CASE OF LEBEDEV v. RUSSIA
(Application no. 4493/04)
25 October 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 Lebedev 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,
Mrs E. Steiner,
Mr K. Hajiyev,
Mr S.E. Jebens, judges,
and Mr S. Nielsen, Section Registrar,
Having deliberated in private on 4 October 2007,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
A. Detention of the applicant
1. The applicant's arrest
2. Initial detention order
“The court finds unfounded and cannot accept [the applicant's] motion to adjourn [the decision] until [his lawyers] may take part in the proceedings. The documents submitted by the investigating authorities prove that [the lawyers] were informed about the time and place of the hearing in advance, namely at 2.52 p.m. on 3 July 2003 [they] were informed that at 4.30 p.m. on 3 July 2003 [the Basmanniy District Court] would examine [the investigating officer's request for a detention order]. In reality, the hearing ... began at 5.50 p.m. on 3 July 2003, but [the lawyers] have still not arrived, nor have they presented valid reasons for their absence...”
“[The prosecution has submitted] evidence that [the applicant] has three travel passports, that most of [his] money has been [converted into] foreign currency and is deposited in foreign ... bank accounts, that he has real estate abroad, and that his main business is located outside Russia. In the hearing [the applicant's] lawyers did not contest this evidence. [This evidence], together with the fact that [the applicant] heads several commercial banks and maintains international links, supports the [first-instance] court's conclusion that [the applicant], if he remains at large, may abscond from the investigation and trial, influence ... witnesses, destroy evidence, and otherwise obstruct the proceedings....”
Furthermore, the court of appeal found that the applicant's lawyers had been properly informed about the time of the hearing in the District Court but failed to appear in time. The court noted that the applicant's lawyers had been notified about the hearing in the General Prosecutor's office situated a short distance away from the building of the Basmanniy District Court. The defence lawyers had had three hours to get there, but had failed to appear in time. Consequently, the judge had had every reason not to let them in “because when they arrived at the court the hearing had already started and it was closed to those who were not participating in it”.
3. Extensions of detention on remand during the investigation
4. The applicant's detention during the trial
B. The applicant's lawyers' visits to prison
II. RELEVANT DOMESTIC LAW AND PRACTICE
Article 108. Pre-trial detention
“1. Pre-trial detention as a measure of restraint shall be applied by a court only where it is impossible to apply a different, less severe, precautionary measure...
3. When the need arises to apply detention as a measure of restraint ... the investigating officer should request the court accordingly...
4. [The request] should be examined by a single judge of a district court ... with the participation of the suspect or the accused, the public prosecutor and the defender, if one takes part in the proceedings. [The request should be examined] at the place of the preliminary investigation, or of the detention, within 8 hours of the receipt of the [request] to the court.... The non-justified absence of the parties, who were notified about the time of the hearing in good time, should not prevent [the court] from considering the request [for detention], except for the cases of absence of the accused person.
7. Having examined the request [for detention], the judge should take one of the following decisions:
1) to apply pre-trial detention as a measure of restraint in respect of the accused;
2) to dismiss the request [for detention];
3) to adjourn the examination of the request for up to 72 hours so that the requesting party can produce additional evidence in support of the request.”
Article 109. Time-limits for pre-trial detention
“1. A period of detention during the investigation of criminal offences may not last longer than two months.
2. If it is impossible to complete the preliminary investigation within two months and if there are no grounds for modification or cancellation of the preventive measure this time-limit may be extended by up to six months by a judge of a district or garrison court of the relevant level according to the procedure provided in Article 108 of the present Code. A further extension of this term up to 12 months may be effected in respect of persons accused of committing grave or particularly grave criminal offences only in cases of special complexity of the criminal case, and provided there are grounds for application of this preventive measure, by a judge of the same court upon application of the investigator, filed with the consent of a prosecutor of a subject of the Russian Federation or a military prosecutor of equal status.
3. A term of detention may be extended beyond 12 months and up to 18 months only in exceptional cases and in respect of persons accused of committing grave or particularly grave criminal offences by [a judge] on application by an investigator filed with the consent of the Prosecutor General of the Russian Federation or his deputy.
4. Further extension of the time-limit shall not be allowed. ...”
Article 110. Cancellation or modification of a preventive measure
“1. A preventive measure must be cancelled when it ceases to be necessary, or else changed into a stricter or a milder one if the grounds for application of a preventive measure ... change.
2. The cancellation or modification of a preventive measure should be effected by an order of the person carrying out the inquiry, the investigator, the prosecutor or the judge or by a court decision.
3. A preventive measure applied at the pre-trial stage by the prosecutor or by the investigator or the inquirer upon his written instructions may be cancelled or changed only with the prosecutor's approval.”
Article 123. Right to appeal
“Actions (omissions) and decisions of the agency conducting the inquiry, the inquirer, the investigator, the prosecutor and the court may be appealed against according to the procedure provided in the present Code by the participants in the criminal proceedings and by other persons to the extent that the procedural actions carried out and procedural decisions taken affect their interests.”
Article 227. Judges' powers in respect of a criminal case submitted for trial
“1. When a criminal case is submitted [to the court], the judge must decide as follows: either
(i) to forward the case to an [appropriate] jurisdiction; or,
(ii) to hold a preliminary hearing; or,
(iii) to hold a hearing.
2. The judge's decision shall take the form of a resolution...
3. The decision shall be taken within 30 days of the submission of the case to the court. If the accused is detained, the judge must take the decision within 14 days of the submission of the case to the court...”
Article 228. Points to be ascertained in
connection with a criminal case
submitted for trial
“Where a criminal case is submitted for trial, the judge must ascertain the following points in respect of each accused:
(i) whether the court has jurisdiction to deal with the case;
(ii) whether copies of the indictment have been served;
(iii) whether the measure of restraint should be lifted or changed;
(iv) whether the motions filed should be granted ...”
Article 231. Setting the case for trial
“1. When there are no grounds to take one of the decisions described in subparagraphs (i) or (ii) of the first paragraph of Article 227, the judge should assign the case for trial ... In the resolution ... the judge should decide on the following matters:
(vi) on the measure of restraint, except for the cases when detention on remand or house arrest are chosen...”
Article 255. Measures of restraint during trial
“1. During the trial the court may order, change, or lift a precautionary measure in respect of the accused.
2. If the defendant has been detained before the trial, his detention may not exceed six months from the moment the court receives the case for trial to the time when the court delivers the sentence, with exceptions provided by § 3 of this Article.
3. The court [...] may extend the accused's detention on remand. It is possible to extend detention only in respect of a defendant charged with serious crimes or especially serious crimes, and each time for a period of up to 3 months...”
Article 259. The hearing record
“1. During the hearing a record must be kept. ...
6. The hearing record must be made and signed by the presiding judge and the secretary of the court within 3 days after the hearing. ...”
Article 376. Setting the case down for the appeal hearing
“1. Having received the criminal case with the points of appeal ..., the judge must fix the date, time and venue of the [appeal] hearing.
2. The parties must be notified about the date, time and venue [of the appeal hearing] no later than fourteen days before it. The court shall decide whether the convicted detainee should be summoned to the hearing.
3. A convicted detainee who has expressed a wish to be present [at the appeal hearing] shall have the right to be present personally or to submit his arguments by video link. The court shall decide in what form the participation of the convicted person in the hearing is to be secured. ...”
“The second part of Article 22 of the Constitution of the Russian Federation provides that ... detention is permitted only on the basis of a court order ... Consequently, if the term of detention, as defined in the court order, expires, the court must decide on the extension of the detention, otherwise the accused person must be released...
These rules are common for all stages of criminal proceedings, and also cover the transition from one stage to another. ... The transition of the case to another stage does not automatically put an end to the measure of restraint applied at previous stages.
Therefore, when the case is transmitted by the prosecution to the trial court, the measure of restraint applied at the pre-trial stage ... may continue to apply until the expiry of the term for which it has been set in the respective court decision [imposing it]...
[Under Articles 227 and 228 of the Code of Criminal Procedure] a judge, after having received the criminal case concerning a detained defendant, should, within 14 days, set a hearing and establish “whether the measure of restraint applied should be lifted or changed”. This wording implies that the decision to detain the accused or extend his detention, taken at the pre-trial stage, may stand after the completion of the pre-trial investigation and transmittal of the case to the court, only until the end of the term for which the measure of restraint has been set.
The prosecution, in its turn, when approving the bill of indictment and transferring the case file to the court, should check whether the term of detention has not expired and whether it is sufficient to allow the judge to take a decision [on further detention of the accused pending trial]. If by the time of transfer of the case file to the court this term has expired, or if it appears to be insufficient to allow the judge to take a decision [on detention], the prosecutor, applying Articles 108 and 109 of the Code of Criminal Proceedings, [must] ask the court to extend the period of detention.”
In its Ruling the Constitutional Court further held:
“Since deprivation of liberty ... is permissible only pursuant to a court decision, taken at a hearing ... under the condition that a detainee has been provided an opportunity to submit his arguments to the court, the prohibition on issuing a detention order ... without a hearing should apply to all court decisions, whether they concern the initial imposition of this measure of restraint, or its confirmation.”
35. On 22 January 2004 the Constitutional Court delivered decision no. 66-O on a complaint about the Supreme Court's refusal to permit a detainee to attend the appeal hearings on the issue of detention. It held:
“Article 376 of the Code of Criminal Procedure regulating the presence of a defendant remanded in custody before the appeal court... cannot be read as depriving the defendant held in custody... of the right to express his opinion to the appeal court, by way of his personal attendance at the hearing or by other lawful means, on matters relating to the examination of his complaint about a judicial decision affecting his constitutional rights and freedoms...”
I. THE GOVERNMENT'S PRELIMINARY OBJECTIONS AS REGARDS THE COMPLAINT UNDER ARTICLE 5 § 1 OF THE CONVENTION
A. Non-exhaustion of domestic remedies
B. Victim status
II. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION
“Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so...”
A. The parties' submissions
B. The Court's assessment
III. ALLEGED VIOLATION OF THE PROCEDURAL REQUIREMENTS OF ARTICLE 5 OF THE CONVENTION
The Court has examined this aspect of the application under Article 5 §§ 3 and 4 of the Convention which read as follows:
“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.
4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”
A. The Government's submissions
B. The applicant's submissions
“The judicial proceedings referred to in Article 5 § 4 ... need not, it is true, always be attended by the same guarantees as those required under Article 6 § 1 ... Nonetheless, it is essential that the person concerned should have access to a court and the opportunity to be heard either in person or, where necessary, through some form of representation, failing which he will not have been afforded 'the fundamental guarantees of procedure applied in matters of deprivation of liberty'.”
In the later case-law the Court had confirmed this approach. Thus, in Nikolov v. Bulgaria (no. 38884/97, § 97, 30 January 2003) and Migoń v. Poland (no. 24244/94, § 68, 25 June 2002) the Court had found that detention proceedings must adequately ensure “equality of arms” between the parties.
C. The Court's assessment
1. Applicability of Article 5 §§ 3 and 4 to the detention proceedings
“The proceedings conducted under Article 5 § 4 of the Convention should in principle meet, to the largest extent possible under the circumstances of an on-going investigation, the basic requirements of a fair trial.”
2. Compliance of the detention proceedings with Article 5 §§ 3 and 4
(a) General principles
“Under Article 5 para. 3, there is both a procedural and a substantive requirement. The procedural requirement places the 'officer' under the obligation of hearing himself the individual brought before him.”
In Brannigan and McBride v. the United Kingdom (judgment of 26 May 1993, Series A no. 258 B, § 58), the Court went even further and held:
“The Court notes that the introduction of a 'judge or other officer authorised by law to exercise judicial power' into the process of extension of periods of detention would not of itself necessarily bring about a situation of compliance with Article 5 para. 3. That provision - like Article 5 para. 4 – must be understood to require the necessity of following a procedure that has a judicial character [emphasis added], although that procedure need not necessarily be identical in each of the cases where the intervention of a judge is required.”
(b) Application to the present case
(i) Court proceedings concerning the applicant's detention from 3 July to 28 August 2003
(ii) Court proceedings concerning the applicant's detention from 26 December 2003 to 30 March 2004
(α) General principles governing the requirement of “speediness”
(β) Application to the present case
(iii) Court proceedings concerning the applicant's detention from 6 April 2004 to 8 June 2004
(iv) Court proceedings concerning the applicant's detention from 8 June to 10 September 2004
IV. ALLEGED INTERFERENCE WITH THE RIGHT OF INDIVIDUAL PETITION (ARTICLE 34 OF THE CONVENTION)
“The Court may receive applications from any person ... claiming to be the victim of a violation ... of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.”
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“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.”
1. Pecuniary damage
2. Non-pecuniary damage
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention the following amounts, to be converted into the national currency of the respondent State at the rate applicable on the date of settlement:
(i) EUR 3,000 (three thousand euros) in respect of non-pecuniary damage;
(ii) EUR 7,000 (seven thousand euros) in respect of his legal costs;
(iii) any tax that may be chargeable on the above amounts.
(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;
Done in English, and notified in writing on 25 October 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment:
(a) partly dissenting opinion of Mr Kovler, Mr Hajiyev and Mr Jebens;
(b) partly dissenting opinion of Mr Kovler and Mr Jebens.
PARTLY DISSENTING OPINION OF JUDGES KOVLER, HAJIYEV AND JEBENS
To our regret we do not share the opinion of the majority that there has been a violation of the applicant's rights under Article 5 § 3 of the Convention on account of the absence of the applicant's lawyers from the detention hearing of 3 July 2003.
At the outset, we recall that Article 5 § 3 (as well as § 4 of this Convention provision) do not contain any explicit mention of a right to legal assistance, as opposed to Article 6 § 3 (c), cf. Article 6 § 1, which applies when a criminal charge is to be decided upon. It is true that in the recent case of Öcalan v. Turkey (cited in the judgment) the Court found that in certain circumstances a detainee should have access to counsel in order to challenge his detention. Thus, in Öcalan the Court concluded that the applicant had been in need of legal assistance because he had been kept in total isolation, possessed no legal training and had no possibility of consulting a lawyer while in police custody. Further, Article 5 would call for the presence of a lawyer where the person detained is a minor or mentally ill (see Bouamar and Megyeri, both cited in the text of the judgment). However, we do not detect any “special circumstances” in the present case which would call for a mandatory legal assistance, as in the cases cited above. Nothing suggests that the applicant's medical condition was such as to prevent his effective participation in the detention proceedings. The applicant was able to consult with his lawyers, at least briefly, when he was formally charged. His state of mind, his education, and his professional background allowed him to understand what was happening in the courtroom and to adduce arguments in his defence.
Indeed, the judge showed a certain degree of rigour by not allowing the lawyers to enter the courtroom when they arrived. Yet such a decision can be reasonably explained by the interests of justice. The Court has repeated on many occasions that detention proceedings require special expedition. The difference of aims explains why Article 5 contains more flexible procedural requirements than Article 6 while being much more stringent as regards speediness. The judge is the ultimate guardian of order in the courtroom, and it is up to him or her to decide whether or not the proceedings should be interrupted or delayed because of one party's failure to appear in time.
In the circumstances we do not think that the judge's decision to proceed with the case was arbitrary. We note that from 2 July 2003 the applicant's lawyers knew that their client faced serious charges and might be remanded in custody by the court. Therefore, they were not unprepared for such a development. The domestic law provides that the public prosecutor's request for detention should be examined by a court within eight hours from
its receipt (see paragraph 33 of the judgment). As follows from the court's decision (cited in paragraph 13 of the judgment), the court waited for the applicant's lawyers and started the hearing only at 5.50 p.m. – one hour and twenty minutes later than scheduled. The applicant did not submit any explanation as to why his lawyers had been unable to ensure their attendance in the circumstances of the case: they had been informed about the hearing about two hours in advance, and nothing suggests that there were any obstacles preventing them from arriving to the court in time. In such circumstances it would be excessive to require more flexibility on the part of the judge. We would like to refer in this respect to the well-known jurisprudence of this Court which affirms that the State cannot be held responsible for every shortcoming on the part of a lawyer appointed for legal aid purposes (see Kamasinski v. Austria, judgment of 19 December 1989, Series A no. 168, § 65) or chosen by the accused (see Imbrioscia v. Switzerland, judgment of 24 November 1993, Series A no. 275, § 41).
It is true that the recent case of Istratii and Others v. Moldova (relied on in the judgment) suggests that interfering with the lawyer-client confidentiality may breach Article 5. However, in our view this case-law is not applicable to the present situation. The applicant's inability to consult with his lawyers resulted not from certain security measures, as in Istratii and others, but from the failure of the lawyers to arrive to the court in time.
In sum, we consider that the belated arrival of the defence lawyers to the hearing of 3 July 2003 cannot be imputed to the State. As to the decision of the court not to let the lawyers in, that decision was not unreasonable, and, as such, was within the discretion of the national judge. In our opinion, by challenging that decision of the judge the majority go too far.
For the reasons specified above we believe that the applicant's rights under Article 5 § 3 were not breached.
PARTLY DISSENTING OPINION OF
JUDGES KOVLER AND JEBENS
We cannot share the conclusion of the majority that there has been a violation of Article 5 § 4 of the Convention as regards the delays in the review of detention order of 26 December 2003 by Moscow City Court.
First of all we consider that the authorities were responsible only for 14 days and not for 27 days out of the overall duration of the appeal proceedings. The “preliminary appeal” against the decision of 26 December 2003 was introduced by the defence lawyer on 29 December 2003. However it did not contain the detailed reasoning since the hearing record has not been yet made available to the defence. The hearing record was signed on 5 January 2004 but it was not until 14 January that the applicant's lawyer obtained a copy of it. The comments of the defence had reached the court only on 22 January 2004 and were examined on the same day. Thus, about ten days out of this period can be imputable to the authorities. On 23 January the defence lawyers submitted a full version of the grounds of appeal. On 5 February 2004 the applicant himself had submitted additional arguments which were received by the court on 6 February 2004. On 9 February 2004 the Moscow City Court had examined both sets of submissions and dismissed the appeal. Therefore, between 23 January and 9 February only four days can be attributed to the authorities.
Further, we consider that the factual and legal issues examined at the remand hearing of 26 December 2003 were of considerable complexity. The Court observed in this connection that in certain instances “the complexity of ... issues involved in a determination of whether a person should be detained or released can be a factor which may be taken into account when assessing compliance with the Article 5 § 4 requirements (see, mutatis mutandis, Baranovsky v. Poland [GC], no.28358/95, § 72, ECHR 2000-III, and Musiał v. Poland [GC], no.24557/94, § 43, ECHR 1999-II).
Finally, we emphasise that the delay complained of occurred in the proceedings before the second-instance court. The court of appeal was supposed to examine the detention order issued by the first-instance court within a procedure of a judicial character. In our view, the “speediness” requirement under Article 5 § 4 should not apply to the appeal proceedings with the same rigour as to the proceedings before the first instance court. In the circumstances the two weeks which elapsed before the appeal hearing took place did not amount to a breach of Article 5 § 4.