European Court of Human Rights
You are here:
BAILII >>
Databases >>
European Court of Human Rights >>
LEBEDEV v. RUSSIA - 4493/04 [2007] ECHR 873 (25 October 2007)
URL: http://www.bailii.org/eu/cases/ECHR/2007/873.html
Cite as:
[2007] ECHR 873
[
New search]
[
Contents list]
[
Printable RTF version]
[
Help]
FIRST
SECTION
CASE OF
LEBEDEV v. RUSSIA
(Application
no. 4493/04)
JUDGMENT
STRASBOURG
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:
PROCEDURE
The
case originated in an application (no. 4493/04) against the Russian
Federation lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Russian national, Mr Platon Leonidovich
Lebedev (“the applicant”), on 22 January 2004.
The
applicant was represented by Mrs Y. Liptser and Mr Y. Baru, lawyers
practising in Moscow, Mr W. Peukert, a lawyer practising in
Strasbourg, and Messrs Amsterdam and Peroff, lawyers practising in
Toronto. The respondent Government were represented by Mr P. Laptev,
Representative of the Russian Federation at the European Court of
Human Rights.
The
applicant alleged, in particular, that between 31 March and 6 April
2004 his detention pending trial was not based on a court decision;
that the detention hearings of 3 July, 26 December 2003 and 8 June
2004 did not offer sufficient procedural guarantees; that the
examination of his appeals against the detention orders of 26
December 2003 and 6 April 2004 was too slow. The applicant also
alleged that the Government had failed to comply with their
obligations under Article 34 of the Convention on account of the fact
that his lawyer had been unable to meet him between 22 March and
12 April 2003.
On
6 April 2004 the Court decided to grant priority to this case under
Rule 41 of the Rules of Court. By a decision of 18 May 2006 the Court
declared the application partly admissible.
The
applicant and the Government each filed further written observations
(Rule 59 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1956 and is currently serving
a prison sentence in the penitentiary institution FGU IK-3,
situated in the Kharp township of the Yamalo-Nenetskiy Region.
A. Detention of the applicant
1. The applicant's arrest
At
the time of the events described below the applicant was one of the
leading executives of Yukos, a large oil company. On 20 June 2003 a
public prosecutor opened an investigation on suspicion of fraud
committed in the course of the privatisation of a State-owned company
in 1994 by a group of top managers of Yukos and affiliated companies.
In the following months some of them were arrested and charged,
including Mr Khodorkovskiy, the former head of Yukos; others, in fear
of prosecution, left Russia.
On
2 July 2003 the applicant was admitted to a hospital in connection
with his chronic diseases. On the same day, while in the hospital,
the applicant was arrested by the prosecuting authorities as a
suspect in the above criminal case. He was taken from there to a
pre-trial detention centre.
On
3 July 2003 the prosecution charged the applicant and two other
persons with fraud and non-compliance with a court order. The
prosecution asserted that in 1994 the applicant had deceived the
State: he had bought a stake in a large mining company at a
privatisation tender, but had not made a return investment in the
company even though that was an obligation for the winning bidder.
Furthermore, the applicant had later disobeyed a judgment ordering
him to return the stake in the company to the State.
The
applicant's lawyers objected to the arrest and maintained that the
applicant's detention was incompatible with his state of health. On
the same day, 3 July 2003, the prosecution requested the Basmanniy
District Court of Moscow to remand the applicant in custody.
2. Initial detention order
The
detention hearing was supposed to start on 3 July 2003 at 4.30 p.m.
The applicant asked the court to adjourn the hearing in order to
allow his lawyers to participate in it. The court dismissed this
request on the ground that the lawyers had been properly informed
about the detention hearing two hours before but had failed to
appear. The court decided to hear the detention request in private.
According
to the applicant's lawyers, they learned about the time of the
detention hearing one hour and forty minutes before it began. When
they arrived at the courthouse they could not participate in the
hearing because the judge had locked the room and refused to open it.
Having
heard the applicant and the prosecution, the court decided to detain
the applicant. The court decision did not specify the period of
detention. With regard to the absence of the lawyers from the
hearing, the court noted as follows:
“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
defence appealed against the detention order, but on 23 July 2003 the
Moscow City Court upheld it. The applicant's lawyers were present at
the appeal court hearing; the applicant was absent. In the hearing
the prosecution submitted additional evidence in favour of the
applicant's detention. The appeal court gave the following reasons
for its decision:
“[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”.
On
20 August 2003 the investigation ended. On 22 August 2003 the
applicant and his lawyers began to study the prosecution files.
3. Extensions of detention on remand during the
investigation
The
prosecution requested the Basmanniy District Court to extend the
applicant's detention three times to let him study the prosecution
files. On 28 August 2003 the court extended the detention until
30 October 2003. The defence lodged an appeal against this decision
which was dismissed on 15 October 2003 by the Moscow City Court.
On
28 October 2003 the court extended the detention until 30 December
2003. An appeal by the defence against this detention order was
dismissed on 23 December 2003 by the Moscow City Court.
On
26 December 2003 the court extended the detention until 30 March
2004. The court repeated the reasons for detention, formulated in the
detention order of 3 July 2003. The hearing of 26 December 2003 was
held in private.
On
30 December 2003 the applicant's lawyer, and on 9 January 2004 the
applicant himself, lodged summary appeals against the decision of
26 December 2003. According to the Government the record of the
hearing of 26 December 2003 was signed on 5 January 2004.
However, it was not until 14 January 2004 that the applicant's
lawyers obtained it from the registry. The applicant asserted that
the record was deposited with the registry of the Basmanniy District
Court only three weeks after the hearing. According to the
Government, on 22 January 2004 the court received comments on the
record of the hearing from the applicant's lawyer; on the same day it
dismissed those comments, confirming the accuracy of the hearing
record. On 23 January 2004 the applicant's lawyer, and on 5 February
2004 the applicant himself, lodged reasoned appeals against the
decision of 26 December 2003. The reasoned appeals reached the
court on 6 February 2004. On 9 February 2004 the Moscow City
Court upheld the decision of 26 December 2003.
4. The applicant's detention during the trial
After
the applicant had finished studying the prosecution files, on
26 March 2004 the prosecution submitted the case to the
Meschanskiy District Court of Moscow for trial.
On
6 April 2004 the Meschanskiy District Court set a preliminary hearing
for 15 April 2004 and decided that meanwhile the applicant
should stay in detention. No reasons were given for that decision. It
appears that the applicant was absent from this hearing; however, his
lawyer was present.
On
12 April 2004 the applicant's lawyer lodged, by post, an appeal
against this decision arguing that the court had failed to hear the
applicant and to cite any reasons for the detention.
On
15 April 2004 the applicant's lawyer asked the court to release the
applicant because no court decision had authorised his detention from
30 March 2004, when the detention had expired, to 6 April 2004,
when the court had accepted the case for trial. On the same day, 15
April 2004, the court rejected this request because the prosecution
had submitted the case for trial in time, and because from that
moment the court had jurisdiction over the applicant (перечисление
за судом). The court
also decided that the applicant should remain in detention during the
trial. In support of that decision the court relied on the reasons
stated in the detention orders of 2003. Both the applicant and his
lawyers were present at the hearing of 15 April 2004.
On
22 April 2004 the Moscow City Court received the applicant's lawyer's
appeal against the decision of 6 April 2004, sent by post (see
paragraph 22 above). On 26 April 2004 the court sent it to the
prosecution for comment. On 14 May 2004 the court received the
memoranda from the prosecution and the civil plaintiffs. On 20 May
2004 the memoranda were received by the defence. On an unspecified
date the court set a hearing for 27 May 2004. On 26 May 2004 the
applicant's lawyer lodged an additional appeal. The court sent the
additional appeal to the prosecution for comment. Having received the
comments, the court set a hearing for 9 June 2004.
On
8 June 2004 the Meschanskiy District Court conducted a preliminary
hearing into the criminal case of Mr Khodorkovskiy and Mr Kraynov,
the applicant's co-defendants. In the course of that hearing the
court decided to join the applicant's case to his co-defendants'
cases, assigned the case for trial and confirmed that the applicant
should remain in detention. The court also decided that the trial
would be public. The applicant and his lawyers were absent from that
hearing, whereas the prosecution was there.
On
9 June 2004 the Moscow City Court rejected the appeals against the
Meschanskiy District Court's decisions of 6 and 15 April 2004. The
City Court confirmed the lawfulness of the applicant's detention
between 30 March and 6 April 2004; it also decided that the
decisions of 6 and 15 April 2004 had been lawful.
On
29 July 2004 the Moscow City Court rejected the appeal against the
decision of 8 June 2004. The applicant's lawyers participated in the
appeal hearing, but the applicant was not there. The City Court held
that the Meschanskiy District Court's decision extending the
detention had been in conformity with the provisions of the Code of
Criminal Procedure and had been based on the material in the case
file. Further, the City Court obtained a medical certificate
concerning Mr Lebedev from the prison doctor, who described the
applicant's state of health as “satisfactory”. The court
of appeal concluded that the applicant should remain in detention
during the trial.
At
the hearing on 10 September 2004 the prosecutor asked the court to
extend the applicant's detention on remand until 26 December 2004,
since the previous detention order would expire on 26 September 2004.
The defence objected but the court granted the motion and extended
the applicant's detention on remand as requested. The reasons given
by the District Court in its decision of 10 September repeated the
reasons stated in the decision of 15 April 2004 (see paragraph 23
above). On several occasions in the following months the applicant's
detention was prolonged by the Meschanskiy District Court.
On
16 May 2005 the Meschanskiy District Court convicted the applicant
and sentenced him to nine years' imprisonment.
B. The applicant's lawyers' visits to prison
On
4 December 2003 and 22 March 2004 Mr Baru, the applicant's lawyer,
visited the applicant in prison. During the visit the applicant gave
him notes concerning the trial. As Mr Baru was leaving, guards
stopped him and confiscated the notes. Later the prosecution returned
the notes.
On
22 March 2004 Ms Liptser, the applicant's other lawyer, was appointed
to represent the applicant before the Court. On 23 March 2004 she
tried to visit the applicant in prison. However, the prison
administration refused the visit because Ms Liptser had no authority
to represent the applicant before the domestic courts. In the
following days Ms Liptser was denied access to her client; however,
according to the register kept by the detention facility and produced
by the Government, the applicant had meetings with his other lawyers.
In particular, Mr Baru visited him on 30 March, 1 and 2
April 2004, and 5 to 9 April 2004. On 12 April 2004 Ms Liptser
received the appropriate authority and was allowed to visit the
applicant. Later she complained about those facts to the
Preobrazhenskiy District Court, but on 26 April 2004 the court
ruled that it did not have jurisdiction to examine this complaint. In
aggregate, within the period under consideration, the applicant had
about 20 meetings with Ms Liptser.
II. RELEVANT DOMESTIC LAW AND PRACTICE
Article 22 part 2 of the Constitution of the Russian
Federation provides that detention should be authorised by a court
order. Detention without a court order is permitted only for up to 48
hours.
The
Code of Criminal Procedure of 2001 provides:
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. ...”
On
22 March 2005 the Constitutional Court of the Russian Federation
adopted Ruling no. 4-P on the complaint lodged by a group of
individuals, including the applicant. They complained about the de
facto extension of their detention after their case files
had been sent by the prosecution authorities to the respective trial
courts. The Court found that the provisions of the Code
challenged by the applicant and other claimants complied with the
Constitution of the Russian Federation. However, their practical
interpretation by the courts might have contradicted their
constitutional meaning. In part 3.2. of the Ruling the Constitutional
Court held:
“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...”
Article
72 §§ 3 and 4 of the Criminal Code of 1996 provide that the
time spent by the accused person in pre-trial detention and detention
pending trial is included in the duration of the deprivation of
liberty pursuant to the conviction.
THE LAW
I. THE GOVERNMENT'S PRELIMINARY OBJECTIONS AS REGARDS THE
COMPLAINT UNDER ARTICLE 5 § 1 OF THE CONVENTION
A. Non-exhaustion of domestic remedies
In their observations on the merits the Government
argued that the applicant had failed to exhaust domestic remedies. He
had brought proceedings before the Constitutional Court of Russia
which had ended with Ruling 4-P of 22 March 2005 in his favour. The
Government considered that the matter had not yet been resolved at
the national level.
The
Court notes that the Government's objection can be interpreted in two
ways: first, as implying that a complaint to the Constitutional Court
was an effective remedy to be exhausted, and, secondly, as suggesting
that the Ruling of the Constitutional Court opened before the
applicant some new legal avenues which had not existed before. One
way or another, the Court observes that the Government raised this
objection for the first time in their additional observations on the
merits of 14 September 2006, after the decision on the admissibility
of this complaint had been adopted. In such circumstances the first
question to answer is whether the Government are estopped from
raising such an objection.
In principle, the Court has jurisdiction to take
cognisance of pleas of non-exhaustion in so far as the respondent
State has already raised them before the final decision on
admissibility (see, among many other authorities, K. and T.
v. Finland [GC], no. 25702/94, § 145, ECHR 2001 VII,
and N.C. v. Italy [GC], no. 24952/94, § 44, ECHR 2002-X).
In the context of the present case that means that even if the
complaint to the Constitutional Court was an “effective remedy”
from the very beginning, the Government are estopped from raising the
matter before the Court.
The
Court accepts that the reason prompting an objection to admissibility
may sometimes become known only after the admissibility decision.
However, that is not the case here, since Ruling no. 4-P was
adopted long before the decision on admissibility. The Court
reiterates in this connection that where a new legally relevant
procedural event occurs in the course of the proceedings before the
Court, it is in the interests of the proper administration of justice
that the Contracting Party should make any formal objection without
delay (see, mutatis mutandis, N.C. v. Italy [GC], cited
above, § 39). Even assuming that the Ruling opened up new legal
avenues to the applicant, the Government did not inform the Court
about this development until September 2006. The Court cannot discern
any exceptional circumstances that could have dispensed the
Government from raising this objection in a timely manner (see
Prokopovich v. Russia, no. 58255/00, § 29, 18
November 2004).
In
sum, the Court holds that the Government are estopped from raising
the objection concerning alleged non-exhaustion of domestic remedies
and dismisses it.
B. Victim status
Further,
the Government argued that the Ruling of the Constitutional Court of
22 March 2005 had deprived the applicant of victim status. A breach
of his rights had been openly acknowledged by the Constitutional
Court. Moreover, the time spent by the applicant in pre trial
detention had been deducted from his sentence.
At
the outset the Court notes that an argument in similar terms was
dismissed by the Court in the case of Pavletić v. Slovakia
(no. 39359/98, §§ 60-61, 22 June 2004). As in
Pavletić, in the present case the Government did not raise
that objection at the admissibility stage of the proceedings. On that
account, they may be considered in principle estopped from raising it
at this stage (Rule 55 of the Rules of Court; see, inter alia,
Amrollahi v. Denmark, no. 56811/00, § 22, 11 July
2002; Mansur v. Turkey, judgment of 8 June 1995, Series A no.
319 B, §§ 47 and 48; and Nikolova v. Bulgaria [GC],
no. 31195/96, § 44, ECHR 1999-II).
In
any event, the Court cannot agree with the Government that the
applicant has ceased to have standing as a victim within the meaning
of Article 34. The Court reiterates in this connection that an
applicant may lose his victim status if two conditions are met:
first, the authorities should acknowledge the alleged violations
either expressly or in substance and, second, afford redress (see
Guisset v. France, no. 33933/96, §§ 66-67, ECHR
2000-IX). A decision or measure favourable to the applicant is in
principle not sufficient to deprive him of his status as a “victim”
in the absence of such acknowledgement and redress (see
Constantinescu v. Romania, no. 28871/95, § 40, ECHR
2000-VIII).
Turning
to the present case, the Court notes that the Ruling can hardly be
regarded as an “acknowledgment” of a violation of the
applicant's right. The Constitutional Court did not examine the
applicant's individual situation as such but gave a constitutional
interpretation of the law.
Furthermore,
the Ruling by itself did not provide any redress to the applicant in
respect of the shortcomings affecting the legality of his detention.
It appears that, formally speaking, the Ruling cannot serve as a
ground for the reconsideration of the applicant's complaint about his
unlawful detention, and from the Government's submissions it is
unclear what other effects the Ruling could have had.
As
regards the fact that the period of the applicant's detention before
conviction was included in the term of his sentence, the Court
observes that, in principle, the mitigation of a sentence may deprive
the individual concerned of his status of victim when the national
authorities have acknowledged the breach of the Convention and
reduced the applicant's sentence in a measurable manner in order to
redress the previous breaches of Article 5 (see, mutatis mutandis,
Dzelili v. Germany, no. 65745/01, §§ 83 et seq., 10
November 2005). However, in the present case the inclusion of the
time spent in custody in the overall time to be served by the
applicant was not in any way connected to the alleged violation of
Article 5 § 1 of the Convention. As follows from Article 72 of
the Criminal Code, the time spent in custody is automatically
deducted from the final sentence, irrespective of whether or not it
was irregular.
Therefore,
the applicant cannot be said to have lost his victim status within
the meaning of Article 34 of the Convention. The Government's
objection should therefore be dismissed.
II. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE
CONVENTION
The
applicant complained under Article 5 § 1 (c) of the Convention
that between 31 March and 6 April 2004 his detention had not been
based on a court decision, and was thus “unlawful”. As
far as relevant, Article 5 reads:
“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
The
Government argued that this complaint was manifestly ill-founded.
Under Article 255 of the Code of Criminal Procedure, detention on
remand remained in force during the trial. As soon as the prosecution
had passed the case to the court, the applicant was “assigned”
to the court (перечислен
за судом). In such
circumstances the District Court had, under Article 227 § 3 of
the Code of Criminal Procedure, fourteen days for deciding on the
applicant's detention. Hence, the effect of the Basmanniy District
Court's decision of 26 December 2003 lasted until 6 April 2004.
The
applicant insisted on his complaint. According to the Constitutional
Court's reading of Article 255, detention always had to be based on a
court decision.
B. The Court's assessment
The
Court notes that several days after the prosecution had submitted the
case for trial, the applicant's pre-trial detention expired.
Nevertheless, it was not until one week later that the court ruled
that the applicant should remain in prison during the trial. The
question arises whether during that week his detention was “lawful”
within the meaning of Article 5 § 1.
The
Court reiterates that the terms “lawful” and “in
accordance with a procedure prescribed by law” used in Article
5 § 1 of the Convention essentially refer back to national law
and state the obligation to conform to the substantive and procedural
rules thereof. The Convention requires in addition that any
deprivation of liberty should be in conformity with the purpose of
Article 5, which is to prevent persons from being deprived of their
liberty in an arbitrary fashion (see, among many other authorities,
Erkalo v. the Netherlands, judgment of 2 September 1998,
Reports of Judgments and Decisions 1998-VI, p. 2477, §
52).
It
is in the first place for the national authorities, notably the
courts, to interpret and apply domestic law. However, since under
Article 5 § 1 failure to comply with domestic law entails a
breach of the Convention, it follows that the Court can and should
exercise a certain power to review whether this law has been complied
with. A period of detention will in principle be lawful if it is
carried out pursuant to a court order (see Douiyeb v. the
Netherlands [GC], no. 31464/96, §§ 44-45, 4 August
1999). In that connection, the Court would emphasise that, given the
importance of personal liberty, it is essential that the applicable
national law should meet the standard of “lawfulness” set
by the Convention, which requires that all law, whether written or
unwritten, be sufficiently precise to allow the citizen – if
need be, with appropriate advice – to foresee, to a degree that
is reasonable in the circumstances, the consequences which a given
action may entail (see Steel and Others v. the United Kingdom,
judgment of 23 September 1998, Reports 1998-VII, p. 2735,
§ 54).
Driven
by this approach, in a number of cases the Court has condemned the
practice of detaining defendants under a bill of indictment alone,
without proper court authorisation (see Baranowski v.
Poland no. 28358/95, §§ 42-58, ECHR 2000 III;
see also Ječius v. Lithuania, no. 34578/97, §
56, ECHR 2000-IX). In Baranowski the applicant's continued
detention was the result of a judicial practice established in the
absence of any specific legislative provisions or clear case-law on
that matter (see, by contrast, Laumont v. France, no.
43626/98, §§ 43 et seq., ECHR 2001 XI).
The
Court notes that in the present case the unsanctioned detention
lasted one week – from 30 March to 6 April 2004. Therefore, the
time-gap between two valid detention orders in the present case was
less important than in Baranowski (cited above).
However,
that specific feature of the Russian system of the pre-trial
detention has already been examined in Khudoyorov v. Russia
(no. 6847/02, §§ 145 et seq., ECHR 2005 ...
(extracts)). In that case the Court established that detention
without a court order or other clear legal ground was incompatible
with the standard of “lawfulness”, enshrined in Article 5
§ 1, even though, according to the Government's interpretation
of Article 227 § 3 of the Code of Criminal procedure, the
unsanctioned detention could not have lasted more than two weeks. The
Court found that during that time “the applicant was in a legal
vacuum that was not covered by any domestic legal provision”
(Khudoyorov, § 149).
Further,
in the present case the Russian Constitutional Court, upon the
applicant's request, condemned this practice as unconstitutional (see
the “Relevant Domestic Law” part above). In these
circumstances the Court finds that the detention was not “lawful”
for Convention purposes.
The
Court concludes that the applicant's detention between 30 March
and 6 April 2004 lacked a legal basis and was therefore “unlawful”.
Consequently, there has been a breach of Article 5 § 1 in this
respect.
III. ALLEGED VIOLATION OF THE PROCEDURAL REQUIREMENTS OF
ARTICLE 5 OF THE CONVENTION
The applicant complained under Article 5 of the
Convention about a number of procedural defects in the proceedings
concerning his detention on remand. In particular, the hearings
before the Basmanniy District Court of 3 July, 26 December 2003
and 8 June 2004 had been held in private, his lawyers could not
participate in the Basmanniy District Court's hearing of 3 July
2003, the Meschanskiy District Court had not summoned him to its
hearing of 8 June 2004, and it had taken the Moscow City Court too
long to examine his appeals against the extensions of his detention.
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
First,
the Government argued that this complaint was incompatible with the
Convention because Article 5 § 4 did not apply to the hearings
in question, and, moreover, the proceedings did not need, under
Article 5 of the Convention, to offer the same level of guarantees as
the proceedings under Article 6 of the Convention. They referred to
the Neumeister v. Austria case (judgment of 27 June 1968,
Series A no. 8, § 24), where the Court held that “full
written proceedings or an oral hearing of the parties in the
examination of such remedies would be a source of delay which it is
important to avoid in this field”.
Secondly,
the Government argued that the applicant's rights under Article 5 had
not been violated. As regards the lack of publicity, under domestic
law the Basmanniy District Court had the right to hold these hearings
in private, because the lack of publicity did not prejudice the
applicant's defence, and because the applicant's trial was in any
event public.
As
regards the absence of the applicant from the hearing of 8 June 2004,
the Government pointed out that the applicant had not been summoned
to this hearing because it had been conducted within the framework of
a different case, namely the case of Mr Khodorkovskiy and Mr Kraynov.
However, since in the course of the pre-trial investigation the
applicant and his co-defendants had requested that their cases be
joined, on 8 June 2004 the court granted this motion. Under the
Code of Criminal Procedure, namely Articles 227, 228, 231 and 236 of
CCrP, the court, on its own initiative and together with joining the
cases, had to re-consider the measures of restraint applied to the
accused. Therefore, on that day the court had not imposed or
prolonged the applicant's detention but merely confirmed its
validity.
As
to the appeal against the decision of 26 December 2003, the court
examined it only four days after the applicant had lodged its final
version. As to the appeal against the decision of 6 April 2004, it
was the applicant's lawyer who had caused the delay. She had sent the
appeal by post instead of lodging it by hand and lodged an additional
appeal the day before the first appeal was to be heard. The court had
to send the additional appeal to the prosecution for comment, and
this necessary formality had caused the delay.
B. The applicant's submissions
First,
the applicant maintained that Article 5 § 4 was applicable to
the proceedings at issue. In his submission, the case-law of the
Court had evolved since the Neumeister case. He referred to
Winterwerp v. the Netherlands (judgment of 24 October 1979,
Series A no. 33, § 60), where the Court emphasised the
following:
“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.
Secondly,
the applicant argued that his procedural rights under Article 5 had
been breached. The publicity of detention hearings was a core
principle of justice. The court had decided to hold these hearings in
private without asking the parties and without citing any reasons.
As
regards his absence from the hearing of 8 June 2004, the applicant
maintained that the right to take part in proceedings concerning
detention did not depend on the nature of the proceedings, as the
Government had suggested. He referred to the Ruling of the
Constitutional Court of the Russian Federation of 22 March 2005,
which held that the presence of a detainee at a hearing concerning
his detention was required in all circumstances, irrespective of
whether the court was imposing, prolonging or confirming the
lawfulness of the detention.
As
to the appeal against the decision of 26 December 2003, it was lodged
late because the district court had failed to issue the hearing
record in time. As to the appeal against the decision of 6 April
2004, the Moscow City Court could have performed the necessary
procedural formalities more speedily.
C. The Court's assessment
1. Applicability of Article 5 §§ 3 and 4 to
the detention proceedings
The Court will start by examining the Government's
first argument, namely that Article 5 § 4 was not applicable to
the proceedings at issue. The Court observes that at the
admissibility stage this issue was joined to the merits of the case.
It
is true that Article 5 § 4 guarantees, first of all, the right
to take proceedings by which the lawfulness of the detention will be
decided by the court. In the Neumeister case, referred to in
the Government's submissions, the Court found that the term “court”
in the context of Article 5 § 4 “implies only that the
authority called upon to decide thereon must possess a judicial
character, that is to say, be independent both of the executive and
of the parties to the case; it in no way relates to the procedure to
be followed” (§ 24).
However, the Convention is a “living instrument
which must be interpreted in the light of present-day conditions”
(see, among other authorities, Tyrer v. the United Kingdom,
judgment of 25 April 1978, Series A no. 26, pp. 15-16, §
31). Neumeister was one of the first cases under Article 5; in
the last three decades the former Commission and the Court have
consistently interpreted Article 5 § 4 as providing certain
procedural guarantees to a detainee, broadly similar to those under
Article 6 § 1 of the Convention (see, for instance, Winterwerp,
cited above, p. 24, § 60; Sanchez-Reisse v. Switzerland,
21 October 1986, Series A no. 107; Kampanis v. Greece, 13 July
1995, Series A no. 318-B; and Ilijkov v. Bulgaria,
no. 33977/96, 26 July 2001, § 103). Thus, in Nikolov,
cited by the applicant (§ 97), the Court said:
“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.”
In
the Court's opinion, it is of little relevance whether the court
decides on an application for release lodged by the defence or a
request for detention introduced by the prosecution. Such an approach
was adopted in a number of recent cases. For instance, in GrauZinis
v. Lithuania (no. 37975/97, § 33, 10 October 2000) the
Court decided that the extension of the applicant's detention on
remand by a district court at the request of the prosecution also
attracted the guarantees of Article 5 § 4 of the Convention (see
also Telecki v Poland (dec.) no. 56552/00, 3 July 2003).
Furthermore,
although the Convention does not compel the Contracting States to set
up a second level of jurisdiction for the examination of the
lawfulness of detention, “a State which institutes such a
system must in principle accord to the detainees the same guarantees
on appeal as at first instance” (see Navarra
v. France, judgment of 23 November 1993, Series A no. 273-B,
§ 28, and Toth v. Austria, judgment of 12 December 1991,
Series A no. 224, § 84). In Włoch v. Poland
(no. 27785/95, §§ 125 et seq., ECHR 2000 XI), the
Court applied Article 5 § 4 to the proceedings before the Cracow
Regional Court which prolonged the applicant's detention upon the
prosecutor's motion, as well as to the proceedings before the Cracow
Court of Appeal which verified the lawfulness of the court order
prolonging the applicant's detention. Therefore, Article 5 § 4
is applicable both to the extensions of the applicant's detention and
to the appeal proceedings.
As regards the complaint about the defects in the detention hearing
of 3 July 2003, the Court notes that on 3 July 2003 the applicant was
“brought before a judge” within the meaning of paragraph
3 of Article 5. Therefore, the complaint about the detention hearing
of 3 July 2003 falls under that Convention provision.
2. Compliance of the detention proceedings with Article
5 §§ 3 and 4
(a) General principles
The
Court observes that both paragraphs 3 and 4 of Article 5, despite the
difference in wording, imply the judicial character of the
proceedings (see De Wilde, Ooms and Versyp judgment of 18 June
1971, Series A no. 12, p. 40, § 76). Thus, in Schiesser
v. Switzerland (judgment of 4 December 1979, Series A no.
34, § 31) the Court held:
“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.”
Therefore,
as a matter of principle, the Court does not see any reason to
distinguish between court decisions imposing detention, prolonging it
or testing its lawfulness. All such proceedings should offer certain
minimum procedural guarantees, and the case-law concerning paragraph
4 of Article 5 of the Convention is, as a rule, applicable to
detention proceedings falling under Article 5 § 3. At the same
time the Court refers to its finding in De Wilde, Ooms and Versyp
v. Belgium, where it held that “the forms of the procedure
required by the Convention need not ... be identical in each of the
cases where the intervention of a court is required” (judgment
of 18 June 1971, Series A no. 12, § 78). Therefore, although the
principles governing detention proceedings under Article 5 §§
3 and 4 are broadly similar, the extent of the procedural guarantees
may sometimes vary and, in any event, cannot be the same as under
Article 6 of the Convention.
The Court observes that the applicant's detention in
the present case falls within the ambit of Article 5 § 1 (c). In
such a situation, when the lawfulness of detention pending
investigation and trial is examined, a hearing is normally required
(see Sanchez-Reisse, cited above, § 51, and Assenov
and Others v. Bulgaria, judgment of 28 October 1998, Reports
1998-VIII, § 162, with further references). Furthermore, the
proceedings must be adversarial and must always ensure equality of
arms between the parties – the prosecutor and the detainee (see
Nikolova, cited above, § 59; see also GrauZinis,
cited above, § 31). This means, in particular, that the detainee
should have access to the documents in the investigation file which
are essential for assessing the lawfulness of his detention (see Lamy
v. Belgium, judgment of 30 March 1989, Series A no.
151, § 29, and Schöps v. Germany, no.
25116/94, § 44, ECHR 2001-I). The detainee should also have an
opportunity to comment on the arguments put forward by the
prosecution (see Niedbała v. Poland, no. 27915/95, §
67, 4 July 2000). Some form of legal representation of the detainee
may be required, namely when he is unable to defend himself properly
or in other special circumstances (see Bouamar v. Belgium,
judgment of 29 February 1988, Series A no. 129, § 62; Megyeri
v. Germany, judgment of 12 May 1992, Series A no. 237 A; and
Öcalan v. Turkey [GC], no. 46221/99, § 70, ECHR
2005 ...). Finally, there are certain requirements as to the
scope of review under Article 5 § 4 (see E. v. Norway,
judgment of 29 August 1990, Series A no. 181 A, § 50).
The Court further notes that Article 5 § 4
provides that “the lawfulness of the detention shall be decided
speedily” (emphasis added). The Court will return to
that matter below (see paragraphs 95 et seq.). For now, the Court
observes that there are two aspects to this “speediness”
requirement: first, the opportunity for legal review must be provided
soon after the person is taken into detention and, if necessary, at
reasonable intervals thereafter (see Herczegfalvy v. Austria,
judgment of 24 September 1992, Series A no. 244, p. 24, § 75).
Secondly, the review proceedings must be conducted with due
expedition.
Lastly,
the Court stresses that there is an intrinsic link between the
“procedural” and “time” aspects of Article 5
§ 4. Compliance with the procedural guarantees enumerated in
paragraph 77 above should always be assessed in the context of the
requirement of “periodic review”, discussed in paragraph
78 above. In other words, Article 5 § 4 does not guarantee to
the detainee a right to obtain a full review of the detention, with
all concomitant guarantees of procedural fairness, whenever he wants
it, but only at “reasonable intervals”. Whether or not
the intervals were “reasonable” should be assessed in the
particular circumstances of each case.
(b) Application to the present case
(i) Court proceedings concerning the
applicant's detention from 3 July to 28 August 2003
The
applicant complained that the hearing before the Basmanniy District
Court on 3 July 2003 had been held in private, and that his lawyers
had been unable to participate in it.
The
Court observes that on 3 July 2003 the Basmanniy District Court
ordered the applicant's detention during the investigation. The
proceedings were held in private. The applicant was present, whereas
his lawyers were not. The prosecution was present at the hearing. On
23 July 2003, following a hearing at which the applicant's
lawyers were present whereas the applicant was not, the Moscow City
Court rejected the applicant's appeal against the detention order of
3 July 2003.
As regards the fact that the detention hearing of 3
July 2003 was held in private, the Court observes that there is no
basis in its case-law to support the applicant's claim that hearings
on the lawfulness of pre-trial detention should always be public (see
Reinprecht v. Austria, no. 67175/01, 15 November 2005, where
the Court examined this issue under Article 5 § 4). The
Court sees no reasons to depart from its case-law in this respect,
and concludes that this aspect of the detention proceedings per se
does not raise an issue under Article 5 § 3 either.
As
regards the absence of the applicant's lawyers, the applicant
maintained that they had been prohibited from participating in the
detention hearing of 3 July 2003. As follows from the Basmanniy
District Court's decision of 3 July 2003, and the decision of the
Moscow City Court of 23 July 2003, the applicant's lawyers
arrived at the court when the detention hearing had already started.
The judge refused them permission to enter the courtroom and
participate in the hearing because of their unjustified late arrival.
The Court reiterates that detention proceedings
require special expedition and Article 5 does not contain any
explicit mention of a right to legal assistance in this respect. The
difference of aims explains why Article 5 contains more flexible
procedural requirements than Article 6 while being much more
stringent as regards speediness. Therefore, as a rule, the judge may
decide not to wait until a detainee avails himself of legal
assistance, and the authorities are not obliged to provide him with
free legal aid in the context of the detention proceedings.
However,
several specific features of the present case incline the Court to
depart from this general rule. First of all, the Court notes that the
detention hearing took place on the day after the applicant's arrest
and on the same day as he was informed about the charges against him,
when he was least prepared to counter the arguments of the
prosecution.
Furthermore,
the applicant was brought before the judge almost directly from the
hospital where he had been admitted in connection with his chronic
diseases. Even if the applicant was able to participate personally in
the detention proceedings, he was not in his normal state of health,
and some form of legal representation was therefore at least
desirable, especially given that the representatives of the
prosecution were present in the courtroom.
Finally,
the Court stresses that, unlike in the Megyeri case (cited
above), the applicant in the present case had already engaged lawyers
who were informed by the investigator about the detention hearing and
were prepared to participate in it. Moreover,
it appears that the court was in principle prepared to hear the
lawyers and waited for them for some time.
The situation of the applicant in this respect was closer to
that of the applicants in the case of Istratii and Others v.
Moldova (nos. 8721/05, 8705/05 and 8742/05, 27 March 2007). In
that case the meetings between the applicants, who were detained, and
their lawyer was arranged in a manner that precluded any confidential
contact between them. The Court held that such a measure was not
justified in the circumstances of the case (§ 90) and that there
was a breach of Article 5 § 4 on that account. The central issue
in that case was not the positive duty of the State to secure legal
assistance to a detainee, but the negative obligation of the State
not to hinder effective assistance from lawyers in the context of
detention proceedings (§ 88). In the Court's opinion, this
problem is also at the heart of the complaint under examination in
the present case.
As
follows from the decision of the Moscow City Court of 23 July 2003,
the judge excluded the lawyers from the proceedings because “the
hearing had already started and it was closed for those who did not
participate in it”. However, this exclusion of the public did
not as such apply to the applicant's lawyers. If the exclusion of the
lawyers was based on the non-public character of the proceedings, the
decision of the domestic judge was clearly irrational.
Further,
the Court cannot detect any other reason why the presence of the
lawyers at this stage could have been contrary to the interests of
justice (see, mutatis mutandis, John Murray v. the United
Kingdom, judgment of 8 February 1996, Reports 1996 I,
§ 66). The Court accepts that the lawyers might have arrived
late, and it might have been acceptable to start the hearing without
waiting for the lawyers. However, the Court sees no reason to exclude
them from the proceedings when they arrived. Even if their belated
arrival could have prolonged the hearing, nothing suggests that there
was any particular urgency in obtaining the detention order, given
that the applicant was already under arrest. In sum, the Court
considers that in the circumstances the domestic judge showed
excessive rigour in not allowing the applicant's lawyers to take part
in the proceedings.
The
Court observes that the applicant's lawyers were present before the
court of appeal, where they were able, at least in principle, to
develop legal arguments calling for the applicant's release. In the
context of Article 6 the Court usually examines the proceedings
as a whole; however, this rule is not without exceptions, especially
when it comes to pre-trial detention. Turning to the present case,
the Court notes that the detention order of 3 July 2003 became
effective immediately. Therefore, even if the court of appeal
ultimately heard the applicant's lawyers, by that time the applicant
had already spent twenty days in detention. Given that lapse of time,
the Court cannot accept such a retroactive validation of the
procedurally flawed detention order issued by the District Court. The
Court concludes that the presence of the defence lawyers before the
Moscow City Court did not remedy the defects of the procedure before
the District Court.
In
view of the above, the Court finds that the exclusion of the
applicant's lawyers from the detention hearing of 3 July 2003, in the
particular circumstances of the present case, adversely affected the
applicant's ability to present his case and was not justified by the
interests of justice. Thus, the applicant's detention between
3 July and 28 August 2003 was ordered as a result of the procedure
which did not offer the minimum procedural guarantees implied in
Article 5 § 3 of the Convention. The Court therefore finds that
there has been a violation of that provision.
(ii) Court proceedings concerning the
applicant's detention from 26 December 2003 to 30 March 2004
The applicant further complained that the hearing
before the Basmanniy District Court on 26 December 2003 had been held
in private, and that it had taken the Moscow City Court too long to
examine his appeal against the detention order issued on that date by
the Basmanniy District Court.
The
Court notes that on 26 December 2003 the Basmanniy District Court
ordered the extension of the applicant's detention until 30 March
2004. That hearing was held in private. The applicant's appeal
against the detention order of 26 December 2003 was dismissed by the
Moscow City Court on 9 February 2004, that is, 44 days later.
As
to the fact that the hearing of 26 December 2003 was held in private,
the Court does not see any reason to depart from its above finding
that there were no special circumstances calling for the detention
proceedings to take place in public (see paragraph 82 above). As
regards the time in which the applicant's appeal against the
detention order was examined, this aspect of the case warrants
further attention.
(α) General principles governing the
requirement of “speediness”
The Court reiterates that Article 5 § 4 of the
Convention, in guaranteeing to persons detained a right to institute
proceedings to challenge the lawfulness of their detention, also
proclaims their right, following the institution of such proceedings,
to a speedy judicial decision concerning the lawfulness of detention
and ordering its termination if it proves unlawful (see Baranowski
v. Poland [GC], no. 28358/95, ECHR 2000). There is a special need
for a swift decision determining the lawfulness of detention in cases
where a trial is pending, because the defendant should benefit fully
from the principle of the presumption of innocence (see Iłowiecki
v. Poland, no. 27504/95, § 76, 4 October 2001).
Where
domestic law provides for a system of appeal, the appellate body must
also comply with the requirements of Article 5 § 4, in
particular, as concerns the speediness of the review by the appellate
body of a detention order imposed by the lower court. At the same
time, the standard of “speediness” is less stringent when
it comes to the proceedings before the court of appeal. The Court
reiterates in this connection that the right of judicial review
guaranteed by Article 5 § 4 is primarily intended to avoid
arbitrary deprivation of liberty. However, if the detention is
confirmed by a court it must be considered to be lawful and not
arbitrary, even where appeal is available. Subsequent proceedings are
less concerned with arbitrariness, but provide additional guarantees
aimed primarily at an evaluation of the appropriateness of continuing
the detention (see Tjin-a-Kwi and Van Den Heuvel v. the
Netherlands, no. 17297/90, Commission decision of 31 March 1993).
Therefore, the Court would be less concerned with the speediness of
the proceedings before the court of appeal, if the detention order
under review was imposed by a court and on condition that the
procedure followed by that court had a judicial character and gave to
the detainee the appropriate procedural guarantees (see, mutatis
mutandis, Vodeničarov v. Slovakia, no. 24530/94, §
33, 21 December 2000).
The
Court observes that it has found delays of 23 days for one level of
jurisdiction, and 43 days or 32 days for two levels of
jurisdiction, to be incompatible with Article 5 § 4 (see,
respectively, Rehbock v. Slovenia, no. 29462/95, §§
82-88, ECHR 2000 XII; Jablonski v. Poland, no. 33492/96,
§§ 91-94, 21 December 2000; and G.B. v. Switzerland,
no. 27426/95, §§ 34-39, 30 November 2000). On the
other hand, in Rokhlina v. Russia (no. 54071/00, § 79, 7
April 2005), where the global duration of the proceedings was 41 days
for two levels of jurisdiction, the Court found no violation of
Article 5 § 4 of the Convention. In that case the Court noted,
in particular, that the applicant had requested leave to appear in
person at the appeal court, and that because of it the court had to
adjourn the proceedings for one week. In another recent Russian case
(Mamedova v. Russia, no. 7064/05, § 96, 1 June 2006)
the Court found the delays
of 36, 29 and 26 days to be
incompatible with Article 5 § 4, stressing that the entire
duration of the appeal proceedings was attributable to the
authorities.
(β) Application to the present case
The
Court notes that the appeal against the decision of 26 December 2003
was examined within 44 days. That period, by itself, is not
insignificant (see Mamedova, cited above). The Court will now
assess to what extent it can be attributed to the applicant, as the
Government suggested.
The
Court observes that the “preliminary appeal” against the
decision of 26 December 2003 was lodged by the defence lawyers on
29 December 2006. However, it did not contain detailed reasoning
since the hearing record had not yet been made available to the
defence. On 23 January 2004, after the court had approved the
hearing record, the defence forwarded the final version of the
grounds of appeal. The Moscow City Court examined it on 9 February
2004, 17 days later. The Court reiterates in this connection that the
lower standard of “procedural guarantees” in matters of
detention (as compared with the “fairness” requirement
under Article 6 § 1 – see Reinprecht, cited above,
§ 40), should be counterbalanced by a higher standard of
speediness (see, mutatis mutandis, Hutchison Reid v. the
United Kingdom, no. 50272/99, § 79, ECHR 2003-IV). The Court
concludes that the period between 23 January and 9 February 2004
is fully imputable to the authorities.
Further,
the applicant claimed that the defence had not been able to lodge the
appeal until 22 January 2004, when the first-instance court dismissed
their comments on the hearing record. It is conceivable that without
the final version of the hearing record the defence were unable to
finalise their points of appeal. Therefore, in principle, this period
can be included in the overall duration of the appeal proceedings.
The Government argued, however, that the applicant's lawyers were
responsible for at least a part of this period. Thus, the hearing
record was signed on 5 January 2004, but it was not until 14 January
that the applicant's lawyer, Mr Rivkin, obtained a copy of it.
Further, the comments of the defence on the hearing record reached
the court only on 22 January 2004.
However,
the Court notes that even though the hearing record was signed on 5
January 2004, it is unclear when it was made available to the
defence. In any event, under Article 259 of the CCrP a hearing record
should be signed within 3 days; in the present case the court did not
comply with this time-limit. It is conceivable that the further delay
was to a certain extent attributable to the public holidays. However,
public holidays are not a good excuse for delaying the examination of
an application for release (see E. v. Norway, cited above, §
66). Therefore, even taking into account the Government's argument,
the Court considers that at least ten days of the period between 26
December 2003 and 22 January 2004 were attributable to the
authorities.
In
sum, the authorities were responsible for at least 27 days out of the
overall duration of the appeal proceedings. The Government did not
plead before the Court that complex issues had been involved in the
determination of the lawfulness of the applicant's detention. Even if
the courts had spent the whole of that period dealing with the case
file, that would not exempt them from the obligation to examine the
appeal quickly. The Court concludes that the appeal proceedings did
not comply with the “speediness” requirement of Article 5
§ 4. It therefore finds that there has been a violation of
Article 5 § 4 of the Convention.
(iii) Court proceedings concerning the
applicant's detention from 6 April 2004 to 8 June 2004
The applicant complained that it had taken the Moscow
City Court too long to examine his appeal against the extension of
his detention ordered on 6 April 2004.
The
Court notes that on 6 April 2004 the Meschanskiy District Court
decided that the applicant should remain in detention during the
trial. On 9 June 2004, 67 days later, the Moscow City Court upheld
the decision of 6 April 2004. The applicant claimed that the review
of the detention order of 6 April 2004 had not been “speedy”.
The Government argued that the delay had been caused by the
applicant's own behaviour, namely by the fact that the applicant had
submitted additional arguments on 26 May 2004. As a result, the court
of appeal had had to adjourn the hearing until 9 June 2004.
The Court notes that the defence lawyers were indeed
partly responsible for the delay. Thus, instead of lodging the appeal
by hand they sent it by post. Furthermore, nothing suggests that
there was a genuine need to lodge additional grounds of appeal on 26
May 2004, instead of raising relevant arguments orally at the appeal
hearing.
The
Court notes, however, that it took the prosecution and the plaintiffs
several weeks in aggregate to comment on the applicant's first
statement of the grounds of appeal. This was received by the Moscow
City Court on 22 April 2004, but it was not until 20 May 2004 that
the observations in reply reached the defence lawyers. Furthermore,
it took the court another two weeks to obtain the parties' written
comments on the additional grounds of appeal lodged by the defence,
and to set a new date for the hearing.
The
Government did not claim that complex issues had been involved in the
determination of the lawfulness of the applicant's detention by the
second-instance court. Even assuming that the complexity of this case
was above average, there is nothing to suggest that there was a need
to obtain two sets of written observations from the parties.
In sum, the Court concludes that the period from 22
April 2004 until 9 June 2004 (one month and seventeen days) was
imputable to the authorities. The Court observes that in Jablonski
(cited above, § 93) it held that “there is a special need
for a swift decision determining the lawfulness of detention in cases
where a trial is pending”. In view of the above the Court
concludes that the time spent on examination of the appeal against
the detention order of 6 April 2004 was excessive. Therefore, there
has been a violation of Article 5 § 4 of the Convention on that
account.
(iv) Court proceedings concerning the
applicant's detention from 8 June to 10 September 2004
The
applicant complained that he had not been summoned to the hearing of
8 June 2004 when the Meschanskiy District Court had decided to extend
his detention, whereas the prosecution had been present (see
paragraph 25 above). The Government argued that the applicant and his
lawyers had not been summoned because the hearing related to another
criminal case (that of Mr Khodorkovskiy and Mr Kraynov). However, in
the opinion of the Court that fact is of little relevance: even
though technically the hearing was held in the context of another
criminal case, the court's decision also concerned the applicant
directly. There is nothing to suggest that the court could not have
anticipated such a development or was unable to adjourn the hearing
in order to secure the applicant's personal presence.
Further,
the Government argued that on 8 June 2004 the court had merely
confirmed the validity of a measure imposed earlier. The Government
can be understood to be suggesting that the requirements of Article 5
§ 4 were satisfied by the review which took place on 6 April
2004.
In
the Court's view that decision in itself did not deprive the
applicant of his rights under Article 5 § 4. Indeed, on 6 April
2004 the Meschanskiy District Court ruled that the applicant should
remain in detention pending trial, and that decision constituted a
lawful basis for the applicant's continued detention for the ensuing
six months (see Article 255 of the CCrP cited in paragraph 32 above).
On 15 April 2004 the court dismissed an application for release
lodged by the defence.
However,
with the passage of time the grounds for detention on remand, by
their very nature, are susceptible to change, even if the “lawful
basis” for the detention continues to exist. In the present
case more than seven weeks had elapsed when the Meschanskiy District
Court had decided to examine the question of continuing the
applicant's detention. Further, the domestic law obliged the court to
return proprio motu to the issue of detention (see the
Government's submissions on this point; see also Article 231 of
the CCrP quoted in paragraph 32 above). In such circumstances the
Court considers that the applicant was entitled to a proper judicial
review of the lawfulness of his detention, with all the guarantees
implicitly provided by Article 5 § 4 of the Convention.
The
Court reiterates that, as a general rule, a detainee should have a
right to participate in the hearing where his detention is discussed
(see paragraph 77 above). Possible exceptions from this rule are
conceivable: the Court observes in this connection that “in
order to determine whether a proceeding provides adequate guarantees,
regard must be had to the particular nature of the circumstances in
which such proceeding takes place” (see Van Droogenbroeck
v. Belgium, judgment of 24 June 1982, Series A no. 50,
p. 24, § 47). The detainee's personal presence is always
required when the court has to assess his personality, the risk of
his absconding or his predisposition to further offences, when the
court changes the basis for the detention or when it prolongs the
detention after a significant lapse of time (see GrauZinis,
cited above, §§ 33-34; see also Mamedova v.
Russia, cited above, § 75). The
Court notes that the decision of 8 June 2004 contained no reasoning
in support of the court's decision to extend the applicant's
detention on remand. In the circumstances the Court finds that the
matters discussed at the hearing of 8 June 2004 required not
only the presence of his lawyers but his personal presence.
Lastly,
the Court notes that the applicant's lawyers were present at the
appeal hearing on 29 July 2004. The Court considers that, in
principle, it is permissible for the court of appeal reviewing a
detention order issued by a lower court to examine only the
detainee's lawyer. However, that is true only when the hearing before
the first-instance court offered sufficient procedural guarantees. In
the present case the applicant was absent from the hearings at both
levels of jurisdiction, and his lawyers were present only before the
court of appeal. Furthermore, the appeal was examined fifty days
after the hearing of 8 June 2004. In such circumstances the Court
concludes that the presence of the applicant's lawyers in the court
of appeal did not remedy the situation complained of.
In
sum, the Court concludes that the applicant was deprived of an
effective review of the lawfulness of his continued detention. It
therefore finds that there has been a violation of Article 5 § 4
of the Convention.
IV. ALLEGED INTERFERENCE WITH THE RIGHT OF INDIVIDUAL
PETITION (ARTICLE 34 OF THE CONVENTION)
The
applicant asserted that between 22 March and 12 April 2004, while in
detention, he was not allowed to meet one of his lawyers, Ms Liptser,
who represented him before the Court. He alleged that this had
constituted an interference with his right of individual petition,
guaranteed by Article 34 of the Convention. Article 34 reads, in so
far as relevant, as follows:
“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.”
According
to the Government, Ms Liptser requested a meeting with the
applicant twice: on 23 and 30 March 2004. However, she did not have a
proper authorisation from the court; consequently, the administration
of the detention centre did not allow her to have a meeting with the
applicant. As soon as she obtained the authorisation she was given
access to her client. Furthermore, within that period the applicant
had several meetings with his other lawyers, namely Mr Krasnov, Mr
Rivkin, Mr Baru, Ms Lvova, Ms Simonova and Mr Sharov. In
conclusion, the Government denied any interference with the
applicant's rights under Article 34 of the Convention.
The
Court reiterates that the right of individual petition under
Article 34 of the Convention will operate effectively only if an
applicant can interact with the Court freely, without any pressure
from the authorities (see Akdivar and Others v. Turkey, no.
21893/93, Reports 1996 IV, § 105). In this context,
“pressure” includes not only direct coercion but also
other improper indirect acts designed to discourage applicants from
pursuing a Convention remedy, such as measures limiting the
applicant's contacts with his lawyers (see Öcalan, cited
above, §§ 197 et seq.) or interfering with their
professional activities in other ways. In examining whether or not a
particular measure applied by the authorities was in compliance with
Article 34, the Court sometimes considered the practical effects
of this measure on the applicant's ability to exercise his right of
petition (see Ahmet Özkanet and Others v. Turkey, no.
21689/93, §§ 416 and 417, 6 April 2004). However, in
certain cases the Court has found a violation of this provision even
in the absence of any visible negative effects of the measure
complained of (see McShane v. the United Kingdom, no.
43290/98, § 151, 28 May 2002).
Turning
to the present case, the Court notes that one of the applicant's
lawyers had to obtain certain additional authorisations in order to
be able to meet him. In principle, excessive formalities in such
matters may de facto prevent a prospective applicant from
effectively enjoying his right of individual petition. However, it
appears that in the present case it was quite simple to comply with
the domestic formalities and that the problem was resolved easily.
Furthermore, within the period under consideration the applicant had
several meetings with his other lawyers, in particular, with Mr Baru,
who also represented him in the proceedings before the Court. The
limitation complained of lasted less than three weeks, and nothing
suggests that it had any negative effects, theoretical or practical,
on the proceedings before the Court. In such circumstances the Court
concludes that there has been no breach of Article 34.
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.”
The
Government objected that the claims for just satisfaction did not
contain the name of the applicant or a reference to an application
number. The Court notes the Government's objection in this respect;
however, despite that omission on the part of the applicant's
lawyers, the Court accepts that the claims submitted relate to the
present case. It will thus examine the parties' submissions under
Article 41 on the merits.
A. Damage
1. Pecuniary damage
The
applicant claimed 1,055,906 United States dollars (USD) on account of
pecuniary damage resulting from his unlawful detention and
impossibility for him to carry on his professional activities. The
applicant calculated that amount based on his annual revenue declared
in 2002, the year before the year of his arrest. In support of his
claims he produced a copy of his tax declaration where he indicated
that in 2002 he received 30,680,967 Russian roubles (RUB), or USD
974,680, in dividends from a Gibraltar-based company, “Group
Menatep Limited”.
The
Government submitted that the applicant's claims were
“unsubstantiated and unreasonable”. They pointed out that
on 25 November 2004 and 18 May 2006 the Court had declared most of
his complaints inadmissible. Further, they argued that his method of
calculating his pecuniary damage was wrong, and had no relation to
his real sources of income.
As
to the pecuniary damage allegedly caused, the Court does not see a
causal connection between the applicant's alleged pecuniary losses
and the violations found in the present case. The Court thus decides
that the applicant's claims under this head should be dismissed.
2. Non-pecuniary damage
The
applicant further claimed 300,000 euros (EUR) for non-pecuniary
damage. He argued that his right to liberty had been breached by
thirteen months of detention in severe conditions. He stressed that
his suffering had been exacerbated by his poor health.
The
Government considered those claims unsubstantiated and excessive.
They also pointed out that the time spent by the applicant in
detention on remand had been deducted from his sentence.
The
Court observes that the complaints under Article 3 (concerning
conditions of detention and the alleged lack of medical assistance)
and Article 5 § 3 (concerning the length of the detention) have
been declared inadmissible. On the other hand, the Court finds that
it is reasonable to assume that the applicant suffered a certain
amount of distress and frustration, caused by the flaws in the remand
proceedings, and, especially, by the unsanctioned detention between
31 March and 6 April 2004. Therefore, ruling on an equitable basis,
as required by Article 41 of the Convention, the Court awards the
applicant EUR 3,000 for non-pecuniary damage, plus any tax that may
be chargeable.
B. Costs and expenses
The
applicant claimed reimbursement of his lawyer's fees in the amount of
EUR 28,285. In support of this the applicant produced an agreement
between Ms Liptser and Mr Victor Lebedev on the representation of Mr
Platon Lebedev before the European Court. The agreement concerned
alleged violations of Articles 3 and 5 of the Convention. The
applicant also produced a certificate from barristers' office no. 10,
confirming that between February and June 2004 Ms Liptser received
RUB 990,190 for working on the applicant's case.
The
Government submitted that the applicant's claims for reimbursement of
costs and expenses were not necessary and reasonable, since they went
far beyond the “average level of legal representation”.
The Government also indicated that the agreement with the lawyers was
signed not by the applicant himself, but by Mr Victor Lebedev, the
applicant's brother.
The Court
reiterates that only legal costs and expenses found to have been
actually and necessarily incurred and which are reasonable as to
quantum are recoverable under Article 41 of the Convention (see, for
example, Stašaitis v. Lithuania, no. 47679/99, §§
102-03, 21 March 2002; see also McCann and Others v. the United
Kingdom, judgment of 27 September 1995, Series A no. 324, §
220).
The
Court considers that, although the agreement with the lawyer was
signed by the applicant's brother, this was done in the applicant's
interests. Furthermore, everything suggests that the amount indicated
in the agreement (RUB 990,190) was paid for the work done by the
applicant's lawyer in the present case. In other words, this sum was
“actually incurred”. The Court further notes that the
overall amount of work done by the applicant's lawyer was
considerable. However, most of the applicant's complaints under the
Convention have been rejected; in such circumstances the Court
considers that the applicant may claim only part of the amount
actually paid to his lawyer. Regard being had to the information in
its possession, the Court awards the applicant EUR 7,000 plus any tax
that may be chargeable.
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
Dismisses unanimously the Government's
preliminary objections concerning the exhaustion of domestic remedies
and the applicant's victim status;
Holds unanimously that there has been a
violation of Article 5 § 1 (c) of the Convention on account of
the applicant's unauthorised detention between 31 March and 6 April
2004;
Holds by four votes to three that there has been
a violation of Article 5 § 3 of the Convention on account of the
applicant's detention from 3 July 2003 to 28 August 2003;
Holds by five votes to two that there has been a
violation of Article 5 § 4 of the Convention as regards the
delays in the review of the detention order of 26 December 2003
by the Moscow City Court;
Holds unanimously that there has been a
violation of Article 5 § 4 of the Convention on account of
the delays in the review of the detention order of 6 April 2004 by
the Moscow City Court;
Holds unanimously that there has been a
violation of Article 5 § 4 of the Convention on account of
the absence of the applicant from the detention hearing on 8 June
2004;
Holds unanimously that the temporary inability
of the applicant to meet one of his lawyers did not amount in the
circumstances to a failure by the State to fulfil its obligation
under Article 34 of the Convention;
Holds unanimously
(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;
Dismisses unanimously the remainder of the
applicant's claim for just satisfaction.
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
Registrar President
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.
C.L.R.
S.N.
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.
