AS TO THE ADMISSIBILITY OF
by Valeriy ZENIN
The European Court of Human Rights (First Section), sitting on 24 September 2009 as a Chamber composed of:
Christos Rozakis, President,
Sverre Erik Jebens, judges,
and André Wampach, Deputy Section Registrar,
Having regard to the above application lodged on 21 March 2003,
Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
The applicant, Mr Valeriy Olegovich Zenin, is a Russian national who was born in 1971 and lives in Rostov-on-Don. He was represented before the Court by Mr B. Kudash, a lawyer practising in Rostov-on-Don. The Russian Government (“the Government”) were represented by Mr P. Laptev, the then Representative of the Russian Federation at the European Court of Human Rights.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
1. The applicant’s arrest and detention
In October 2001 the applicant was arrested and detained in remand centre no. 61/2 on suspicion of a customs offence. Several other persons were detained in relation to the above offence. The applicant’s detention was extended until 27 April 2002. On that date the criminal case was sent for trial before the Neklinovskiy District Court of the Rostov Region.
On 26 June 2002 the trial court, having detected a number of procedural defects, returned the case to the prosecutor for further investigation. The court also held that “the preventive measure should remain unchanged” and the detainees “should be taken in charge by the Prosecutor’s Office of the Rostov Region”. Under the RSFSR Code of Criminal Procedure, in force at the time, after receiving the case file from the court the investigating or prosecuting authority was thus required inter alia to decide on the detention issue (see “Relevant domestic law” below).
On 1 July 2002 a new Code of Criminal Procedure (CCrP) entered into force. Pursuant to the Law on Transitional Measures, any decision on the remand matter taken before 1 July 2002 was valid within the time-limit for which the preventive measure had been authorised (see “Relevant domestic law” below).
The applicant did not appeal against the detention order of 26 June 2002. However, the Prosecutor’s Office lodged objections to the remittal. On 27 August 2002 the Rostov Regional Court rejected them. The appeal court did not rule on the remand issue.
On 4 September 2002 the Prosecutor’s Office received the case file. On 6 September 2002 the file was transmitted to an investigator. On the same date, the authorities applied to the Neklinovskiy District Court for an extension of the applicant’s detention. On 9 September 2002 the District Court declined jurisdiction in favour of the Leninskiy District Court.
Having been notified of the outcome of the appeal proceedings in relation to the order of 26 June 2002, the administration of remand centre no. 61/2 ordered on 9 September 2002 the applicant’s transfer to remand centre no. 61/1 within the jurisdiction of the investigating and prosecuting authorities.
On 13 September 2002 the Leninskiy District Court extended the applicant’s detention until 16 October 2002. On 27 September 2002 the Regional Court upheld the order.
2. Proceedings against the remand centre
In the meantime, on 11 September 2002 the administration of remand centre no. 61/1 rejected the applicant’s request to be released considering that his detention continued to be authorised by the order of 26 June 2002.
On 19 September 2002 the applicant’s lawyer brought proceedings in the Kirovskiy District Court of Rostov-on-Don against both remand centres accusing their respective administrations of “unlawful inaction”. In that connection, the applicant pleaded that after 27 August 2002 there should have been a new detention order issued by a court under the CCrP. He also alleged that the refusal to release him had been unlawful under section 50 of the Custody Act and section 4 of the Judicial Review Act (see “Relevant domestic law” below). The District Court examined the applicant’s claims under the RSFSR Code of Civil Procedure. By a judgment of 22 October 2002, it rejected them considering that the applicant’s detention after 27 August 2002 had been authorised under the order of 26 June 2002; after receiving in early September 2002 the information about the outcome of the appeal proceedings in relation to that order the administration of remand centre no. 61/2 had promptly ordered the applicant’s transfer within the jurisdiction of the investigating and prosecuting authorities to remand centre no. 61/1; the latter had no reason to release the applicant since the order of 26 June 2002 was valid. Lastly, the District Court noted that on 13 September 2002 the applicant’s detention had been extended.
On 4 December 2002 the Regional Court upheld the judgment adding that the applicant’s claim had been confined to the alleged unlawfulness of the refusal to release him while the applicant had not claimed any specific redress, which would be intended to remedy the alleged violation of an individual right; in any event, by the time of the proceedings before the first-instance court the applicant’s detention had already been validly extended until 16 October 2002.
B. Relevant domestic law and practice
1. Codes of Criminal Procedure
(a) Detention pending investigation
Prior to 1 July 2002 criminal law matters were governed by the RSFSR Code of Criminal Procedure (the RSFSR CCrP). From 1 July 2002 it was replaced by the Code of Criminal Procedure of the Russian Federation (the CCrP).
Under the RSFSR CCrP, the authority in charge of the case (inquirer, investigator, prosecutor or a court) could order detention of an accused (Article 89); the detention period could be extended by a prosecutor (Article 97).
Following arrest the person is detained “pending investigation” until the day when the case is sent to a court for trial (Article 97 of the RSFSR CCrP, Article 109 § 9 of the new CCrP). From the date the prosecutor forwards the case to the trial court, the defendant’s detention was “during the trial” (Article 239-1 of the RSFSR CCrP). The trial court can vary or annul a preventive measure against the defendant (Article 260 of the RSFSR CCrP, Article 255 of the CCrP).
Under the RSFSR CCrP, the trial court was empowered to remit the case for “further investigation” when procedural defects had been detected that could not be remedied at the trial (Article 232 § 1). When doing so, the court had to decide on the application of a preventive measure to the accused (Article 232 § 3). In such cases the defendant’s detention was again classified as “pending investigation”. The investigating and prosecuting authorities were required to comply with the remitting court’s order and to decide on the detention issue, if appropriate.
As follows from Article 331 of the RSFSR CCrP, only a prosecutor had a right of appeal in relation to decisions taken by a first-instance court under Article 232 of the Code; no appeal lay against a court decision under Article 260 of the Code. On 2 July 1998 the Constitutional Court declared Article 331 of the Code unconstitutional.
(b) Judicial review concerning detention on remand (after 1 July 2002)
Under Article 108 § 11 of the existing CCrP, a detention order is amenable to review before a higher court by way of an ordinary appeal.
Under Article 110 of the existing CCrP, the authority in charge of the criminal case (an inquirer, investigator, prosecutor or a court) can annul or replace a preventive measure with another one. Annulment of a preventive measure indicated by an inquirer, investigator or a prosecutor at the pre-trial stage of proceedings requires consent from the prosecutor. A preventive measure indicated by a court can be annulled or replaced only by a court.
During the preliminary investigation a detainee can apply to the authority in charge of the criminal case (inquirer or prosecutor) with an application for release. The authority’s refusal is amenable to review by a court under Article 125 of the CCrP.
Article 125 of the CCrP provides for judicial review of the decisions or (in)actions on the part of an inquirer, investigator or a prosecutor, which has affected constitutional rights or freedoms. The judge is empowered to verify the lawfulness and reasonableness of the decision/(in)action and to grant the following forms of relief: (i) to declare the impugned decision/(in)action unlawful or unreasonable and to order the respective authority to remedy the violation; or (ii) to reject the complaint.
2. Law on Transitional Measures
Pursuant to the Law on Transitional Measures, as amended on 29 May 2002, any decision on the remand matter taken before 1 July 2002 was valid within the time-limit for which the preventive measure had been authorised (section 10).
3. Custody Act
Under Law of 15 July 1995 no. 103-FZ “On Detention of Persons Suspected and Accused of Criminal Offences” (the Custody Act), the prison governor should release the detainee, having received a court order or the prosecutor’s decision to this effect. The prison governor should notify the authority in charge of the criminal case and the prosecutor that the authorised period of detention expires within twenty-four hours. If the authorised period of detention has expired and no decision to extend it or release the detainee has been received, the prison governor should immediately release the detainee (section 50).
4. The 1993 Judicial Review Act
The Act concerns all (in)action by a public authority except those for which there is a specific court procedure provided for by the legislation (section 3). Section 4 of the Act provides that a Russian citizen can bring a court action against a public authority, if the latter’s (in)action has violated his or her rights or freedoms. If the plaintiff’s claim is justified, the judge declares the impugned (in)action unlawful and requires the respondent authority to grant this claim, or otherwise remedies the violation of the person’s rights or freedoms (section 7). A subsequent claim for compensation arising out of the above decision should be examined with reference to the Civil Code (ibid).
The applicant complained under Article 5 of the Convention that there had been no lawful basis for his detention from 27 August to 13 September 2002, and that he should therefore have been released.
The applicant complained that there had been no lawful basis for his detention from 27 August to 13 September 2002, and that he should therefore have been released. The Court has examined this complaint under Article 5 § 1 of the Convention, which reads in the relevant part as follows:
“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;...”
A. Submissions by the parties
The Government submitted that the applicant’s detention from 27 August to 13 September 2002 had been authorised under the order of 26 June 2002 issued under Article 232 of the RSFSR Code of Criminal Procedure (RSFSR CCrP). This provision did not require a time-limit for the detention. Thus, during the transitional period from the RSFSR CCrP to a new CCrP the above order continued to be valid even after 1 July 2002 until a new order was issued.
The applicant pointed out that the order of 26 June 2002 could not be accepted as a valid authorisation for his continued detention during the entire period of “further investigation”. The opposite approach would be at odds with Article 109 of the existing CCrP containing strict time-limits for detention. The above order had set no time-limit for his continued detention and did not comply with the transitional legislation in force following the entry in force of the CCrP on 1 July 2002.
B. The Court’s assessment
The Court reiterates that the applicant’s complaint relates solely to the lawfulness of his detention during the period from 27 August to 13 September 2002 whereas he does not dispute the legality of his detention either before or after these dates. Before examining the substance of his complaint, the Court will first examine the other criteria as regards its admissibility. In particular, the Court reiterates that according to Article 35 § 1 of the Convention it may only deal with a matter when all domestic remedies have been exhausted and provided that the application has been submitted within a period of six months from the date of the final decision relating to the complaint at issue.
The Court reiterates that the purpose of the six-month rule is to promote legal certainty and to ensure that cases raising issues under the Convention are dealt with within a reasonable time. Furthermore it ought to protect the authorities and other persons concerned from being under any uncertainty for a prolonged period of time. The rule also affords the prospective applicant time to consider whether to lodge an application and, if so, to decide on the specific complaints and arguments to be raised (see, for example, Worm v. Austria, 29 August 1997, §§ 32 and 33, Reports of Judgments and Decisions 1997 V). Finally, the rule should ensure that it is possible to ascertain the facts of the case before that possibility fades away, making a fair examination of the question at issue next to impossible (see Kelly v. the United Kingdom, no. 10626/83, Commission decision of 7 May 1985, Decisions and Reports (DR) 42, p. 205, and Baybora and Others v. Cyprus (dec.), no. 77116/01, 22 October 2002).
Where it is clear from the outset however that no effective remedy is available to the applicant, the period runs from the date of the acts or measures complained of. Article 35 § 1 cannot be interpreted however in a manner which would require an applicant to bring a complaint before Court before his position in connection with the matter has been finally determined at the domestic level. Where, therefore, an applicant avails himself of an apparently existing remedy and only subsequently becomes aware of circumstances which render the remedy ineffective, it may be appropriate for the purposes of Article 35 § 1 to calculate the six-month time-limit from the date when the applicant first became or ought to have become aware of those circumstances (see Keenan v. the United Kingdom (dec.), no. 27229/95, 22 May 1998).
The purpose of the exhaustion requirement is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court (see, among other authorities, Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999-V). The rule in Article 35 § 1 is based on the assumption that there is an effective domestic remedy available in respect of the alleged breach of an individual’s Convention rights (see Kudła v. Poland [GC], no. 30210/96, § 152, ECHR 2000 XI). The only remedies which Article 35 § 1 of the Convention requires to be exhausted are those that relate to the breaches alleged and are both available and sufficient. The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness (see Scordino v. Italy (no. 1) [GC], no. 36813/97, § 142, ECHR 2006-...).
Turning to the circumstances of the case, the Court first notes that the applicant did not appeal against the decision of 26 June 2002 by the Neklinovskiy District Court to keep him in detention on remand while the prosecution complied with the court’s order for further investigation. The respondent Government did not suggest that the applicant had failed in his obligation to exhaust the relevant domestic remedies in respect of the lawfulness of his detention, for which reason the Court will not examine this further. The applicant chose instead to request his release from the prison administration, which the latter refused on 11 September 2002. The subsequent decisions of 22 October and 4 December 2002 confirmed that the remand centre had correctly refused to release the applicant.
The Court reiterates that the application was introduced on 21 March 2003. It follows, therefore, that the applicant has only complied with the six-month time-limit in so far as the starting point for him would be the final decision of the Regional Court of 4 December 2002, which determined the applicant’s civil claim, as otherwise the starting point for the calculation of the six-month period would be 13 September 2002 when the Leninskiy District Court extended the applicant’s detention on remand.
The Court observes that the applicant’s claim was based on the Judicial Review Act and the Custody Act (see “Relevant domestic law” above). This action was examined by the Kirovskiy District Court under the RSFSR Code of Civil Procedure. The applicant argued in substance that his detention between 27 August and 13 September 2002 had been unlawful because there should have been a fresh detention order issued after 27 August 2002 and that in the absence of such order he should have been released. The Court considers that when lodging his civil claim on 19 September 2002, that is after the end of the period complained of, the applicant, who was represented by a lawyer, should have been aware that the District Court in the civil case was not competent to examine a challenge to the valid remand order of 26 June 2002. Nor would it be possible for the District Court in this case to order the applicant’s release from custody because by the time the civil claim was lodged, the applicant’s detention had already been extended until 16 October 2002 by the order of 13 September 2002. In any event, the applicant did not seek any specific redress in the civil proceedings confining his claim to the issue of the alleged unlawfulness of the refusal to release him. Nor has it been argued that the judicial declaration of unlawfulness was intended in the circumstances of the case to provide the applicant with a possibility of subsequently making a claim for damages against the State or that such claim would have any prospect of success.
The Court concludes that in the circumstances of the present case the above court action against the administration of the remand centres was not a remedy to be exhausted in relation to the applicant’s complaint under Article 5 § 1 (c) of the Convention. Thus, the Court considers it appropriate to take 13 September 2002 as the reference date for the above complaint.
It follows that the application has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
André Wampach Christos Rozakis
Deputy Registrar President