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European Court of Human Rights
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MALKIN v. RUSSIA - 67363/01 [2009] ECHR 1481 (8 October 2009)
URL: http://www.bailii.org/eu/cases/ECHR/2009/1481.html
Cite as:
[2009] ECHR 1481
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FIRST
SECTION
CASE OF
MALKIN v. RUSSIA
(Application
no. 67363/01)
JUDGMENT
(Striking
out)
STRASBOURG
8 October
2009
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 Malkin v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina
Vajić,
President,
Anatoly
Kovler,
Elisabeth
Steiner,
Khanlar
Hajiyev,
Dean
Spielmann,
Sverre
Erik Jebens,
Giorgio
Malinverni,
judges,
and
André Wampach, Deputy Section
Registrar,
Having
deliberated in private on 17 September 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 67363/01) 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 Boris Mironovich Malkin
(“the applicant”), on 28 November 2000.
The
applicant, who had been granted legal aid, was represented by Mr V.
An, a lawyer practising in Barnaul. The Russian Government (“the
Government”) were initially represented by Mr P. Laptev, former
Representative of the Russian Federation at the European Court of
Human Rights, and subsequently by their Representative, Mr G.
Matyushkin.
The
applicant complained, in particular, that he was kept in detention
despite a court decision ordering his release.
By
a decision of 16 December 2008, the Court declared the application
partly admissible.
The
Government, but not the applicant, filed further written observations
(Rule 59 § 1).
THE FACTS
The applicant was born in 1948 and lives in Barnaul.
On
11 January 1999 the Central district police department of Barnaul
opened a criminal case in respect of the applicant's alleged
misappropriation of funds from the Rosbankstroy building company. The
applicant was the president and a majority shareholder of
Rosbankstroy.
On
24 June 1999 the prosecutor's office of the Altay Region opened a
criminal case concerning allegations of bribery. It was alleged that
in order for Rosbankstroy to be chosen as a chief contractor for the
building of the Russia Central Bank's main computer centre in Moscow
the applicant had bribed a Mr K., who was the head of the Central
Bank's construction department. On the same day the prosecutor's
office joined both criminal cases into a single set of proceedings.
On
25 June 1999 the applicant was charged with bribery and his detention
pending trial was ordered by the prosecutor of the Altay Region. He
was placed in pre-trial detention facility IZ-17/1 in Barnaul.
As
the investigation into the bribery charge had been completed, on
5 November 1999 the prosecutor's office severed the proceedings
concerning that charge from the other proceedings and on 2 December
1999 transmitted that case to court for trial. The remaining part of
the case concerning the allegations of the applicant's
misappropriation of Rosbankstroy's funds remained with the
prosecutor's office for further investigation since there was
insufficient evidence to bring charges against the applicant on that
account. It was assigned the number 76574.
On
1 February 2000, having examined the materials in criminal case
no. 76574, the prosecutor's office decided that it had
sufficient evidence that funds belonging to the State-owned Central
Bank had been misappropriated in the course of the construction of
its main computer centre in Moscow by Rosbankstroy. Mr K. and the
applicant were alleged to have unlawfully overpriced the construction
work. The prosecutor's office decided to open a new criminal case and
the next day brought misappropriation charges against the applicant.
On
14 March 2000 the Altay Regional Court convicted the applicant of
bribery and sentenced him to three years' imprisonment.
On
28 March 2000 the new criminal case concerning the misappropriation
of the Central Bank's funds was joined with the case concerning the
misappropriation of Rosbankstroy's funds. The joined case retained
the number 76574.
On
11 July 2000 the Supreme Court partly quashed the conviction of
bribery, discharged the applicant from the obligation to serve his
sentence on the basis of the State Duma's amnesty act and ordered his
release. However, the applicant was not released and remained in
detention facility IZ-17/1.
On
14 July 2000 the prosecutor of the Altay Region ordered the
applicant's detention pending trial on the charge of misappropriation
of the Central Bank's funds in case no. 76574.
The
applicant appealed. He argued, in particular, that he had been
detained pending investigation since 25 June 1999 and the term of his
detention had been extended for up to six months. The case concerning
the bribery charge had been examined by a court and the Supreme Court
had, in the decision of 11 July 2000, exempted him from serving his
sentence. The new case concerning the alleged misappropriation of the
Central Bank's funds had been joined with the earlier case concerning
the alleged misappropriation of Rosbankstroy's funds, pending the
outcome of which he had already been detained. Accordingly, in the
absence of a duly authorised extension, his continuing detention was
unlawful.
On
14 August 2000 the applicant's appeal was dismissed by a judge of the
Barnaul Central District Court.
The
District Court's decision of 14 August 2000 was appealed against by
the applicant and quashed on 21 September 2000 by the Altay Regional
Court for failure to state sufficient reasons. The lawfulness of the
detention order of 14 July 2000 was re-examined and confirmed on
12 October 2000 by another judge of the District Court. The
applicant appealed. On 9 November 2000 the Regional Court upheld the
District Court's decision.
On
28 June 2002 the Leninskiy District Court of Barnaul convicted the
applicant of large-scale fraud in respect of the Central Bank's funds
and of attempted large-scale fraud in respect of the property of the
Altaymarketcentre Karavan company. The applicant was sentenced to
five years and one month's imprisonment and an order was also made
for the confiscation of his property. The judgment was upheld by the
Altay Regional Court on 31 October 2002.
The
applicant lodged an application for supervisory review of his case.
On 19 October 2004 the Presidium of the Altay Regional Court granted
his application, quashed the judgment of 28 June 2002, as upheld on
31 October 2002, and terminated the criminal proceedings for
lack of corpus delicti.
THE LAW
The
Court observes that it decided, on 16 December 2008, to declare
admissible, without prejudging the merits, the applicant's complaint
concerning the State's failure to release him in accordance with the
Supreme Court's decision of 11 July 2000 (see paragraph 14 above). It
declared the remainder of the application inadmissible. Following the
decision on admissibility, in a letter of 19 December 2008 the Court
invited the parties to submit their further observations by
27 February 2009. The Government, but not the applicant, filed
their observations within the specified time-limit.
In
the absence of any reply from the applicant, by a registered letter
of 16 April 2009 the Court drew the applicant's attention to the fact
that the period allowed for submission of his observations and claims
for just satisfaction had expired and that no extension of the
deadline had been requested. The applicant was reminded that, in
accordance with Article 37 § 1 (a) of the Convention, the
Court may strike a case out of its list of cases where the
circumstances lead to the conclusion that the applicant does not
intend to pursue the application.
The
Court's letter reached the applicant's representative on 27 April
2009, the latter having signed the advice of receipt to that effect.
No reply followed.
Having regard to the applicant's failure to
communicate with the Court following its decision on admissibility,
the Court finds that the applicant does not intend to pursue his
application within the meaning of Article 37 § 1 (a) of the
Convention. The Court cannot discern any special circumstances
regarding the respect for human rights as defined in the Convention
which would require a continuation of the examination of the case
(see, by way of contrast, Karner v. Austria, no.
40016/98, § 28, ECHR 2003 IX) and finds it appropriate
to strike it out of the list of cases.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Decides to strike the case out of the list.
Done in English, and notified in writing on 8 October 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Nina
Vajić
Deputy Registrar President
