course of the investigation, and the fact that he had no permanent residence in the Moscow region. The decision neither specified the term of the applicant’s detention nor commented on the lawfulness of his arrest in Ukraine, his transfer to Moscow and his subsequent detention in custody by the Russian authorities.
43. The detention was subsequently extended by order of the prosecutor on 7 December 2000. The order described the course of the investigation into the case and mentioned the progress achieved so far. More specifically, the investigation identified and located Sm. and Ko., two other persons allegedly directly implicated in the murder of the businessman in question. It also included a number of expert examinations, a forensic examination of the body of the businessman, two ballistic examinations and a dactylographic examination. The investigator had mentioned that he still needed to study the network of the applicant’s and Ko.’s connections and to bring new versions of charges against the applicant, as well as against Sm. and Ko. The order extended the applicant’s detention until 2 February 2001.
45. On 22 March 2001 the prosecution concluded the investigation and remitted the case for examination on the merits. It does not appear that there was any procedural decision authorising the applicant’s detention between 19 March and 4 April 2001.
2. The applicant’s detention pending trial
46. On 4 April 2001 the Moscow City Court conducted a preliminary examination of the applicant’s case and, without examining the question of the lawfulness of his detention between 19 March and 4 April 2001, further remanded the applicant in custody. No time-limit was indicated.
47. Thereafter the court again extended the applicant’s detention on 24 July, 2 August, 4 September and 17 December 2001 as well as on 1 July 2002, without specifying any time-limit for his detention. All these decisions were taken with reference to the gravity of the charge against the applicant and the fact that the proceedings in the case had not been completed.
49. It does not appear that the applicant lodged any complaint about the repeated extension of his detention by the prosecutor or by the court prior to the decision of 1 July 2002. The applicant’s complaints of 1 and 22 July 2002 against that decision were rejected by the Supreme Court on 24 October 2002.
50. According to the applicant, he and his counsel were not invited to attend the hearing of 24 October 2002. However, the Government submitted that the applicant and his counsel had been informed about the hearing of 24 October on 15 October 2002. The applicant’s counsel had not given the appeal court any reasons for her failure to appear, and did not ask for the hearing to be postponed. At the same time, the applicant’s request to attend in person remained unexamined.
51. It appears that on 16 September and 16 December 2002 the trial court extended the applicant’s detention once again. The applicant submits that he challenged these decisions on 17 September and 17 December 2002 respectively but received no reply.
52. According to the Government, the applicant’s appeals against the decision of 16 September 2002 were dated 30 December 2002 and 22 January 2003, whilst the decision of 16 December 2002 was appealed against on 13 January 2003. The Government were unable to specify the reasons for the domestic courts’ failure to examine these appeals.
D. Court proceedings in the criminal case against the applicant in Russia
53. On 22 March 2001 the preliminary investigation was concluded and the prosecutor remitted the applicant’s criminal case to the Moscow City Court for trial.
54. On 4 April 2001 Judge N. listed the case for a hearing on 16 April 2001.
55. On 16 April 2001 the court adjourned the hearing until 21 June 2001. On the latter date the hearing was adjourned until 25 July 2001 since a lawyer for one of the co-accused failed to appear.
56. Judge M. took over the case on 24 July 2001 and scheduled the hearing for 1 August 2001.
57. On 1 August 2001 the court adjourned the case until 2 August 2001, when the case was again suspended until 3 September 2001 because of the failure of some witnesses to appear.
58. On 4 September 2001 the hearing was postponed until 8 October 2001 for the same reasons.
59. By a decision of 8 October 2001 the court fixed the next date of the hearing for 30 November 2001.
60. Between 30 November and 17 December 2001 hearings were held regularly.
61. On 17 December 2001 the case was adjourned on grounds of witnesses’ absence and the need for a psychiatric examination of the applicant. The examination was carried out on 4 April 2002.
62. In July 2002 the case was transferred to Judge Z. The next hearing took place in August 2002, when the case was yet again postponed until 17 October 2002 due to witnesses’ failure to appear.
63. On 30 January 2003 the Moscow City Court convicted the applicant of conspiracy to murder and sentenced him to eight years and six months’ imprisonment. The court did not address the question of the lawfulness of the applicant’s arrest and detention until his arrival in Moscow on 4 November 2000.
64. On 27 November 2003 the Supreme Court of Russia upheld the judgment on appeal.
II. RELEVANT DOMESTIC LAW
A. The relevant domestic rules of criminal procedure
1. Applicable Ukrainian law
65. Article 30 of the Constitution of Ukraine provides:
“Everyone shall be guaranteed the inviolability of his or her dwelling.
Any entry into, examination of or search in the dwelling or other possession of a person shall not be permitted other than pursuant to a reasoned court decision.
In urgent cases connected with the rescuing of human life and preservation of property or with the direct pursuit of criminal suspects, the law may provide for a different procedure for entering into, examining or searching in the dwelling or other possession of a person.”
66. Article 177 of the Code of Criminal Procedure of Ukraine provided that the search of a dwelling could only take place after the adoption of a reasoned decision from an appropriate investigating body and with the approval of a competent prosecutor. In urgent cases, this requirement could be dispensed with, but the relevant official was under an obligation to notify the prosecutor about the search, its scope and results.
67. Article 236-1 of the Code provides:
“Complaints against the decision of a body of inquiry, investigator, or prosecutor refusing to open criminal proceedings shall be lodged with the district (city) court ... by the person whose interests are affected, or by a representative of that person, ... within seven days of receipt of the decision or of information from the prosecutor that he refused to quash the decision.”
68. Article 236-2 of the Code provides:
“Complaints against the decision of a prosecutor, investigator or body of inquiry refusing to open criminal proceedings shall be examined by a single judge within ten days of the arrival of the case file at the court.
The judge shall request the relevant case-file materials on which the refusal to initiate criminal proceedings was based, shall examine them and shall inform the prosecutor and the complainant of the date on which they will be examined. If necessary a judge shall hear explanations from the person who lodged the complaint. A verbatim record of the hearing shall be drawn up.
... a judge shall take one of the following decisions:
1) to quash the decision refusing to open criminal proceedings and return the case-file materials for additional [“pre-investigation”] enquiries;
2) to reject the complaint.
A judge’s decision in this regard may be appealed against before the court of appeal within seven days of its adoption, by a prosecutor or a complainant. ...”
69. The relevant provisions of the Law of Ukraine “on the procedure for the compensation of damage caused to a citizen by the unlawful actions of bodies of inquiry, pre-trial investigation, prosecutors and courts” of 1 December 1994 read:
“Under the provisions of this Law a citizen is entitled to compensation for damage caused by:
... 3) the unlawful conduct of search and seizure activities ...
“The right to compensation for damage in the amount of and in accordance with the procedure established by this Law shall arise in cases of:
acquittal by a court;
the termination of a criminal case on grounds of the absence of proof of the commission of a crime, the absence of corpus delicti, or a lack of evidence of the accused’s participation in the commission of the crime;
the refusal to initiate criminal proceedings or the termination of criminal proceedings on the grounds stipulated in sub-paragraph 2 of paragraph 1 of this Article;
the termination of proceedings for an administrative offence.”
“In the cases referred to in Article 1 of this Law the applicant shall be compensated for ...
5) non-pecuniary damage.”
“... Compensation for non-pecuniary damage shall be awarded in cases in which unlawful actions by bodies of inquiry, pre-trial investigation, prosecutors and courts have caused non-pecuniary losses to a citizen, led to disruption of his everyday life or necessitated additional efforts in terms of organising his or her life.
Non-pecuniary damage shall be defined as suffering caused to a citizen due to physical or psychological pressure resulting in the deterioration or deprivation of his or her ability to pursue usual habits and wishes, the deterioration of relations with people around him or her, and other adverse effects of a non-pecuniary nature.”
70. Article 106 of the Ukrainian Code of Criminal Procedure (1960) governs the arrest and detention of individuals suspected of committing a criminal offence. It provides:
“Article 106: Detention of a criminal suspect by an investigating body
An investigating body shall only be entitled to arrest a person suspected of a criminal offence for which a penalty in the form of deprivation of liberty may be imposed on one of the following grounds:
1. if the person is discovered whilst or immediately after committing the offence;
2. if eyewitnesses, including victims, directly identify this person as the one who committed the offence;
3. if clear traces of the offence are found on the body of the suspect or on clothing which he is wearing or which is kept at his home.
For each case of detention of a criminal suspect, the investigating body shall be required to draw up a record stating the grounds, the motives, the day, time, year and month, the place of detention, any statements by the person detained and the time when it was recorded that the suspect was informed of his right to have a meeting with defence counsel before his first questioning, in accordance with the procedure provided for in paragraph 2 of Article 21 of the present Code. The record of detention shall be signed by the person who drew it up and by the detainee.
A copy of the record with a list of his rights and obligations shall be immediately handed to the detainee and shall be sent to the prosecutor. At the request of the prosecutor, the material which provided the grounds for the detention shall be sent to him as well.
The investigating body shall immediately inform one of the suspect’s relatives of his detention ...
Within seventy-two hours of the arrest the investigating body shall:
(1) release the detainee if the suspicion that he committed the crime has not been confirmed, if the term of detention established by law has expired, or if the arrest has been effected in violation of the requirements of paragraphs 1 and 2 of the present Article;
(2) release the detainee and select a non-custodial preventive measure;
(3) bring the detainee before a judge with a request to impose a custodial preventive measure on him or her.
If an appeal against the detention is made to a court, the detainee’s complaint shall be immediately sent to the court by the head of the detention facility. The judge shall consider the complaint together with the request by the investigating body for application of the preventive measure. If the complaint is received after the preventive measure has been applied, the judge shall examine it within three days of receiving it. If the request is not received or if the complaint is received after seventy-two hours of detention have elapsed, the complaint shall be considered by the judge within five days of receiving it.
The complaint shall be considered in accordance with the requirements of Article 165-2 of this Code. Following its examination, the judge shall give a ruling, either declaring the detention to be lawful or allowing the complaint and finding the detention to be unlawful.
The judge’s ruling may be appealed against by the prosecutor, the person concerned, or his or her defence counsel or legal representative within seven days of the date of its delivery. Lodging such an appeal does not suspend the execution of the court’s ruling.
Detention of a criminal suspect may not exceed seventy-two hours.
If, within the terms established by law, the judge’s ruling on the application of a custodial preventive measure or on the release of the detainee has not been received by the pre-trial detention facility, the head of the pre-trial detention facility shall release the person concerned, drawing up a record to that effect, and shall inform the official or body that carried out the arrest accordingly.”
71. Article 148 of the Code provides that preventive measures may be imposed on a suspect, accused, defendant, or convicted person.
72. Article 165-2 of the Code concerns the selection of a preventive measure in criminal proceedings. It reads:
“Article 165-2: Procedure for the selection of a preventive measure
A non-custodial preventive measure shall be selected by the investigating body, investigator or prosecutor at the pre-trial investigation stage.
In the event that the investigating body or investigator considers that there are grounds for selecting a custodial preventive measure, subject to the prosecutor’s consent they may lodge an application with the court. The prosecutor is entitled to lodge an application to the same effect. In determining this issue, the prosecutor shall be obliged to familiarise himself with all the material evidence in the case that would justify placing the person in custody, and to verify that the evidence was received in a lawful fashion and constitutes sufficient grounds for charging the person.
The application shall be considered within seventy-two hours of the time at which the suspect or accused was detained.
In the event that the application concerns the detention of a person who is currently not deprived of his liberty, the judge shall be entitled, by means of an order, to give permission for the suspect to be detained and brought before the court under guard. Detention in such cases may not exceed seventy-two hours; and in the event that the person is outside the locality where the court is situated, it may not exceed forty-eight hours from the moment at which the detainee is brought within the locality.
Upon receiving the application, the judge shall examine the material in the criminal case file submitted by the investigating bodies or investigator. A prosecutor shall question the suspect or accused and, if necessary, shall hear evidence from the person who is the subject of the proceedings, shall obtain the opinion of the previous prosecutor or defence counsel if the latter appeared before the court, and shall make an order:
(1) refusing to select a preventive measure if there are no grounds for doing so;
(2) selecting a preventive measure in the form of taking a suspect or accused into custody.
The court shall be entitled to select a non-custodial preventive measure for the suspect or accused if the investigator or prosecutor refuses to select a custodial preventive measure for him or her.
The judge’s order may be appealed against to the court of appeal by the prosecutor, suspect, accused or his or her defence counsel or legal representative, within three days of the date on which the order was issued. The lodging of an appeal shall not suspend the execution of the judge’s order.”
2. Applicable Russian law
73. The Russian Constitution of 12 December 1993 provides that a judicial decision is necessary before a defendant can be detained or his or her detention extended (Article 22).
74. Before 1 July 2002 criminal-law matters were governed by the Code of Criminal Procedure of the Russian Soviet Federalist Socialist Republic (Law of 27 October 1960). From 1 July 2002 that Code was replaced by the Code of Criminal Procedure of the Russian Federation (Law no. 174-FZ of 18 December 2001, “the CCrP”).
75. “Preventive measures” or “measures of restraint” include an undertaking not to leave a town or region, a personal guarantee, bail and detention (Article 98 of the CCrP).
76. The CCrP requires a judicial decision by a district or town court on a well-founded request by a prosecutor supported by appropriate evidence (Article 108 §§ 1, 3-6).
77. When deciding whether to remand an accused in custody, the competent authority is obliged to consider whether there are “sufficient grounds to believe” that he or she might abscond during the investigation or trial, or obstruct the establishment of the truth, or reoffend (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).
78. The CCrP lays down a general rule permitting defendants to be remanded in custody if the charge carries a sentence of at least two years’ imprisonment. In exceptional cases, the Code permits the detention of defendants on a charge carrying a sentence of less than two years’ imprisonment if they have previously absconded, or have no permanent residence in Russia, or if their identity cannot be ascertained. A defendant should not be remanded in custody if a less severe preventive measure is available (Articles 97 § 1 and 108 § 1).
79. An appeal against a judicial decision ordering or extending detention may be lodged with a higher court within three days. The appeal court must rule on the appeal within three days of its receipt (Article 108 § 10). The right to appeal against a judicial decision may be exercised by a defendant, his representative and legal guardian, a prosecutor, a victim and his representative (Articles 127 § 1 and 354 § 4).
80. At any time during the judicial proceedings the court may order, vary or revoke any preventive measure, including remand in custody (Article 255 § 1). Any such decision must be delivered in the deliberation room and signed by all the judges on the bench (Article 256).
81. An appeal against such a decision must be lodged with a higher court. It must be examined within the same time-frame as an appeal against a judgment on the merits (Article 255 § 4).
82. The Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters (signed in Minsk on 22 January 1993 and amended on 28 March 1997, “the 1993 Minsk Convention”), to which both Russia (ratification on 11 November 1994, entry into force on 10 December 1994) and Ukraine (ratification on 10 November 1994, entry into force on 14 April 1995) are parties. The Convention has been incorporated in both States. It provides:
Article 56. Obligation to extradite
“1. The High Contracting Parties are obliged in accordance with conditions set out in this Convention, upon request, to extradite persons located on their territory for criminal prosecution ...”
Article 57. Refusal to extradite
“1. No extradition can take place if:
a) the person whose extradition is requested is a national of the High Contracting Party to which the request has been addressed. ...”
Article 61. Arrest or detention before the receipt of a request for extradition
“1. The person whose extradition is sought may also be arrested before receipt of a request for extradition, if there is a related petition (ходатайство). The petition shall contain a reference to a detention order or a final conviction and shall indicate that a request for extradition will follow ...”
Article 62. Release of the person arrested or detained
“1. A person arrested pursuant to Article 61 § 1 ... shall be released ... if no request for extradition is received by the Contracting Party to which the request has been addressed within 40 days of the arrest ...”
Article 80. Special order of relations
“All relations concerning the questions of extradition and criminal prosecution are carried out by the Prosecutor General’s offices of the High Contracting Parties. The relations in connection with execution of procedural and other actions requiring the approval of a competent prosecutor or of a court are carried out in accordance with the rules set out by the Prosecutor General’s offices of the High Contracting Parties.”
83. The Court observes that the applicant’s complaints about the search of his apartment in Feodisiya and his arrest and subsequent forced transfer to Russia were directed against both the Ukrainian and the Russian Governments.
84. The Court notes in this connection that member States must answer for any infringement of the rights and freedoms protected by the Convention committed against individuals placed under their “jurisdiction”. The exercise of jurisdiction is a necessary condition for a Contracting State being held responsible for acts or omissions imputable to it which give rise to an allegation of the infringement of rights and freedoms set forth in the Convention.
85. The Court refers to its case-law to reiterate that the concept of “jurisdiction” for the purposes of Article 1 of the Convention is deemed to reflect the term’s meaning in public international law (see Gentilhomme and Others v. France, nos. 48205/99, 48207/99 and 48209/99, § 20, judgment of 14 May 2002; Banković and Others v. Belgium and Others (dec.) [GC], no. 52207/99, §§ 59-61, ECHR 2001-XII; and Assanidze v. Georgia [GC], no. 71503/01, § 137, ECHR 2004-II).
86. The Court has previously held that from the standpoint of public international law, the words “within their jurisdiction” in Article 1 of the Convention must be understood to mean that a State’s jurisdictional competence is primarily territorial (see Banković and Others v. Belgium and Others, cited above, § 59). At the same time, the Court in its case-law has recognised a number of exceptional circumstances capable of giving rise to the exercise of jurisdiction by a Contracting State outside its own territorial boundaries. In each case, the question whether exceptional circumstances exist which require and justify a finding by the Court that the State was exercising jurisdiction extraterritorially must be determined with reference to the particular facts (see Al-Skeini and Others v. the United Kingdom [GC], no. 55721/07, §§ 132-137, ECHR 2011).
87. These include the acts of diplomatic and consular agents, who are present on foreign territory in accordance with provisions of international law; the acts of a State when, through the consent, invitation or acquiescence of the Government of a territory, it exercises all or some of the public powers normally to be exercised by that Government (see Banković and Others, cited above, § 71); and also in certain circumstances when, for example, the use of force by a State’s agents operating outside its territory may bring the individual thereby brought under the control of the State’s authorities into the State’s Article 1 jurisdiction (see Öcalan v. Turkey [GC], no. 46221/99, § 91, ECHR 2005-IV).
88. Turning to the case at hand, the Court notes that it was not disputed between the parties that the impugned events took place on the territory of Ukraine and that throughout the relevant period and until he boarded a plane to Moscow on 4 November 2000, the applicant fell within the jurisdiction of that country. The Ukrainian Government did not deny (see paragraphs 18-21 and 24 above) that from the outset the Ukrainian officials had been aware of the informal character of the Russian request for assistance, that the requested assistance would be unlawful under the Ukrainian law (see paragraph 18 above), and that it would fall outside the scope of their treaty obligations under the Minsk Convention (see paragraphs 12, 18-20 and 33 above, and, by contrast, Stephens v. Malta (no. 1), no. 11956/07, §§ 50-54, 21 April 2009). Furthermore, it is clear that the Ukrainian authorities had a choice to refuse the request, but that they decided to carry on with the operation. Moreover, despite the presence of the Russian officials in Feodosiya and their alleged participation in the events of 3-4 November 2000, there is no indication in the case-file that the Ukrainian authorities were not in control throughout all of the episodes, including the applicant’s arrest (see paragraphs 18 and 33), the search of his home (see paragraph 11, 18 and 33), his subsequent overnight detention in the police station (see paragraph 33) and the transfer to the airport and through the airport security checks (see paragraph 33 above).
89. In view of these factual circumstances, the Court considers that the events of 3 and 4 November 2000 in Feodosiya fell exclusively within the jurisdiction of Ukraine.
II. THE UKRAINIAN GOVERNMENT’S PRELIMINARY OBJECTIONS
90. The Court next notes that in their submissions on the admissibility of the case, the Ukrainian Government argued - regarding the applicant’s complaints under Articles 5 and 8 of the Convention - that the applicant had failed to exhaust the domestic remedies in this connection and that in any event this part of the case had been brought out of time.
91. The applicant disagreed and drew the Court’s attention to his family’s repeated attempts to bring his grievances to the attention of various Ukrainian bodies and officials and their manifest unwillingness to deal with his arguments on the merits. He argued that the Ukrainian authorities had been made sufficiently aware of his problems but failed to deal with his complaints properly.
92. The Court notes that in its decision on admissibility of 16 October 2012 it decided to join to the merits the Ukrainian Government’s objections as to the exhaustion of domestic remedies and the compliance with the six month rule. Thus, in examining these objections now the Court reiterates that, according to Article 35 § 1 of the Convention, it “may only deal with [a] matter ... within a period of six months from the date on which the final decision was taken”.
93. The Court has consistently interpreted this rule to the effect that the six-month period begins to run from the moment when the applicant has learned or should have learned of the final domestic decision or, if no remedy is available, then of the act of which he or she is complaining (see in this respect Hilton v. the United Kingdom (dec.), no. 12015/86, 6 July 1988, and Sutyazhnik v. Russia (dec.), no. 8269/02, 2 March 2006). It is for the State which is pleading a failure to comply with the six-month rule to establish the date on which the applicant learned of the final domestic decision (see Köksal v. the Netherlands (dec.), no. 31725/96, 19 September 2000).
94. The Court notes that in the case at hand it is not disputed between the parties that the applicant and his family made repeated attempts to initiate a criminal investigation into the matter (see paragraphs 16-18, 23, 25 and 26 above). Shortly after the events, on 8 December 2000 the Ukrainian officials conceded that their police officers had searched the applicant’s apartment and arrested him and that the aforementioned actions had been in breach of the domestic law and the 1993 Minsk Convention (see paragraph 18 above).
95. From the documents submitted by the parties it follows that the Ukrainian prosecutor’s office had conducted an investigation into the matter, which was apparently discontinued on 6 April 2001 (see paragraph 27 above). The applicant denied having received this decision and the respondent Government was unable to furnish the Court with a copy, let alone any proof that the applicant had been properly notified of it. The Ukrainian Government cited the destruction of the relevant case file as the reason for its inability to submit it to the Court (see paragraph 28 above).
96. The Court observes at the outset that it cannot accept the Ukrainian Government’s explanation regarding its inability to submit the aforementioned documents. It notes that the case file in the applicant’s case was destroyed on 4 May 2006, that is to say over five months after the case was communicated to the Ukrainian Government on 30 November 2005. The Ukrainian Government had access to these documents when they submitted their first set of observations on admissibility on the case dated 1 March 2006 and could have provided the Court with the necessary copies, but chose not to do so.
97. Having regard to the evidential materials in its possession, the Court finds that there is insufficient evidence to confirm that the decision of 6 April 2001 was in fact received by the applicant. The Court thus concludes that the applicant first learned about the existence of that decision from the letter from the President of the Appeal Court dated 8 December 2004.
98. Given the circumstances of the case and, in particular, the objective difficulties facing the applicant - who at the time was detained on remand in Russia - in communicating with the Ukrainian authorities, together with the Ukrainian Government’s failure to notify him about the decision of 6 April 2001, the applicant’s repeated complaints to the Ukrainian authorities - including the courts - requesting investigation of the matter, and the admissions of the Ukrainian prosecutor’s office regarding the events of 3 and 4 November 2000, the Court finds that the applicant made the Ukrainian authorities sufficiently aware of his grievances and that in the circumstances of the present case the remedies proposed by the Ukrainian Government proved ineffective. The Court therefore rejects the Government’s contention that the applicant should have made further complaints to the courts in connection with his grievances (see, mutatis mutandis, Nowak v. Ukraine, no. 60846/10, §§ 45-47, 31 March 2011).
99. Given the finding that the applicant learned about the decision of 6 April 2001 from the letter dated 8 December 2004, the Court also notes that he cannot be said to have missed the six-month time-limit for bringing the case to this Court.
100. In view of the above, the Court rejects the Ukrainian Government’s preliminary objections.
III. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION ON ACCOUNT OF THE APPLICANT’S ARREST AND DETENTION IN FEODOSIYA AND HIS SUBSEQUENT TRANSFER TO MOSCOW
101. Relying on Article 5 of the Convention, the applicant complained about the actions of the Ukrainian authorities on 3 and 4 November 2000. He argued that his arrest in Feodosiya, subsequent detention and forced transfer to Moscow had been unlawful and arbitrary. This Convention provision, in so far as relevant, provides:
Article 5 § 1
“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. ...
(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.”
A. The parties’ submissions
102. The Ukrainian Government did not comment on the merits of the applicant’s grievances.
103. The applicant maintained its position and stated that he had been unlawfully apprehended, detained and then de facto extradited to Russia.
B. The Court’s assessment
1. The establishment of the facts
104. The Court reiterates that in cases where it is possible to establish that a person was officially summoned by the authorities, entered premises that were under their control, and has not been seen since, the onus is on the Government to provide a plausible and satisfactory explanation as to what happened on the premises and to show that the person concerned was not detained by the authorities but left the premises without subsequently being deprived of his or her liberty (see Tanış and Others v. Turkey, no. 65899/01, § 160, ECHR 2005-VIII; Yusupova and Zaurbekov v. Russia, no. 22057/02, § 52, 9 October 2008; and Matayeva and Dadayeva v. Russia, no. 49076/06, § 85, 19 April 2011). Furthermore, the Court recalls that in the context of a complaint under Article 5 § 1 of the Convention, it has required proof, in the form of concordant inferences, before the burden of proof is shifted to the Government (see Öcalan, cited above, § 90, and Creangă v. Romania [GC], no. 29226/03, § 89, 23 February 2012).
105. Turning to the circumstances of the present case, the Court notes that it is not disputed between the parties that on 3 November 2000 the applicant was apprehended by the Ukrainian police officer Kov., assisted by two Russian police officers Ti. And Go., and that on 4 November 2000 the applicant travelled to Moscow by plane. What remains unclear is what happened between these two events and whether the applicant took the flight to Moscow of his own volition or was coerced into doing so.
106. The Court observes that the information in its possession consists of the following pieces of evidence:
- a copy of the passenger manifest for Aeroflot flight Su-200 dated 4 November 2000 showing that the applicant and officers Go. and Ti. travelled on that flight and occupied seats nos. 5 (Go.), 6 (the applicant) and 7 (Ti.) (see paragraph 13 above);
- the decision of 8 December 2000 by the Feodosiya Prosecutor’s office stating that “... after the search [the applicant] was apprehended by Russian police and taken to an unknown location...” (see paragraph 18 above);
- the statements of Russian officers Ti. and Go. dated 22 December 2000, in which they stated that after the search of 3 November 2000 the applicant had been questioned at the premises of the Department of the Interior and then released. According to the officers, the applicant travelled to Moscow the next day voluntarily. The officers learned about the trip from an unspecified source in the Ukrainian police, bought tickets for the same flight and travelled together with him without the applicant being aware of it (see paragraphs 30 and 31 above);
- the statements made by the applicant during the questioning on 28 December 2000, in which he described the operation in detail and maintained that the Ukrainian officials had not released him after the questioning of 3 November 2000 but rather had authorised the Russian policemen to hold him in custody and the next day took part in his forced transfer to Moscow (see paragraph 33 above).
107. The Court observes first of all that the applicant’s description of the circumstances regarding the events was very detailed, specific and consistent throughout the proceedings. In addition to this, there are other aspects of the case which endorse the applicant’s credibility. His statements were corroborated by the passenger manifest of 4 November 2000 which strongly supports his version of events concerning the involuntary character of his transfer to Moscow and the admissions regarding the informal character of the assistance rendered to the Russian police by the Ukrainian authorities made by the Ukrainian prosecutor’s office on 8 December 2000. The Court finds it difficult to accept that the applicant and officers Gi. and To. could have crossed the border and security controls at the airport on 4 November 2000 without the knowledge and assistance of the Ukrainian police, especially after the Russian officers had accused the applicant of murder and had displayed their interest in conducting investigative actions in respect of him on 3 November 2000.
108. In view of the above, the Court is satisfied that there is prima facie evidence in favour of the applicant’s version of events and that the burden of proof should shift to the Ukrainian Government.
109. The Ukrainian Government have not provided any satisfactory and convincing explanation of how the events in question occurred. Nor have they provided a plausible explanation as to what happened to the applicant after his interview on 3 November 2000. The Court finds that no credible and substantiated explanation has been given by the Government to rebut the presumption of responsibility on the part of their authorities to account for the applicant’s fate since his apprehension on 3 November 2000.
110. In such circumstances, the Court considers that it can draw inferences from the available material and the authorities’ conduct (see Kadirova and Others v. Russia, no. 5432/07, §§ 87 and 88, 27 March 2012) and finds the applicant’s allegations sufficiently convincing and established beyond reasonable doubt.
111. The Court notes at the outset the fundamental importance of the guarantees contained in Article 5 for securing the right of individuals in a democracy to be free from arbitrary detention at the hands of the authorities. It is for that reason that the Court has repeatedly stressed in its case-law that any deprivation of liberty must not only have been effected in conformity with the substantive and procedural rules of national law but must equally be in keeping with the very purpose of Article 5, namely to protect the individual from arbitrariness (see Chahal v. the United Kingdom, 15 November 1996, § 118, Reports of Judgments and Decisions 1996-V). This insistence on the protection of the individual against any abuse of power is illustrated by the fact that Article 5 § 1 circumscribes the circumstances in which individuals may be lawfully deprived of their liberty, it being stressed that these circumstances must be given a narrow interpretation having regard to the fact that they constitute exceptions to a most basic guarantee of individual freedom (see Quinn v. France, 22 March 1995, § 42, Series A no. 311).
112. It must also be stressed that the authors of the Convention reinforced the individual’s protection against arbitrary deprivation of his or her liberty by guaranteeing a corpus of substantive rights which are intended to minimise the risk of arbitrariness by allowing the act of deprivation of liberty to be amenable to independent judicial scrutiny and by securing the accountability of the authorities for that act. The requirements of Article 5 §§ 3 and 4, with their emphasis on promptness and judicial supervision, assume particular importance in this context. Prompt judicial intervention may lead to the detection and prevention of life-threatening measures or serious ill-treatment which violate the fundamental guarantees contained in Articles 2 and 3 of the Convention (see Aksoy v. Turkey, 18 December 1996, § 76, Reports of Judgments and Decisions 1996-VI). What is at stake is both the protection of the physical liberty of individuals and their personal security in situations which, in the absence of safeguards, could result in a subversion of the rule of law and place detainees beyond the reach of the most rudimentary forms of legal protection.
113. The Court emphasises in this connection that the unacknowledged detention of an individual is a complete negation of these guarantees and a most grave violation of Article 5. Having assumed control over an individual, the authorities have a duty to account for his or her whereabouts. For this reason, Article 5 must be seen as requiring the authorities to take effective measures to safeguard against the risk of disappearance and to conduct a prompt and effective investigation into an arguable claim that a person has been taken into custody and has not been seen since (see Kurt v. Turkey, 25 May 1998, §§ 123-24, Reports 1998-III).
114. Paying due regard to the applicant’s description of the events, the Court finds that after the applicant’s interview of 3 November 2000 he remained in police custody and the next day was forcibly transferred to Moscow. The Court notes that the specific procedure in extradition cases set out in Article 80 of the Minsk Convention (see paragraph 82 above) had been openly disregarded by both Russian and Ukrainian authorities (see paragraphs 9 and 18 above). It is clear that the request for extradition was an informal one and that the Ukrainian officials could not be unaware of this (see paragraphs 12, 18-20 and 33 above, by contrast to Stephens, cited above, §§ 50-54).
115. In view of the above finding and the fact that the Government submitted no explanation regarding the applicant’s detention between 3 and 4 November 2000 and his subsequent transfer to Moscow, nor any documents by way of justification, the Court concludes that during that period the applicant was held in unacknowledged detention and transferred to Russia in complete disregard of the safeguards enshrined in Article 5, and that this constitutes a particularly grave violation of his right to liberty and security as secured by Article 5 of the Convention (see Chitayev v. Russia, no. 59334/00, § 173, 18 January 2007; Gisayev v. Russia, no. 14811/04, §§ 152-53, 20 January 2011; and Kadirova and Others, cited above, §§ 127-30).
IV. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION ON ACCOUNT OF THE SEARCH OF THE APPLICANT’S APARTMENT IN UKRAINE
116. Relying on Article 8 of the Convention, the applicant complained about the actions of the Ukrainian and Russian authorities on 3 November 2000. He argued that the search of his apartment was unlawful and arbitrary.
“1. Everyone has the right to respect for his ... home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
117. The Ukrainian and Russian Governments did not submit any comments concerning the merits of the applicant’s grievances.
118. The applicant argued that he had drawn the attention of various Ukrainian bodies and officials to the alleged unlawful search and that the Ukrainian authorities had been sufficiently informed about his problems but had refused to deal with the issue.
119. In view of the Court’s earlier findings regarding the unlawful character of the assistance rendered by the Ukrainian officials to the Russian policemen on 3 and 4 November 2000 (see paragraphs 114 and 115 above), together with the admissions of the Ukrainian Prosecutor’s office contained in the letter dated 8 December 2000 about the breach of Article 177 of the Code of Criminal Procedure of Ukraine and Article 80 of the Minsk Convention (see paragraphs 18, 66 and 82), the Court finds that the search of the applicant’s apartment conducted on 3 November 2000 had no basis in either the Ukrainian domestic law (see paragraph 66 above) or the Minsk Convention (see paragraph 82 above) and that the interference with the applicant’s rights under Article 8 by the Ukrainian authorities was not, therefore, “in accordance with the law”.
120. It follows that there has been a violation of Article 8 in this case.
V. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION ON ACCOUNT OF THE APPLICANT’S DETENTION ON REMAND IN RUSSIA
121. The applicant complained about the actions of the Russian authorities under Article 5 § 3 of the Convention in respect of the length of his pre-trial detention. This Convention provision provides, in so far as relevant:
“... 3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and 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. The parties’ submissions
122. The Russian Government agreed that the applicant’s detention on remand had been quite long but argued that it had been necessary in view of the applicant’s lack of permanent residence in Russia and other relevant aspects of his character and his criminal case.
123. The applicant maintained his earlier complaints and submissions.
B. The Court’s assessments
1. General principles
124. The Court reiterates that the question whether a period of time spent in pre-trial detention is reasonable cannot be assessed in the abstract. Whether it is reasonable for an accused to remain in detention must be assessed on the facts of each case and according to its specific features. Continued detention can be justified in a given case only if there are actual 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, among other authorities, Kudła v. Poland [GC], no. 30210/96, §§ 110 et seq., ECHR 2000-XI).
125. The existence and persistence of a reasonable suspicion that the person arrested has committed an offence is a sine qua non for the lawfulness of the continued detention. However, after a certain lapse of time it no longer suffices. In such cases, the Court must establish whether the other grounds given by the judicial authorities continue to justify the deprivation of liberty. Where such grounds are “relevant” and “sufficient”, the Court must also ascertain whether the competent national authorities displayed “special diligence” in the conduct of the proceedings (see Labita v. Italy [GC], no. 26772/95, §§ 152-153, ECHR 2000-IV). Justification for any period of detention, no matter how short, must be convincingly demonstrated by the authorities (see Shishkov v. Bulgaria, no. 38822/97, § 66, ECHR 2003-I (extracts). When deciding whether a person should be released or detained, the authorities are obliged to consider alternative measures for ensuring his appearance at trial (see Jablonski v. Poland, no. 33492/96, § 83, 21 December 2000).
126. The responsibility falls on the national judicial authorities, first and foremost, to ensure that, in a given case, the pre-trial detention of an accused person does not exceed a reasonable length. To this end they must, paying due regard to the principle of the presumption of innocence, examine all the arguments for and against the existence of a public interest which can justify a departure from the rule in Article 5, and set them out in their decisions on applications for release. It is essentially on the basis of the reasons given in these decisions and 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, for example, McKay v. the United Kingdom [GC], no. 543/03, § 43, ECHR 2006-X).
2. Application of general principles to the present case
(a) Period to be taken into consideration
127. The Court observes that the applicant’s detention under Article 5 § 1 (c) lasted from the date of his arrest, 4 November 2000, to the date of his conviction, 30 January 2003 (see paragraphs 12 and 63 above). Thus he spent two years, one month and twenty-six days in detention during judicial proceedings. The length of his detention is a matter of concern for the Court. The presumption being in favour of release, it was incumbent on the Russian authorities to offer convincing reasons for keeping the applicant in detention for such a long time (see Artemov v. Russia, no. 14945/03, § 74, 3 April 2014).
128. The Court accepts that the applicant’s detention may initially have been warranted by a reasonable suspicion that he had committed a murder. However, with the passage of time that justification inevitably became less and less relevant. Accordingly, the Court must establish whether the other grounds cited by the judicial authorities continued to justify the deprivation of liberty (see Labita, cited above, §§ 152 and 153). It will therefore address the Government’s argument that the applicant’s long-term detention was justified by the fact that the applicant has no permanent residence in Russia and other relevant aspects of his character and his criminal case (see paragraph 122 above).
(b) Justification of the applicant’s detention
(i) Seriousness and nature of charges
129. When extending the applicant’s pre-trial detention, the domestic courts repeatedly referred to the seriousness of the charges against him and observed that he was charged with a serious criminal offence (see paragraphs 42-44 and 47 above).
130. The Court considers that although it is relevant for the purposes of assessing whether an applicant is 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. Although the Court may accept that the seriousness of the charges might form the basis for detention in the initial stages of the proceedings (see Celejewski v. Poland, no. 17584/04, §§ 37-38, 4 May 2006, and Kučera v. Slovakia, no. 48666/99, § 95, ECHR 2007 (extracts)), it cannot agree that it may be accepted at an advanced stage of the proceedings as the main reason for a person’s detention.
131. Accordingly, the above circumstances alone could not constitute a sufficient basis for holding the applicant in detention for such a long period of time.
(ii) Danger of absconding
132. As regards the risk of absconding, it should be assessed with reference to various factors, especially those relating to the character of the person involved, his morals, his home, his occupation, his assets, his family ties and all kinds of links with the country in which he is being prosecuted (see Neumeister v. Austria, 27 June 1968, § 10, Series A no. 8).
133. In the present case, the Court may agree that the lack of permanent residence in Russia could reasonably justify the domestic courts’ fear of the applicant absconding, as was suggested by the Russian Government in their observations. It notes, however, that the domestic authorities have failed to refer to this argument in all but one of the relevant decisions (see paragraph 42 above). It does not appear that the domestic courts actually examined the applicant’s personal situation or addressed any of the circumstances relating to the possible danger of him absconding.
134. The Court therefore considers that the respondent Government’s reliance on the above reasons was not justified.
(iii) Need to carry out further investigations and to ensure the applicant’s familiarisation with his case file
135. The Court observes that the investigating authorities and the courts stated that the applicant’s detention needed to be extended because further investigative actions were required (see paragraphs 43, 44 and 47 above).
136. The Court cannot accept that the reasons referred to by the domestic authorities were valid ones for extending the applicant’s detention, since after January 2001 neither the investigating authorities nor the courts were specific as to the investigative actions which needed to be carried out. Moreover, neither the City Court nor the Supreme Court made a proper assessment of the investigating authorities’ diligence in carrying out the investigation.
(c) The Court’s conclusion
137. To sum up, the Court concludes that whereas there may have been relevant and sufficient grounds for the applicant’s detention in the early stages of the investigation, the reasons put forward by the domestic courts were not sufficient to justify his detention for over two years.
138. Accordingly, the Court finds that there has been a violation of Article 5 § 3 of the Convention.
VI. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION ON ACCOUNT OF THE EVENTS IN RUSSIA
139. The applicant complained under Article 5 § 4 of the Convention that he had been unable to attend the detention hearings of 1 July and 24 October 2002, that there had been serious delays in examining his appeals of 1 and 22 July 2002, and that the domestic courts failed to examine his appeals of 17 September and 12 December 2002. This Convention provision provides:
“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.”
140. The Government acknowledged that the domestic court had failed to notify the applicant of the detention hearing of 1 July 2002 and to secure his presence at that hearing, and that his request to attend the hearing of 24 October 2002 in person had remained unexamined. They denied that there had been breaches of the applicant’s Convention rights on account of other circumstances mentioned by the applicant.
141. The applicant maintained his earlier complaints and submissions.
142. The Court observes that the Government confirmed that neither the applicant nor his lawyer was able to attend the detention hearing of 1 July 2002 and that his request to attend the hearing of 24 October 2002 remained without examination (see paragraphs 49 and 50 above). It further notes that the case file contains documents confirming that his appeal of 1 and 22 July 2002 against the detention order of 1 July 2002 was not examined until 24 October 2002, that is to say three months later (see paragraph 49 above). As regards the alleged failure to examine the applicant’s appeals dated 17 September and 17 December 2002, the Court notes that the Government contested the dates on which the appeal had been lodged, but not the fact that they remained unexamined (see paragraphs 51 and 52 above).
143. The Court has frequently found violations of Article 5 § 4 of the Convention in cases raising issues similar to the ones in the present case (see Solovyevy v. Russia, no. 918/02, §§ 134-38, 24 April 2012; Idalov v. Russia [GC], no. 5826/03, §§ 161-64, 22 May 2012; Pyatkov v. Russia, no. 61767/08, §§ 128-33, 13 November 2012; and Koroleva v. Russia, no. 1600/09, §§ 107-10, 13 November 2012).
144. Having regard to its case-law on the subject and the Government’s acknowledgments, the Court does not see any reason to hold otherwise in the present case. Accordingly, it finds that there has been a violation of Article 5 § 4 of the Convention on account of the applicant’s inability to attend the hearings of 1 July and 24 October 2002, the delays in examination of the applicant’s appeals of 1 and 22 July 2002 and the failure to examine the applicant’s appeals dated 17 September and 17 December 2002.
VII. APPLICATION OF ARTICLE 41 OF THE CONVENTION
145. 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.”
146. The applicant claimed 20,000 euros (EUR) in respect of non-pecuniary damage caused by the unlawful actions on the part of the Ukrainian authorities and EUR 5,000 in respect of non-pecuniary damage caused by the Russian authorities.
147. The Russian and Ukrainian Governments submitted that the claim for compensation in respect of non-pecuniary damage was unsubstantiated, and that the finding of a violation would constitute sufficient satisfaction.
148. Regard being had to the documents in its possession, the Court considers that the applicant must have sustained stress and frustration as a result of the violations found, which cannot be compensated for solely by the finding of a violation. Making an assessment on an equitable basis, the Court awards the applicant:
(a) EUR 12,500 to be paid by Ukraine in respect of non-pecuniary damage, plus any tax that may be chargeable.
(b) EUR 5,000 to be paid by the Russian Federation in respect of non-pecuniary damage, plus any tax that may be chargeable.
B. Costs and expenses
149. The applicant also claimed EUR 380 for costs and expenses incurred before the domestic courts and before the Court.
150. The Government considered that the applicant’s claims were unsubstantiated.
151. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, having regard to the information in its possession and the above criteria, and noting that the applicant has been granted EUR 850 in legal aid, the Court rejects his claims.
C. Default interest
152. 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. Holds that regarding the events in Feodosiya on 3 and 4 November 2000 the applicant fell within the jurisdiction of Ukraine;
2. Dismisses the Ukrainian Government’s preliminary objections;
3. Holds that there has been a violation of Article 5 § 1 of the Convention by Ukraine on account of the applicant’s arrest in Feodosiya, his detention and subsequent forced transfer to Moscow;
4. Holds that there has been a violation of Article 8 of the Convention by Ukraine on account of the search of the applicant’s apartment in Feodosiya;
5. Holds that there has been a violation of Article 5 § 3 of the Convention by the Russian Federation on account of the excessive length of the applicant’s pre-trial detention;
6. Holds that there has been a violation of Article 5 § 4 of the Convention by the Russian Federation on account of the applicant’s inability to attend the hearings of 1 July and 24 October 2002, serious delays in examination of his appeals dated 1 and 22 July 2002 and the courts’ failure to examine his appeals of 17 September and 17 December 2002;
(a) that Ukraine 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 12,500 (twelve thousand six hundred euros) 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, plus any tax that may be chargeable;
(b) that the Russian Federation 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 5,000 (five thousand euros) 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, plus any tax that may be chargeable;
(c) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
8. Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 15 October 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Elisabeth