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FIRST SECTION

CASE OF MISHKETKUL AND OTHERS v. RUSSIA

(Application no. 36911/02)

JUDGMENT

STRASBOURG

24 May 2007

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 Mishketkul and Others v. Russia,

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

Mr C.L. Rozakis, President,
Mr L. Loucaides,
Mrs N. Vajić,
Mr A. Kovler,
Mr D. Spielmann,
Mr S.E. Jebens,
Mr G. Malinverni, judges,
and Mr S. Nielsen, Section Registrar,

Having deliberated in private on 3 May 2007,

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

PROCEDURE

The case originated in an application (no. 36911/02) 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 three Russian nationals, Mr Sergey Aleksandrovich Mishketkul, Mr Georgiy Aleksandrovich Georgobiani and Ms Tatyana Ivanovna Turuntayeva (“the applicants”), on 31 August 2002.

The applicants were represented by Mr Y. Vasichkin, a lawyer practising in Moscow. The Russian Government (“the Government”) were represented by Mr P. Laptev, the Representative of the Russian Federation at the European Court of Human Rights.

On 12 September 2005 the Court decided to give notice of the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility.

The Government objected to the joint examination of the admissibility and merits of the application. Having examined the Government's objection, the Court dismissed it.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The first two applicants were born in 1977 and 1975 respectively and live in the town of Noginsk in the Moscow region. The third applicant was born in 1948 and lives in Moscow.

A. The first two applicants' arrest and alleged ill-treatment by the police

On 27 April 2001 the police were called to a flat owned by the third applicant. Upon their arrival, the police officers discovered the first applicant in the flat. He jumped out of the kitchen window and ran away trying to escape. The policemen fired several shots in the air, but the first applicant did not stop. A policeman pursued him, knocked him down to the ground and handcuffed him.

The first applicant was taken to the Lyublino police station, where he was allegedly beaten up for four hours. He signed a statement confessing to having broken into the flat attempting to commit theft. Mr Kostyukov, appointed to act as the first applicant's counsel, was present when he made that statement.

An investigator of the Lyublino District Police Department drew up the record of the first applicant's arrest. He indicated that the first applicant had been apprehended at the crime scene, that eyewitnesses, including the victims, had identified him as the perpetrator of the criminal offence, that he had tried to escape and that he had no permanent place of residence.

On the same day the second applicant was arrested as the first applicant's accomplice to the theft.

The first two applicants were charged with theft and on 30 April 2001 the Lyublino District Prosecutor, by separate decisions, authorised their placement in custody. The prosecutor noted that the first two applicants were charged with a serious criminal offence carrying a sentence of imprisonment; that they did not have a permanent place of residence in Moscow; that the second applicant was a “citizen of the Republic of Abkhazia” and the first two applicants were liable to abscond and evade justice. The decisions were amenable to appeal, but the first two applicants did not make use of this avenue.

On 25 June 2001 the first two applicants and their lawyers started reading the case file. An investigator drew up records in which the two applicants and their lawyers made handwritten notes confirming that they had been provided with the entire file and that no time restrictions had been imposed on them.

B. Extension order of 28 June 2001 and the first set of trial proceedings

On 28 June 2001 the pre-trial investigation was closed, the first two applicants were served with the bill of indictment and the case was set down for trial in the Lyublinskiy District Court of Moscow. On the same day the District Court fixed the first trial hearing and extended the two applicants' detention. That decision was not appealed against and became final.

On 25 December 2001 the Lyublinskiy District Court found the first two applicants guilty as charged and sentenced the first applicant to four years and two months' imprisonment and the second applicant to four years' imprisonment. The District Court based its judgment on statements by the victims, including the third applicant, witnesses, expert opinions, documentary evidence and the confession made by the first applicant on 27 April 2001. That judgment was upheld by the Moscow City Court on 3 April 2002.

C. Supervisory review, the second set of judicial proceedings and extension of the detention

In March 2003 the applicants requested a review of the judgment of 25 December 2001, as upheld on appeal on 3 April 2002.

On 11 September 2003 the Presidium of the Moscow City Court, by way of supervisory review, quashed the judgments of 25 December 2001 and 3 April 2002 and remitted the case to the District Court for a fresh examination. The Presidium held that the first two applicants should “remain in detention”. No reason for the extension was cited.

On 10 October 2003 the Lyublinskiy District Court scheduled the first trial hearing, appointed Mr Vasichkin to act as counsel for the first two applicants and ordered that witnesses should be called according to lists prepared by the parties. As follows from the decision, the District Court did not determine the issue of detention. According to the Government, the District Court held that the measure of restraint to which the first two applicants were subject should “remain unchanged”.

On 16 March 2004 the District Court found the first two applicants guilty of aggravated theft and sentenced them to four years' imprisonment. The District Court relied, inter alia, on the statement made by the first applicant on 27 April 2001.

The Moscow City Court, on appeal, quashed the judgment on 27 April 2004 and remitted the case to the District Court for a fresh examination. The City Court, without indicating any reasons, held that the first two applicants should “remain in detention”.

D. Extensions of the detention and the third set of judicial proceedings

The Lyublinskiy District Court received the case file on 17 May 2004. On 1 June 2004 the District Court fixed the hearing date, appointed counsel for the first two applicants and held that the preventive measure “should remain unchanged”.

1. Order of 7 June 2004

Six days later the Lyublinskiy District Court extended the detention of the first two applicants until 30 August 2004. It held that the applicants had been charged with a serious criminal offence and “there were no grounds for changing the measure of restraint”.

The first two applicants appealed, arguing that there were no grounds for their continued detention and that they should be released subject to a written undertaking. They further complained that the length of their detention was excessive and that the District Court had failed to provide reasons for extending it.

On 1 July 2004 the Moscow City Court upheld the order of 7 June 2004, relying on the gravity of the charges and the fact that the trial proceedings were pending. It also noted that the entire period of the detention of the first two applicants had been authorised in compliance with the procedural requirements and had not been excessively long.

2. Order of 17 August 2004

On 17 August 2004 the Lyublinskiy District Court extended the detention of the first two applicants until 30 November 2004, holding that in view of the complexity of the case it needed additional time for the trial, that the first two applicants were charged with a serious criminal offence and that there was no reason to release them.

On 13 September 2004 the Moscow City Court upheld the order, noting the gravity of the charges against the first two applicants and the absence of any grounds for their release.

3. Examination of the merits of the case

On 19 October 2004 the Lyublinskiy District Court found the first two applicants guilty of aggravated theft, sentenced them to four years' imprisonment and ordered that they should jointly pay the third applicant 81,000 Russian roubles in compensation for damage. The District Court did not make any reference to the confession made by the first applicant on 27 April 2001. At the same time it noted that the prosecution authorities had examined the complaints alleging ill-treatment and had dismissed them as unfounded. The first applicant and his lawyer had not appealed against that prosecutor's decision and had therefore agreed with the prosecutor's findings.

On 23 December 2004 the Moscow City Court upheld the judgment. In response to the first applicant's complaint that his confession of 27 April 2001 had been obtained under duress, it noted that the District Court had not taken the confession into consideration and had not based its findings on it. The City Court once again indicated that the first applicant had not appealed against the prosecutor's decision.

The first two applicants were released on 27 April 2005 after having served their sentence.

E. Proceedings concerning ill-treatment by the police

The first applicant complained to the prosecutor that on 27 April 2001 the policemen had beaten him up and had forged evidence in his case.

On 1 July 2001 an assistant of the Lyublinskiy District Prosecutor refused to institute criminal proceedings in connection with the applicant's claim of ill-treatment. He studied a record of the medical examination of the first applicant on 27 April 2001, in which multiple bruises on his face, upper body and legs had been noted. The assistant prosecutor found that the first applicant could have received those injuries on 27 April 2001 as a result of falling down when trying to escape from the policemen. The reasoning of the two-page decision was founded on the statements by the police officer who had apprehended the applicant on 27 April 2001 and Mr O., a neighbour of the third applicant, who had seen the first applicant immediately after his arrest. The decision of 1 July 2001 was promptly notified to the first applicant.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. Placement in custody and detention

Until 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, “the old CCrP”). From 1 July 2002 the old CCrP was replaced by the Code of Criminal Procedure of the Russian Federation (Law no. 174-FZ of 18 December 2001, “the new CCrP”).

Before 14 March 2001, pre-trial detention was authorised if the accused was charged with a criminal offence carrying a sentence of at least one year's imprisonment (Article 96). The amendments of 14 March 2001 repealed the provision that permitted defendants to be remanded in custody on the sole ground of the dangerous nature of the criminal offence they were charged with. The new CCrP reproduced the amended provisions (Articles 97 § 1 and 108 § 1) and added that a defendant should not be remanded in custody if a less severe preventive measure was available.

After the arrest the suspect is placed in custody during the investigation. The period of detention during the investigation may be extended beyond six months only if the detainee is charged with a serious or particularly serious criminal offence. No extension beyond eighteen months is possible (Article 97 of the old CCrP, Article 109 of the new CCrP).

Before 14 March 2001 the old CCrP set no time-limit for detention during the trial proceedings. On 14 March 2001 a new Article 239-1 was inserted which established that the period of detention during the trial proceedings could not generally exceed six months from the date the court received the file. That limitation did not apply to defendants charged with particularly serious criminal offences. The new CCrP establishes that the detention during the trial proceedings may not normally exceed six months, but if the case concerns serious or particularly serious criminal offences, the trial court may approve one or more extensions of no longer than three months each (Article 255).

B. Investigation of criminal offences

The RSFSR Code of Criminal Procedure (in force until 1 July 2002, “the CCrP”) established that a criminal investigation could be initiated by an investigator upon the complaint of an individual or on the investigative authorities' own initiative when there were reasons to believe that a crime had been committed (Articles 108 and 125). A prosecutor was responsible for general supervision of the investigation (Articles 210 and 211). He could order a specific investigative action, transfer the case from one investigator to another or order an additional investigation. If there were no grounds to initiate a criminal investigation, the prosecutor or investigator issued a reasoned decision to that effect which had to be notified to the interested party. The decision was amenable to an appeal to a higher prosecutor or to a court of general jurisdiction (Article 113).

On 29 April 1998 the Constitutional Court of the Russian Federation held that anyone whose legitimate rights and interests had been affected by a decision not to institute criminal proceedings should have the right to appeal against that decision to a court.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION

The first two applicants complained that the length of their pre-trial detention was unreasonable, in breach of Article 5 § 3 of the Convention, which reads as follows:

“Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be 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.”

A. Submissions by the parties

The Government submitted that the length of the pre-trial detention of the first two applicants had complied with the requirements of domestic law. It had been necessary for the first two applicants to remain in custody because they were charged with a serious criminal offence and, if released, they were liable to abscond. The extension orders had been “founded on relevant and sufficient reasons”. The Government further noted that the first two applicants had not appealed against the majority of the detention orders and asked the Court to dismiss the present complaint because it was manifestly ill-founded.

The first two applicants replied that their detention on remand had lasted from 27 April 2001 to 19 October 2004, that is for nearly three years and six months. That period appeared to be excessive. The domestic authorities had relied on the gravity of the charges and the risk of their absconding. However, there was no evidence showing that they had wanted to evade justice. Since 1992 the second applicant had lived in Moscow and since 1998 he had lived with his mother in her flat in Moscow. He was not “a citizen of the Republic of Abkhazia” as such a State did not exist. The first applicant had lived with his parents in the town of Noginsk, not far from Moscow. The authorities had not taken into consideration any other preventive measure, such as a written undertaking or bail.

A. The Court's assessment

1. Admissibility

(a) Period to be taken into consideration and compliance with the six-month rule

The Court observes that the pre-trial detention of the first two applicants commenced when they were arrested on 27 April 2001. They were detained within the meaning of Article 5 § 3 of the Convention until their conviction by the Lyublinskiy District Court on 25 December 2001. From that date until 11 September 2003, when the Presidium of the Moscow City Court quashed the judgment of 25 December 2001, they were detained “after conviction by a competent court”, within the meaning of Article 5 § 1 (a), and therefore that period of their detention falls outside the scope of Article 5 § 3 (see B. v Austria, judgment of 28 March 1990, Series A no. 175, §§ 33 39, and Kudła v. Poland [GC], no. 30210/96, § 104, ECHR 2000-XI). From 11 September 2003 to 16 March 2004, when the District Court again convicted the first two applicants, and from 27 April 2004, when the Moscow City Court quashed the conviction and sent the case back for re-examination, to 19 October 2004, when the Lyublinskiy District Court delivered another judgment, the first two applicants were again in pre-trial detention falling under Article 5 § 3 of the Convention (see paragraphs 15, 17, 18 and 25 above).

The Court considers that, in the instant case, the multiple, consecutive detention periods should be regarded as a whole, and the six-month period should only start to run from the end of the last period of pre-trial custody, that is from 19 October 2004 (see Kemmache v. France (no. 1), judgment of 27 November 1991, Series A no. 218, p. 23, § 44; I.A. v. France, judgment of 23 September 1998, Reports of Judgments and Decisions 1998 VII, p. 2979, § 98; Mitev v. Bulgaria, no. 40063/98, § 102, 22 December 2004; and Solmaz v. Turkey, no. 27561/02, §§ 34-37, 16 January 2007).

In order to assess the length of the pre-trial detention of the first two applicants, the Court should therefore make an overall evaluation of the accumulated periods of detention under Article 5 § 3 of the Convention (see, mutatis mutandis, Neumeister v. Austria, judgment of 27 June 1968, Series A no. 8, p. 37, § 6). Consequently, the Court concludes that, after deducting the periods when the first two applicants were detained after conviction under Article 5 § 1 (a) of the Convention from the total time that they were deprived of their liberty, the period to be taken into consideration in the instant case is nearly twenty months.

(b) Exhaustion of domestic remedies

The Court notes that the Government did not argue that the first two applicants had failed to exhaust domestic remedies in respect of their complaint under Article 5 § 3 of the Convention. In fact, the Government insisted that the present complaint should be dismissed under Article 35 §§ 3 and 4 of the Convention as being manifestly ill-founded. At the same time they noted that the first two applicants had not appealed against any detention orders, save for those issued on 7 June and 17 August 2004.

43. In this connection, the Court reiterates that its normal practice has been, where a case has been communicated to the respondent Government, not to declare the application inadmissible for failure to exhaust domestic remedies unless this matter has been raised by the Government in their observations (see Sejdovic v. Italy [GC], no. 56581/00, §§ 40-41, ECHR 2006-..., with further references, and Dobrev v. Bulgaria, no. 55389/00, § 112, 10 August 2006). However, the Court finds that it is not necessary to consider whether the Government's comment on the failure of the first two applicants to appeal amounts to an objection of non-exhaustion because the objection should, in any event, be dismissed for the following reasons.

The Court reiterates that the purpose of the rule requiring domestic remedies to be exhausted is to afford the Contracting States the opportunity of preventing or putting right the alleged violations before those allegations are submitted to the Court (see, among many other authorities, Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999-V). In the context of an alleged violation of Article 5 § 3 of the Convention, this rule requires that the applicant give the domestic authorities an opportunity to consider whether his right to trial within a reasonable time has been respected and whether there exist relevant and sufficient grounds continuing to justify the deprivation of liberty.

Turning to the facts of the present case, the Court notes that following their arrest on 27 April 2001 the first two applicants continuously remained in custody. It is not disputed that they did not lodge appeals against the extension orders issued before 7 June 2004. They did, however, challenge the Lyublinskiy District Court's decision of 7 June 2004 before the Moscow City Court, which, on 1 July 2004, held that the entire period of their detention had been lawful and that it had not been excessively long (see paragraph 22 above). In these circumstances, the objection of non-exhaustion of domestic remedies must be dismissed (see Shcheglyuk v. Russia, no. 7649/02, §§ 35-37, 14 December 2006).

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

1. Merits

(a) General principles

Under the Court's case-law, the issue of whether a period of detention is reasonable cannot be assessed in abstracto. Whether it is reasonable for an accused to remain in detention must be assessed in each case according to its special features. Continued detention can be justified only if there are specific indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the rule of respect for individual liberty.

It falls in the first place to the national judicial authorities to ensure that, in a given case, the pre-trial detention of an accused person does not exceed a reasonable time. To this end they must examine all the facts arguing for or against the existence of a genuine requirement of public interest justifying, with due regard to the principle of the presumption of innocence, a departure from the rule of respect for individual liberty and set them out in their decisions dismissing the applications for release. It is essentially on the basis of the reasons given in these decisions and of the true facts mentioned 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 of the Convention (see Labita v. Italy [GC], no. 26772/95, § 152, ECHR 2000 IV).

The arguments for and against release must not be “general and abstract” (see Smirnova v. Russia, nos. 46133/99 and 48183/99, § 63, ECHR 2003-IX). Where the law provides for a presumption in respect of factors relevant to the grounds for continued detention, the existence of the concrete facts outweighing the rule of respect for individual liberty must be convincingly demonstrated (see Ilijkov v. Bulgaria, no. 33977/96, § 84 in fine, 26 July 2001).

The persistence of a reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the lawfulness of the continued detention, but 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 continued to justify the deprivation of liberty. Where such grounds were “relevant” and “sufficient”, the Court must also ascertain whether the competent national authorities displayed “special diligence” in the conduct of the proceedings (see Labita, cited above, § 153).

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

The Court accepts that the detention of the first two applicants may initially have been warranted by a reasonable suspicion that they had committed an aggravated theft. In the decision of 30 April 2001 the Lyublino District Prosecutor cited the gravity of the charges and the need to ensure the proper conduct of the investigation and to prevent the first two applicants from absconding and evading justice as the grounds for placing them in custody. At that stage of the proceedings those reasons were sufficient to justify keeping the first two applicants in custody (see Khudoyorov v. Russia, no. 6847/02, § 176, ECHR 2005-X).

However, with the passage of time those grounds inevitably became less and less relevant. Accordingly, the authorities were under an obligation to analyse the personal situation of the first two applicants in greater detail and to give specific reasons for holding them in custody.

The Court reiterates that from 27 April 2001, the date of the arrest, to 19 October 2004, the date of the final conviction, the detention on remand of the first two applicants was extended seven times. When extending the detention or examining the lawfulness of, and justification for, the continued detention the domestic authorities relied on the gravity of the charges, as the main factor, and the risk of the first two applicants' absconding.

As regards the domestic authorities' reliance on the gravity of the charges as being the decisive element, the Court has repeatedly held that the gravity of the charges cannot by itself serve to justify long periods of detention on remand (see Panchenko v. Russia, no. 45100/98, § 102, 8 February 2005; Goral v. Poland, no. 38654/97, § 68, 30 October 2003; and Ilijkov, cited above, § 81). This is particularly true in the Russian legal system, where the characterisation in law of the facts – and thus the sentence faced by the applicants – is determined by the prosecution without judicial review of the issue whether the evidence that has been obtained supports a reasonable suspicion that the applicants have committed the alleged offence (see Khudoyorov, cited above, § 180).

The other ground for the continued detention of the first two applicants was the domestic authorities' findings that they were liable to abscond. The Court reiterates that it is incumbent on the domestic authorities to establish the existence of concrete facts relevant to the grounds for continued detention. Shifting the burden of proof to the detained person in such matters is tantamount to overturning the rule of Article 5 of the Convention, a provision which makes detention an exceptional departure from the right to liberty and one that is only permissible in exhaustively enumerated and strictly defined cases (see Rokhlina v. Russia, no. 54071/00, § 67, 7 April 2005). It remains to be ascertained whether the domestic authorities established and convincingly demonstrated the existence of concrete facts in support of their conclusions.

The Court notes that the domestic authorities gauged the risk of the first two applicants' absconding by reference to the fact that they had been charged with a serious criminal offence and so faced a heavy sentence. In this connection, the Court reiterates that, although the severity of the sentence faced is a relevant element in the assessment of the risk of absconding or re-offending, the need to continue the deprivation of liberty cannot be assessed from a purely abstract point of view. It must be examined with reference to a number of other relevant factors which may either confirm the existence of a danger of absconding and re-offending or make it appear so slight that it cannot justify detention pending trial (see Letellier v. France, judgment of 26 June 1991, Series A no. 207, p. 19, § 43; and Panchenko, cited above, § 106).

In the present case the domestic authorities did not mention any concrete facts warranting the detention of the first two applicants on that ground, save for a reference to their lack of a permanent place of residence. In this connection, the Court reiterates that the mere absence of a fixed residence does not give rise to a danger of absconding (see Sulaoja v. Estonia, no. 55939/00, § 64, 15 February 2005). The Court further observes that the authorities did not indicate any other circumstance to suggest that, if released, the first two applicants would abscond or otherwise upset the course of the trial. Even though other facts that could have warranted the authorities' conclusion about their potential to abscond may have existed, they were not mentioned in the decisions and it is not the Court's task to establish such facts and take the place of the national authorities who ruled on the issue of detention (see Korchuganova v. Russia, no. 75039/01, § 72, 8 June 2006). The Court therefore finds that the existence of such a risk was not established.

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 to ensure his or her appearance at the trial (see Sulaoja, cited above, § 64, and Jabłoński v. Poland, no. 33492/96, § 83, 21 December 2000). During the entire period under consideration the authorities did not consider the possibility of ensuring the attendance of the first two applicants by the use of other “preventive measures”, such as a written undertaking or bail. At no point did the authorities consider having recourse to such alternative measures or, at the very minimum, seek to explain in their decisions why such alternatives would not have ensured that the trial would follow its proper course.

In sum, the Court finds that the domestic authorities' decisions were not based on an analysis of all the pertinent facts. They took no notice of the arguments in favour of the release of the first two applicants pending trial. It is also of concern to the Court that the Russian authorities persistently used a stereotyped summary formula to justify the extension of the two applicants' detention, without giving reference to particular facts of the case. Furthermore, the Court finds it particularly striking that the four of the seven extension orders issued by the domestic authorities did not indicate any reason for the continued detention of the first two applicants. These detention orders merely mentioned that the first two applicants should remain in detention.

Having regard to the above, the Court considers that by failing to address concrete relevant facts or consider alternative “preventive measures” and by relying essentially on the gravity of the charges or failing to indicate any ground for the extension, the authorities prolonged the detention of the first two applicants on grounds which cannot be regarded as “sufficient”. The authorities thus failed to justify the applicant's continued deprivation of liberty for the period of nearly twenty months. It is hence not necessary to examine whether the proceedings against the applicant were conducted with due diligence during that period as such a lengthy period cannot in the circumstances be regarded as “reasonable” within the meaning of Article 5 § 3 of the Convention (see Pekov v. Bulgaria, no. 50358/99, § 85, 30 March 2006).

There has therefore been a violation of this provision.

II. ALLEGED VIOLATION OF ARTICLES 3 AND 13 OF THE CONVENTION

The first applicant complained that on 27 April 2001 the police officers had beaten him up and that the authorities had not carried out an effective investigation into his allegations of ill-treatment. He invoked Articles 3 and 13 of the Convention, which read as follows:

Article 3

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

Article 13

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

The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges applicants to use first 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 the complaints intended to be brought subsequently 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 Aksoy v. Turkey, judgment of 18 December 1996, Reports 1996-VI, pp. 2275-76, §§ 51-52, and Akdıvar and Others v. Turkey, judgment of 16 September 1996, Reports 1996-IV, p. 1210, §§ 65-67).

The first applicant's allegations of ill-treatment were examined by the prosecutor, who did not find a prima facie case of ill-treatment and, in a decision of 1 July 2001, decided not to institute criminal proceedings. Under Article 113 of the RSFSR Code of Criminal Procedure, which was in force at the material time, that decision was amenable to an appeal to a higher prosecutor or a court of general jurisdiction (see paragraph 34 above). The Lyublinskiy District Court and Moscow City Court pointed out that the first applicant had not used either avenue of appeal (see paragraphs 25 and 26 above).

As regards an appeal to a higher prosecutor, the Court has already held on several occasions that an appeal to a higher prosecutor does not give the person employing it a personal right to the exercise by the State of its supervisory powers, and that such an appeal does not therefore constitute an effective remedy within the meaning of Article 35 of the Convention (see Slyusarev v. Russia (dec.), no. 60333/00, 9 November 2006).

The position is, however, different with regard to the possibility of challenging before a court of general jurisdiction a prosecutor's decision not to investigate complaints of ill-treatment. In such cases contentious proceedings are instituted, to which the applicant and the prosecutor are parties. In public and adversarial proceedings an independent tribunal is called upon to assess whether the applicant has a prima facie case of ill-treatment and, if he has, to reverse the prosecutor's decision and order a criminal investigation. The Court has already found that in the Russian legal system, the power of a court to reverse a decision not to institute criminal proceedings is a substantial safeguard against the arbitrary exercise of powers by the investigating authorities (see Trubnikov v. Russia (dec.), no. 49790/99, 14 October 2003).

In the present case the first applicant did not make use of the judicial appeal option. Instead, he preferred to raise the ill-treatment issue before the trial court which determined the criminal charge against him. In this connection, the Court notes that the purpose of the criminal proceedings against the first applicant was to find him innocent or guilty of the criminal charges levelled against him rather than to attribute responsibility for alleged beatings or to afford redress for an alleged breach of Article 3 of the Convention (see Toteva v. Bulgaria (dec.), no. 42027/98, 3 April 2003). The submissions of the first applicant to the trial court concerning his alleged ill-treatment were designed to demonstrate that his confession had been obtained by force and was therefore inadmissible in evidence (see Ksenzov v. Russia (dec.), no. 75386/01, 27 January 2005). He did not ask that the investigation be reopened nor did he raise the issue of its alleged deficiencies before the trial court, although these matters form part of his grievances under Articles 3 and 13 of the Convention. In such circumstances, the remedy employed by the first applicant cannot be regarded as a part of the normal process of exhaustion of domestic remedies in respect of the complaints he made to the Court (see Slyusarev, cited above).

The Court also notes that the first applicant was represented, from the pre-trial stage of the proceedings, by a lawyer with considerable experience in criminal matters. No explanation has been offered for the lawyer's failure to lodge, or to advise the first applicant to lodge, a judicial appeal against the prosecutor's decision not to investigate his allegations of ill-treatment.

In the light of the above considerations, the Court finds that the first applicant's complaints concerning his alleged ill-treatment by the police must be dismissed for non-exhaustion of domestic remedies pursuant to Article 35 § 1 of the Convention.

Having regard to the above finding, the Court also considers that the applicant's complaint under Article 13 of the Convention is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

III. ALLEGED VIOLATION OF ARTICLE 5 §§ 1 AND 2 OF THE CONVENTION

The first two applicants complained under Article 5 §§ 1 and 2 of the Convention that their arrest had not been authorised by a competent court and that they had not been promptly informed of the reasons for it. The relevant provisions of this Article read as follows:

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

...

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

...

2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.”

The Court is not required to decide whether or not the present complaint discloses an appearance of a violation of the Convention. It once again reiterates that Article 35 § 1 of the Convention requires that the complaint to be submitted to the Court must first be submitted to the appropriate national courts, at least in substance, in accordance with the formal requirements of the domestic law and within the prescribed time-limits. The Court notes that the first two applicants did not raise the present complaint before any competent domestic court, they did not appeal against the decision authorising their arrest on 27 April 2001 and they did not argue that there had been a delay in informing them of the grounds for the arrest.

It follows that the first two applicants did not make use of the avenues available to them under domestic law (see Fedosov v. Russia (dec.), no. 42237/02, 25 January 2006) and that this part of the application must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

Invoking Article 6 §§ 1, 2 and 3 of the Convention, the three applicants complained that the criminal proceedings had been excessively long and unfair in that the judges had been partial and had incorrectly assessed the facts and applied the law, that the judgments of 25 December 2001 and 16 March 2004 had been based on the first applicant's confession made under duress and that the courts had denied various applications lodged by the three applicants. The third applicant also complained that the domestic courts had found the first two applicants guilty and had awarded her compensation for damage although they were innocent.

Having regard to all the material in its possession, and in so far as these complaints fall within its competence ratione materiae and ratione personae, the Court finds that the evidence discloses no 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 being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

V. APPLICATION OF ARTICLE 41 OF THE CONVENTION

Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

The first two applicants claimed 100,000 euros (EUR) each in respect of non-pecuniary damage.

The Government argued that the claims were excessive and unsubstantiated.

The Court reiterates, firstly, that the applicants cannot be required to furnish any proof of the non-pecuniary damage they sustained (see Gridin v. Russia, no. 4171/04, § 20, 1 June 2006).

The Court further observes that that the first two applicants spent a long period in custody without relevant and sufficient grounds. In these circumstances, it considers that their suffering and frustration cannot be compensated for by a mere finding of a violation. Making its assessment on an equitable basis, it awards each of the first two applicants EUR 5,000 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount.

B. Costs and expenses

The first two applicants did not seek reimbursement of costs and expenses relating to the proceedings before the domestic courts or the Court and this is not a matter which the Court is required to examine of its own motion (see Motière v. France, no. 39615/98, § 26, 5 December 2000).

C. Default interest

The Court considers it appropriate that the default interest 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

Declares the complaint of the first two applicants concerning an alleged violation of their right to a trial within a reasonable time or release pending trial admissible and the remainder of the application inadmissible;

Holds that there has been a violation of Article 5 § 3 of the Convention;

Holds

(a) that the respondent State is to pay each of the first two applicants, 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 Russian roubles at the rate applicable at the date of the settlement, plus any tax that may be chargeable;

(b) 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;

Dismisses the remainder of the applicants' claim for just satisfaction.

Done in English, and notified in writing on 24 May 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Søren Nielsen Christos Rozakis
Registrar President